When parties separate, they need to come to an agreement in respect of the arrangements for the children. Some parties will be able to reach an agreement on their own during separation, whereas others will separate on acrimonious terms and will struggle to reach an agreement or communicate with one another effectively.
On the occasions where parties cannot reach an agreement, the assistance of third parties such as mediators and lawyers can assist the parties in reaching an agreement. Some may even require the assistance of the court.
What is a Child Arrangements Order and who can apply?
A child arrangements order is a court order that sets out the arrangements for a child(ren). Only parties with parental responsibility can apply for a child arrangements order without seeking permission from the court first. The child arrangements order sets out with whom the child(ren) should live, as well as the contact arrangements between the child(ren) and the non-resident parent.
What do the courts consider when deciding on Child Arrangements Orders?
When the Court considers an application for a Child Arrangements Order, its primary concern is the welfare of the child.
The Court will consider the current arrangements for the child and the changes that are being requested by the party applying.
The Court has a checklist which it must consider, known as the “Welfare Checklist”. The key factors the Court will consider are:
- The child’s wishes and feelings
- The child’s physical, emotional and educational needs
- The likely effect on the child of any change of circumstances
- The child’s age, background, and any characteristics the court considers relevant
- Any harm the child has suffered or is at risk of suffering
- How capable each parent (or person applying) is of meeting the child’s needs
- The range of powers available to the Court
The Court will also consider the “No Order Principle”. This means the Court will only make an order for a child if it believes that it is better for the child than making no order.
There is a presumption by the Court that the child would benefit from having both parents involved in their life, unless it would put the child at risk.
What can a Child Arrangements Order include?
A Child Arrangements Order sets out the arrangements for the child. The order will provide with whom the children lives and how and when they spend time with their other parent. The Child Arrangements Order replaces previous terms such as custody, residence and access.
How long does it take to get a Child Arrangements Order?
It could take several months, or even longer to obtain a Child Arrangements Order. The timing really depends on the availability of the court to hear your matter. Once an application is made to the court, the court should list your matter for first hearing within the first two months, but this is not always possible. At the first hearing you may obtain an Interim Contact Order but not a Final Order, unless by agreement with the other party.
Can I get an emergency Child Arrangements Order?
A party can apply for an emergency without giving notice of the application to the other parent. In order for a Court to make an emergency Child Arrangements Order, the Court must be satisfied that by giving notice to the other parent, there is a risk of harm or possible abduction of the child.
What happens after a Child Arrangements Order?
The length of which Child Arrangement Orders lasts depends on the individual circumstances. A Child Arrangements Order which states with whom a child should live with will last until the child reaches the age of 18 years, whereas a Child Arrangements Order which defines the time the child should spend with others, will last until the child reaches the age of 16 years.
Are Child Arrangement Orders legally binding?
Child Arrangements Orders are legally binding orders. Once an order is issued by the Court under The Children Act 1989, both parties must comply with the terms of the order. If the order is breached, it can be enforced by the court.
Can Child Arrangement Orders be varied?
A Child Arrangements Order can be varied if circumstances change and the existing order is no longer suitable, or in the child best interests. The Court will only vary an order if it believes that it is in the best interests of the child to do so.
There are a number of reasons why an order may be varied and some include:
- the age of the child – an order may have been made when the child was much younger and now the child is older the order needs revisiting and updated
- a parent may be relocating
- the child may express a strong wish for change
- a parent may not be complying with the terms of the order
- it could relate to safety and welfare concerns of the child
The Court will consider the best interests of the child and the welfare checklist and consider whether the requested changes should be adopted into a new and updated order.
Before applying to vary a Child Arrangements Order, the Court would expect parties to try and reach an agreement first whether that be directly, through mediation or other forms of non-court dispute resolution.
What happens if you breach a child arrangement order?
The Child Arrangements Order is a legally binding Court order. If one party fails to comply with the terms of the order without reasonable excuse, they will be in breach of the order.
Examples of a breach may include:
- not making the child available for contact when ordered to
- keeping the child beyond the agreed times in the order or refusing to return them to the other parent
- taking the child abroad without the other party’s consent
If there is a breach by one party, the other party can apply to the Court to enforce the Child Arrangements Order. The party applying must show the Court the order was breached without reasonable excuse. The application will be issued, and a Court hearing will be listed whereby the Court can investigate the breach further and decide the next steps to take.
In the event the Court finds that the order has been breached, the court could change the terms of the Child Arrangements Order, provide a warning to the breaching party, could award the party applying with costs to be paid by the breaching party.
In serious circumstances, and usually where there are repeated breaches, the court could also consider changing the living arrangements for the child and changing these from one parent to another.
Rayden Solicitors are family law experts and can assist you with parental disputes. Please don’t hesitate to contact us if you would like further information or speak to one of our child arrangement solicitors.
