Any separation or divorce can be a painful and tumultuous time, especially when children are involved. You’re not alone if you are finding hurt and bad feelings getting in the way of their best interests.
If you are trying to negotiate the future wellbeing of your child after a split, then read on to learn all you need to know about Child Arrangement Orders.
Are you being refused access to your children by the resident parent? Contact one of our Children Solicitors to get legal advice and apply for a court order.
What is a Child Arrangement Order?
A Child Arrangement Order is sometimes known as a custody arrangement or residential agreement. It is a court order that determines how a child (or children) will be cared for until they reach adulthood.
Effectively, it will set out whom a child will live with, spend time with and have contact with. It can also include details relating to:
- Supervised contact
- Overnight contact
- Indirect contact (such as phone calls or letters).
It is not uncommon for parents to have differing views on how a child is raised. However, a Child Arrangement Order should only be used as a last resort.
Who can apply for a Child Arrangement Order?
Any person who has parental responsibility for a child can make an application for an order.
Legal parental responsibility is classified as follows:
- You have automatic parental responsibility if you are the child’s natural mother.
- If you are a father named on the birth certificate or you were married to the mother of the child when they were born (after December 2003)
- Step-parents and unmarried fathers only have parental responsibility if a parental responsibility agreement or order has been obtained.
Therefore, any of the following are eligible to apply:
- The parent of the child
- The legal guardian of the child
- A step-parent
Other stipulations are as follows:
- If the person has lived with the child for at least three years within the last five years, and the application is made to the court within three months of the child no longer residing with them.
- They have signed consent from both people holding parental responsibility for the child.
- The child is in Local Authority care, and the person has consent from the authority to make an application for responsibility.
If you do not fall into the above categories, then you will have to approach the court. You will need to request permission to make a separate application for parental responsibility.
When considering your application, the court will consider:
- Whether the application is justified
- Whether it could further upset the child
- Your connection to the child
It is important to note that grandparents do not have an automatic right to parental responsibility, but you also do not have to be a blood relative to apply.
Is a Child Arrangement Order different from a Residence or Contact Order?
Historically a person would be required to make two separate orders:
- Residence Order: for the child to live with them
- A Contact Order: to have contact with the child
These were amended on the 22nd of April 2014, and now both (residence and contact) are dealt with as one order.
There are some key differences in the way that courts deal with applications since the 22nd of April 2014. The overriding amendment is that the judge will consider, at every stage, whether other non-court dispute resolutions would be appropriate.
If you already have a pre-existing Residence or Contact Order, this will continue to be valid until the order expires.
Prohibited Steps & Specific Issue Orders
Not all disputes are to do with contact and residencies. If two parents are unable to agree on an urgent matter, then they can apply for a Specific Issue Order.
Examples of where this can be used include:
- Where the child should be educated
- Specifics about religious upbringings
Alternatively, a Prohibited Steps Order can be used to prevent an action from occurring.
Examples of such include:
- Preventing the child from being taken out of the country
- Stopping a change of surname if an ex-spouse remarries
- Preventing certain medical treatments which contravene beliefs
How to apply for a Child Arrangement Order?
As per the changes mentioned above, the courts now review whether an agreement can reasonably be made outside of the judicial system.
Therefore, whenever possible, you should take the necessary steps to resolve disputes before making an application.
Before applying, the courts will expect that you have:
- Attempted mediation
- Attended a Mediation and Information Assessment Meeting (MIAM)
While mediation is recommended, it is not always possible to resolve issues through this method.
There are instances when the court will accept that you are not attempting mediation, and these include:
- Cases involving abuse
- Where there is a reasonable risk to the welfare of the child
Once all avenues have been reasonably exhausted, then you can commence the application for a Child Arrangement Order.
You will need to apply to the courts using a C100 Form, along with a fee of £215. If you are on a low income or in receipt of benefits, then you may be able to receive assistance with this fee.
The Initial Hearing
Once your C100 form has been received and processed, the courts will notify the other parent and CAFCASS.
CAFCASS are the Children and Family Court Advisory and Support Service. They will assess your case to ensure that the child’s welfare is the key priority and that they are not at risk of any harm.
Ordinarily, the initial hearing will be in the region of 5-6 weeks following your application. If the courts or CAFCASS are unable to help you reach an agreement during this initial hearing, the courts will suggest further action.
These actions can include:
- The use of a mediation service
- The implementation of a Parenting Plan
- Attending a Separated Parents Information Program
Following this hearing, the courts will record what has been agreed and detail any outstanding issues. They may also assign some temporary interim orders, for example, where the child will reside while the dispute is ongoing.
What will the courts consider before making a ruling?
Sometimes a court will request that a CAFCASS Officer spend time with the family and provide written recommendations.
In the absence of any welfare concerns, a court will always encourage both parents to have contact with the child.
In the interests of equality, courts have moved away from allocating a ‘primary carer’ and favour equal parenting where possible.
Before a ruling, a judge will also consider:
- The wishes and feelings of the child (if they are of mature age)
- The effect any changes will have on the wellbeing of the child.
- Any special requirements or needs of the child
Once you have reached an agreement – or when the courts enforce an agreement – this will all be specified within your final Child Arrangement Order.
What if my ex-partner doesn’t adhere to the order?
In the best interests of your child, try to be as flexible and accommodating as possible, especially when there are one-off or infrequent changes.
However, if your ex is flouting the order, or their actions are causing unnecessary problems, then there are steps that you can take. In England and Wales, you will need to have the order enforced.
This is another legal process and involves an additional application to the court.
How is a Child Arrangement Order enforced?
If you are named as a party on the court order, then you can make an application to have the order enforced.
This can only be done when the other party is not reasonably complying with the order.
An application should be made to the courts, and this will often be listed for a hearing within 20 working days.
If a judge finds that breaches were made, then sanctions can be issued. These penalties can include warnings, fines, community service or a custodial sentence.
How long does a Child Arrangement Order last?
The arrangements set out in the order remain legally binding until the child reaches 16 years of age unless the order states otherwise. This is as per The Child Protection Act 1989.
Once the child has reached 16, they can make decisions on how they want to proceed. This can include how much contact they wish to have with the parent they do not live with.
The ‘live with’ element of the order remains legally binding until the child reaches the age of 18.
If you happen to reconcile with your former partner, then the order will cease after you have co-habited for six months.
Can I take my child abroad on holiday?
If The Child Lives With You
If you are named as the person the child resides with, then you can take them abroad for up to a month. This can be done without the other person’s consent. For more extended periods, you will either need permission or a Specific Issue Order.
If The Child Does Not Live With You
If you are named on the order as a person the child has contact with or spends time with; then, you will need consent to take the child abroad. Consequently, you will need to make an application to the court.
You are not alone if you are finding it challenging to negotiate arrangements for the future of your child. The welfare of a loved one is a key priority, and it is vital to protect them correctly.
If you are struggling to come to an agreement with an ex or are worried about defending your rights, then contact one of our expert children solicitors today to discuss your options.
Related article: Child Arrangement Order Explained!
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