This article discusses what a child arrangements order is and what happens if you cannot agree with your ex-spouse or partner about what happens to your children when you are separating or divorced.
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A child arrangements order, formerly referred to as residence and contact orders, sets out things such as where the children will live, who they live with, and how often the non-resident parent sees them. Specific issue orders deal with particular questions about a child’s upbringing, such as what school they will attend, and prohibited steps orders stop the other parent from doing something, such as taking the child out of the country.
Applying for a child arrangements order
There are two categories of individuals who can apply for a child arrangements order:
- those who have the right to apply such as someone who holds parental responsibility (PR) or a guardian or special guardian irrespective of whether they hold PR. Additionally, anyone married or in a civil partnership, whether enduring or not, can apply for a child arrangements order, this includes stepparents and those with whom a child has lived for the last three years.
- The second category includes those who do not fall into the above category, such as grandparents. It is something of a surprise to most grandparents to find out they have no automatic right to make an application in respect of a child and must first obtain the courts consent.
A child arrangements order can be made by completing form C100, which can be found on the gov.uk website. However, before you can send off your C100, you will need to provide the court with evidence you have attempted to resolve the dispute by other means. In most cases, this means showing you have attended a Mediation Information and Assessment Meeting, commonly referred to in shorthand terms as a MIAM. At these meetings, a trained mediator discusses with you what you want to achieve with your application and offer information and advice regarding other forms of dispute resolution.
They will also decide on whether your matter can be resolved this way. Most times, mediation is seen as a hurdle to overcome simply to check the eligibility box for application, but it can help to reduce the issues, and with it, costs. You do not have to sit across from your ex in uncomfortable silence; you can attend separately, and this happens in most cases.
Attendance at a MIAM is mandatory, unless there is an exemption. Domestic abuse is the most common reason people claim to be exempt, although it would not be sufficiently persuasive to just state your ex was violent. Evidence must be provided, although the list is long and comprehensive. Child protection concerns allow a potential applicant to rely on the fact of an existing section 47 investigation, or a local authority parenting plan. Both of which require evidence.
There is also an exemption for urgent applications because of potential risk to the child’s safety, where attendance at a MIAM would delay the application. If you have attended a MIAM in the preceding four months to making the application, then you will not have to attend another.
Applying for a child arrangements order can be complex, as there are a number of documents to complete. The C100 application form, a short statement detailing the issues in dispute, a supplementary application if there is a risk of harm, and arranging for service of papers are just a few of the essential steps towards getting your case rolling.
Once you have prepared the documents, the court will process the application and contact CAFCASS (Children and Family Court Advisory and Support Service) who will initially conduct a safeguarding check. This involves CAFCASS speaking to both parties and if there have been any allegations of domestic abuse, they will contact the police and ask them to check their records and report accordingly.
Occasionally, matters can be agreed and concluded at the first hearing. If not, there are further stages, including filing evidence via statements and the preparation of a CAFCASS report who will make recommendations to the court to assist the judge’s decision-making. It is a rare judge indeed who will go against the recommendations of a CAFCASS report.
The length of time it takes to get a child arrangements order depends on many factors, not least, how willing both parties are to reach an agreement, the proposals put forward, and further court hearings.
When a court decides about a child, they must have regard to Section 1 of the Children Act 1989, commonly referred to as the ‘welfare checklist’, which requires consideration of:
- The ascertainable wishes and feelings of the children (considering their age and understanding)
- Their physical, emotional and/or educational needs
- The likely effect on any change in their circumstances
- Their age, sex, background and any other characteristics which the court considers relevant
- Any harm they have suffered or are at risk of suffering
- How capable each of their parents (and any other person the court considers relevant) is of meeting the child’s needs
- The range of powers available to court within the proceedings
Often, the court will make an interim order. This is temporary, and put in place to quickly deal with an issue, such as returning a child to the care of a particular parent, pending further hearings taking place.
How long does a child arrangements order last?
Contact arrangements set out in a child arrangements order remain in place until the child reaches 16 years of age unless the order states otherwise, or an application is made by one party to vary the existing order. After the age of 16, the child can then make up their own mind and decide how much contact they have with the non-resident parent.
In terms of the ‘lived with’ element of a child arrangements order, it remains legally valid until the child reaches 18 years of age, or unless the order is varied. That said, courts are very reluctant to enforce orders beyond the age of 16 unless there are exceptional circumstances, such as a child with a disability.
The information on this website is to be considered a guide and is therefore not legal advice. You use this information with the understanding that Wiselaw does not accept liability for any direct or indirect losses as a result of anyone relying on or acting upon the information on this website. Whilst we endeavour to provide accurate information, Wiselaw does not accept liability for any errors or omissions on this website.
