The ins and outs of Child Arrangement Orders
Children are likely to be the primary focus for separated or separating couples. It is important for parents to try to co-parent together and attempt to resolve any disputes which arise as swiftly and amicably as possible, without court intervention.
However, it is not always possible to agree on the arrangements for children, whether that is where the children live, how often they should be in the care of the other parent, arrangements for holidays, education, medical treatment and religious or cultural matters. In these circumstances, an application to court under the Children Act 1989 may be necessary.
Can you reach an agreement between yourselves?
If you and the other parent can agree arrangements for the children yourselves, such as who the children live with and when and how much time they spend with the other parent, you can instruct a family solicitor to record this agreement in writing.
Can you reach an agreement through solicitors?
If you cannot reach an agreement, then your family solicitor can write to the other parent or their solicitor and open up negotiations, with the view to eventually reaching an agreement.
Can you reach an agreement through mediation?
Alternatively or in addition to the above, you and the other parent could attend mediation. This is a voluntary and confidential non-court dispute resolution process, involving you and the other parent appointing a neutral and impartial third party (the mediator) who will help you come to an agreement. The mediator does not have any authority to impose a decision on you. Instead, the mediator will help to facilitate discussion, identify potential solutions and assist you and the other parents to reach your own informed decisions. If you are able to reach an agreement in mediation, your solicitor can again record the terms of the agreement in writing.
Do you need to make an application to the court?
If you and the other parent cannot reach an agreement, it may be necessary for you to make an application to court for a Child Arrangements Order. An application is made by completing Form C100. Child Arrangements Orders (CAO), regulate who a child is to live with, spend time with or otherwise have contact with and where a child will live, spend time or otherwise have contact with a person.
Before making an application to the court, you must attend a mediation information and assessment meeting (MIAM) with a mediator qualified to undertake MIAMs, unless you are entitled to an exemption from doing so. The purpose of attending a MIAM is to find out about mediation and see if a mediator can help to sort out future arrangements.
What to expect at court
If an application to the court is made, the court will notify the Children and Family Court Advisory and Support Service (Cafcass). A Cafcass officer will carry out some background checks, for example with the child’s school or with the police or local authority. Cafcass will then prepare a ‘safeguarding letter’, informing the court of any risk of harm to the child.
The first hearing
The court will notify all parties of the first hearing, which is called the First Hearing Dispute Resolution Appointment(FHDRA). The purpose of this hearing is to explore whether any of the issues between the parties can be resolved. If not, the court will decide what steps are required in order to progress the case, which is likely to include you and the other parent preparing witness statements. It may also include Cafcass preparing a more detailed report, known as a section 7 report, in which they recommend what outcome would be best for the children. In preparing the report, Cafcass will want to speak to you and the other parent. They may also want to speak and spend some time with the children on their own, either at the Cafcass offices or in your home.
The second hearing
The court may then list a second hearing, or may instead jump straight to a final hearing. The second hearing is called a Dispute Resolution Appointment (DRA). The DRA will give you and the other parent the opportunity to consider whether an agreement can be reached. The court will try to resolve or try to narrow the issues in dispute between you, by hearing evidence from you both. If an agreement is reached, the court will make an order reflecting the agreement reached.
The Final Hearing
If you and the other parent are unable to reach an agreement at the DRA, then the case will proceed to a Final Hearing. At the Final Hearing, you and the other parent will usually be required to provide evidence, along with the Cafcass officer. The court is likely to put significant weight on the recommendation in the section 7 report, and so it is vitally important that you cooperate fully with the Cafcass officer.
Upon hearing and reading all of the evidence, the court will make an order deciding what arrangements should be made for the children and this decision will be imposed on you both. The court’s primary concern will be the welfare of the children and to ensure that their best interests are protected. It will be presumed that, unless the contrary is shown, a parent can be involved in a children’s life in a way that does not put them at risk of suffering harm.
The court will also need to consider the non-exhaustive Welfare Checklist contained within the Children Act, which I have summarised below:
- the wishes of the child (in the light of the child's age and understanding);
- the child's physical, emotional and educational needs;
- the effect of any change in the child's circumstances (e.g. moving home or school);
- the child's age, sex, background and special characteristics (e.g. disability);
- any harm the child has suffered or is at risk of suffering; and
- how capable each of the child's parents or guardians is of meeting the child's needs.
What orders can a court make at a Final Hearing?
The court may regulate a child’s living arrangements by:
- Naming the person the child is to live with;
- Naming two people in the same household as the persons the child is to live with (e.g. where there is a step-parent);
- Naming two people in different households as the persons the child is to live with (e.g. separated parents).
The court may regulate a child’s contact arrangements by making the following orders:
- Direct contact arrangements, involving the child having contact with a named person by staying with them overnight or visiting them for a certain amount of hours during the day;
- Indirect contact arrangements, whether by letter, e-mail, Skype, instant message, telephone, FaceTime or such like;
- Supervised or supported contact, where direct contact is supervised or supported by a third party, such as a mutual family or friend or at a contact centre.
A CAO will come to an end when a child reaches 16 years old, or 18 years old in exceptional circumstances.
In some cases, where one parent alleges domestic abuse and the other parent denies the allegations, and where it is necessary to do so, the court may order what is called a Fact-Finding hearing. The Fact-Finding hearing should take place before the DRA.
At the Fact-Finding hearing, the court will read the evidence prepared by both parents and will hear oral evidence. The focus of a fact-finding hearing is to ensure that allegations of domestic abuse are put and responded to. The court will then decide whether each allegation has been made out or not, and will consider the issue of child arrangements in light of any findings made.
Disclaimer: This document does not present a complete or comprehensive statement of the law, nor does it constitute legal advice. It is intended only to highlight issues that may be of interest to clients of BLM. Specialist legal advice should always be sought in any particular case.