If contact or the residence of your children cannot be agreed between the parents, you may have to apply to the Court for a Child Arrangements Order. These orders were introduced by the Children and Families Act 2014 to replace the previous framework of contact and residence orders.
Child Arrangements Orders regulate the living and contact arrangements in relation to a child. They can determine where a child lives, where and when they spend time with a person named in the order and also when and what other types of contact take place, such as phone calls.
Before applying to the Court, families are encouraged to use other dispute resolution services such as meditation to try to come to an agreement.
Attendance at a Mediation Information & Assessment Meeting (MIAM) is now required prior to an application to the Court and you will need confirmation from the mediator that this has been attended.
There are some exemptions from the compulsory MIAM, for example, situations where there has been domestic violence, where there are child protection concerns, or if a MIAM is not reasonable or appropriate in the circumstances.
Anyone can apply to the court for a Child Arrangements Order, however there are two categories of applicants.
Those who can apply as of rights are called ‘entitled’ parties and include:
- Parents or Guardians
- A person named in an existing Order
- A party to a marriage where the child is a child of the family i.e. step parents
- A party who has had residence of the child for 3 years
- Anyone who has parental responsibility for the child
Parties that are not entitled, for example grandparents, must first obtain leave of the Court to apply for a Child Arrangements Order. When considering whether to grant leave, the Court will look at the nature of the application, the applicant’s connection with the child and any risks involved with the application, amongst other factors.
A Child Arrangements Order cannot be made, or have effect, after the child has turned 16, apart from in exceptional cases.
The following principles are used by the Court when making a decision in relation to Child Arrangement Orders:
- Paramountcy of the child’s welfare
- That the delay in determining the question is likely to prejudice the welfare of the child
- The welfare checklist
- The presumption against making an order UNLESS to do so would be better for the child than not making it
When the Court determines any question with regards to the upbringing of a child, the child’s welfare shall be the Court’s paramount consideration. They shall have particular regard to the following principles under the Children Act 1989 known as the “welfare checklist”:
- the ascertainable wishes and feelings of the child concerned (considered in the light of his or her age and understanding);
- his or her physical, emotional and educational needs;
- the likely effect on him or her of any change in circumstances;
- his or her age, sex, background and any characteristics of his or hers which the court considers relevant;
- any harm which he or she has suffered, or is at risk of suffering;
- how capable each of his or her parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his or her needs;
- the range of powers available to the court under the Children Act 1989 in the proceedings in question.
If you do need assistance with residence or contact arrangements for your children, do not hesitate to call us for an appointment with Jane or Holly in our Family Team.