The Government issued a Consultation Paper to try and improve the way in which Court decisions are made on this issue. What used to be known as ‘Residence” and “Contact” is now known as a Child Arrangements Order.
What is a Child Arrangements Order?
A Child Arrangements Order (CAO) is an order that regulates arrangements for a child that relate to any of the following:
- with whom the child is to live, spend time or otherwise have contact when the child is to live, spend time or otherwise have contact with any person
- Contact simply means the time that a child spends with an adult. There are several ways that this may take place:
- direct contact between the child and the person named in the order
- overnight staying contact
- supervised contact, and
- indirect contact through letters or cards
In rare circumstances, where the best interests of the child dictate, the court can order that there is no contact.
A CAO may show the person with whom a child is to live, but not specifically where.
A CAO may provide for the child to live with one parent only or it may provide for the child to share their time between both parents.
An order that provides for a child to spend time with both parents does not necessarily mean the child’s time will be spent equally between their parents. It is more a reflection of the parents’ equal status in the eyes of the Court. The child may still spend more time at one home than at the other and the child arrangements order will usually say in detail how the child’s time is to be divided.
Who can apply?
A child’s parent can always apply for a CAO, as can a child’s step-parent, guardian, or anyone with whom the child has been living for at least three out of the last five years, including in the last three months. Other people may apply for a CAO for a child if they get the consent of everyone with parental responsibility or permission of the court.
How long do they last?
A CAO that regulates with whom the child is to live and when will last until the child is 18 (unless the court orders an earlier date). A CAO that regulates when the child is to have contact with a person will usually end when the child is 16 but in limited circumstances can last until the child is 18.
What is the procedure?
If it is not possible to reach an agreement about time with children or where they should live, you can apply to the court for an order. Before you can do this you are now required by the rules governing these applications to attend a meeting with a mediator to see whether mediation might be suitable, rather than using the court. This requirement applies unless certain exemptions, including issues relating to the safety of the child or domestic violence, apply. The other party to the proceedings will also be encouraged to attend mediation. If you are willing to attend together then the mediation meeting may be conducted jointly; otherwise, separate meetings will be held.
An application is made on a specific court form, which sets out the details of all the adults and children in the case. It then requires you to say what orders you are asking the court to make and why.
When the court receives the application, it will set a time and place for you and the other person or people involved to have a first court appointment (called a first hearing dispute resolution appointment (FHDRA)). Information about this appointment and a copy of the application form must usually be sent to any other adults involved so that they have time to prepare a response. The person starting the court process is called the Applicant and the other parent, and any other adult with parental responsibility or looking after the child, is a Respondent.
The Respondent(s) must complete certain forms and send them to court to confirm they have seen the papers, and should also prepare an answer setting out their case.
What happens at court?
The FHDRA is when the court investigates the issues and enquires into the possibility of settlement. If agreement cannot be reached the court will identify the outstanding issues and will direct how the case should proceed. The court might order that a CAFCASS (Children and Families Court Advisory and Support Service) officer prepares a report to help the judge/magistrates at the final hearing, or it might order that the child be legally represented in the proceedings. Sometimes the court will adjourn the case for mediation to take place.
If the issues can not be sorted out the court will hold a final hearing. Here, a Judge/Magistrates will hear evidence from the adults involved, the CAFCASS officer and any other necessary experts, and then make a binding decision.
How does the court decide what should happen?
The first concern of the court is the child’s welfare. The Children Act 1989 provides a list of considerations for the Judge who has to decide the case, which help guide them in making a decision:
- the wishes and feelings of the child concerned, taking into account the child’s age and maturity
- the child’s physical, emotional and educational needs and how capable each parent is of meeting the child’s needs
- the likely effect on the child if circumstances changed as a result of the court’s decision
- the child’s age, sex, background and any other circumstances that will be relevant to the court’s decision
- any harm the child has suffered or may be at risk of suffering
- the capability of the child’s parents (or other relevant people) in meeting the child’s needs, and
- the range of powers available to the court
The court must also be satisfied that making an order is better for the child than not making an order at all.
On 22nd October 2014, the Government’s proposals to add to the above checklist came into effect, emphasising the importance of children having a relationship with each parent following a family breakdown.
The change in law will focus heavily on the children’s needs following a separation or divorce. The Court is to start with the presumption that a child’s welfare is furthered by having safe involvement with both parents, unless evidence shows otherwise.
The case may be adjourned to obtain that evidence.
When making a decision about the child’s welfare, the Court starts with the belief that the child’s welfare is likely to be furthered by the involvement of both parents as long as it is safe to do so.
For further information, please contact Fraser Brown’s family team on 0115 9888 777.