Often following the breakdown of a relationship, parents, grandparents and extended members of the family are unable to spend time with or have contact with the children of the broken relationship. This could be due to a number of reasons, mainly because of the breakdown of communication between the parents and parties involved.
By obtaining a Child Arrangement Order, parents and/or extended family members can ensure regular contact with the children takes place.
What is a Child Arrangement Order?
A Child Arrangement Order is a Court Order that confirms who a child is to live with and/or spends time with, this is often referred to ‘Contact’. In essence such an Order regulates arrangements concerning contact with a child.
Section 8 of the Children Act 1989 governs Child Arrangement Orders. It is possible for the Court to make such an Order in response to an application pursuant to Section 10(1)(a) Children Act 1989 or alternatively on its own initiative pursuant to Section 10(1)(b) Children Act 1989.
The process in obtaining a Child Arrangement Order can be challenging. It can be quite a complex process as emotions are often running high between the parties. It is often the case the children are in a position to voice their opinion in regard to whom they wish to spend time with.
It is possible for parties to reach an agreement between themselves, this is often the case when parties are on good speaking terms. In such situations, parties put a schedule in place for the times that a child is to spend with each party. However, where parties are unable to agree such an agreement, decisions in regard to contact can be reached with the support of independent bodies such as mediators and legal professionals.
Mediation is encouraged as a means to reach an amicable solution without the need to incur additional legal costs. The aim of mediation is to assist parties to reach an agreement in relation to their children, once an agreement is reached it can later be converted into a legally binding Order.
The party making the application (the ‘Applicant’), is required to attend a Mediation Information and Assessment Meeting (‘MIAM’) before making an application to the Court. If the Applicant is exempt from a MIAM, this is when there has been domestic violence within the relationship, or if it is apparent that an agreement will not be reached through mediation, then the Applicant can make his/her application to the Court.
Who can make an application to the Court?
- A parent, guardian or special guardian
- Any person with Parental Responsibility
- Any party to a marriage or civil partnership where the child is a child of the family
- Any person with whom the child has lived with for a period of at least three years
- Any person who has the necessary consents and
- Any person who has acquired parental responsibility through being named in a Child Arrangement Order pursuant to
Section 12(2A) Children Act 1989
It is also possible for other members of the family, such as grandparents, to make an application for a Child Arrangement Order. The Applicant will need to make an application to the Court for permission to issue for a Child Arrangement Order. It is important to note that the Court will amongst other things take into consideration the nature of the application, the Applicants relationship with the child and the risk that the proposed application may have on the child’s life when deciding whether or not to give permission.
Once the Applicant has made his/her application to the Court, they will be notified of the date of the first hearing, the First Hearing Dispute Resolution Appointment (FHDRA).
It is likely that the Children and Family Court Advisory and Support Service (CAFCASS) will conduct initial investigations and produce a report detailing the child’s wishes and feelings and will consider any issues in the case. Recommendations will be made based on the child’s best interest and having regard to all the circumstances of the case.
It is possible that such matters may be settled at the FHDRA, but depending on the circumstances of the case it may progress to further hearings. It is also possible for the Court to Order interim contact to take place pending the final hearing.
The Court’s Approach
It is important to note that the Court’s paramount consideration is the child’s welfare pursuant to Section 1(1) Children Act 1989. Any orders made by the Court will be deemed to be in the best interest of the child. There is a positive duty to facilitate contact wherever possible. It is presumed that the involvement of both parents in a child’s life will promote the child’s welfare, unless the contrary is shown.
In deciding the application the Court refers to several factors (the ‘welfare checklist’) contained under section 1(3) of the Children Act 1989. The following factors are considered:
- The child’s ascertainable wishes and feelings
- The child’s physical, emotional and educational needs
- The likely effect on the child of any change in circumstances
- The child’s age, sex, background and any other relevant characteristics
- Any harm the child has suffered or is at risk of suffering
- How capable each of the child’s parents/any other relevant person are of meeting the child’s needs
It is important to remember that an application will be determined based on the consideration of the welfare of the child and not what each parent feels they are ‘entitled to’.
Types of Contact
Contact is often broken down into two sub-categories. These are direct and indirect contact.
- Direct contact is face to face contact
- Indirect contact is contact via means of correspondence or technology
The Court is not obliged to make a Child Arrangement Order. However after weighing up the consideration of the welfare of the child involved, the Court may order supervised, supported or unsupervised contact. The Court may make an Order as detailed or as vague as the parties require.
It is important to remember that each case is considered on its own facts. An Order made will be legally binding for the parties concerned until the child reaches the age of maturity.