- 8 minute read
- Last updated: 12th August 2019
Making an application to vary a child arrangement order is rarely a straightforward process.
While a child arrangement order is most commonly sought by one or both parents following a separation, there may be circumstances where the non-biological parent of a child, another relative or the child’s legal guardian may seek to vary an existing order. This may be because one or both parents or legal guardians have passed away, or they are deemed unfit to care for the child.
(If you need to make a child arrangement order in the first instance please read our article: How to Get a Child Arrangement Order)
This article covers:
- How can a child arrangement order be varied?
- Will I need to engage in mediation first?
- How do I make the application?
- What will the court consider?
- What orders can the court make?
- Should I seek legal advice?
Only certain categories of people are entitled to make an application for a child arrangement order to be varied, without having to seek permission from the court first.
- the parent, guardian or special guardian of the child
- any person who has parental responsibility for the child
- anyone who holds a residence order for the child
- any spouse or civil partner if the child is part of that family
- anyone with whom the child has lived with for at least 3 years.
Wider family members such as grandparents do not have a direct right to apply for a child arrangement order, not unless they satisfy one of the criteria above. Rather, they must make an application to the court for permission to issue an application. In deciding whether to give permission, the court will take into account various factors including:
- the nature of the proposed application for a child arrangement order
- the applicant’s connection with the child
- the risk there might be of the proposed application disrupting the child’s life to such an extent that they would be harmed by it.
When making an application to vary a child arrangement order, the parties to the original proceedings should be named as respondents.
A child arrangement order will typically run until a child is 16. Further, the courts don’t usually make an order once a child has turned 16, unless there are exceptional circumstances. However, a new family dynamic or change in circumstances can alter the requirements of the order, or perhaps the need for an order altogether.
Under the Children Act 1989 (as amended), the court has the power to vary or discharge an existing order. However, you will need to make a formal application under section 8 of that Act to vary a child arrangement order.
Before proceedings are issued, the parties should consider the suitability of mediation as a mechanism to resolving their dispute more informally. By law, unless a meeting has previously been attended in the last 4 months, or the applicant is otherwise exempt, the parties are required to attend a Mediation Information and Assessment Meeting (MIAM) before proceedings are issued.
At this meeting, the parents or proposed parties to the application to vary a child arrangement order will talk with a trained mediator, to see if their custody or contact dispute is one that can be solved via mediation.
If the mediator believes that mediation will be successful, further sessions will be recommended. If the mediator does not think mediation will assist, or if mediation has been tried but an agreement not reached, the next step is to make an application to the court to vary the existing child arrangement order.
An application to vary a child arrangement order will need to be made on Form C100. Once a parent or guardian makes an application, the court will schedule a first directions hearing.
During this initial hearing, it is the court’s job to encourage the parties to reach an agreement that takes into consideration what is in the best interests of the child.
In the event that agreement cannot be reached, additional hearings will require the parties to file their evidence and witness statements in preparation for a final hearing. An officer of the Children and Family Court Advisory and Support Service (CAFCASS) may also become involved as someone who is appointed to be an independent advisor to the court.
At the final hearing, the court will review all of the evidence and statements and make a final decision. This decision will be drafted into an order of the court.
When considering an application to vary a child arrangement order, the child’s welfare will be the court’s paramount consideration. The welfare checklist that will be considered by the court includes the following:
- the ascertainable wishes and feelings of the child concerned (considered in light of their age and understanding)
- their physical, emotional and/or educational needs
- the likely effect on them of any change in their circumstances
- their age, sex, background and any characteristics of theirs which the court considers relevant
- any harm which they have suffered or are at risk of suffering
- how capable each of their parents, and any other person in relation to whom the court considers the question relevant, is, of meeting their needs
- the range of powers available to the court in the proceedings.
The court will often order a welfare report to be prepared by CAFCASS. Typically the report will contain the recommendations made by the CAFCASS officer as to what they believe to be in the best interests of the child, as well as the child’s own feelings and wishes where the child is of sufficient age and understanding.
It is open to the court to vary an existing child arrangement order in various different ways. This may result in a variation in residence and/or contact, ie; with whom the child lives, as well as when and with whom the child spends time with or has contact. Sometimes, however, a court may decide that it would be best not to make any variation to the existing order whatsoever.
Should I seek legal advice when making an application to vary a child arrangement order?
If you are not familiar with the court process, making an application to vary a child arrangement order, including what forms to complete and what to say, can seem daunting. Your application may affect your child’s living arrangements or when you get to see them, so you will want to ensure that your application has the best possible chance of success.
Securing expert legal advice from a specialist in family law will help you to understand what you can ask the court to do, and the likely outcome of your application. You legal adviser can also help to improve your prospects of getting the outcome that you want.
The matters contained in this article are intended to be for general information purposes only. This article does not constitute legal advice, nor is it a complete or authoritative statement of the law, and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.