A child arrangement order is a court order stipulating who has primary care of the child(ren), and the nature of any contact with the non-resident parent or wider family members.
It is not uncommon for divorcing or separating parents to struggle to reach an agreement about child custody or contact, especially if the separation has been difficult.
In circumstances where an agreement cannot be reached, one or both parents may apply to the court for a child arrangement order.
This type of court order is usually made between private individuals, typically in cases where the parents or guardians cannot agree between themselves how to split the care of their children. Accordingly, child arrangement orders are private law matters. Where someone seeks an order in respect of a child who is in the care of the local authority, it is a public law matter.
If you are a parent or guardian looking to put in place enforceable arrangements in relation to the care of your children, you will need to make an application to the courts under section 8 of the Children Act 1989 (as amended).
The law relating to child arrangement orders
Under section 8 of the 1989 Act, a child arrangement order means an order regulating arrangements relating to the following:
- • with whom a child is to live, spend time or otherwise have contact, and
- • when a child is to live, spend time or otherwise have contact with any such person.
The court will not make a child arrangement order, other than one varying or discharging such an order, with respect to a child who has reached the age of 16, unless the circumstances of the case are exceptional.
Who can apply for a child arrangement order
Only certain categories of people can apply for a child arrangement order without having to seek permission from the court first. These include:
- • 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 and, unless they satisfy one of the criteria above, must apply to the court for permission to issue an application.
Considerations made by the court under a child arrangement order
By virtue of section 1 of the Children Act 1989, when a court determines any question with respect to the upbringing of a child, the child’s welfare will be the court’s paramount consideration.
Accordingly, in considering whether to make, vary or discharge a child arrangement order, the court will have regard to what is commonly referred to as the welfare checklist set out under section 1. This includes:
- • 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 can also request a welfare report under Section 7 of the 1989 Act, typically prepared by an officer appointed by the Children and Family Court Advisory and Support Service (CAFCASS). CAFCASS is a public body set up to promote the welfare of children and families involved in family proceedings, and are used to independently advise the court.
The welfare report will often inform the court of the child’s wishes and feelings, although the officer will only make recommendations based on what they believe is in the best interests of the child.
In complex cases the court may also order that the child is made a party to the proceedings. Here, the court will appoint a CAFCASS officer as the child’s guardian to represent the child within those proceedings.
If the child does not agree with the guardian on what recommendations should be made to the court, and the child is of sufficient age and understanding, the child can instruct a solicitor directly to represent their views. In these circumstances, the guardian will present their own views to the court separately.
The nature of a child arrangement order
A child arrangement order will typically stipulate with whom the child is to live, together with anyone the child is to spend time with or have some form of contact. Child arrangement orders are not only made in respect of parents, but often include siblings, grandparents and wider family members.
Contact with a child can either be direct, such as face-to-face, or indirect, such as by the exchange of letters and cards. The order will often provide for when and where any contact is to take place, as well as any additional contact the child may have with the non-resident parent or other family members, for example, phone calls, texts and emails.
The order may also provide that any direct contact is to be supervised by a third person, or that contact is to only take place in a specific location.
A child arrangement order can set out different conditions depending on the circumstances of the case. It can make specific arrangements for the child, or provide some degree of flexibility where detailed arrangements are to be agreed between the parties.
Child arrangement orders & other section 8 orders
There are four main types of section 8 orders. In most cases, a section 8 application will include what is commonly referred to as a residence order, ie; with whom the child lives, as well as a contact order, ie; when and where contact should take place with the non-resident parent. These are now known as child arrangement orders.
However, under section 8 of the 1989 Act, the court can also grant a prohibited steps or a specific issue order. A prohibited steps order is where the court prevents a parent or guardian from taking a certain step without the court’s permission, such as preventing a parent taking a child out of the country.
A specific issue order is an order sought from the court to determine a specific issue that has, or may arise, in relation to a child’s upbringing. A common example may be a change of surname.
In determining either a prohibited steps or specific issue order, as with a child arrangement order, the court’s main concern will be the welfare of the child and what is in the child’s best interests.
Seeking legal advice when applying for a child arrangement order
When seeking a child arrangement order it is important to take specialist legal advice. An expert in family law can provide legal and practical guidance for parents who are struggling with a custodial or contact dispute.
Your legal adviser can talk you through your options, from mediation to court proceedings. You will be given clear advice on where you stand legally, making the process less stressful, and avoiding undue delay and expense in the event that an agreement can still be reached.
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.