Well, there is no doubt that these types of situations can be very challenging and difficult for the family unit. Therefore, I have prepared this Child Arrangement Order Guide and this will be freely available to assist those in need. I mean in my years of experience, I have seen first-hand the substantial impact these types of matters can have on the parties, their children and wider family. It is quite frankly heart-wrenching to see individuals having to progress through emotionally driven disputes relating to children. I have the first-hand experience of such matters derived from my personal life. This has very much tailored my approach to handling and assisting with such matters. I consider it vital that the parties try to avoid unnecessary costs, disputes, and proceedings. If legal proceedings are absolutely necessary, I consider it vital for legal representatives to have attempted to narrow down the issues in dispute and seek to settle the matters without delay and unnecessary costs. I guess this would be a common decency on part of the legal representatives who have been entrusted with the future of a family.
WHAT IS PARENTAL RESPONSIBILITY?
This is defined as having ‘…all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property…’.
The PR will not entitle one parent to exhibit undue control mechanisms over child arrangements. This is inappropriate and can be considered to negatively harm the children’s welfare. It should be known that the resident parent has the right to independent action in relation to day to day matters affecting the children. These day to day actions can be discharged independently without agreement or notification. This, of course, does NOT apply to major issues, i.e. planned medical treatment (beyond routine appointments), living arrangements during holidays and events, selection of schools, application for authorised absence from school, immunisations, etc. It is not the case that either parent can simply dictate these matters without reference to the other.
WHAT ARE CHILD ARRANGEMENT ORDERS?
It is related to exercising Parental Responsibility. These disputes commonly arise around disputes between separating parents and the exercise of rights and responsibilities towards their children.
These orders commonly deal with issues such as:
- 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 (i.e. your partner)
There are also additional aspects of Prohibited Steps Orders and Specific Issue Orders.
The Prohibited Steps Orders prevent a parent from undertaking certain steps, i.e. preventing a parent from removing a child from the jurisdiction, from a local area or specific place of education.
The Specific Issues Order seeks to determine a particular issue of a dispute regarding the child, i.e. if the child should change their name, attend a specific place of education or relocating permanently.
ARE YOU AUTOMATICALLY ELIGIBLE TO MAKE THIS APPLICATION?
There are particular individuals automatically entitled to apply for child arrangement orders.
They are as follows:
- Parents or Guardians/Special Guardians;
- Step-Parents (where they hold Parental Responsibility or the child is treated as a child of the family);
- Spouse/Civil Partner where it pertains to a child of the family;
- If you are a person with the consent of all those who hold Parental Responsibility;
- If you are a relative with whom the child has lived for one year;
- If you are the person with whom the child has lived for a period of at least 3 years – this must not have begun more than 5 years before or ended 3 months prior to the application;
- If you have a Child Arrangement Order naming you as an individual with whom the child shall live;
- If you are a person with the consent of the local authority with care;
- If you are a local authority foster parent (dependant on further conditions)
WHAT IF YOU ARE NOT AUTOMATICALLY ELIGIBLE?
Well, this does not mean you cannot apply for a Child Arrangement Order. The application is commonly referred to as seeking leave to apply. It simply means that you would need to apply for permission to be entitled to apply. This type of issue commonly arises for Grandparents who do not fall into the aforementioned categories.
WHAT IS A MIAM?
Time permitting, I will be drafting a separate article on MIAMs and Alternative Dispute Resolution (‘ADR’).
MIAM is an acronym for Mediation and Information Assessment Meetings. In most cases, save for those where exemptions apply (i.e. domestic violence).
There is a legal requirement to attend a MIAM before proceeding with a formal application. Where possible and safe to do so, the court expects separated parents to try to resolve disagreements about child arrangements outside of the court system and to be flexible about changes to agreed child arrangements. Within such meeting(s) an independent mediator will open dialogue between the parties to establish if the situation can be resolved without legal proceedings. The prospect of legal proceedings should a last resort. I consider it imperative to consider alternative dispute resolution to try to resolve or at the very least narrow down issues of dispute. Invariably, it is not out of the realms of possibilities to agree to certain aspects in most cases.
It is a pointless exercise for the parties to have a barrage of disputes without focusing on those that they can reach agreement upon and thereafter shifting focus to those they cannot. It is very much possible to find common ground when considering the child’s welfare as the paramount concern.
You can use the following services to access help and support to resolve a dispute about child arrangements. For information about family mediation and to find your nearest mediation service, see: https://www.familymediationcouncil.org.uk/
WHAT ARE THE BENEFITS OF A CHILD ARRANGEMENT ORDER?
The main focus of these proceedings and paramount consideration for the Court is the child’s welfare. Therefore, in my experience, well-ordered child arrangements can provide stability for not only the parties but also the children. Any unspecified and unbalanced arrangements can lead to a negative impact on the children. This approach assists in preventing disputes between the parties and should provide reasoning to prevent any one party from applying disproportionate and inappropriate controls over the arrangements.
The Court can provide for the following types of stable arrangements:
- Direct Contact. These arrangements are where the parent will directly have contact with the child and this can be for a set period of time or overnight;
- Indirect Contact (i.e. Skype, Facetime, Watsapp, etc). These types of orders commonly arise where there is a potential risk identified in respect of the child’s wellbeing;
- Supervised Contact. If the Court considers there is a risk to the child’s welfare, they can order for contact to take place in a supervised contact center. It is possible for the parties to enter through separate entrances/exits and not have to engage with each other during this process.
Remember, unless there are concerns for the child’s welfare. The Court will normally consider it beneficial for the child to have both parents involved within their lives. It is also possible to have equality in status by seeking for shared living arrangements. This promotes a consistent continuation of family life and reassures the stability needed by children whilst maintaining the involvement of both parents. In the event that there are intractable disputes, such a shared living arrangement can be ordered by the court to impress upon you the importance of parental equality.
Further, if you have a Child Arrangement Order confirming you to be a person with whom the children live then you have the right to take the child abroad for up to one month without the other party’s consent. If you not named as a person with whom the child shall live, you do not have the same rights and would have to reach an agreement or consider a Specific Issues Order.
HOW DOES THE COURT DECIDE WHAT HAPPENS?
The paramount concern for 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;
- the child’s physical, emotional and educational needs;
- the likely effect on the child if circumstances changed;
- the child’s age, sex, background and any other characteristics relevant;
- any harm the child has suffered/may be at risk of suffering;
- the capability of the child’s parents in meeting the child’s needs, and
- the 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.
WHEN DO CHILD ARRANGEMENT ORDERS COME TO AN END?
If the parents cohabit for a continuous six-month period the Child Arrangement Order will automatically end. Child Arrangement Orders ordering with whom and when a child is to live with a person normally continue until the child is aged 18 years. If the order states with whom and when a child is to spend time with another it normally remains until the age of 16 years (and exceptionally until 18 years of age).