Child Arrangements Order

What exactly is a Child Arrangements Order and what are the considerations of an Order for a Child Arrangements Order being made?

Often when clients come to see a family lawyer about issues relating to how and when they should see a child, they will refer to “contact” or “custody”. Whilst these are well known terms to non-lawyers, these are in fact not terms that lawmakers now want to be used within the Family Court. Instead, the arrangements made for children as to when they see the relevant adults in their life such as parents, step-parents, grandparents or others, are referred to as “Child Arrangements”.

This terminology was brought in mainly to try and help the parties to understand that the time that they agree or are ordered as having with a child does not dictate the strength of decision making powers of the connection they have with that child. The rights, duties, powers, responsibilities and authority in respect of a child is not determined by the Child Arrangements order, but instead by Parental Responsibility as defined by Section 3(1) of the Children Act 1989.

Therefore in simple terms if a client is, say, separated from their spouse, they need to be aware that Child Arrangements, be it via an agreement or order, will not diminish their parental responsibility in any way. This can be a difficult adjustment for clients, because in their eyes the time they have with their children does dictate how they feel about their role and the term Child Arrangements order fails to summarise the emotional impact that the order will have upon them, especially if they have been used to being able to see their child daily and without their actions having to be physically communicated to the other parent.

In the writer’s experience, despite the term “Child Arrangements” being the preferred term, in practical reality the wording used is often that a child is “ living with” one party and that the other is the “non-resident parent”. This isn’t particularly well-received nor helpful. It would seem more practical and helpful if parties would view “Child Arrangements” as being when a child lives with both parties, albeit that this is not necessarily for the same periods of time.

What it is useful to understand from the parents’ perspectives that the Court do not judge that as a result of having an allocated window of time with the child, that the other parent’s parental rights are any less. The aim of the Court is to assist the parties in hopefully trying to come to an agreement as to what is in the best interests of the child, including taking into account the current arrangements for the child in terms of their education, extra-curricular activities, and the relationships they have with their parents and siblings or other relatives that they live with or are cared for by. Ultimately it is the writer’s experience that often the Court are keen for the parties to reach these agreements and especially in encouraging the parties to negotiate and/or mediate before the Court becomes involved.

So what happens if an agreement for a Child Arrangement cannot be reached?

If the parties cannot reach an agreement the Court will make the decision for the parties with the guidance of a report known as a Section 7 report, which is prepared by the Child & Family Court Advisory and Support Service (CAFCASS). CAFCASS is able to represent children in family court cases in England and their focus is generally to represent children’s needs, wishes and feelings, first making sure that children’s voices are heard. Their duty is to safeguard and promote the welfare of children and advise upon what they consider to be in the best interests of the children. In divorce and separation (sometimes called private law) where parents or carers cannot agree on the arrangements for children, they will meet with the parties and the children independently in order to make recommendations based on the opinions and feelings of both the parents and the children.

The Court would consider a report by a CAFCASS officer as to their recommendations and take into account the evidence given by both parties in order to consider whether to make a Child Arrangements order and upon what basis. With this in mind a family lawyer’s role is to assist clients in obtaining a Child Arrangements order, whether by agreement or via the court process, in the interests of the child and one that is workable for the parties. Such orders can also be accompanied by other types of orders known as prohibitive steps order or a specific issue order. Ultimately if there was a dispute between parents as to what the arrangements for a child to spend time with either parent, whether overnight or during the day, for any length of time there would need to be consideration of what the child arrangements order will be.

In the vast majority of cases an agreement can be reached before the Court is required to make a final decision on the parties’ behalf.

If you would like some advice or assistance in respect of Child Arrangements, please contact Nardia Tribe, Jerry Nathan or Amy Hadleigh on 01702 352511, who are happy to assist parents as to the steps that they might be able to take to try and reach these arrangements by agreement or otherwise what assistance can be sought from the court process.

Author: Nardia Tribe