Family Law

Marianna Michaelides and April Buxton, of the International Family Law Group LLP,  look at the complex court orders that confirm with whom a child is to live and/or spend time. 

What is a child arrangements order?

Child arrangements orders are court orders that confirm with whom a child is to live and/or spend time (often referred to as “contact”).

Contact is sometimes broken down into two sub-categories: direct and indirect.  Direct contact concerns face-to-face contact; whereas indirect contact refers to contact via means of correspondence or technology, such as online video chats, emails or letters. 

Child arrangements orders are governed by section 8 of the Children Act 1989.  The court can make such orders of its own initiative (section 10(1)(b) Children Act 1989), or in response to an application (section 10(1)(a) Children Act 1989). 

The making of child arrangements can be challenging. Agreeing child arrangements orders can be highly complex and emotions can run high.  Such arrangements can be made between parents themselves, whereby an agreement is reached putting a schedule in place for the time a child is to spend with each parent.  Alternatively, such decisions may be reached with the assistance of independent bodies, such as mediators and lawyers.

Mediation

Mediators can assist parents in coming to an autonomous agreement regarding their children, which can later be converted into a legally binding order.  Although a desirable outcome, realistically, it is not always achievable.   Often assistance from lawyers and the court is required.

The person making the application, referred to as the Applicant, is required to attend a Mediation Information and Assessment Meeting (‘MIAM’) before submitting their application to the court.  The aim of a MIAM is to identify whether mediation would be a possible tool to reach an agreement.  If the Applicant is exempt from a MIAM and/or the matter cannot be settled through mediation, then the Applicant will be entitled to submit their application to the court.  The Applicant’s solicitor will be able to advise as to whether they fall within the exemptions to undergo a MIAM.

Who can apply for a child arrangements order?

• A parent, guardian or special guardian of the child;
• Any person who has Parental Responsibility for the child;
• 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 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 arrangements order (section 12(2A) Children Act 1989)

Other people can make an application to the court for permission to issue an application for a child arrangements order. It is usually via this route that wider family members such as grandparents are able to apply for orders in respect of their grandchildren. In deciding whether to give permission the court will take into account, among other things, of:

• the nature of the application;
• the Applicant’s connection with the child; and
• 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.

What is the process once an application has been submitted?

Once the application has been completed and lodged with the court for issue by a solicitor (or sometimes by a litigant in person), the Applicant will be informed of the date for the first hearing which is typically a First Hearing Dispute Resolution Appointment (FHDRA).  A lawyer is able to provide essential legal advice and assist in preparing for the FHDRA and possible subsequent hearings.  The application will also prompt initial investigations to be carried out by an independent body referred to as the Children & Families Court Advisory & Support Service (CAFCASS), in relation to the safety and well-being of the child or children concerned. 

The case may be settled at the first hearing or, depending on the circumstances, will progress to further hearings.  Thus, continuing assistance from a solicitor is highly beneficial throughout the proceedings.

What is the approach of the Court?

The approach of the court is entirely child-centric.  Its paramount consideration is the child’s welfare (section 1(1) Children Act 1989).  The court has a positive duty to facilitate contact wherever possible and will presume that involvement of both parents in the child’s life will further their welfare, unless the contrary is shown (section 1(2)(A) Children Act 1989).  However, contact will be terminated ‘only in exceptional circumstances'. (Re R (No Order for Contact: Appeal) [2014] EWCA Civ 1664).

It is important that Applicants understand an application for a child arrangements order is determined by the court consideration of the welfare of the child, as opposed to what each parent feels they “deserve”.

When determining an application for child arrangements orders, the court refers to several factors contained under section 1(3) of the Children Act 1989, referred to as the ‘welfare checklist’.  The welfare checklist contains 7 sub-categories which the courts will consider individually and balance against one another. They consist of:

The child’s ascertainable wishes and feelings

• The wishes and feelings of a child are persuasive, yet not determinative. 
• A child’s decision-making ability depends upon their competence and understanding, along the reliability of their wishes and feelings.
• The court is cautious not to burden children with the responsibility of making adult decisions and protecting them from causing detriment to their future.

The child’s physical, emotional and educational needs

• The court considers whether the child’s needs are being met. 
• There is no general presumption that one parent will be favoured over another.
• The court does not like to separate a child from their siblings.

The likely effect on the child of any change in circumstances

• The court likes to uphold the status quo wherever possible.
• The court will only go against this where there is a compelling reason to do so.
• An example of a compelling reason is where there is a risk of parental alienation.

The child’s age, sex, background and any other relevant characteristics

• The court will take into account the age, sex, race, religion and any other characteristics of the child which are relevant in determining how their welfare will be best upheld.

Any harm the child has suffered or is at risk of suffering

• The court must consider whether the child concerned has or may suffer harm as a consequence of a proposed contact arrangements order.

How capable each of the child’s parents/any other relevant person are of meeting the child’s needs

• The court must consider the capability of each parent to meet the child’s needs. 
• This factor will usually be best decided by the court drawing upon the report produced by CAFCASS. 

The range of powers available to the court

• The court is not obliged to make a child arrangements order.
• The court must weigh up all of the factors considered under the welfare checklist and consider the order that best upholds the child’s welfare. 

Each case is considered individually and every case turns on its own facts.  The court will make an order which will legally bind the parties concerned, until the child reaches the age of maturity.  Due to the wide range of factors affecting a child arrangements order, continuing advice and assistance from an experienced family lawyer is pivotal. 

Marianna Michaelides is a solicitor at The International Family Law Group LLP and specialises in all matters concerning children including international parental child abduction, the inherent jurisdiction of the High Court, and international relocation matters.

April Buxton is a paralegal at The International Family Law Group LLP.  She assists in the children, finance and forum teams in legal research, drafting legal documents and attending court on a regular basis to assist Counsel. 

Marianna.michaelides@iflg.uk.com - The International Family Law Group LLP