Child Arrangements Orders
1. Definition of Child Arrangements Order
Child Arrangements Orders were introduced in April 2014 by the Children and Families Act 2014 (which amended section 8 Children Act 1989). They replace Contact Orders and Residence Orders.
A Child Arrangements Order means a court order regulating arrangements relating to any of 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 person.
The 'residence' aspects of a Child Arrangements Order (i.e. with whom a child is to live/when a child is to live with any person) can last until the child reaches 18 years unless discharged earlier by the Court or by the making of a Care Order.
The 'contact' aspects of a Child Arrangements Order (with whom and when a child is to spend time with or otherwise have contact with) cease to have effect when the child reaches 16 years, unless the court is satisfied that the circumstances of the case are exceptional.
A person named in the order as a person with whom the child is to live, will have Parental Responsibility for the child while the order remains in force. Where a person is named in the order as a person with whom the child is to spend time or otherwise have contact, but is not named in the order as a person with whom the child is to live, the court may provide in the order for that person to have Parental Responsibility for the child while the order remains in force.
Child Arrangements Orders are private law orders, and cannot be made in favour of a local authority. Where a child is the subject of a Care Order, there is a general duty on the local authority to promote contact between the child and the parents. A Contact Order can be made under section 34 of the Children Act 1989 requiring the local authority to allow the child to have contact with a named person.
A court which is considering making, varying or discharging a Child Arrangements Orders, including making any directions or conditions which may be attached to such an order, must have regard to the paramountcy principle, the 'no order' principle and the welfare checklist under the Children Act 1989.
Interim Child Arrangements Orders can be made.
2. Requirement to attend a Mediation Information and Assessment Meeting
Under the Children and Families Act 2014, before making an application to court for a Child Arrangements Order (or other relevant family application), a prospective applicant must attend a family Mediation Information and Assessment Meeting ('MIAM'), to ascertain whether the issues can be resolved by mediation rather than by application to court.
This does not apply where:
- There is evidence of domestic abuse;
- There are child protection concerns;
- The application must be heard urgently because delays would, for example, risk the safety of the child or the applicants, cause miscarriages of justice or hardship to the applicant;
- There has been previous MIAM attendance or a MIAM exemption; or
- Circumstances mean that MAIM attendance may not be a reasonable or appropriate requirement.
It is the responsibility of the prospective applicant or that person's legal representative to contact a family mediator to arrange attendance at a MIAM.
3. Who Can Apply
As was the case with Contact and Residence Orders, any person can apply for a Child Arrangements Order. There are two categories of people who can apply: those who are entitled to apply, and those who require leave of the court first in order to apply.
3.1 Those who may Apply as of Right
- Any parent (whether or not they have Parental Responsibility for the child), guardian or special guardian of the child;
- Any person named, in a Child Arrangements Order that is in force with respect to the child, as a person with whom the child is to live;
- Any party to a marriage (whether or not subsisting) in relation to whom the child is a child of the family - this allows step-parents (including those in a civil partnership) and former step-parents who fulfil this criteria to apply as of right;
- Any person with whom the child has lived for a period of at least three years - this period need not be continuous but must not have begun more than five years before, or ended more than three months before, the making of the application; or
- Any person:
- Who has the consent of each of the persons in named in a Child Arrangements Order as a person with whom the child is to live;
- In any case where there is an existing order for care in force, has the consent of each person in who favour the order was made;
- In any case where the child is in the care of a local authority, who has the consent of that authority;
- In whose favour a Child Arrangements Order has been made in relation to the 'contact' aspects and who has been awarded Parental Responsibility by the court (i.e. they would be able to apply for a Child Arrangements Order in relation to the 'residence' aspects);
- In any other case, has the consent of everyone with parental responsibility for the child.
- A local authority foster parent is entitled to apply for a child arrangements order relating to whom the child is to live, and/or when the child is to live any person, if the child has lived with him for a period of at least one year immediately preceding the application;
- A relative of a child is entitled to apply for a child arrangements order relating to whom the child is to live, and/or when the child is to live any person, if the child has lived with the relative for a period of at least one year immediately preceding the application. (A relative is a child's grandparent, brother, sister, uncle or aunt (by full or half blood), or by marriage or civil partnership).
3.2 Those who Require the Leave of the Court to apply
Any person who is not automatically entitled to apply for a Child Arrangements Order may seek leave of the court to do so. The granting of leave does not raise any presumption that the application will succeed.
In deciding whether or not to grant leave, the court will have particular regard to:
- The nature of the proposed application for the Order;
- The applicant's connection with the child;
- Any risk there might be of that proposed application disrupting the child's life to such an extent that he would be harmed by it; and
- Where the child is being looked after by a local authority:
- The authority's plans for the child's future; and
- The wishes and feelings of the child's parents.
4. Directions and Conditions
The court may contain directions about how it is to be carried into effect, and/ or impose conditions which must be complied with by any person:
- Who is named in the order as a person with whom the child concerned is to live, spend time with or otherwise have contact;
- Who is a parent of the child;
- Who is not a parent but who has Parental Responsibility; or
- With whom the child is living, and to whom the conditions are expressed to apply.
In contested proceedings in which the court is considering whether to make (or to vary or discharge) a Child Arrangements Order, the court may make an 'activity direction', directing a party to the case, at any stage in proceedings prior to a final order being made, to undertake activities to establish, maintain or improve the involvement in the life of the child concerned of a party to the proceedings. The type of activities covered by this heading may include programmes, classes and counselling or guidance sessions which may assist with establishing, maintaining or improving involvement in a child's life. Other possible activities are programmes designed to address a person's violent behaviour in order to facilitate involvement in a child's life and information sessions about such arrangements, including information sessions about mediation.
An activity direction may only be made where there is some dispute about the provision of a Child Arrangements Order, i.e. whether to make, vary or discharge such an order, or what its detailed provisions should be.
Where a court makes or varies a Child Arrangements Order, it may impose an 'activity condition' requiring an individual to take part in an activity that would help to establish, maintain or improve the involvement in the life of the child concerned of a party to the proceedings. The activities that may be required by a contact activity condition are the same as those that may be required by an activity direction.
Making an Activity Direction or Condition
A court can only make such directions or conditions if it is satisfied that:
- The activity is appropriate in the circumstances of the case;
- The provider of the activity concerned is suitable to provide it; and
- The activity is available in a place to which it is reasonable to expect the person in question to travel.
The court may ask a Cafcass officer or a Welsh family proceedings officer to monitor compliance with activity directions or conditions and to report to the court if there is a failure to comply.
In addition, a court may ask officers to monitor compliance with a Child Arrangements Order, and to report to the court on such matters relating to compliance as the court may specify. The court may ask the officers to carry out this role for a period of up to a year.
5. Official Supervision and Contact (Family Assistance Orders)
If the court wishes to ensure that a Child Arrangements Order related to contact with a child is supervised, it may make a Family Assistance Order requiring a Cafcass officer or a Welsh family proceedings officer, or a local authority officer (provided the authority agrees and the child concerned lives or will live within their area) to advise, assist and (where appropriate) befriend any person named in the order.
The purpose of a Family Assistance Order is to provide expert assistance and advice to a family for a short-term-period. A court can make a family assistance order only if:
- To do so accords with the principle that the child's welfare is paramount, and it is better for the child than making no order at all; and
- It has obtained the consent of every person to be named in the order other than the child.
Unless a shorter period is specified in the Order, it will have effect for 12 months from the day on which it was made.
6. Variation, Discharge or Ending of a Child Arrangements Order
A Child Arrangements Order may be varied or discharged by the court either in existing family proceedings, or on a free-standing application (with the applicant having sought leave to apply if necessary). On a variation application, the court has the full range of orders available to it, including the power to give directions or impose conditions.
A Child Arrangements Order may come to an end because:
- It ceases to have effect due to the age of the child;
- It ceases because the parents of the child live together for longer than six months;
- It is discharged by an order of the court;
- It is discharged automatically upon the making of a Care Order with respect to the child; or
- For a Child Arrangements Order concerning the living arrangements of a child only, it ceases when a new such Child Arrangements Order is made.
7. Child Arrangements Orders: Warning Notices
Whenever the court makes or varies a Child Arrangements Order, it must attach a notice warning of the consequences of failing to comply with the order. The consequences of failure to comply may be an enforcement order, an order for financial compensation, or the use of the courts' existing sanctions for contempt.