Child Arrangements Orders

Communication involves talking but also listening, which is important. Often over time or with the help of mediation the parents can reach an agreement. There is often the need for flexibility on both sides, as the arrangements for the children are inevitably going to change because of holidays, illness or simply as they grow older.

However, there are occasions where parents simply cannot reach an agreement about their children and the living or care arrangements. The next step is then to consider obtaining legal advice from a child law solicitor and whether or not you should apply for a child arrangements order.

A child arrangement order is an order made by the family court which details the arrangements for a child, including where the child will live and how they will spend time with each parent. This is also known as a section 8 order.

Parents still commonly refer to custody and access when looking at the arrangements for their children. Child arrangement orders however have replaced contact orders and residence orders, although parents who already have one of the older orders do not need to reapply for a new one.

Commonly, an application for a child arrangements order is made by a parent who is separating or divorcing. However, this is not always the case, as anyone who has parental responsibility can apply for a child arrangements order.

Even if you are not a parent, or have parental responsibility, you can still make a potential application to the family court. A common example might be in respect of grandparents, who wish to see their grandchildren. In this type of situation, the party would need to also apply to court to have permission to make the application for the child arrangements order.

There are several steps that you need to take to apply to the family court for a child arrangements order. It is very important that you consult with a specialist family law and children solicitor at the start. It may be possible to reach an agreement with your ex-partner, rather than referring matters to court, but if this is not possible, you and your family law solicitor, need to consider the background to your case, whether any other applications also need to be made, in addition, and to prepare properly.
The process involves the following steps:

1. Attending a mediation information assessment meeting (MIAM).
   • All parties are required to attend this type of mediation meeting. It is not actually mediation itself, but information about mediation hyperlink. Mediation can be, sometimes, a viable alternative to going to court, but on other occasions, it is simply not appropriate. There are also certain exemptions from having to attend the MIAM and your children solicitor can explain this to you.
2. Making your C100 application to court
   • Your family law solicitor can help you complete the application for a child arrangements order. The relevant court form is called a C100. It is important that you properly consider what you are asking the court to do, the reasons why, and, if appropriate, with some evidence in support.
   • Once the family court issues your C100 application, it will set a date for the first hearing.
3. First hearing date for a child arrangements order
   • All the parties will be required to attend court, together with an officer of the children and Family Court Advisory Service (CAFCASS). Post Covid-19, a lot of the first hearings are conducted by the court remotely, either via telephone or video link. The family court office will set out information about the type of hearing, and whether you physically need to appear at court.
   • The family court encourages the parties to try and agree on the child welfare issues, and, if an agreement is reached, the court will consider and approve a child arrangements order. This means that the case has then concluded.
   • Many children law cases are therefore resolved at this first hearing, but if an agreement still cannot be reached, the case will have to proceed through several other hearings. At this first appointment, the family judge will consider what directions to make, for example, for the preparation of a welfare report by CAFCASS, for the parties to file statements of evidence, and to consider the next type of hearing.
4. The welfare checklist
   • During a children hearing, the court’s first and main consideration, is the best interests of the child. This is the primary consideration when the court is deciding about a child and their welfare.
   • This welfare test is the guiding principles, but some of the factors that the family court may consider, include:
   • The ascertainable wishes and feelings of the child concerned (considered considering his/her age and understanding)
   • The physical, emotional, and educational needs of the child
   • The likely effect of any change in the child’s circumstances
   • The child’s age, sex, background, and any characteristics of the child, which the court considers relevant
   • Any harm which the child has suffered is at risk of suffering
   • How capable each of the child’s parents are in relation to meeting the child’s needs
   • The range of powers available to the court.
5. The final hearing
   • At the final hearing, the court will consider your application for a child arrangements order, together with any statements of evidence, the welfare report prepared by CAFCASS, and it may well be that all parties need to give oral evidence before the family court. The judge or the family law magistrates will then consider their decision and make an order to provide the living arrangements for the child and the time that the child is to spend with each parent.
   • This order is then binding on all parties, but if one parent does not comply, then an application for enforcement may well be necessary. There are also other cases where there has been a significant change, for example, one parent may have moved away, or the wishes or feelings of a child have changed, or simply some incident has occurred. Rather than make unilateral changes, it is important that you seek specialist family law advice about any changes or difficulties with the child arrangements order. It may be possible to reach an agreement with the other parent, but your children solicitor will be able to inform you of what options you have, and the steps that are necessary, for example, to make an application back to court to vary or change the terms of the existing child arrangements order.

Principally, a child arrangements order will set out where the child is to live, with whom, for how long, and what time the child will spend with the other parent, or any other person with parental responsibility.
Common children orders include the following directions:
Who the child will primarily live with

What conditions (if any) the child will spend time with the other parent. These conditions can include when and where the visits will occur, and, for example, if they are to be supervised

The order can also set out some indirect contact as well, to include text messages, emails, video calls, telephone calls, interactions over social media, and so on.

It is quite common for parents to ask for “shared care” for their child/children.  However, there is no default position for sharing the care, and more accurately, this falls under the umbrella still of child arrangements.  

It is also common for parents to stipulate that the shared care should be 50/50.  Each case is different, but the focus of the children law, is to achieve living or case arrangements for the children that are in their best interests.  For lots of different reasons, to include geographical distance, or work patterns, it is not always possible to share the care of children equally, and sometimes the children do not want this themselves.  However, on other occasions, the children will spend good blocks of time with their parents, for example, three nights with the mother, and four nights with the father (and vice versa the following week).  What is important, is that the child grows up knowing that he/she has a full and loving relationship to both parents. 

Parents will often seek “custody” or “residence” of the children. However, these terms are no longer legal concepts, and within a child arrangements order, the family court can direct with whom the child is to live.

Similarly, parents will often seek “access” or “contact” to the child. Again, these legal terms are out of date, but within a child arrangements order, the family court can direct the time which the child is to spend with the other parent.

Your family law and children solicitor will be able to help you with an indication of the time it may take to obtain final child arrangements order in your case. This depends on several factors, such as the complexity of the issues before the family court, the extent of the child welfare issues that are in dispute, whether there are any safeguarding concerns regarding the child.

Mediation can be an effective way to communicate with your ex-partner and reach an agreement about your children.
However, it is not always possible to reach an agreement, and in terms of time scales:

• It will usually take between 6 – 8 weeks from when you file the application form C100 at court for the papers to be processed and issued
• The family court office will then direct a first hearing date in another 6 – 8 weeks
• If a CAFCASS officer is appointed, and it is directed by the family judge that a welfare report must be prepared, this could take around another 12 weeks
• Overall, you could expect that the family law case in respect of the child/children could take anywhere between 3 – 12 months to be resolved and a final order obtained. However, it is always possible during this family law court process, to reach an agreement with your ex-partner, to save time and legal costs.

A child arrangements order is binding upon the parties. If, however, one party does not comply with the terms of the children order, then you will need to make an application back to court to enforce it.

The court will then direct a preliminary hearing for the family court to consider the reasons why the other party has not complied, and whether, CAFCASS should be involved. Much will depend on any change of circumstance, or incident. The court will always bear in mind the best interests of the child.

At the conclusion of an enforcement hearing, the family court will determine whether the child arrangements order has been breached, and without reasonable excuse. The court can then consider several steps that could be taken, and the family judge also has power to refer the parties to a mediator, but otherwise, the court could fine the party or issue a contact enforcement order. Another option is for the judge to reconsider the terms of the original child arrangements order, and whether any variation to it is appropriate.
The sanctions that the family court could direct, range from unpaid work, to curfews, as well as fines. In very cases, often where there are multiple or repeated breaches, the court can even include sending that party to prison for contempt of court. The family court can also direct CAFCASS to check that all parties comply with any enforcement order issued.

The powers of the family court are not simply to punish a parent, but to ensure that the child arrangements are being supported, bearing in mind always, the welfare of the child involved. The court, for example, may not enforce the order, if it were to have a detrimental effect on the child.

Depending on the facts of your case, it is always possible to vary child arrangements order with the other parent, or person with parental responsibility, or to apply to court to vary the terms of it.  If all parties agree, the children order can be amended and sent to the court for approval.  

If the parties do not agree, then this will involve a similar type of process, with court hearings, and subject to the welfare issues, the involvement of CAFCASS. 

Yes, a child arrangements order is legally binding and can be enforced by the court if it is breached.  It is also possible to apply back to court to vary the terms of this type of children order. 

A child arrangements order usually lasts until the child is 16 years of age, or 18 in exceptional circumstances, and unless the order specifically states otherwise.  If separated parents move back into the same house, the child arrangements order expires after six months of cohabitation. 

Yes, a grandparent can apply for a child arrangements order, if they are concerned for their grandchild, or feel that they are not able to see them, or this has been unfairly restricted.  

However, only parties with parental responsibility can apply to the family court for a children order.  A grandparent is still able to make a children application but would need to seek the permission of the family court first, and the judge will look at the connection and relationship to the child, the reasons for the application, and, as always, to consider the best interests of the child concerned. 

If a child has suffered harm (emotionally or physically) or is at risk of suffering harm, then it is possible to apply to court for an emergency child arrangements order.  

Along with the main children application form C100, you would also need to complete a supplemental form, and include any written evidence to explain the reasons for the urgency, and, if appropriate, why the other party is not to receive notice of the emergency family law hearing.  The court will then list the case for a second hearing, when that other parent will be given notice, and an opportunity to attend court to reply to your child arrangements application.  

It may also be appropriate for you to consider whether other children applications should be made, for example, for a specific issue order and/or a prohibited steps order. 

If you are at risk of harm, you can also consider an application for a non-molestation and/or occupation order.

We are specialists in family law and children cases.  We are ranked in Tier 1 of the Legal 500 for 2024 and are leaders in this field. We have specialist children law solicitors who can advise you in respect of your rights and how to prepare your case and obtain the best possible outcome.  We also deal with international children law cases, and our James Maguire is a Fellow of the International Academy of Family Lawyers.