Formerly known as Residence & Contact Orders, child arrangement orders are put in place in situations where parents cannot come to an agreement on who the child will live with.
As this subject is often challenging and highly emotive, it is not at all uncommon for family courts to decide which parent the child will live with as well as how their time will be divided between both parties, should parents be unable to reach an agreement through discussion and mediation.
Who can make an application?
Contrary to popular belief, it is not just birth parents that are able to make an application for a child arrangement order and there are certain groups who are given implicit permission including:
- Parents or guardians
- An adult with a Residence Order for the child (or a “living with” order)
- A responsible adult who holds parental responsibility for the child
- An adult who the child has lived with for upwards of three years
- A non-biological parent who is a parent through marriage/civil partnership
- A person who has gained permission from any of these people
Anyone else who wishes to seek a child arrangement order can only do so if they have applied to the court for permission first.
What is Parental Responsibility?
Parental responsibility is the term given to the person or persons who are able to make decisions on the best interests of the child including decisions regarding medical treatment and education.
In most situations, mothers are automatically granted parental responsibility along with married fathers, even if the parents have divorced. However, parental responsibility does not extend to unmarried fathers, stepparents of either sex or grandparents.
Parental responsibility can be contested in court in instances where either parent, grandparents or stepparents want to ensure that the child is properly cared for. This can be achieved by entering into a parental responsibility agreement or gaining a parental responsibility order directly from the family court.
As such circumstances are emotionally charged, the support and guidance of a professional family law solicitor is recommended to help clients understand the process and to minimise any stress and anxiety felt by the child or children in question.
Mediation requirement and the exemptions
Mediation is commonly used in the legal profession to reduce conflict and to speed up the arrival of an amicable resolution that serves the best interests of the child.
For those making an application for a child arrangement order, mediation is compulsory in most instances and the applicant and respondent will be invited to attend a Mediation Information and Assessment Meeting (MIAM).
These sessions are facilitated via a trained mediator who will act as a neutral third party and be on hand to help resolve any disputes without having to go to court. Parties do not have to come to these meetings at the same time, but unless they meet one of the exemptions below, they will be required to attend.
The exemption criteria is as follows:
- In cases including domestic abuse
- If either party lives abroad
- You are unable to contact the other party (e.g. they have moved out and you have taken reasonable steps to locate them)
- You have previously attended a MIAM
- A linked case is already at court
- You require an urgent hearing
- There are child protection concerns
- If the hearing is due to be made without notice
- You have a disability that cannot be accommodated
- You or the other party are in prison
- You or the other respondent is a child
- There is no family mediator within 15 miles of your home
- There is no availability for a MIAM within three weeks
- You are submitting a consent order
- You have completed a financial order and you or the respondent are about to go bankrupt
The Court Process
In cases where the MIAM has made no progress or parties are exempt, applicants seeking a child arrangement order can request the help of the family court.
This starts with an application being lodged using specific forms to set the wheels in motion. The court will set a date for a hearing, and it is the responsibility of the applicant or their legal representatives to serve notice on the other party no later than 14 days before the hearing.
The other party must acknowledge receipt of these documents using standard forms to respond to the application.
Once the application has been issued, the Children & Families Court Advisory & Support Service will begin by making basic safeguarding enquiries with the Police and Social Services. You and the other party may receive a phone call from this agency, but this only to ascertain if there are any safety issues surrounding you or the child.
After safeguarding checks have been carried out, a First Hearing Dispute Resolution Appointment will be scheduled and parties will be encouraged to reach an agreement. If an agreement is reached, a final order will be made and the case will come to an end.
Where this is not possible, the court will progress the case further to a fact-finding hearing where the findings of the Children & Families Court Advisory & Support Service will be discussed. Both parties will be given the opportunity to present evidence to the court.
Once this stage has come to a conclusion, all parties will be invited to attend a dispute resolution appointment to see if a resolution can be reached following recommendations from the Children & Families Court Advisory & Support Service. If no agreement has been reached, a final hearing will be arranged where both parties can challenge the evidence provided before the judge comes to their decision.
The order given by the judge is final, but you may need to return to court should the other party not subsequently abide by the child arrangement order.
Legal Aid – when it is available?
In some circumstances including in cases where domestic abuse is present or there are child protection concerns, legal aid is available to ensure access to professional legal advice and representation.