Child Arrangements Orders
Applications for child arrangements orders are usually between private individuals, under s8 Children Act 1989. Where someone seeks an order in respect of a child who is in the care of the local authority it will be considered a public law matter.
In private law cases, the child is not a party to the proceedings unless there are particular circumstances that make the case complex. The court can request a welfare report under s7 Children Act 1989, either from the local authority or from a Children and Family Reporter who is an officer appointed by Cafcass. The report will usually inform the court of the child's wishes and feelings, but the officer will make a recommendation based on what they think is in the child's best interests rather than just report on the child's wishes.
In some circumstances, the court may order that the child is made a party to the proceedings. A Children's Guardian (who again is an officer of Cafcass) is appointed to represent the child in the proceedings and the Guardian will appoint a solicitor. If the child and Guardian do not agree on what recommendations to make to the court and the child is of sufficient age and understanding, they will be able to instruct a solicitor directly to represent their views and the Guardian will present their own views to the court.
Certain categories of people are entitled to make an application for a child arrangements order under s8 without having to seek permission from the court first, and they are:
1. The parent, guardian or special guardian of a child;
2. Any person who has parental responsibility;
3. Anyone who holds a residence order in respect of the child;
4. Any party to a marriage or civil partnership where the child is a child of the family;
5. Anyone with whom the child has lived for at least three years;
6. Anyone who has obtained the consent of:
a) a residence order;
b) the local authority if the child is in their care; or
c) everyone who has parental responsibility for the child.
Other people can make an application to the court for permission to issue an application for a child arrangements order. In deciding whether to give permission the court will take into account, amongst other things:
1. The nature of the application;
2. The applicant's connection with the child;
3. The risk there might be of the proposed application disrupting the child's life to such an extent that they should be harmed by it.
It is via this route that wider family members such as grandparents are able to apply for orders in respect of their grandchildren.
The Welfare Checklist - section 1 Children Act 1989
When a court considers any question relating to the upbringing of a child under the Children Act 1989 it must have regard to the welfare checklist set out in s1 of that Act. Among the things the court must consider are:
a) The ascertainable wishes and feelings of the child concerned (considered in light of his age and understanding);
b) His physical, emotional and/or educational needs;
c) The likely effect on him of any change in his circumstances;
d) His age, sex, background and any characteristics of his, which the court considers relevant;
e) Any harm which he has suffered or is at risk of suffering;
f) How capable each of his parents and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;
g) The range of powers available to the court under the Children Act 1989 in the proceedings in question.
For all proceedings under the Children Act 1989 when the court considers a question of the child's upbringing the child's welfare is the court's paramount consideration.
Child Arrangements Orders - section 8 Children Act 1989
These orders decide who the child is to live with and/or who the child will spend time with, and can be granted to more than one person whether they live together or not.
If a child arrangements order states that the child will live with a person, that person will have parental responsibility for that child until the order ceases. Contact with a child can either be direct e.g. face to face meetings or indirect e.g. by letter or exchange of cards.
Some orders will make very specific arrangements for the child, other orders will be more open with detailed arrangements to be made between the parties by agreement. Child arrangements orders are not only made in respect of parents; there can also be orders for arrangements between siblings, and wider family members. Sometimes the order will give directions that contact is to be supervised by a third person, or that contact is to take place in a specific location.
Failure to comply with an order may result in the court making further orders specifying activities for a party to undertake or the court making other enforcement orders which can include an order for unpaid work.
Legal advantages of a ‘lives with’ child arrangement order
The practical advantages of having a ‘lives with’ child arrangement order over a ‘spend time with ‘ order is that you have the ability to take the children out of the country on holiday for up to 28 days at a time without having to seek the consent of any other party.
In relation to non-parent carers a ‘lives with’ order also gives Parental Responsibility for the children and therefore allows you to make decisions for them, apply for passports etc. As the child’s natural parent (who appears on the birth certificate for all births after 1.12.2003) you would automatically have these rights so a ‘lives with’ order would not make any difference.
The advantages of having a ‘lives with’ order over a ‘spend time with’ do not reduce if you both have one. As with all rights-based situations giving someone else the same rights as you doesn’t mean you have less- it’s not like having a cake where there is only so much to go around. It is also not the same as having no order as in that situation neither has the rights that the order gives
Overall there is no reason to fear a ‘lives with/lives with’ child arrangement order. It is obviously not always the right order. Especially in cases where there is a need to indicate a primary carer, where there has been domestic abuse, control issues or where the parties live a long way away from each other. In these circumstances ‘a lives with/spends time with’ order may well be more appropriate. In most cases however, as the aim of all children related court orders is to sort matters out in such a way that the parents are given a spring board to move forward and therefore don’t need to come back to court, an order which is expressed in a shared way can really help.
For most parents the only real advantage of having a ‘lives with’ order over a ‘spends time with’ order is the ability to take the children on holiday without having to get the other parent’s consent (and that right is not lost if you both have one!). I would therefore encourage parents to think about the psychological advantages of an order that can make both parents feel equally important. If agreed it is also a way of both parents saying they recognise the other as crucial to their child. When parents feel respected by each other they are much more capable of building ( or rebuilding) trust and moving forward together. This makes future day-to-day discussions and planning easier. Most importantly if parents are less defensive and more co operative the chances of them having to return to court at a later date are greatly reduced. Going to court, especially over your children, is a huge burden. It causes stress, emotional upset and financial difficulties. If calling your order something different can help you work together and avoid court in the future, I think that has to be a good thing!