April 9, 2018
When parents separate or divorce, where the children should reside may become an issue.
Although in most cases the parties can agree the arrangements between themselves, this is not always possible.
It is always better to try and reach an agreement with the other parent.
The first step should be to approach the other parent and discuss matters as objectively as possible putting the best interests of the child at the forefront of any discussions taking place.
Solution #1: Mediation
If this is not possible, the option of an independent mediator who is trained to assist the parties in such situations is available.
Mediation is a voluntary process which both parties must agree to and it may not therefore be suitable in all cases. We can provide details of mediation services if you are considering this.
Solution #2: Collaborative Law
A relatively new approach to such matters is called Collaborative Law.
This gives the parties an opportunity to discuss issues such as where the children should live and how often the other parent should see the child in an amicable and non-confrontational manner.
Both parties will set the agenda for any meetings that take place, and each will have the benefit of independent legal advice as and when they need it as they go through the process.
This approach is very solution focused, and all parties act together and work as a team to achieve the best possible outcome for all concerned. When entering into the process both parties agree not to refer the matter to the court.
Where however parents cannot agree applying to court for a child arrangements order (CAO) may be the only option.
Child Arrangements Orders
On 22nd April 2014 changes to procedures relating to settling disputes between parents in connection with arrangements for their children came into force.
Contact orders, residence orders and shared residence orders have now been replaced with the new “Child Arrangements Orders”.
This article provides general guidance regarding applications for child arrangements orders. Our family lawyers will be able to provide individual advice based on your specific circumstances.
What is a Child Arrangements Order?
A child arrangements order (CAO) is an order setting out legal arrangements in relation to with whom and when the child is to live, spend time or otherwise have contact.
Contact is, ‘the time a child spends with an adult’. There are several ways contact may take place, including:
• direct contact between the child and the adult named in the order
• overnight staying contact
• supervised contact, and
• indirect contact, for example via letters or cards
In rare circumstances, where the best interests of the child dictate, the court can order that there is no contact.
A CAO may:
• name the person with whom a child is to live, but not specifically where
• provide for the child to live with one parent only
• or it may provide for the child to share their time between both parents.
An order that provides for a child to spend time with both parents will usually detail how the child’s time is to be divided.
Who can apply for a CAO?
A child’s parent can always apply for a CAO.
The child’s step-parent, guardian can apply. As can anyone with whom the child has been living, as long as it has been for at least three of the last five years, including the last three months.
Other people may apply if they get the consent of everyone with parental responsibility or the permission of the court.
How long do CAO last?
A CAO that specifies with whom and when the child is to live will last until the child is 18 (unless the court orders an earlier date).
A CAO detailing when the child is to have contact with a person will usually end when the child is 16. In limited circumstances this can last until the child is 18.
What is the procedure to apply for a CAO?
Before applying to the court for a CAO, you are required to attend a meeting with a mediator. This is to see whether mediation might be suitable, rather than using the court. There are some exemptions to this rule, including issues relating to the safety of the child or domestic violence.
Both parties are encouraged to attend mediation. If you are willing to attend together then the mediation meeting may be conducted jointly; if not, separate meetings will be held.
If it is not possible to reach an agreement through mediation about time with children or where they should live, you can apply to the court for a Child Arrangements Order.
An application has to be made on a specific court form. This sets out the details of all the adults and children in the case. It also asks what orders you are asking the court to make and why.
When the court receives this application, it will set a time and place for you and the other person or people involved to have a first court appointment. This is a First Hearing Dispute Resolution Appointment (FHDRA). Information about this appointment and a copy of the application form are usually sent to any other adults involved.
The person starting the court process is called the applicant. The other parent, and any other adult with parental responsibility or looking after the child, is a respondent.
The respondent(s) must complete certain forms and send them to court to confirm they have seen the papers. They should also prepare an answer in response which sets out their side of the case.
What happens at court?
At the First Hearing Dispute Resolution Appointment (FHDRA), the court investigates the issues and seeks a settlement.
If agreement cannot be reached the court will identify the outstanding issues and decide how the case should proceed.
The court might order that a Cafcass (Children and Families Court Advisory and Support Service) officer prepares a report to help the judge at the final hearing. It might order the child be legally represented in the proceedings. In some cases the court will adjourn the case so mediation can take place.
If the issues still cannot be sorted out the court will hold a final hearing. At the final hearing a judge will hear evidence from the adults involved, the Cafcass officer and any other experts. The judge will then make a binding decision.
How does the court decide what should happen?
Child welfare is the first concern of the court. The Children Act 1989 provides a list of considerations for the judge which helps guide their decision. These include:
• the wishes and feelings of the child
• the child’s physical, emotional and educational needs
• the likely effect on the child if circumstances changed as a result of the court’s decision
• the child’s age, sex, background and any other characteristics that are relevant to the decision
• any harm the child has suffered or may be at risk of suffering
• the capability of the child’s parents (or other relevant people) in meeting the child’s needs, and
• the powers available to the court.
The court will also make sure that making an order is better for the child than not making an order at all.
We can help. Contact us
If you are worried about contact with your child please contact a member of our family law team. firstname.lastname@example.org
This article is for general information purposes only. It does not constitute technical, financial, legal advice or any other type of professional advice and is no substitute for specific advice based on your individual circumstances. We do not accept responsibility or liability for any actions taken based on the information in this article. For more information, please click here.