Child Arrangement Orders have now replaced what were once referred to as contact orders or residence orders. These new orders are made in children proceedings and can set out with whom a child will live and with whom they will spend time or otherwise have contact. Existing contact and residence orders are not affected but the two tier system, where parents either have residence or contact, is no more. The court will no longer decide who is to be the parent with residence or whether a shared residence order is appropriate.
The purpose of the change is to reinforce the importance of children having an on-going relationship with both parents. The principle of joint involvement is prioritised and the court will presume that unless the contrary is shown, the involvement of both parents in the child’s life will be ordered as being in the child’s best interest.
Changes have also been made in the procedure for applying for an order relating to children. Before an application can now be made, there is in most cases a requirement to attend a mediation information and assessment meeting (MIAM). If following the MIAM an application is made a statutory child arrangements program will be applied designed to encourage resolution outside of the court system.
The law is therefore directed towards encouraging separating parents to discuss and agree the arrangements for their children themselves. Having done so, they should prepare a parenting agreement or parenting plan, which if required, can be approved by a court and given legal effect. We have an e-book on Making a Parenting Agreement available for download.
Applying for a child arrangements order
Before applying for an order, an applicant must attend a mediation information and assessment meeting (MIAM). This will be with an approved mediator who, when possible, will see each party together. Information will be provided about mediation, and the ways and advantages of resolving disagreement otherwise than by the court. You will be required to contact a family mediator who, following the meeting, will issue a certificate either confirming the suitability of mediation or indicating that the case is not suitable for mediation. In certain cases, including where there are allegations of domestic violence or risk to the child, the requirement to attend a MIAM may be excused. Where an urgent order is needed, and where giving notice to the other parent would allow the respondent to take steps which would be opposed as not in the child’s interest, the requirement for a MIAM can also be waived.
Once you have attended a MIAM, an application for a child arrangements order can be made using Form C100. You should, whenever possible, attach a parenting plan to the application. The court must then issue the application and fix a hearing date within two days of the application being lodged. They will serve the application and hearing date upon the respondent, unless you have asked to do so. At the same time, a copy of the application and details of the hearing will be sent to CAFCASS. No further evidence can then be filed until ordered to do so.
The application will now be considered by a nominated legal advisor or district judge, who will be known as the ‘gatekeeper’. He will allocate the case to an appropriate level of judge depending upon court resources, the need to avoid delay, complexity, the location of the parties and the need for judicial continuity. Gatekeepers may issue direction on issue which could be to attend mediation before the first hearing or for an early hearing date, where there is apparent urgency.
On receiving notice of the application, CAFCASS will undertake safeguarding inquiries and may make telephone risk identification inquiries with the parties. They will then note any issues, and within 17 days of receiving the application send a ‘safeguarding letter’ to the court.
A first hearing dispute resolution appointment (FHDRA) must be held between 5 and 6 weeks of issue of the application. The respondent must be given as much notice as possible of the hearing, and is required to file a response no later than 10 days before the hearing. Both parties must attend the FHDRA together with the CAFCASS officer, who will speak separately to the parties before the hearing. Throughout the hearing, the CAFCASS officer will endeavour to conciliate and broker agreement, and advise the court on ways to resolve the issues.
Where agreement is reached an order can be made, unless safeguarding checks or risk assessments remain outstanding. If there is no agreement or outstanding matters, the court will give directions and order a further hearing. A decision will be made on issues such as whether a fact finding hearing is needed, the need for expert evidence or a CAFCASS report and the need for a guardian for the child. Court proceedings will be time tabled and may include a dispute resolution appointment (DRA) to take place after a fact finding hearing. Where issues are still not resolved and when all directions have been complied with, a final hearing will take place.
What has happened to contact orders and residence orders?
The courts are now less bothered about the label it attaches to orders made. The existing contact and residence orders remain unchanged, but will be considered child arrangements orders. The courts will however no longer make ‘contact’ (or, as they were once known, ‘access’) orders or ‘residence’ (or previously ‘custody’) orders. Instead, they are replaced by a child arrangements order. This order will regulate, as before, arrangements relating to with whom a child is to live, spend time or otherwise have contact. Senior judges have said that the court should first decide the division of time the child spends with each parent and then decide what labels to attach to that division (i.e. contact and residence or shared residence).
What are the intentions of a child arrangements order?
The intentions of the changes are to ensure that both parents are equally involved in the upbringing of their children. Parents are to be encouraged to ‘agree’ arrangements and how the child’s time should be divided, rather than a judge imposing orders upon them. The objective is to move away from terms such as ‘residence’ and ‘contact’, which can in themselves become a source of contention, and to focus on practical issues relevant to the care of the child. Previously, a parent without residence could feel less important in the child’s life. This was not the case, but all parents will now have the same type of order.