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What can I do if I want to see my child?
You may be able to apply for a Child Arrangements Order. These are Court Orders that confirm whom a child is to live with and/or spend time with (often referred to as “contact”).
Who can apply for a child arrangements order?
- A parent, guardian or special guardian of the child;
- Any person who has Parental Responsibility for the child;
- Any party to a marriage or civil partnership where the child is one of the family;
- Any person with whom the child has lived for a period of at least three years;
- Any person who has the necessary consents; and
- Any person who has acquired parental responsibility through being named in a child arrangements order (section 12(2A) Children Act 1989)
- Other people can apply, eg wider family but they will require permission of the court.
In deciding whether to give permission the court consider:
- the nature of the application;
- the Applicant’s connection with the child; and
- the risk there might be of the proposed application disrupting the child’s life to such an extent that they would be harmed by it.
The family department have specialist family solicitors who can advise you whether you are likely to get permission to apply for a Child Arrangements order.
What happens once a Child Arrangements application has been submitted?
At Emery Johnson Astills we can draft and lodge an application on your behalf. The Applicant is then informed of the date for the first hearing which is typically a First Hearing Dispute Resolution Appointment (FHDRA). We have specialist family solicitors who are able to provide essential legal advice and assist in preparing for the FHDRA and possible subsequent hearings. The application will also prompt initial investigations of the safety of the child to be carried out by an independent body referred to as the Children & Families Court Advisory & Support Service (CAFCASS).
The case may settle at the first hearing or, depending on the circumstances, will progress to further hearings.
What is the approach of the Court?
The approach of the court is entirely child focussed. Its paramount consideration is the child’s welfare (section 1(1) Children Act 1989). The court will presume that the involvement of both parents in the child’s life will be beneficial, unless the contrary is shown (section 1(2)(A) Children Act 1989). Therefore, contact is terminated ‘only in exceptional circumstances'. (Re R (No Order for Contact: Appeal)  EWCA Civ 1664).
When determining an application for child arrangements orders, the court refers to several factors contained under section 1(3) of the Children Act 1989, referred to as the ‘welfare checklist’. The welfare checklist contains 7 sub-categories as follws:
The child’s ascertainable wishes and feelings
- The wishes and feelings are persuasive, yet not determinative.
- A child’s decision-making ability depends upon their competence and understanding.
- The court takes caution not to burden children with the responsibility of making adult decisions.
The child’s physical, emotional and educational needs
- The court considers whether the child’s needs are being met. Cafcass may investigate this by speaking to the child’s teacher.
- The court does not like to separate a child from their siblings.
The likely effect on the child of any change in circumstances
- The court likes to uphold the status quo but will go against this if there is a compelling reason. E.g. where there is a risk of parental alienation.
The child’s age, sex, background and any other relevant characteristics
- The court will take into account the age, sex, race, religion and any other characteristics of the child which are relevant in determining how their welfare will be best upheld.
Any harm the child has suffered or is at risk of suffering
- The court must consider whether the child concerned has or may suffer harm as a consequence of a proposed contact arrangements order.
How capable each of the child’s parents/any other relevant person are of meeting the child’s needs
- The court must consider the capability of each parent to meet the child’s needs with the assistance of Cafcass and other professional bodies.
The range of powers available to the court
- The court is not obliged to make a child arrangements order.
Each case is considered individually and every case turns on its own facts. At Emery Johnson Astills, we can discuss with you the merits of you successfully making an application for a Child Arrangements Order.
The family team at Emery Johnson Astills can offer advice if you are seeking to put arrangements into place to have contact with a child. If you would like some further advice on child arrangements following a separation, please contact a member of the family team on 0116 2554855.