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What can I expect if I apply for a Child Arrangements Order?
- AuthorLaura Cotton
It is common that when a relationship breaks down, conversations need to be had about the arrangements for the children to be able to spend time with both parents. It is always best if parents can reach an agreement between themselves in an attempt to ensure the relationship remains amicable, but unfortunately this is not always possible.
If the parents cannot reach an agreement in respect of the arrangements, they have the option of applying to the court for a Child Arrangements Order. Before the parties can make an application to Court, save in the case of certain exceptions, for example where there has been domestic abuse, there is a requirement to attend mediation.
Mediation provides the opportunity for parents to discuss matters face to face in a controlled environment, to see whether they are able to reach an agreement without the need to commence Court proceedings. More information about mediation can be found here.
In the event that mediation is unsuccessful and the parents are unable to reach an agreement as to them both spending time with the children, it may then be necessary to make an application to Court for the arrangements to be determined. This involves one parent completing a C100 form, which provides the Court with all of the factual information about both parents and all children, for example names, dates of birth, addresses, etc. and explains to the Court what the parent making the application is seeking and the reason why it has become necessary for them to make an application to Court.
A Child Arrangements Order can determine who the children are to live with and the time they should spend with the non-resident parent. The Order can also regulate additional contact such as during school holiday periods and special occasions. Having a Child Arrangements Order in place often provides certainty to both the parents and the children and can deter future conflict.
After an application for a Child Arrangements Order has been processed by the Family Court, a date will be set for a First Hearing Dispute Resolution Appointment (FHDRA), in respect of which both parents will be required to participate. In view of current Covid-19 Restrictions all such initial hearings are being held remotely, either by telephone or video link.
Prior to the FHDRA, both parents will be contacted by the Children and Family Court Advisory and Support Service (CAFCASS), and will be given the option to discuss any concerns they may have, both in relation to the other parent and also the children. CAFCASS will undertake necessary safeguarding checks, including whether either parent has any previous criminal convictions and whether they and/or their children are known to social services.
CAFCASS will then prepare a safeguarding letter to the court, which will highlight any safeguarding concerns in relation to the children and also provide recommendations as to any interim contact, provided they believe this is safe and will not place the children at any risk of harm.
Within the safeguarding letter, CAFCASS will advise the Court in respect of whether they consider any further investigations are necessary, in order for recommendations to be made to the Court as to what the long-term arrangements for the children should be to spend time with both parents.
In certain cases where domestic abuse is alleged, particularly if these allegations have resulted in the parent with whom the children are living not permitting them to spend time with the alleged perpetrator, CAFCASS may recommend that the Court sets the matter down for a Fact-Finding Hearing, which is a Hearing at which the Court will determine the truthfulness of any allegations of domestic abuse. Following the conclusion of a Fact-Finding Hearing, dependent upon any determinations made by the Court, consideration will then have to be given by the Court as to whether it is considered safe for the alleged perpetrator to have contact with the children. In some cases, where allegations of domestic abuse have been proven, the Court make consider there needs to be further investigation of the matter by CAFCASS or Social Services, which sometimes includes risk assessments being undertaken, before recommendations can be made to the Court as to safe arrangements for the children to be able to spend time with both parents.
Sometimes, even in cases where the parents are not making allegations of domestic abuse against each other, they may raise concerns in relation to the other parent’s care of the children and/or the relevance of the wishes and feelings of the children, which may result in the Court making an order for CAFCASS or Social Services to prepare a report under Section 7 of the Children Act 1989. If the Court makes an order for such a report to be prepared, then the Court will take into consideration the matters contained in the welfare checklist, the details of which are set out below.
In some cases, where it is simply the situation that the parents cannot agree as to how much time the children should spend with each of them, it is likely that CAFCASS will consider there is no further role for CAFCASS in relation the case. Therefore, in the event the parents cannot agree matters at the FHDRA, the Court will probably order that, both parents should prepare statements setting out their positions as to what the arrangements for the children should be. There will then be a further hearing at which the parents will give oral evidence, following which the Court will make a determination as to what the arrangements for the children should be.
At all stages of the process, the parents will be encouraged to reach an agreement and negotiations will make place prior to the hearing. At the FHDRA, both parents will have the opportunity to propose arrangements, provide the reasoning for their proposals and why they think they are in the best interests of the children.
At the FHDRA, the court may direct for further safeguarding reports to be completed, request police disclosure or a range of other directions depending on the circumstances of the case. Such information, if requested, which will then be reviewed at subsequent hearings.
The child’s welfare will always be the court’s paramount consideration. Before making a Child Arrangements Order, the Court must consider the Welfare Checklist (Section 1(3) Children Act 1989):
(a) the ascertainable wishes and feeling of the child concerned (considered in the light of the child’s age and understanding);
(b) the child’s physical, emotional and educational needs;
(c) the likely effect on the child of any change in his/her circumstances;
(d) the child’s age, sex, background, and any other characteristic which the court considers relevant;
(e) any harm which the child has suffered or is at risk of suffering;
(f) how capable each of the child’s parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting the child’s needs;
(g) the range of powers available to the court under the Children Act in the proceedings in question.
If you are considering making an application for a Child Arrangements Order, or wish to discuss your options, please do not hesitate to contact us to arrange a Fixed Fee Initial Consultation at which you will be able to discuss your queries with one of the specialists in our Family Department, who will be able to provide you with expert advice.