What is a Child Arrangement Order?

Child arrangements orders explained

A child arrangements order is a court order that decides who a child lives with, and when they spend time or otherwise have contact with each parent or anyone else named in the order. In England and Wales these orders are made under section 8 of the Children Act 1989, usually when separated parents cannot agree arrangements for their children themselves.

One of the most challenging aspects of a separation or divorce is determining the arrangements for the children. If you cannot agree, a child arrangements order is the legal route to settle them. This guide explains what an order covers, who can apply, what the court considers, what it costs, how long it takes and how long it lasts.

What does a child arrangements order cover?

A Child Arrangements Order is a court order that sets out where a child lives and the time they spend with each parent. It can be made after a contested hearing or, where parents agree, by consent. Who can apply is explained below.

A Child Arrangements Order can cover a wide range of issues, including where the child will live (including living with both parents under a shared arrangement), how much time they will spend with each parent, and indirect contact such as phone or video calls. It can also include specific details such as who will pick up and drop off the child for visits and how holidays will be divided.

A child arrangements order does not decide individual issues such as which school a child attends or whether they can be taken abroad. Those are dealt with by a specific issue order or a prohibited steps order, which are applied for on the same form. The old terms “custody” and “access” are no longer used: see why the term child custody was abandoned.

If someone who does not already have parental responsibility is named in the order as a person the child lives with, they will also have parental responsibility for the child while the order lasts.

Who can apply for a child arrangements order?

The following people can apply without asking the court’s permission first:

• any parent, guardian or special guardian of the child;
• anyone with parental responsibility, including a step-parent who has it;
• anyone already named in a child arrangements order as a person the child lives with;
• a spouse or civil partner for whom the child is a child of the family;
• anyone the child has lived with for at least three years, provided the statutory timing requirements are met;
• anyone who has the required consent under the Children Act 1989.

Others, including most grandparents, must first ask the court for permission (leave) to apply. The court considers their connection to the child and whether the application could disrupt the child’s life.

Shared parenting and the presumption of parental involvement

At present the court must presume that each parent’s involvement in the child’s life will further the child’s welfare, unless the contrary is shown, for example where there are safety concerns. Involvement does not mean any particular division of time.

The Courts and Tribunals Bill, currently before Parliament, would remove this presumption. Until that change becomes law, the presumption still applies. Either way, the child’s welfare remains the court’s paramount consideration and no parent has an automatic right to a set amount of time.

Shared parenting is seen as beneficial for the child’s emotional and psychological well-being, as it allows them to maintain a relationship with both parents and have a sense of stability and security.

What does the court consider?

The Welfare Principle

The child’s welfare is the court’s paramount consideration. When making decisions regarding child arrangements, the court must have regard to the “welfare checklist” in section 1(3) of the Children Act 1989:

• the child’s wishes and feelings, in light of their age and understanding;
• their physical, emotional and educational needs;
• the likely effect on them of any change in their circumstances;
• their age, sex, background and any relevant characteristics;
• any harm they have suffered or are at risk of suffering;
• how capable each parent, and anyone else relevant, is of meeting their needs;
• the range of orders available to the court.

The court will also only make an order if doing so would be better for the child than making no order at all.

How the court assesses each parent

In looking at how capable each parent is of meeting the child’s needs, the court may consider:

Parental involvement: The court may look at the level of involvement and engagement of each parent in the child’s life. This includes factors such as the parent’s willingness to actively participate in the child’s upbringing, attend school events, and be involved in extracurricular activities.

A safe and stable home: The court will consider their ability to provide a safe and stable environment for the child and meet the child’s basic needs.

Parenting skills: The court will consider the parenting skills and abilities of each parent. This may include their ability to communicate effectively with the child, provide appropriate guidance and discipline, and foster a nurturing and supportive relationship.

Mental and physical health: The court may also evaluate the mental and physical health of each parent. This assessment is important to ensure that the parent is capable of meeting the child’s needs on an ongoing basis.

Support network: The court may take into account the availability of a support network for each parent. This includes considering the presence of extended family members, friends, or professionals who can provide support and assistance to the parent in caring for the child.

A Child’s Wishes and Feelings

The weight given to a child’s wishes and feelings varies depending on their age and maturity. There is no fixed age at which a child can decide where to live, but the views of an older child will usually carry significant weight. The court will consider the child’s views and take them into account, especially if the child is old enough to express their preferences. However, the child’s wishes and feelings are not the sole determining factor in the court’s decision. The court will also prioritise the child’s best interests and consider other relevant factors such as the child’s safety, well-being, and the ability of each parent to meet their needs.

The Role of Cafcass in Child Arrangements Order Proceedings

Cafcass, which stands for the Children and Family Court Advisory and Support Service, plays a crucial role in child arrangements order cases in England. Cafcass is independent of the courts and advises them on children’s welfare during family proceedings.

Before the first hearing, Cafcass carries out safeguarding checks, including with the police and the local authority, and usually speaks to each parent by phone. It then reports to the court on any safety concerns.

If the court needs more information, it can ask Cafcass to prepare a section 7 report. Their primary responsibility is to assess the needs and wishes of the child and make recommendations to the court based on their findings. Cafcass officers are trained professionals who may speak to the child, parents and other relevant parties involved in the case.

Cafcass officers gather important information about the child’s welfare, living arrangements, and any concerns or issues that may impact their well-being. They also aim to understand the child’s relationship with each parent and other family members. Based on this information, they prepare a report that is presented to the court. If one parent is undermining the child’s relationship with the other, sometimes described as parental alienation, the court can take this into account when deciding what arrangements are in the child’s best interests.

The Cafcass report carries significant weight in the court’s decision-making process. It helps the court understand the child’s perspective, their wishes and any concerns they may have. The report also provides recommendations on the best arrangement for the child, taking into account factors such as their safety, well-being, and emotional needs.

It’s important to note that Cafcass’s role is not to make the final decision regarding child arrangements orders. The ultimate decision rests with the court, which considers all the evidence presented, including the Cafcass report. However, the court places great importance on the recommendations made by Cafcass, as they are considered experts in child welfare matters.

How to get a child arrangements order

A Child Arrangements Order can be applied for at any time, even before a couple has officially separated. It is usually recommended to try and come to an agreement with the other parent before going to court, as this can save time, money, and stress. If you reach an agreement, a solicitor can ask the court to record it in an order by consent.

If you are struggling to come to an agreement between yourselves, family mediation is the next step and it’s essential that mediation is at least considered before the Court is involved.

The Mediation Information and Assessment Meeting (MIAM) is a crucial step in the process of applying for a Child Arrangements Order. Before applying to the court, the applicant is normally required to attend a MIAM, which is a meeting conducted by a professional mediator. The purpose of the MIAM is to provide parents with information about mediation and other alternative ways of resolving disputes, such as negotiation or collaborative law. The mediator will assess whether mediation is suitable for the parents and the child, and if it is, they will encourage the parents to attempt mediation before proceeding with court proceedings. Attending a MIAM is normally required for the applicant, unless an exemption applies, for example where there is evidence of domestic abuse or the application is urgent. It is important for parents to understand the benefits of mediation and explore this option before pursuing a Child Arrangements Order in court.

In addition to being an essential part of the process, mediation tends to work better for the family in the longer term if an arrangement is negotiated between themselves, rather than an agreement imposed by a Court. Mediation enables the parents to maintain some degree of control over decisions whereas a Court will simply impose an order based on the facts as they see them and that decision will only consider what’s best for the child or children involved.

If you cannot agree: applying to court

If an agreement cannot be reached, either parent can apply for a Child Arrangements Order using form C100. The court fee is £270, although you may qualify for help with fees on a low income. The court will then consider the best interests of the child when making a decision.

A contested case usually follows these stages:

• First hearing (FHDRA): a short hearing, attended by Cafcass, where the judge tries to help you reach agreement and decides what else is needed.
• Reports and evidence: for example a section 7 report, statements, or a fact-finding hearing if there are allegations of abuse.
• Dispute resolution appointment (DRA): a further attempt to settle once the evidence is available.
• Final hearing: if you still cannot agree, the judge hears the evidence and decides.

Urgent applications, for example where a child is at risk of harm or of being taken abroad, can be heard quickly. Otherwise, GOV.UK says it usually takes around 10 months to get a court order, depending on where you live and your situation.

Court proceedings can be emotionally draining and expensive, and they can also have a negative impact on the child. It is always recommended to try and come to an agreement outside of court where it is safe to do so.

How much does a child arrangements order cost?

The court fee is £270. Legal aid is not usually available for child arrangements cases unless you have evidence of domestic abuse or child abuse, or the case involves certain other issues: see can I get legal aid for a child arrangements order? Solicitors’ fees depend on how much work is needed and whether the case settles. Our fixed fee family law consultation is a good place to start if you want to understand your options and likely costs.

How long does a child arrangements order last?

The parts of an order that say who a child lives with last until the child is 18. The parts about the time a child spends with a parent, or other contact, normally end when the child turns 16 unless the court says there are exceptional circumstances. An order can be varied or discharged before then.

What Does a Child Arrangements Order Mean for Parents and Children?

A Child Arrangements Order is a legally binding document, and both parents are expected to follow its terms. This means that if one parent does not comply with the order, the other parent can take legal action to enforce it.

For children, a Child Arrangements Order can provide a sense of stability and routine, as they know when they will see each parent and what to expect. It also allows them to maintain a relationship with both parents, which is crucial for their emotional well-being.

Impact on Parents

For parents, a Child Arrangements Order can provide clarity and structure, as they know what is expected of them and when they will have time with their child. It can also help to reduce conflict and tension between parents, as the terms of the order are legally binding.

However, a Child Arrangements Order can also be challenging for parents, especially if they do not agree with the terms or if they feel that the other parent is not following the order. It is important for parents to communicate and work together to ensure that the order is followed and that the child’s best interests are always the top priority.

Changing a Child Arrangements Order

If both parents agree to change the arrangements, the new arrangements can be recorded in a consent order. When circumstances change and you cannot agree, you can apply for a variation. This can be done by submitting a C100 form to the court, just like when initially applying for the order. The court will want to know what has changed and why a variation would be better for the child.

When applying for a variation, it is recommended to speak with a family law solicitor to understand the process and ensure that the necessary evidence is provided to support the request. The court will consider various factors when deciding whether to grant the variation, including the child’s best interests and the reasons for requesting the modification.

It is important to note that, in some cases, it may be possible to resolve the changes in the Child Arrangements Order through mediation or negotiation without involving the court. Mediation can be a helpful alternative to consider as it allows parents to discuss and come to an agreement on the modifications with the help of a mediator.

Enforcing a Child Arrangements Order

When it comes to enforcing a Child Arrangements Order, it is important to understand the options available. If one parent is not complying with the terms of the order, the other parent can take steps to ensure enforcement. Every order carries a warning notice setting out the consequences of not complying.

Firstly, it is recommended to try to resolve the issue through communication and negotiation with the other parent. Sometimes, misunderstandings or disagreements can be resolved amicably without the need for legal action, although this is harder where the other parent is highly controlling: see our guide to co-parenting with a narcissist. However, if this approach does not work, the parent seeking enforcement can apply to the court for assistance. They can submit a C79 form, which is an application for enforcement of a Child Arrangements Order (the court fee is £270). The court will then review the case and decide on the appropriate course of action.

The court has various powers when it comes to enforcing a Child Arrangements Order. It can direct the parent to attend a course or other activity, make an enforcement order requiring between 40 and 200 hours of unpaid work, or order them to compensate the other parent for financial loss. Serious or repeated breaches can be treated as contempt of court, which can lead to a fine or imprisonment. In more serious cases where repeated breaches occur, the court can even consider more drastic measures such as changing the arrangements or even making an order for the child to live with the other parent. The court will not enforce an order if the parent had a reasonable excuse for not complying.

It is important to note that before taking the matter to court, it is advisable to seek legal advice from a family law solicitor to understand the process and ensure that the necessary evidence is provided to support the case. The court will consider the best interests of the child and the reasons for seeking enforcement when making their decision.

Frequently asked questions

How much does a child arrangements order cost?

The court fee to apply is £270. You may be able to get help with court fees if you are on a low income or receive certain benefits. Solicitors’ fees are extra and depend on the work involved.

How long does it take to get a child arrangements order?

GOV.UK says it usually takes around 10 months, depending on where you live and your situation. Cases that settle at the first hearing are much quicker; urgent applications can be heard within days.

How long does a child arrangements order last?

Arrangements about who a child lives with last until the child is 18. Arrangements about spending time or contact normally end at 16 unless there are exceptional circumstances.

Can grandparents apply for a child arrangements order?

Yes, but most grandparents must first ask the court for permission to apply, unless the statutory three-year living requirement is met or the required consent is obtained.

At what age can a child decide which parent to live with?

There is no fixed age. The court considers a child’s wishes and feelings in light of their age and understanding, and the views of older children usually carry significant weight, but the final decision is based on the child’s welfare.

Can I get legal aid for a child arrangements order?

Usually only if there is evidence of domestic abuse or child abuse, and you meet the financial eligibility test. Our legal aid team can check whether you qualify.

Talk to our child law solicitors

If you need help agreeing arrangements for your children or applying for a child arrangements order, our child arrangements order solicitors can advise you. Call us on 020 8889 3319 or send us an enquiry.