CHILD ARRANGEMENTS ORDERS
Divorce and separation is painful for all the family, particularly the children who need to feel safe and secure
“Jane you do a superb job. You are a very sincere lady and nothing is to much for you and you always go that extra mile because you care.”
Jane is experienced in dealing with cases, involving high conflict parental disputes. She is regularly instructed in cases involving parental alienation and persistent failure to comply. Her caseload includes allegations of alcohol/substance misuse and addiction, neglect, isolation (of parent and/or child), physical, emotional and sexual abuse, harassment, fabricated illness, extremism, mental health issues, missing children and emergency remedies.
Jane cases concern heterosexual parents, same sex parents and transgender parents and she works hard to achieve the right outcome for their children.
Jane is sometimes instructed at the outset and in other cases, her clients choose to instruct her when their case has been ongoing for some time e.g. for the fact finding hearing or for the final hearing.
When relationships break down, parents want to put their children first and to resolve their child arrangements amicably without the matter becoming contentious. In reality, however, there is often conflict resulting from the break up. This can and does often spill over into the arrangements for the children.
Whether parents were married, in a civil partnership, cohabiting or not living together and never have done, if they have children together, the family court can deal with disputes concerning their children if they are finding it difficult to reach an agreement.
1. Parenting Plan
There are alternative, speedier, less costly ways of resolving disputes over the child arrangements. One way is negotiation between the parents themselves. The ‘sorting out separation’ website at www.sortingoutseparation.org.uk has been specifically developed to help parents work out what should happen when they separate. There is also a helpful booklet called the Parenting Plan which can assist the parents to focus their minds on specific child care arrangements and methods of communication between them in the future. For more information visit www.cafcass.gov.uk.
Another way of resolving disputes is family mediation. An independent, professionally trained mediator helps both parents (and sometimes other family members) to identify an agreed way forward. In fact, before court proceedings concerning children can be issued, it is compulsory for at least the applicant to attend at a Mediation Information and Assessment Meeting (MIAM) unless an exemption applies. The MIAM is held to explore whether mediation would be a suitable option for both parents. For more information visit www.nfm.org.uk.
When child arrangements cannot be resolved, court proceedings can be issued using Form C100.
The court can make child arrangements orders in respect of all aspects of a child’s upbringing such as:
- where your child should live and with whom
- when and with whom your child should have contact
- whether a change of surname should be allowed
- whether your child should be taken out of the UK for a holiday
- which religion your child should have
- which school your child should go to
- whether your child can be permitted to move away with a resident parent
- issues around health care and your child’s emotional wellbeing.
When making a child arrangements order the judge will always have the children’s safety and their physical and emotional wellbeing as the top priority.
The court will consider all your child’s circumstances and in particular the following factors:
- your child’s wishes and feelings depending on her or his age and understanding (generally the older your child is the more emphasis the court will place on those wishes and feelings)
- your child’s physical, emotional and educational needs (this includes practical needs such as accommodation and love and affection)
- the likely effect on your child of any change in her or his circumstances (the court will look at the previous or existing arrangements, and generally considers that change can be disruptive to a child)
- your child’s age, sex, background and any characteristics the court thinks relevant (this could include any cultural or religious needs or any special needs or disabilities your child might have)
- any harm your child has suffered or is at risk of suffering (this includes physical, sexual or emotional abuse and now also includes any domestic violence your child has seen or heard)
- how capable both parents are of meeting your child’s needs (the court can consider your ability to look after your child on a day to day basis and can consider whether this is impaired, for example, by drink or drugs)
- the range of powers available to the court (the court has a range of different orders to choose from when making its decision).
There is an important presumption in private law cases that it is in the child’s best interests to have both parents involved in the child’s life, unless there is a good reason why one parent should not be involved. This could mean direct contact, such as spending time with your child regularly or indirect contact such as Face Time, telephone calls, or emails. The courts do not make orders in respect of a child who is 16 years or more, unless there are exceptional circumstances.
When a child arrangements application is issued, unless it is urgent the case will be listed for a first hearing at court around 5 or 6 weeks later.
If matters can not be resolved by consent or there is safeguarding information outstanding, at the first hearing, the matter will be adjourned for a further hearing and in the interim, further information might need to be obtained for example, a section 7 report might be ordered or drugs testing of one or both parents (if drugs have been raised as an issue). A final hearing may be listed where the parents can not agree about their child arrangements and then it is usual for each parent to give oral evidence at the final hearing in support of their case.
The Children and Family Advisory and Support Service (Cafcass)
On their website Cafcass state ‘we look after the interests of children involved in family proceedings. We work with children and their families, and then advise the courts on what we consider to be in the best interests of individual children’.
Cafcass is independent of the courts, social services, education and health authorities. One of their team usually speaks to both parents before the first court hearing. They assist the court by providing background information which is set out in their safeguarding letter. Cafcass will prepare a fuller (Section 7) report for court if the court requires it. For more information visit www.cafcass.gov.uk
The Family Court
In 2018, 38% of all separating parents in England and Wales took their case to court to resolve their child arrangement issues and now in 2019 there are more child arrangements case going to court than ever before.
In July 2019, the Law Gazette stated that “Judges could be told to get tougher on ensuring parents attend mediation”, as part of a raft of emergency measures to stop the family justice system collapsing. Sir Andrew McFarlane, President of the Family Division said “the current volume of cases is unprecedented and on current volumes, unsustainable”
However, it is not always necessary to go to court to resolve disagreements over child arrangements (which were previously called residence and contact). Court should be the last resort due to the cost, delay and stress which is often involved.
4. Arbitration in Children Cases
This relatively new service which was launched on 18.07.16. The Family Arbitration Children Scheme will determine issues such as where the child will live, how much time they should spend with each parent and relocation in England and Wales. Trained family law arbitrators are selected from the children’s panel. The arbitrator’s decision is final and binding on both parents. Arbitration is a quicker, often less costly, flexible process than the the Family Court. The setting is informal. The focus is upon minimising conflict and achieving the best outcome for the child. For more information visit
You will be fully supported and in control of your case at every stage.
Jane is authorised to practise by the Bar Council and is regulated by the Bar Standards Board. She has a right of audience in every court in England and Wales. Jane can be contacted via the Bar Council Public Access Portal.
Professional Memberships: Lincoln’s Inn, Family Law Bar Association, Affiliate member of Resolution.
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