A Child Arrangements Order is an order that determines with whom a child is to live, and/or spend time with. Child Arrangements Orders are regulated by Section 8 of the Children Act 1989. The child’s mother, father or anyone with parental responsibility can apply for a Child Arrangements Order.
A Live With Order determines where the child will live for the majority of their time. The resident parent is permitted to remove the child from the United Kingdom for a total of 28 days without needing consent of the other parent. Generally, contact arrangements set out under the Child Arrangements Order remain legally binding until the child reaches 16 years of age. The Child Arrangements Order remains legally binding unless the order specifically states otherwise.
Before applying for a Child Arrangements Order there is a requirement to attend a Mediation Information Assessment Meeting, also known as a MIAM. The MIAM is to determine if mediation can be successfully used to establish a child arrangements agreement. However, in some circumstances where there has been domestic violence involved, mediation will not be possible as it would not be safe for the parties to engage. Both parties must consent to engage with mediation. If mediation is not successful, then the mediator will prepare a MIAM form which the Court will require when making an application.
What does the Court consider?
The Court’s priority is the child’s welfare and what is in the child’s best interests. The Court will consider the welfare checklist which is as follows:
- The ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);
- His physical, emotional and educational needs;
- The likely effect on him of any change in his circumstances;
- His age, sex, background and any characteristics of his which the court considers relevant;
- Any harm which he has suffered or is at risk of suffering;
- How capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;
- The range of powers available to the court under this Act in the proceedings in question.
Is it possible to Vary the Order?
Family circumstances can differ over time and children’s needs can vary as they age. It is possible to vary the order by agreement or apply to Court if there is no agreement. When making the application to vary the existing order, the Applicant must clearly show that the changes they seek are in the child’s best interests.
What if there is a Breach of the Order?
If there is a breach of the Child Arrangements Order, a formal application for the enforcement of the order would need to be made to the Court. The Court will need to be satisfied beyond reasonable doubt that a person has failed to comply with the terms of the order. If the person that breached the order has a reasonable excuse for failing to comply with the order, then the Court will not be satisfied there was a breach and will not make the Enforcement Order under Section 11J of the Children Act 1989. There are a variety of sanctions for breaching an order. The Court can order the breaching party to undertake unpaid community work, they can impose a fine or commit the party to prison.
If you need to apply to the Court, or you are already within proceedings, please contact a member of our family department on 01788 579579 or 01295 270999 or at family-children@brethertons.co.uk.