One of the most difficult parts of going through a divorce or separation is the impact it will have on any children involved. Couples with children may have to have a Child Arrangements Order when divorcing or separating. This is a court order that regulates who the child is to live with, and how much time will be spent with either parent.
If you and your ex-partner can easily agree on these things, you may not need a Child Arrangements Order. You can then avoid going to court hearings and you do not need any official paperwork. It can be difficult to come to an agreement however and even if you do, you may still want to make your agreement legally binding.
Who can apply for a Child Arrangements Order?
A Child Arrangements Order is commonly applied for by separating parents, however this is not always the case. Sometimes one of the parties may not be a biological parent, or may be a guardian or other relative. For example, grandparents may apply for a child arrangement order in a situation where one or both of the child’s parents has passed away or if they are having difficulty arranging to see their grandchildren.
In order to apply for a Child Arrangements Order, you must have some sort of parental responsibility for the child. For example:
- A parent, guardian or a special guardian
- Someone who currently has parental responsibility of the child
- A person in a marriage or civil partnership when the child is a child of the family (even if they are not a biological parent)
- Anyone who has residence order in respect of the child, or who has lived with the child for three years or longer-term
Anyone else who wishes to seek a Child Arrangements Order can only do so if they apply to the court for permission first.
Agreeing on a Child Arrangement Order
Any parent wants to do what is right by their child, but it can be difficult to know exactly what that is sometimes. You’re not expected to know it all and it’s not easy to reach an agreement, so there are routes for you to take for some extra support. You could start with mediation. A mediator provides third party, unbiased advice and help on deciding what is best for the child going forward. This includes:
- Where the child lives
- When they spend time with each parent
- When and what other types of contact take place (phone calls etc)
- Child maintenance payments
At the end of mediation, if an agreement can be reached you’ll get a document detailing what has been agreed, however this is not legally binding. If you were unable to agree on suitable terms, or you would like the terms to be legally binding, the next step is to enlist the help of a solicitor to draft a consent order for a court to approve. A consent order is a legal document that confirms your agreement, signed by both you and your ex-partner.
A solicitor will also be able to help by providing advice on deciding the terms of your Child Arrangements Order, drafting legal documents and agreements, legal advice during the mediation process and help filling in forms. They will also help by if necessary, preparing evidence and supplemental information for court hearings.
Once the Child Arrangement Order is applied for, the Court schedules a ‘directions’ hearing to encourage the parents to reach an agreement that takes into consideration what is best for the child. If this is not possible, further hearings can be scheduled where evidence can be filed and witnesses can be called. At the final hearing, the court reviews all of the evidence and statements, and makes a final decision which is put into an order of the Court.
When doing so they will primarily consider:
- The wishes of the child
- The child’s emotional, physical and educational needs
- Any danger of abuse or neglect
- The ability of the child’s parents/guardians to meet the child’s needs
- The effects on the child of any changes in circumstances as a result of the order
Can you make changes to a Child Arrangement Order in the future?
Let’s say that five years down the line you decide to make some changes to the Child Arrangement Order. Family circumstances change over time and particularly as a child gets older, so it’s understandable that you might find yourself needing to make some adjustments.
If you and your ex-partner both agree to any changes, then you won’t be breaching the order by departing from its terms. That doesn’t mean that the changes you’ve informally made are legally binding however, unless the order is formally varied by in court. If you want to be sure that there will be consequences if anyone breaches these new terms, you will need to involve the Court.
What happens if one of us breaches the Child Arrangements Order?
The Court can help you decide on the details of a Child Arrangements Order, but once in place it does not monitor any breaches. It would only become aware of a breach if a formal application for an Enforcement Order is made by either party. This will be investigated by the Court and if necessary, an Enforcement Order will be issued. When making an Enforcement Order, the person in breach could be faced with a warning, a fine, community service or in the worst cases, a prison sentence.
When the child reaches the age of 16, the Child Arrangements Order is usually redundant, unless the order specifically states otherwise. From this point, it’s up to the child to decide how much contact they would like to have with the parent they don’t live with – but they must remain living with the parent detailed on the order until they reach the age of 18.
How Bromfield Legal can help
Childcare arrangements are often the main worry in divorce or separation. We understand this and as experts in children’s matters, we will aid you with resolving issues about where a child should reside and who they should have contact with.
We understand that court action should be a last resort, so will always endeavour to resolve issues before this happens. For support with your Child Arrangements Order, get in touch with us today.