Child ArrangementsApplications for child arrangements orders between individuals, under s8 Children Act 1989.
Call us on 07940 384785
Applications for private child arrangements orders are usually between private individuals, under s8 Children Act 1989. In private law cases children are not parties to the proceedings unless the case is particularly complex. The court can request a welfare report under s7 Children Act 1989, either from the local authority or from a Children and Family Reporter who is an officer appointed by Cafcass. The report will usually tell the court of the child's wishes and feelings.
It is Cafcass practice to discuss with your child in a manner appropriate to their developmental understanding whether their participation in the process includes a wish to meet the Judge. If your child does not wish to meet the Judge discussions can centre on other ways of enabling your child to feel a part of the process. If your child wishes to meet the Judge, that wish should be conveyed to the Judge where appropriate. Such a meeting with the Judge could not only benefit the child but also benefit the Judge and other family members. There are Guidelines in respect of children who are subject to Family Proceedings meeting Judges and these are set out in full at Guidelines for Judges Meeting Children
The court in some circumstances may order that your child is made a party to the proceedings. A Children's Guardian (who again is an officer of Cafcass) will be appointed to represent your child at the proceedings and the Guardian will then appoint a solicitor to represent your child. If your child and Guardian do not agree on what recommendations to make to the court and your child is of sufficient age and clearly understands what is happening, your child does have some choice in this matter and (depending) on their age and understanding, they will be able to instruct a solicitor directly to represent their views and in those circumstances the Guardian will present their own views to the court.
WHO CAN MAKE AN APPLICATION
Certain categories of people are entitled to make an application for a child arrangements' order under s8 without having to seek permission from the court first, and they are:
- The parent, guardian or special guardian of a child
- Any person who has parental responsibility
- Anyone who holds a residence order in respect of the child
- Any party to a marriage or civil partnership where the child is a child of the family
- Anyone with whom the child has lived for at least three years
- Anyone who has obtained the consent of:
- a residence order
- everyone who has parental responsibility for the child
APPLICATIONS FROM OTHER PEOPLE
Other people can make an application to the court for permission to issue an application for a child arrangements order. In deciding whether to give permission the court will take into account, amongst other things:
- The nature of the application
- The applicant's connection with the child
- The risk there might be of the proposed application disrupting the child's life to such an extent that they should be harmed by it
Grandparents are able to apply for orders in respect of their grandchildren via this route.
Other Statutes Regarding Child Arrangements Orders
The Welfare Checklist - section 1 Children Act 1989
When a court considers any question relating to the upbringing of a child under the Children Act 1989 it must take into consideration the welfare checklist set out in s1 of that Act. Among the things the court must consider are:
- The ascertainable wishes and feelings of the child concerned (considered in light of his/her age and understanding)
- His/her physical, emotional and/or educational needs
- The likely effect on him/her of any change in his circumstances
- His/her 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/her parents and any other person in relation to whom the court considers the question to be relevant, is of meeting his/her needs
- The range of powers available to the court under the Children Act 1989 in the proceedings in question
The child's upbringing and the child's welfare is the court's paramount consideration in all proceedings under the Children Act 1989.
Child Arrangements Orders - section 8 Children Act 1989
These orders decide who the child/children is to live with and/or who the child/children will spend time with, and can be granted to more than one person whether they are living together or not.
If a child arrangements order states that the child will live with a person, that person will have parental responsibility for that child until the order stops. Contact with a child can either be indirect e.g. by letter or exchange of cards or direct e.g. fact to face meetings.
Some orders will be more open with detailed arrangements to be made between the parties by agreement and other orders will be have specific arrangements for the child. Remember, Child arrangements orders are not only made in respect of parents; there can also be orders for arrangements between siblings, grandparents and other family members. Sometimes the order will give directions that contact has to be supervised by a third person, or that contact is to take place at a specific location.
If you fail to comply with an order it may result in the court making further orders specifying activities for a you to undertake or the court may make an enforcement order which can include an order for unpaid work.
There is specific provision concerning the steps to be taken in relation to the enforcement of a child arrangements order. An application must be made and on any application to enforce a Child Arrangement order the Court will:
- Consider whether the facts relevant to the alleged non-compliance are agreed or whether it is necessary to conduct a hearing to establish them
- Consider the reasons for any non-compliance
- Consider how the wishes and feelings of the child are to be ascertained
- Consider whether advice is required from Cafcass/CAFCASS Cymru (or if appropriate the child's solicitor) on the appropriate way forward
- Assess and manage any risks of making a further or other Child Arrangement Order
- Consider whether a Separated Parents Information Programme (SPIP) or referral for dispute resolution is appropriate
- Consider whether an enforcement order may be appropriate, and
- Consider the welfare checklist
An application for enforcement of a Child Arrangement Order must be listed for hearing before the previously allocated judge if possible, within 20 working days of issue (don't be shy about chasing the Court about this). You will need to complete a C79 Form. Remember, enforcement proceedings must be dealt with speedily.
Do not bring an application for enforcement of a Child Arrangement Order without good reason because there are penalties if the Court considers that you have done this. These could be as follows:
- Referring parents to an SPIP, or if you live in Wales parents can referred to a WT4C, or mediation
- Varying the Child Arrangement Order (and the conditions could become less favourable to you)
- A contact enforcement order or suspended enforcement order could be ordered
- An order for compensation for financial loss could be ordered against you in favour of the other parent
- You could be committed to prison for contempt of Court
- You could be fined
Parental Responsibility - sections 3 and 4 Children Act 1989
Parental responsibility means all the rights, duties, powers, responsibilities and authority, which by law a parent of a child has in relation to the child and his/her property.
- The birth mother of a child will always have parental responsibility (the only time this will not apply is if the child has been adopted)
- Where the child's father and mother are married to each other at the time of the birth, they both have parental responsibility for the child
- Where the child's mother and father are not married to each other at the time of the birth the general rule is that the mother has sole parental responsibility for the child. However, an unmarried father will have parental responsibility for a child born after 1st December 2003 if he is named on the Birth Register
- Fathers can also gain parental responsibility by:
- a) Drawing up a Parental Responsibility Agreement with the mother which is a specific form that has to be signed by both parents. Click here to access a Parental Responsibility Agreement. If you need help filling it out we are available to assist you.
- b) Marrying the mother
- c) The court can make a child arrangements order for parental responsibility if the parents cannot agree on the father having parental responsibility
- Other people can gain parental responsibility for the child/children by entering into an agreement if they are the husband or civil partner of the mother, or if they obtain a child arrangements order for residence
- More than one person can have parental responsibility for the same child at the same time. Parental responsibility can be shared between members of the family, but where more than one person has parental responsibility for a child each person may act alone in meeting the responsibility of looking after the child except in circumstances where the consent of everyone with parental responsibility is required
Would you like us to send you a quote?
Tell us your legal concerns for an assessment of how we can helpGet A Quote