25th June 2020

Child Arrangements Orders in the UK: What You Need to Know

Please note that the law in Scotland and Northern Ireland often differs from that in England and Wales and the arrangements described below apply in England and Wales

Typically, the most sensitive and challenging aspect of any relationship breakdown is establishing the future arrangements for children. On separation, emotions can run high on both sides and decisions relating to children can seem daunting and even overwhelming.

This article will cover some of the most common questions posed about child arrangements orders (formerly known as child custody) in the UK.

What is the difference between Child Custody and Child Arrangements in the UK?

You may have heard the words “child custody” or “care and control, residence and contact” being used and wondered what they all mean? These are terms which have been used in the past to describe who children live with and how they spend time with their parents.

However, since the law changed in 2014, “child arrangements orders” replaced these older terms.

What is a Child Arrangements order?

A child arrangements order is an order which regulates where a child will live and how much time they will spend with each parent. This replaces the previous “residence” and “contact orders” and the even older “child custody” and “access” orders, which were thought to be unhelpfully emotive concepts, suggesting control by one parent.

Parents understandably could become fixated on who should be the resident parent and thus the “winner”, rather than concentrating on the actual arrangements for the children. The child arrangements order was created to remove these emotive labels and to allow more child-focused orders with greater flexibility.

Typically, a child arrangements order will not only include “lives with” and “spends time with” orders, but will also include provision for indirect contact e.g. by phone, Skype/Zoom or even still by letter!

In some cases, the order can also require time spent with one parent to be supervised, either by a family member or friend, or sometimes more formally.

Who can apply for a Child Arrangements order?

The following people are entitled to make an application for a child arrangements order:

The child’s parent (including an unmarried father without parental responsibility, a guardian, or special guardian of the child);
a step-parent who has acquired parental responsibility in relation to the child;
a person who is named in a child arrangements order in respect of the child, as a person with whom the child is to live;
a spouse or ex-spouse in relation to whom the child is a child of the family;
a civil partner in a civil partnership in relation to whom the child is a child of the family;
any person with whom the child has lived for a period of at least three years.

This does not mean that no one else can apply for a child arrangements order, as other people can do so, but first, they need to be granted permission.

How much will an application for a Child Arrangements order cost?

It is impossible to provide a “one size fits all” cost estimate as every case is different, but our dedicated family team offers a free initial 30-minute consultation during which we can discuss options and likely costs.

Can you have a shared Child Arrangements order?

Yes. A child arrangements order can set out that a child “lives with” both their parents, setting out the specific times the child will spend with each parent.

Do I need a Child Arrangements order?

No, not necessarily. Many separated parents don’t have an order and just agree arrangements for the children between themselves. It is only where parents are unable to agree arrangements, that the court becomes involved and even then it will only make an order if it considers that it is better for the child to make an order than to make no order at all (this is the ‘no order principle’).

What would the court look at when considering my application?

In determining any question with respect to the upbringing of a child, the child’s welfare is the court’s paramount consideration. The court will look at what is in the best interests of the child, by considering the individual facts of the case as well as the matters set out in the “welfare checklist”:

The wishes and feelings of the child (considered in the light of their age and understanding);
the child’s physical, emotional and educational needs;
any harm the child has suffered or is at risk of suffering
how capable are the parents and any other relevant person of meeting the child’s needs;
The range of powers available to the court.

The court must also take into account that delay in making decisions about your child is likely to prejudice their welfare.

Can I go straight to court?

No, not usually. It has long been recognised that it is better for parents to reach their own agreement about what is in their child’s best interest than for a judge to adjudicate for them. The family court rules recognise this and promote the use of alternative dispute resolution and mediation as a way of settling disputes.

This means that anyone wishing to make an application for a child arrangements order must first engage in a Mediation Information and Assessment Meeting (MIAM) with a qualified family mediator to consider whether their case is suitable for mediation. Some cases are however exempt from the MIAM requirement if they involve domestic violence, child protection concerns, or the application is urgent.

How many hearings will there be if the matter proceeds to court?

There are three potential court hearings if a case goes all the way through the court process, these are the FHDRA, the DRA and the Final Hearing.

FHDRA

The first hearing is the First Hearing Dispute Resolution Appointment (FHDRA). An independent specialist adviser known as a CAFCASS officer (Child & Family Court Adviser) should be at court.

CAFCASS represents children in family court cases in England and Wales and its duty is to safeguard and promote the welfare of children. Before the hearing, CAFCASS should also have done ‘safeguarding checks’ with the police and social services and written a letter to the court to confirm the outcome of those checks. Where practicable, the CAFCASS officer will speak separately to each party to get an understanding of the issues.

The FHDRA provides the parties with an opportunity for them to try to reach an agreement or narrow the issues between them. If an agreement is reached, then the court can make an order. If the parties cannot agree, then the court will identify the issues between them and consider how best to resolve those issues. For example, the court may decide it needs written statements from the parties, evidence about drug or alcohol use and/or a full written report from a CAFCASS officer (which can take a few months to obtain).

DRA

The second hearing is called a Dispute Resolution Appointment (DRA). The judge at this hearing will consider the evidence filed with the court, including any CAFCASS report and recommendations with a view to seeing whether any of the key issues can be resolved.

Final Hearing

If the issues remain unresolved, the case can be listed for a Final Hearing to allow the judge an opportunity to adjudicate upon the dispute, often after hearing oral evidence from the parties and sometimes from CAFCASS.

If I have a Child Arrangements order, can I take my child abroad for a holiday?

When a child arrangements order is in place, anyone who has a ‘lives with’ order may take the child out of the UK for a period of less than one month without the consent of the other party.
However, this is, of course, subject to the other terms of the child arrangements order which set out when the child spends time with the other parent and we would always advise that it is sensible to keep the other parent informed of plans for holidays etc. and some child arrangements orders include a requirement for notice and relevant information to be provided to the other parent.

Can I change my child’s surname if they live with me under a Child Arrangements order?

No, the order states that neither party may allow the child to be known by a new surname unless they have the consent of everyone with parental responsibility or permission from the court.

What is a Prohibited Steps order?

This is an order that places a restriction on a parent’s exercise of parental responsibility, so a prohibited steps order can be sought to prevent a parent taking an action in relation to the child that the other parent disagrees with.

A common scenario could be where a parent makes a threat that a child will be removed from England and Wales (where there is no child arrangements order in place).

What is a Specific Issue order?

These orders determine a specific question that has arisen or may arise in connection with any aspect of parental responsibility for a child. This type of order could be made to determine which school a child should attend or whether they should receive a particular medical treatment.

What is Parental Responsibility?

We have seen above that specific issue and prohibited steps orders can be used to deal with issues which would normally fall within a parent’s “parental responsibility”, but this is not in itself a concept which is familiar or clear to many people, so what exactly is it?

Parental responsibility is defined as “All the rights, duties, powers, responsibilities, and authority which by law a parent of a child has in relation to the child and his property”.

Put simply, it gives the parents responsibility for taking all the important decisions in a child’s life. The natural mother of a child has parental responsibility automatically and married parents have joint parental responsibility, but an unmarried father does not automatically have it unless his name is registered on the child’s birth certificate (post Dec 2003).

What is the next step if I think I may need a Child Arrangements order?

If you would like further advice around child arrangement orders or child custody, we offer a free initial 30-minute meeting to allow you to get to know us and to discuss options, costs and the best way forward for you.

If you would like to arrange such a meeting, please contact us today on 01892 510 222.

Article written by Kellie Lashbrook, a barrister specialising in family law who will be joining the Buss Murton Law family team in September.

Melanie den Brinker
Partner