Child arrangements orders in England and Wales — what are they and what is involved?

This insight concentrates on the legal position in England and Wales. Find out more about child arrangements in Scotland.

What is a child arrangements order?

The most common child arrangements orders are:

• A 'lives with' order (previously called 'custody' or 'residence') — used to regulate with whom a child should live;
• A 'time spent with' order (previously called 'access' or 'contact') — used to regulate time spent by a child with people who they do not live with;
• A ‘prohibited steps’ order — used to prevent one parent from taking certain action without the other parent's consent. A common use of this order is to prevent one parent from taking a child abroad, taking a child out of school or to prevent a change of surname; and
• A specific issue order — which allows the court to make a decision on a disputed point such as what school a child should attend, whether a child should be known by a particular name, have a particular operation or what religion a child should adopt.

All of these orders will usually last until a child is aged 16.

Other orders may relate to child relocation, whether within the jurisdiction or moving abroad, parental responsibility, special guardianship, child abduction and/or financial provision for children.

Who can apply for a child arrangements order?

The Children Act 1989 sets out who may make an application to the court in relation to a child, and in some circumstances, permission or ‘leave’ from the court may be required before an application can be made.

It may sound obvious, but issues such as who is the child’s legal parent, and who holds parental responsibility for a child, will have a bearing on whether an application can be brought automatically, or only with the prior permission of the court.

Often child arrangements orders are sought by extended family members, such as grandparents or step-parents, who probably do not hold parental responsibility.

How long does a child arrangement order last?

Arrangements in a child arrangements order remain legally binding until the child reaches the age of 16 unless the order specifies otherwise or the order is subsequently varied by the court.

Who is a legal parent and who has parental responsibility?

There are strict rules governing who will be considered the legal parents of the child and who will have parental responsibility.

Most parents will automatically be the legal parents of their child and will also have parental responsibility. Certainly, in most cases, the two go hand in hand.

It is, however, possible to be a legal parent without parental responsibility, and conversely for someone to have parental responsibility but not be the legal parent.

Families created by non-traditional routes, such as assisted reproduction, donor conception, surrogacy, often by LGBTQ+ couples, can result in uncertainty about the legal position for those involved so far as their legal status to the child is concerned. The same applies for blended families and step-parents.

Common issues may arise if those with parental responsibility cannot agree matters between themselves and in rare situations, parental responsibility can even be terminated.

An application form (the C100) setting out what order is sought, together with brief details of the issues, is submitted to the court, together with a court fee. Once the application is processed and issued by the court, it will have to be served on the other parent/party so that they know about the court hearing and the application that has been made.

Cafcass will undertake safeguarding checks with the relevant agencies before the first court hearing, which is called a First Hearing Dispute Resolution Appointment (FHDRA).

At this hearing, the court and a Cafcass officer will consider the case and try to assist the parties to reach a compromise.

If this is not successful, the court will consider what further information is required in order to reach a solution which could include:

• Statements from the parties setting out their respective cases;
• Preparation of a report by Cafcass, local authority or independent social worker;
• Preparation of a psychologist's report; and
• Drug or alcohol tests.

If allegations are made that are in dispute, such as domestic abuse or parental alienation, where the outcome could impact the welfare of a child, the court may order a fact finding hearing.

Once the evidence has been gathered, if agreement is still not possible, there may be a dispute resolution appointment. If still unsuccessful in reaching an outcome, a further, final hearing will take place, when the court will make a decision, usually after hearing evidence from all concerned.

Steps in the Child Arrangements Programme

Can emergency applications be made?

Yes. If a case is urgent, an application can be made, and the court will determine the degree of urgency and how quickly to list a first hearing.

How are decisions made?

In deciding whether to make an order, the child’s welfare will always be the court’s paramount concern. This is called the ‘welfare principle’. In each case, the court will undertake a detailed review of what is in the child’s best interests.

The court will apply a checklist of factors which must be taken into account:

• The wishes and feelings of the child;
• Their physical, emotional and educational needs;
• The likely effect on the child of any change in circumstances;
• The child’s age, sex, background and any other relevant characteristics;
• Any harm that the child has suffered or is at risk of suffering; and
• How capable the adults involved are of meeting the child’s needs.

At what age will the courts listen to a child?

The court must always consider the child’s wishes and feelings in accordance with the checklist set out above.

As children grow and mature, their ability to articulate their views and opinions increases. The court will consider whether the child is competent to understand the nature, purpose and consequences of the issue in question.

Even if a child is able to clearly express their wishes and feelings, the court continues to have the final say.

As such, there is no legal position allowing for a child to decide for themselves whether to refuse to see their parent. Each case would be determined on its facts, and a parent, if bound by a court order to promote contact, should do their best to adhere to it, or seek legal advice and a variation of the order if circumstances are such that it is difficult to do so.

Is there such thing as a typical child arrangements order?

No, as every case is determined on its own facts, and the welfare of the particular child or children who are the subjects of that application, there is no standard formula.

However, there are some arrangements that work well for many families, and legal advisors can help by suggesting ideas that might work in that child’s best interests.

Is a court order always needed?

No, not always.

Where Children Act proceedings are underway, it is highly common for child arrangements to be resolved by consent (sometimes at the court room door prior to a final contested hearing), in which case the proposed agreement would be submitted to the court for approval and would, once sealed, have the force of a binding court order.

It is far less common for parties to submit an agreement to the court for conversion into a binding court order when parents agree arrangements between themselves without having had to issue court proceedings.

Although the current application form dealing with applications for child arrangements orders, specific issue orders and prohibited steps orders (the C100) does make provision for a party lodging a consent order, the process is rarely used.

How are child arrangements enforced if there is a breach?

Where a court order is in place, an application can be made to the court for enforcement.

In the event that the breach is admitted or found, the court has a wide range of orders, to include:

• Referring the parents to a Separated Parents Information Programme;
• Varying the order — crucially, this can alter the existing contact provision or even the living arrangements of the child;
• An enforcement order, to include an order for unpaid work;
• Order for financial compensation;
• Committal to prison; and
• A fine.

If no court order is in place, the above options for enforcement are not available. However, there are alternative routes to consider such as a strongly worded solicitors’ letter, mediation with a view to addressing those elements of the agreement which may be causing difficulties, or an application to the court.

Can a child arrangements order be changed?

Yes, by agreement (possibly captured in a consent order to record the new arrangements) or by way of an application to the court if matters are not agreed. The court will consider whether to amend the arrangements for a child, based on the same considerations identified above of what is in the child’s best interests/welfare at that time.

The process is outlined above.

In some circumstances, if a party brings multiple, vexatious, applications to the court, the court can consider imposing a bar on their being able to bring a future claim. These cases are rare and legal advice should be sought.

For more information, see our article on changing a child arrangements order.

Child arrangement order terms and definitions

Applicant

The person making the court application/asking the court to make an Order.

Arbitration

A privately funded, out of court, form of dispute resolution which can provide an outcome if matters proceed on a contested basis. It is a highly adaptable process where both parents work with their appointed arbitrator to manage the case. If agreement cannot be reached the arbitrator will make the decision.

CAFCASS/CAFCASS Cymru

Children and Family Court Advisory and Support Service: CAFCASS represents children in cases in the Family Court. They are an independent agency who advise the Court in relation to children’s safety and what is in their best interests.

CAFCASS Report

A welfare report, prepared under section 7 of the Children Act 1989. The report will be on such matters relating to the welfare of that child as are required to be dealt with in the report. The report may be in writing or oral.

Child Arrangements Order

These orders set out who the child lives with or spends time with and what the arrangements will be. If a party is granted a ‘live with’ order, then they will automatically have parental responsibility for the duration of that order. The orders can be very specific and can cover arrangements during term time and school holidays/ special occasions or can be more flexible and leave areas to be agreed between the parties.

Child Arrangements Programme

A process that applies where a dispute arises between separated parents and/or families about arrangements concerning children. It is designed to assist families to reach safe and child-focused agreements for their child, where possible out of the court setting. If parents/families are unable to reach agreement, and a court application is made, the CAP encourages swift resolution of the dispute through the court.

Children’s Guardian

A person (usually a specialist social worker) appointed by the court to look after the interests of a child in the case.

Collaborative law

A family law process which involves both parties engaging their own collaboratively trained solicitors. Both parents and their solicitors agree in writing not to go to court. All issues are discussed in 4 way meetings, whether in person or remotely, through video conferencing.

Consent Order

When parties reach an agreement which resolves the dispute, the judge may agree to make that agreement into an order called a consent order.

Dispute Resolution Appointment

This is a court hearing which takes place to explore if the dispute can be sorted out with the help of a judge. The Court and parties review the matter to see whether the key issues can be resolved or narrowed and consider whether it can be used as a final hearing. If not, the court will determine what the issues are and provide case management directions to final hearing.

Fact Finding Hearing

A court hearing set up for the court to decide on issues of fact or allegations which are in dispute.

Family Procedure Rules 2010

The rules of court which govern family cases.

Final Hearing

When the court imposes a final decision on the parties.

First Hearing and Dispute Resolution Appointment

This is a court hearing which takes place at the beginning of the court's involvement. A FHDRA would normally take place between 4-6 weeks following the issuing of the application due to COVID-19 some courts are dealing with delays due to backlogs of applications and timescales may vary. Both parties must attend (with legal representatives). CAFCASS usually attends this hearing.

Gate Keeping Officer

The nominated District Judge and/or nominated Legal Adviser responsible for deciding which level of judge in the family court should initially deal with an application. The application is considered within one working day of the date of receipt by the Gate Keeper. Where it appears that an urgent issue requires determination, the Gate Keeper may give directions for an accelerated hearing.

Interim Contact

Contact/time spent with a parent that takes place between the first court hearing and the final hearing. If interim contact cannot be agreed at FHDRA a separate hearing may need to be listed to deal with that prior to the DRA.

Mediation

A confidential and impartial family law process. Together with your chosen mediator, the parties set the pace and agree topics for discussion and frequency of meetings. The mediator helps facilitate a supported conversation and has a responsibility to try to help parents focus on what is best for the children. Mediation is not about relationship counselling, but helps parents to try to reach an agreement on the arrangements for their children.

MIAM — Mediation Information and Assessment Meeting

This meeting provides information about the mediation process. It is conducted by a trained mediator who will assess whether mediation is suitable taking into account the particular circumstances of the case. It should be held within 15 working days of contacting the mediator.

Parenting Plan

A written plan worked out between parents after they separate covering the practical issues of parenting. The Plan can help clarify the arrangements needed to put in place to care for children after separation, without having to go to court Practice Direction 12J: Part of the Family Procedure Rules 2010 that sets out how the court should deal with allegations of domestic abuse.

Prohibited Steps Order

An order providing that a specified step, which could usually be taken by a party in meeting their parental responsibility for a child, cannot be taken without the consent of the Court. Examples of such steps include authorising medical treatment, changing a child’s school or changing a child’s surname.

Respondent

The person or people receiving the court application.

Safeguarding and Safeguarding checks

Assessing safety/risk of harm. CAFCASS make enquiries about the adult parties named in the application. They make police national computer checks [PNC] at level one and then decide based on the results if enhanced police checks are needed. They also check with the local authority if the family is known to them. A CAFCASS officer then telephones all parties to conduct risk identification telephone interviews and if risks of harm are identified, may invite parties to meet separately with the CAFCASS Officer before the FHDRA to clarify any safety issue. They then put all of the relevant information into a safeguarding letter which is sent to the Court and all parties.

Separated Parents Information Programme (SPIP)

A course which encourages parents to put children first whilst separating. The programme deals with how to manage difficulties, communication between parents and the impact of conflict upon children. Parents can self-refer (there may be a cost in this case) or can be ordered to attend by the Court (in this case the course is usually free).

Service of Proceedings

If possible at the time of issue (processing by the court), and in any event by no later than one working day after issue, or in courts where applications are first considered on paper by no later than two working days after issue, the court shall provide the Applicant with: (i) A copy of the application form C100 (together with the Supplemental Information Form C1A) (ii) Notice of Hearing (iii) Acknowledgment Form C7 (iv) A blank Form C1A, (if required) (v) Information leaflets for the parties (which must include the CB7 leaflet). Unless the Applicant requests to do so, or the court directs the Applicant to do so, the Court will serve the Respondent(s) with the documents above.

Specific Issue Order

An order relating to a specific question about a child’s upbringing. Examples include which school a child will attend, which religion a child should follow and whether a child can go on holiday abroad.