Child arrangements orders are a key tool in resolving disputes regarding children. Learn what they are, who needs them and how they work.
Court orders made in respect of children may not provide for flexibility and a change in your child’s needs as they get older. If your situation has changed and you feel that the arrangements are no longer in their best interests, what can you do?
Find out more about the types of orders the family court can make.
What is a child arrangements order?
A child arrangements order determines with whom a child will live, spend time, or maintain contact, as well as the timing of these interactions. Each order is tailored to the unique circumstances of the family and focuses on what is in the best interests of the specific child involved. They can also set out plans for handovers of a child, school holiday and other travel arrangements.
Types of court order
The type of order you need is dependant on your personal situation and the extent to which you have been able to agree matters with the other parent. You can apply for more than one court order.
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.
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 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.
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. For instance, Mothers have parental responsibility before a child is born.
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.
Non-court dispute Resolution/Mediation/MIAM
Before making an application to the court, it is important to consider alternative ways to resolve any dispute such as mediation, collaborative law, arbitration or solicitor led negotiation. If however ultimately you decide to pursue a court application it is normally necessary to attend a Mediation Information and Assessment Meeting (MIAM). At a MIAM the mediator will explain the mediation process and will explore whether this could present as a suitable option.
Court Process
Assuming mediation is not appropriate, or breaks down, a court application can be made via a form known as a C100. In this form the applicant should set out what order is sought, together with brief details of the issues they would like the court to determine. If the applicant intends to make allegations of domestic abuse or harm, they should also complete Form C1A.
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.
The respondent will then be required to acknowledge receipt of the application by completing a form known as a C7 (and a C1A if appropriate).
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. The issue of interim contact may also be considered at this stage of the proceedings.
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.
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. That being said, as a general rule the older the child is the more likely the court will attach significant weigh to their wishes and feelings.
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.
Can a child arrangements order be changed?
Court orders are determined at a specific point in time, and at a specific point in a child’s life. The court will need to be persuaded that the circumstances now are not the same as they were when the original order was made.
So what constitutes a change in circumstances? The following list of examples is not exhaustive:
Practicalities — your child may have changed schools, or one of you may have moved house. The order may no longer be working because of travel times and the impact this is having on the child.
Health — this could relate to one of the parents or the child.
Deterioration in the relationship between the child and the other parent. This can be difficult and is often denied by the other parent so the child’s wishes and feelings will be crucial to consider.
Welfare concerns about the other parent and their ability to meet the needs of the child.
Concern about a risk of harm to the child in the other parent’s care.
The wishes of the child. One of the most common reasons for older children to express a wish to change the arrangements is as a result of their increasing independence, and desire to spend more time at a ‘base’ with one parent because it is closer to friends/activities. It is important to understand the reasons for the child’s preferences
Options for changing an order
One parent should not change the terms of an order without the agreement of the other parent or a court order.
If there is a serious risk of harm to the child if the arrangements are not changed, urgent advice should be sought from a family solicitor. They can advise on what immediate action to take and the merits of making an urgent application to the family court.
If there is no urgency, these are the steps you should consider:
a) Reaching an agreement
This may often be easier said than done. If you have a reasonable relationship with your child’s other parent, the starting point would be to invite them to discuss and agree your proposed changes.
If you can do this successfully and the changes are limited, you don’t necessarily need to go back to court. In that situation and where you have a trusting relationship with your co-parent you should just document the changes in writing and make sure your ex-partner has seen them and not disputed the arrangement.
You should obtain a revised court order if the changes are significant and/or you don’t have such a good relationship with the other parent. That can be done by your family solicitor who will draft the new order and submit it to the court on a consensual basis. In those circumstances, you are unlikely to need to attend court unless there is something the judge is unsure about. CAFCASS will need to complete updated safeguarding checks.
b) Mediation
Except in limited circumstances, the family court would require you to consider mediation as a first step. You can arrange to attend a Mediation, Information and Assessment Meeting (MIAM) with a family mediator without the other parent to discuss your options. The mediator will be able to talk through your objectives, your relationship with the other parent and whether any of the various types of mediation would be suitable.
Mediation is encouraged by the courts and you may have to explain with good reasons why you have not engaged with the mediation process if asked.
Mediation is not compulsory and if you feel that your ex may try to take advantage of you, drag things out etc. then you can speak to the mediator about your concerns. If you agree that mediation as a forum to try to resolve matters is not appropriate the other parent will not be invited to attend and the mediator will issue a certificate to enable you to issue court proceedings if you choose to do so.
c) Instructing a family solicitor
Your solicitor will try to open a dialogue with your ex by explaining the changes that you want to make and why. Your solicitor will also look at the issues and what you are seeking to achieve and will advise you on potential strengths and weaknesses in the case to help you achieve the best outcome.
Most situations can be resolved through solicitor dialogue and support.
d) Making a court application
The first step is to make an application to vary the existing court order. In your application, you should explain in brief what changes you seek and why.
Once your application has been made, the other parent will have the opportunity to respond and a hearing called a First Hearing and Dispute Resolution appointment (FHDRA) fixed to enable you to discuss the situation with judicial input. If matters cannot be resolved, often the court will ask both parents to write a short statement explaining the situation and the court order they are seeking (this should be drafted in conjunction with your family solicitor).
What if a Child Arrangements Order is breached?
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.
How does the family court decide whether to change the order?
CAFCASS (the Children and Family Court Advisory and Support Service) who are appointed to advise the court on what is safe for children, and in their best interests, might be asked to write a report and set out their recommendations if there is a safeguarding or welfare concern. The allocated CAFCASS officer will meet with you, the other parent and the child to gain your views and experiences. They may also meet or discuss matters with wider family members, and other relevant persons such as teachers.
The court will then consider those recommendations, and the arrangements sought by each parent, against ‘The Welfare Checklist’ set out in S1 Children Act 1989 to determine whether the changes are going to be in your child’s best interests. This includes:
- The ascertainable wishes and feelings of the child
- The child’s physical, emotional and educational needs
- The likely effect on the child if the circumstances were changed
- The child’s age, sex, background and relevant characteristics
- Any harm that the child has, or may be at risk of suffering
- The capability of the parents to meet the child’s needs
- The powers available to the court
An order will then be made.
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.
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 although 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
A Mediation Information and Assessment Meeting (MIAM) 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.
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.
Child arrangement order terms and definitions
How much do child arrangement orders cost?
The court fee to apply for a child arrangement order is £255. Your solicitor will be able to talk you through the estimated costs for each part of the process that will then follow.
Do you need to apply to the court to amend a child arrangement order?
Yes if your ex doesn’t agree to the changes but you don’t necessarily need the court to approve the changes to an order if they are made by agreement. In that situation it would be sensible to check with a family law solicitor.
FAQs
If you'd like further guidance on how you can change a child arrangement order, please get in touch with our expert child law solicitors.
