John Fawcett has joined the firm as Partner
The area that unsurprisingly concerns most parents on relationship breakdown – what is going to happen to the children ? How often am I going to see them ? Who are they going to live with ? The children are arguably the most important people to consider in any relationship breakdown and so below is an introduction to Child Arrangements Orders.
Child arrangements orders regulate with whom a child is to live, spend time or otherwise have contact. Child arrangements orders replaced what were previously called residence orders ( www.practicallaw.com/2-535-5886) and contact orders ( www.practicallaw.com/8-535-3318) (and before that custody and access orders) on 22 April 2014.
Child Arrangements orders are otherwise known as private law children orders. Private law children proceedings concern personal relationships, so for example a divorcing couple needing an order setting out when the child is to see the parent who does not live with them.
There is now a presumption of parental involvement – an assumption that it is in the child’s best interests to have an involvement with both parents, where possible and where there is no risk to the child`s health or safety. Parents, local authorities and the courts have a duty to safeguard the welfare of children and in legal proceedings it is the best interests of the child that is the primary consideration. There is no presumption of an equal division of a child’s time between both parents.
Before making a Court application there is a legal requirement to attend an initial meeting (together or separately) with a mediator. The mediator can see whether mediation is right for you and your family. They will also discuss how many sessions you may need, how much they would cost, and explain whether you might be eligible for legal aid to pay for mediation. The mediator can also give you information about other services that provide help and support and the other options you might have to resolve things. There are certain exemptions, for example if an allegation of domestic violence has been made against the other parent supported by clear evidence, such as a police investigation or an injunction being issued within the last 12 months. If you decide not to continue with mediation or it’s not suitable in your circumstances then the mediator will sign a form to enable you to take your case to court, if that’s what you decide to do next.
If you do proceed to Court the following issues will be considered:-
1. the wishes and feelings of the child, taking into consideration the child`s age and understanding,
2. the child’s physical, emotional and educational needs;
3. the likely effect on the child of any change in circumstances;
4. the child’s age, sex, background, and any relevant characteristic
5. any harm which the child has suffered or is at risk of suffering
6. how capable each of the parents and any other relevant person is of meeting the child’s needs
7. the range of powers available to the court.
It is important to think carefully about letting a new situation arise, for example changing where the child lives, as the court may not want to change it. The court will not make an order unless there is a dispute or it is in the particular interests of the child to make an order.
The Court may order a CAFCASS (Children and Family Court Advisory and Support Service) report or, where Social Services are involved, a report from Social Services.
Whilst the law recognises that delay is likely to be harmful to the child’s welfare there are delays in listing. Many Courts have been closed and those that are still open are often short of staff.
It is always best to try to avoid court proceedings and agree arrangements where possible.
Some Useful sites
www.grandparents-association.org.uk
www.resolution.org.uk
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