What Is a Child Arrangement Order?
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Child Arrangement Orders, which have replaced what was earlier termed as Child Custody Orders, Child Contact Order and Child Residence Orders, are Orders made by the Family Court in England and Wales detailing with whom and where a child should live (residence), who should the child or children time with (child contact) and how does that contact take place (direct contact or Indirect Contact) and in case of Direct contact the order may detail (if required) whom the children are allowed to see during the contact.
How to apply for a court order to make arrangements for a child or resolve a dispute about their upbringing?
The general process involved in child arrangements is as below (each case has its own facts and the process may be different depending in the facts of the case and the below is a generic listing of the Child Arrangements Order process:
Child Arrangement Order by Agreement a.k.a. Child Arrangement Order by Consent:
However, if the court is satisfied that the Child \Arrangement agreement is in the best interests of the child/children the court may approve it making it into a Child Arrangement Order by consent.
The Court generally always prefer to make orders by consent.
In the consent order – a legal document to verify and secure your agreement – you will have details pertaining to:
when the child(ren) spend time with each parent
where the child(ren) live
what other types of contact take place and when (e.g. cards, phone calls etc. etc.)
Both you and your ex-partner are required to sign your draft consent order, and then it will be sent to be approved at the court.
How can I make my Child Arrangement order legally binding?
After you have made your parenting plan, you can make it legally binding though this is not necessary.
If you cannot agree on a Child Arrangements between yourselves as parents:
Mediation Information and Assessment Meeting (MIAM)
Court rules require that before making an application to issue certain kinds of family proceedings the applicant must attend a mediation information and assessment meeting (known as a MIAM) to consider with a mediator whether the dispute may be capable of being resolved by a method other than the court process. Mediation is a confidential process and none of the parties to mediation may provide information to the court as to the content of any discussions held in mediation and/or the reasons why an agreement was not reached. The court requires all applicants in the majority of family proceedings to have complied with this requirement before commencing proceedings, save in certain circumstances (see Potential MIAM exemptions below).
The requirement to attend a MIAM does not apply to all family proceedings, but it does apply in relation to an application for Child Arrangements Orders unless an exemption applies. If the exemption does not apply and consequently as the applicant, you must attend a MIAM.
The rules state that the court will expect the respondent, to attend the MIAM, but it is not compulsory for them to do so. If your husband, wife, partner or concerned person with parental responsibility declines to attend a MIAM you will not be prevented from subsequently issuing proceedings. A MIAM may take place with either both you and your husband, wife, partner or person with parental responsibility attending at the same time or by separate meetings.
Family Court preference regarding child arrangements matters is consent not contest:
The courts prefer for the parents to resolve matters through mutual consent, which at times can be reached through Family Mediation.
The mediator is able to assess the facts and if found suitable for the mediation service, the mediator would contact the other parent or the concerned person to invite them for mediation.
If the mediation is to progress both parties can discuss and debate and try to reach an agreement regarding the living arrangements of the child/children.
The parties can choose to reach an agreement in writing which can be presented to the court to consider and make it into an order.
The court has full discretion to approve/update/change/ call for a hearing/ call for CAFCASS or Social Services as it may seem fit in the best interests of the child/children before the court approves the order.
The purpose of a MIAM is to enable information to be provided about:
whether mediation may be a way in which your dispute may be resolved without going to court; and
the suitability of any other type of dispute resolution outside of the court process that may assist in resolving the dispute
If court proceedings are issued, the court will ask at the first hearing whether either or both of you have attended a MIAM. If an exemption applies, evidence of this will be required. The court will take into account any failure to comply with this requirement and may refer you to a meeting with a mediator before the proceedings can continue further.
Potential Mediation (MIAM) exemptions:
You are not expected to attend a MIAM if an exemption applies (as specified in the court rules), including where:
you have previously attended a MIAM, or participated in another form of non-court dispute resolution, within the previous four months in relation to the same, or substantially the same, dispute; or
at the time of making the application, you are participating in another form of non-court dispute resolution relating to the same or substantially the same dispute; or
you have filed an application confirming that a MIAM exemption applies, within the previous four months in relation to the same, or substantially the same, dispute; or
the application would be made in existing proceedings which are continuing and you attended a MIAM before issuing those proceedings; or
the application would be made in existing proceedings which are continuing and a MIAM exemption applied to the application for those proceedings; or
there has been, or is, a risk of, domestic violence; or
in relation to cases involving children, where there are child protection concerns involving a local authority; or
the dispute concerns financial issues and you are bankrupt (specific evidence of this is required); or
you are in agreement with the other party and, therefore, there is no dispute to mediate, ie you will be asking the court to make an agreed order by consent; or
the whereabouts of the other party is unknown; or
the prospective application is to be made without notice to the other party (usually because of urgency); or
the prospective application is urgent (what is regarded as urgent is defined in the rules); or
geographical and other limitations (such as disability) have made it impossible for attendance at a MIAM to be arranged
In your case, it would appear that none of the above exemptions applies and therefore you must attend a MIAM.
In certain situations, a mediator may decide that a MIAM is not suitable, then you may need to issue court proceedings without a MIAM.
Completing the court forms (Example C100)
When filing an application at court for an order in family proceedings, either the MIAM section of the application form or in some cases, a separate Form FM1, must be completed confirming attendance at a MIAM or giving the reason(s) for not attending. The section/form must be completed and signed by the mediator who conducted the MIAM, where applicable, and counter-signed by you. In certain circumstances, I may be able to sign the form on your behalf.
You must confirm in the MIAM section/form that you have either:
attended a MIAM; or
not attended a MIAM and either:
a MIAM exemption applies; or
the mediator is satisfied that mediation is not suitable because of either the nature of the case or because ie your Ex-partner is unwilling to, or has failed to, attend a MIAM without good reason
The Family Court
The Court has the power to determine with which parent a child should live and how much time a child is to spend with each parent. This is called the Child Arrangement Order.
There is an assumption that it is in a child’s best interest to have a relationship with both parents. The Court does not like parents struggling for power over the “label” of who the child should be living with.
Subject to any safeguarding concerns (as may be detailed in the safeguarding report by CAFCASS), the Court will be looking to reintroduce regular times so that the bond between you and the children can be developed and maintained. If the Mother raises any safeguarding concerns then you will have to address those safeguarding concerns.
You and your Ex share parental responsibility and the parent with present care should not have taken any steps to unilaterally suspend the time that the children spend with you. Your Ex has not provided you with a continued regular contact opportunity and it may not be seen positively by the courts if it goes to evidence.
Before any Child Arrangement Orders can be made, the Court needs to have received completed safeguarding checks from Cafcass (Child and Family Court Advisory Support Service). All applications are referred to Cafcass, who then contact the parties to ascertain the issues in dispute and make enquiries of the police and social services to see whether the family is known to other agencies. Police disclosure at times can bring in some alarming facts which may affect the proceedings heavily.
Cafcass will then file a safeguarding letter with the Court setting out the outcomes of those checks and highlighting the issues that will need to be determined by the Court (if you cannot agree) along with their guidance as to how the case should proceed.
The Court Process
There are typically three hearings in private Children Act proceedings:
First Hearing Dispute Resolution Appointment (FHDRA).
This is a routine directions appointment where the Court considers the safeguarding information from Cafcass and how matters should proceed.
Once your application has been issued your case will be listed for FHDRA within four to six weeks. Your attendance at Court will be required.
Given the concerns that you set out I anticipate that Cafcass will want to complete a Section 7 report and the court may Order so. Section 7 reports set out background information, key facts and evidence that the children’s needs have been considered in accordance with the welfare checklist.
The purpose of the Section 7 report is to provide an independent valuation and assessment of the issues the Court needs to determine and report the findings to the Court. It will also advise the Court as to the children’s wishes and feelings and what they consider to be in their best interests. Whilst not binding, the recommendations of Cafcass are extremely persuasive.
Dispute Resolution Appointment (DRA)
The purpose of the DRA is to allow you and your ex-partner the opportunity to consider the recommendations of Cafcass and explore whether there is a possibility of agreeing on matters consensually.
In the event you are unable to agree, your case will be listed for a final hearing.
Fact-Finding Hearing (this hearing does not take place in all cases)
If the court is concerned about any allegations then the Court may decide to call for a Schedule of Allegations (also called Scott’s Schedule). The Court will consider these allegations and decide on conducting a Fact-Finding Hearing or decide against conducting the Fact-Finding Hearing.
At the final hearing the Court, upon hearing evidence from the parties, will determine the appropriate arrangements for the children and impose an Order. Most cases settle prior to a Final Hearing.
Professional help for Making a Child Arrangement Order
We at Court Help Limited hope the above details help. If you need support you can contact us.
We have supported many clients in Making Child Arrangement Order applications and can support you too if instructed. We have experience of working with clients from many countries along with England, Wales, India, Pakistan, Poland and Bulgaria, and are well aware of the socio-economic factors involved which provide us with a better understanding of all the matters involved.