When parents separate, it can be difficult to agree upon whom a child ought to live with and how much time they will spend with the non-resident parent. When disputes arise, and they cannot be mutually settled, it may be necessary to seek a Child Arrangements Order (CAO). CAOs replace previous terminology such as ‘residence’ and ‘custody’, and set out with which parent the child(ren) shall live (the ’live with’ element) and how much time they shall spend with the other parent (the ‘spend time with’ element).
The Court can make the following orders when considering child arrangements:
Who the child(ren) should live with –
- stating who the child is to live with, which can either name one parent, or can include two individuals in different households (this will specify the amount of time the child(ren) lives with each parent, known as a ‘shared care arrangement’)
- stating two people in the same household the child is to live with (for example, a child’s parent and step-parent).
How much time the child(ren) should spend with the other parent –
- direct contact (face to face contact either during the day or overnight stays)
- indirect contact (for example telephone calls, letters, emails, cards)
- supervised and unsupervised contact (these often concern applications of welfare concerns for the child involved. In such cases, the Court may opt for supervised contact, e.g. through a contact centre or a third party)
Who can apply for a Child Arrangements Order?
Some individuals have an automatic right to apply for a Child Arrangements Order, such as:
- the child’s parent
- the child’s guardian/special guardian
- any person who has parental responsibility (PR) for the child
- any person who is named in child arrangements order regarding who the child is to live with
- the child’s step-parent
- a civil partner in a partnership in relation to whom the child has been treated as a child of the family
- any person who the child has lived with for at least three years
- any person who has the consent of the local authority where the child is in local authority care
- any person who has the consent of each person(s) with PR for the child
If you are not the child’s parent, or do not have parental responsibility for the child, then you may still be able to apply to the Court but you must seek the Court’s permission to make the application if you are:
- the child’s grandparent
- the child’s sibling
- the child’s aunt/uncle
- a distant relative
- a family friend
- a relative of the child applying for a Child Arrangement Order to regulate whom the child is to spend time with
It is important to be aware that the more of a distant connection the Applicant has with the child, the less likely it is that they are successful.
A mediation information and assessment meeting (MIAM) must be attended by the Applicant prior to bringing an application to Court. During these sessions, the former partner is invited to attend unless an exemption applies such as in the following circumstances:
- domestic violence has occurred
- there are child welfare concerns
- the case must be heard urgently
- previous MIAMS have been attended
- MIAM attendance may not be a reasonable or appropriate requirement.
When do Child Arrangements Orders end?
It is important to note that CAOs can only be made in respect of children who are under the age of 16 (unless exceptional circumstances apply).
The ‘live with’ element of a CAO remains in force until the child reaches the age of 18.
The ‘spend time or otherwise have contact with’ element remains in force until the child reaches the age of 16 (unless exceptional circumstances apply, in which case the ‘spend time with’ element shall end when the child reaches 18).
CAOs end automatically if a child’s parents live together for a continuous period of more than 6 months after the order has been made. Alternatively, CAOs can be discharged by Court Orders.
Furthermore, if a child has already reached the age of 16 when an order is being made, the Court does not have power to make a CAO unless the circumstances are exceptional. What is classified as exceptional is determined on a case-by-case basis.
When the Court is considering the terms of a CAO, it will take into account the wishes and feelings of the child as far as is reasonably practicable. The general ‘rule’ is that the older a child is at the time of a CAO being made, the more weight the Court will apply to the child’s wishes and feelings.
What are other forms of dispute resolution?
There are other forms of dispute resolution methods which you may choose to pursue prior to seeking to go down the Court route.
Mediation
Mediation is a flexible, voluntary form of alternative dispute resolution whereby the parties are assisted by a professional neutral third party to negotiate and reach a settlement on mutually agreed terms. All discussions remain confidential and the contents of which cannot be used in later proceedings, should the case not reach a settlement. Parties can also consider shuttle mediation if that is more appropriate, which means they do not have to be in the same room as each other but the mediator alternates between two separate rooms.
Parenting Plan
The Parenting Plan is a written agreement between parents/carers created after separation. If you and your ex-partner can agree on where the children will live, how much time they will spend with each parent and how they will be financially supported, this may work for you. The Plan can stipulate the arrangements agreed and this can benefit all the parties involved as they are aware of what is expected of them. The Plan can also contain crucial agreements including living, educational and medical arrangements.
Collaborative law
This process involves meeting with each party appointing their own collaboratively trained lawyer. You may also wish to have a child specialist present. Collaboratively, the team aims to resolve the issues through discussion and negotiation.
For more information on any of the points raised here, please do not hesitate to contact a member of our Family team.
