If separating parents are not able to agree arrangements regarding their children, then one or both of them may apply to the family court for a child arrangements order. But what exactly is a child arrangements order, and how does the court decide what order to make?
Child arrangements orders were brought in by the Children and Families Act 2014, to replace the old residence and contact orders. A child arrangements order is an order regulating arrangements relating to any of the following:
(a) With whom a child is to live, spend time or otherwise have contact, and
(b) When a child is to live, spend time or otherwise have contact with any person.
A child arrangements order can therefore do everything that residence and contact orders could do previously, including granting sole residence of a child to one parent, sharing residence between the parents and, where there was a sole residence order, setting out what contact the child should have with the non-residential parent.
When a court has to make a decision regarding the upbringing of a child, the child's welfare has to be the court's paramount consideration. The court must presume, unless the contrary is shown, that the involvement of both parents in the child's life will further the child's welfare. In considering what is best for the child's welfare, the court must have regard in particular to the 'welfare checklist':
(a) The ascertainable wishes and feelings of the child concerned (considered in the light of his/her age and understanding, so that the older the child the more weight the court is likely to give to the child's views).
(b) The child's physical, emotional and educational needs (in particular whether the child has any special needs).
(c) The likely effect on the child of any change in his circumstances, for example if the child is to be moved from one parent to the other (which may also mean that they have to change school).
(d) The child's age, sex, background and any characteristics of his/hers which the court considers relevant (a child arrangements order cannot be made in respect of a child that has reached the age of sixteen, unless there are exceptional circumstances).
(e) Any harm which the child has suffered or is at risk of suffering.
(f) How capable each of the parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting the child's needs.
(g) The range of powers available to the court in the proceedings in question – i.e. whether any other orders are appropriate (there are many other orders that the court can make, even if neither parent has applied for them).
In practice, the first four of these factors are most often relevant in any dispute between parents over arrangements for their children.
Further to the above, where a court is considering whether or not to make a child arrangements order, it shall not make the order unless it considers that doing so would be better for the child than making no order at all. In other words, it should not make the order unless there is a good reason for doing so. This is known as the 'no order principle'.
Where a court makes a child arrangements order naming the father as a person with whom the child is to live and the father does not already have parental responsibility for the child, then the court must also make a parental responsibility order in favour of the father.
Finally, there are two further effects of a child arrangements order, where it regulates with whom the child is to live or when the child is to live with any person. In such cases no one may cause the child to be known by a new surname or remove the child from the United Kingdom without either the written consent of every person who has parental responsibility for the child or the permission of the court. This does not, however, prevent a person named in the child arrangements order as a person with whom the child is to live from removing the child from the UK for a period of up to one month, without the consent of anyone else.
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