Child Arrangements Orders (formerly Residence and Contact)
When relationships break down, we are often consulted regarding disputes relating to what should happen to the children. Where should they live, when should they see mum or dad, how often, and where, can they stay over, should they be introduced to the new partner. The list of questions and areas for potential dispute is seemingly endless.
The Government, and indeed the Courts prefer these matters to be negotiated and resolved, if possible, between the adults concerned without the need to involve the Court. Cafcass produce an interactive Parenting Plan which is aimed at helping separated parents co-operate as to the arrangements to be made for their children. This is the view that we also hold. It is not uncommon for people to spend a lot of money in protracted Court battles. Sometimes it is necessary, most often it is not. But there are occasions when there is no option but to ask the Court to intervene, and below is a summary of what you should expect.
Although the terminology changed in the Children Act 1989, many people still refer to custody (residence) or access (contact) and seek advice as to their rights to see a child, the rights of the child, the rights of grandparents to see their grandchildren etc. In fact, on 22nd April 2014, Residence and Contact Orders ceased to exist. On that date the new Child Arrangements Programme 2014 (CAP) came into being. Residence and contact orders are abolished, replaced with Child Arrangement Orders, which deals with the arrangements as to with whom a child is to live, spend time or otherwise have contact and when a child is to live, spend time or otherwise have contact with any other person.
If you are unable to resolve any dispute relating to children through direct negotiation, or attendance at mediation, then there are various applications that can be made to a Court, the most common of which being:-
- Child Arrangements Orders- Dealing with with whom a child is to live, spend time or otherwise have contact, and when a child is to live, spend time or otherwise have contact with any person,
- Prohibited Steps Order - an order preventing a parent from taking certain steps in relation to a child or children, for example preventing a child from being removed from the jurisdiction of the Courts of England and Wales.
- Specific Issues Order - this is an order determining a specific question that has arisen in connection with any aspect of a child's life, for example, which school they should attend, or in which faith they should be raised.
However, the Child Arrangements Programme 2014 (CAP) endeavours to avoid litigation wherever possible, the emphasis being on out of court settlements. Accordingly, those wishing to apply to the court must first attend a Mediation Information and Assessment meeting (MIAM), unless one of the exemptions to attending mediation apply.
The CAP emphasises that each child should feel that their needs, wishes and feelings have been considered, and that they should be involved in making the arrangements at an age appropriate level.
Even after an application to the court has been made, the judge is obliged to consider at every stage whether or not a non-court dispute resolution is appropriate, and may adjourn proceedings to enable the parties to explore such a route.
It is still possible to issue an urgent without notice application without the need to attend a MIAM, rule 3.8 (c) of the Family Procedure Rules setting out the catagories of urgent application. Such applications are exceptional however.
An application for a Child Arrangements Order is made on form C100, and if harm is alleged, accompanied by form C1A.
Once an application is issued, the court will send the papers to cafcass (Children and Families Courts Advisory and Support Services), and will usually serve the papers upon the Respondent unless permission has been sought to vary that arrangement. No evidence is filed until after the first hearing dispute resolution appointment (FHDRA) unless in support of an urgent application.
The application paperwork is considered within one working day of receipt by the court, and the case will be allocated to the appropriate level of judge.
The timetable to be followed is set down, but sadly these days as the Courts become increasingly busy, there are delays.
Cafcass will undertake safeguarding checks and will write a safeguarding letter to the court within 17 working days of receipt of the application, and no later than 3 working days prior to the hearing. Safeguarding checks involve enquiries being made of the police and local authorities to see what, if anything, is known about the parties and the children. Where possible, Cafcass will also undertake telephone risk identification interviews with the parties and if risk of harm becomes apparent, may invite the parties to meet with Cafcass. Cafcass will not contact the child prior to the first hearing.
The First Hearing Dispute Resolution Appointment (FHDRA) should take place within 5 or 6 weeks of the application being made. Cafcass will attend the FHDRA, and should speak to both parties at court. The purpose of the FHDRA is to explore the issues between them, and to see if agreement can be reached. Accordingly, the FHDRA will be conducted in a manner which the court thinks is most appropriate in the interests of the children, and will consider, if no agreement can be reached, what further steps need to be taken. If the safeguarding letter remains outstanding at the FHDRA then the court will adjourn the hearing until it becomes available.
The court may order cafcass or a Local Authority to prepare a report if there are welfare issues, and will also consider if mediation is appropriate, or collaboratve law, or referral to parenting programmes etc. Cafcass are currently introducing the "Child Impact Assessment Framework" which moves away from the traditional s7 model. This aims to provide the Court with a more focused child impact analysis report for cases where the key issue is safeguarding, enforcement, or high and intractable conflict.
The court will also consider if there are any factual disputes, and whether there ought to be a fact finding hearing. Where there are allegations of Domestic Abuse, there are mandatory procedures that come in to play which set out a procedural path that must be followed by the Court.
The court will timetable the future progression of the case, and will fix a date for the next hearing, the Dispute Resolution Appointment...The DRA. At this hearing the court will identify the key issues to be determined, consider if the DRA can be used as a final hearing, resolve or narrow the issues between the parties, identify the evidence to be heard, and give direction as to the filing of evidence, witness statements etc in readiness for the final hearing. The final hearing date will also be arranged.
At the final hearing the court will hear evidence and submissions from the parties, and make their decision, and make orders accordingly.
If, having made a Child Arrangements Order, the court is faced with an application to enforce the same because one party breaches (does not comply with) the order, the court will consider if the alleged breach of the order is agreed, or if the court needs to fix a hearing to establishe the facts.
The court will, if there has been a breach, consider why the breach took place, consider the wishes and feelings of the children, whether evidence from Cafcass is required, and consider if an enforcement order is neccessary.
Any application to enforce a child arrangements order will be listed before the judge who made the order within 20 working days, and the case should be concluded without delay.
The Court can refer the parents to a Separated Parents Information Programme, vary the child arrangements order, make a contact enforcement order or a suspended contact enforcement order, order compensation for financial loss, comit a party to prison, or fine a party.
A contact enforcement order is when the court, having found that there has been a deliberate breach of the order without reasonable excuse, orders the non-compliant party to undertake unpaid work if that is neccessary to force compliance with the order.