1. What steps should parents/guardians take when amending a child arrangement order?
A child arrangements order is, of course, an order of the Family Court which would have been made at a time when the court considered it was in the best interests of the children concerned. Therefore, it will be wrong for one of the parents to change the court’s order without the approval of the Family Court or the express permission/agreement of the other parent. If there are good and sound reasons to consider changing the terms of an order of the court, in the first instance the parents of the children concerned should discuss the proposed changes between themselves. The Children Act encourages parents to make their own decisions about their children without State intervention. If it is difficult to talk things through or share concerns with a former partner, family mediation is widely available to help parents discuss the arrangements for their children in a controlled, safe and managed setting. If the children’s parents can reach a consensus which they think will work better for the children in the future, the parents can prepare a draft consent order recording the proposed changes to the child arrangements order and lodge the draft consent order with the Family Court for consideration by a Judge or by Magistrates sitting in the Family Court.
2. Do the parents/guardians need to attend mediation before amending a child arrangement order?
This is not always necessary if the parents can agree the changes to the earlier order between them. When parents of the child agree there should be a change to an earlier child arrangements order, the parents should set out in a written agreement what the changes will be. Almost all child arrangements orders will include the following wording within the order, “There be such further or other contact as may be agreed by the parties.” This allows parents or guardians some flexibility for the future. The Family Court recognises that children and their parents can have a busy schedule, a child or a parent might be unwell and that may mean some changes to the child arrangements order. However, if the parents are unable to reach a compromise, before a proposed applicant can apply to the Family Court to vary an order or for a new child arrangements order, the applicant must attend a Mediation Information and Assessment Meeting with a family mediator. Mediation is positively encouraged by Government and by the Family Court, it is one of the few remaining areas of family law where Legal Aid is still sometimes available if one of the parents has a low income or receives State Benefits.
3. What are the main things parents/guardians need to consider before making an application to the court to vary a child arrangement order?
It is important to think about the arrangements that will be in the best interests of the children concerned. If the existing arrangements are no longer suitable, perhaps because of the passage of time or if somebody involved has moved home, think about alternative arrangements which might work better. Try to be objective, think about what your former partner’s position will be and whether the plans he/she is proposing might work but with some slight variation. Part of the statutory checklist contained in the Children Act requires the court to consider the likely effect on the child of any change of circumstances. Therefore, if you are seeking a change to the arrangements, think about how the proposed change will affect the children concerned. Remember that the court will carry out safeguarding checks before it looks closely at an application to vary a child arrangements order. The checks will include considering any information held on the Police National Computer and any information held by the local Children and Young Peoples Services.
4. What will the court take into consideration when reviewing an application to vary a child arrangement order?
Any court asked to review or vary a child arrangements order must have regard to a statutory checklist contained in section 1(3) Children Act 1989. The children’s welfare will be the court’s paramount consideration. There is a no order presumption in the Children Act, meaning that the court should only make an order in relation to a child if the court is satisfied that it will be better for the child to make the order rather than making no order. The Children Act also contains a general principle that any delay in determining the issue before the court is likely to prejudice the welfare of the child. Nevertheless, a court will allocate sufficient time and resources to the case to ensure it is dealt with justly.
5. Why is it important to seek expert advice from a solicitor when amending a child arrangement order?
Remember, a child arrangements order is an order of the court. The court expects and demands that adults comply with court orders, failure to do so can result in serious repercussions. It is easy to be drawn into advice from others who might have been involved in Family Court proceedings themselves, but every family is unique, and no two cases are the same. A solicitor will look at the issues objectively and, if there are weaknesses in your case, you will be informed. It is far better to have that information at the outset as you might be able to address any weaknesses or take a different approach which will result in a better outcome for your children. Also, many people attach too much weight to the expressed wishes of children rather than try to find out why it is that the children are seemingly expressing themselves in the way they are. The courts have said, time and again, that children should not be burdened with the decision-making process.