Children Matters and Child Arrangement Orders

Children Matters and Child Arrangement Orders

When parents separate, it is stressful and worrying for both parents.  It can be even more stressful and worrying for a child.

Any child, when their parents separate, need reassurance that their parents love them, and that the separation is not their fault.  Children will, in most circumstances, benefit from keeping contact with both of their parents.

It is always best to try and agree arrangements that work for both parents and the children. It can be a good idea to have a written Parenting Plan drawn up and useful guidance as to what to consider and how a Parenting Plan can look can be found on the Cafcass website.

The Children Act 1989 introduced several principles to guide parents and Courts in agreeing arrangements for their children, including:

1. That the child’s welfare is the paramount consideration
2. Delay in resolving matters is likely to prejudice the welfare of the child
3. The Court shall not make any Order unless it considers that doing so would be better for the child than making no Order at all (the ‘no order’ principle).

There is a presumption that both parents being involved in the child’s life will further the child’s welfare unless the contrary is shown.

The welfare checklist – Children Act 1989

This sets out the factors that should be considered when making decisions about children and which the Court must consider when an application is made to Court. These are:

• the ascertainable wishes and feelings of the child (considered in the light of his or her age and understanding);
• the child’s physical, emotional and educational needs;
• the likely effect on the child of any change in his/her circumstance;
• the child’s age, sex, background and any characteristics of the child which the Court considers relevant;
• any harm which the child has suffered or is at risk of suffering;
• how capable each of his or her parents are, and any other person in relation to whom the Court considers the question to be relevant, is of meeting his or her needs;
• the range of powers available to the Court under the Children Act in the proceedings in question.

In any decision or agreement about your children, the welfare of the child or children must be paramount.

What Court Orders can you apply for?

Child Arrangement Orders:

These are Orders stating who the child is to live with (these used to be known as custody/residence orders) and how much time they spend with the other parent (previously known as access/contact orders). The Order can also include details of how the arrangements are to be managed, such as handovers or if a parent needs to be supervised.

Specific Issue Order:

A Specific Issue Order is made by the Court when a parent is required to take a specific step in respect of the child’s upbringing. For example, which school a child should attend or what their surname should be.

Prohibited Steps Order:

A Prohibited Steps Order is the opposite to a Specific Issue Order and is made to prevent a parent from exercising a certain parental right. For example, a Prohibited Steps Order can prevent a parent from removing a child from the other parent or their school or removing them from the jurisdiction.

What is Parental Responsibility?

The Children Act 1989 defines parental responsibility as “all the rights, duties, powers and responsibilities and authority which by law a parent of a child has in relation to the child and his property”.

In practical terms, parental responsibility means that those with parental responsibility should consult each other on major decisions concerning the child(ren’s) welfare which can include medical and educational decisions. If at any point you cannot come to an agreement in relation to an important decision, then it may be that you will have to apply to Court for one or more of the Orders set out above.

A mother automatically has parental responsibility for their children, a father automatically has parental responsibility if they are named on the child’s birth certificate or married at the time of the child(ren’s) birth, or they can acquire parental responsibility by a formal agreement (called a Parental Responsibility Agreement) or Court Order.

Who else can apply for Court Orders?

Other adults who have been involved in the children’s upbringing (such as grandparents, step parents, siblings, foster parents) may be able to apply for Orders. Certain restrictions may apply and they may first need the Court’s permission to make an application. More details can be found here. 

Further information for parents can be found on the Resolution website or the Cafcass website.

We offer a free exploratory call, so that we can discuss your needs and look to match your specific circumstances with the right specialist family lawyer in our team.