Children Act 1989

We deal with all aspects of child arrangements, including relocation (nationally and internationally), disputes over where a child or children will live, or the time they spend with each parent. Sometimes there are disputes regarding specific (for example, changing names or schools), or there may be concerns about a child visiting a foreign country (which can be dealt with by an application for a prohibited steps orders. We also assist with applications for financial help for unmarried parents under Schedule 1 Children Act 1989.

We can help you resolve your dispute if you wish to attend mediation or assist you with the Court process in order to obtain the best outcome for you and your children.

Considerations

When the Court deals with any question relating to a child, the child’s welfare is its primary consideration and regard is given to the wishes and feelings of each child, his or her physical, emotional and educational needs and the likely effect of any change in circumstances. That said, the Court’s priority is to ensure it does not become involved in child arrangements unless absolutely necessary, and the “no order” principle is key.

The Children Act 1989, which is the primary legislation, gives parents the flexibility and freedom to make court applications when they need to in relation to their children. However, the court process is used as a last resort, and it is important to make attempts at communication, mediation and negotiation before issuing any court application.

Section 1 of the Children Act 1989 contains the “welfare checklist”, which confirms that, when the Court is considering whether to make an order relating to children, it must have regard to:-

1. The ascertainable wishes and feelings of the child concerned (considered in the light of their age and understanding);
2. Their physical, emotional and educational needs;
3. The likely effect on the child of any change in their circumstances;
4. Their age, sex, background and any characteristics of which the Court considers relevant;
5. Any harm which the child has suffered or is at risk of suffering;
6. How capable each parent and any other person in relation to whom the Court considers the question to be relevant, is of meeting the child’s needs;
7. The range of powers available to the court under the Children Act in the proceedings in question.

What is a child arrangements order?

A child arrangements order is an order made by the Court to establish and formalise where a child lives and whom a child can have contact with following separation or divorce.

Child Arrangements Order

Child arrangements orders are made under Section 8 of Children Act 1989. An application is initially made to Court under Form C100.  Child arrangement orders include:

• with whom the child live – known as “live with” orders.
• with whom the child is to spend to time – known as “spend time with” order. These can include indirect contact methods such as phone, video call, email etc.

Other orders under Section 8 Children Act 1989 include:

• Orders determining parental responsibility for a child;
• Prohibited steps orders – this prohibits a parent, or another party with parental responsibility, from taking particular action, without consent of the court (for example, the order may prohibit taking the child out of the country or changing the child’s school)
• Specific issue orders – this determines a specific question that has arisen in relation to the child’s upbringing (for example, which school the child should attend, whether the child should have a certain type of medical treatment).

Who may apply for a child arrangements order?

Under Section 10 of Children Act 1989, the following people, amongst others, may apply for a child arrangement order:

1. Any parent, guardian of the child;
2. Any person who has parental responsibility for the child;
3. Any person who is named in a current child arrangements order as a person with whom the child is to live; and
4. Any party with whom the child has lived for a period of at least 3 years.

Child arrangements order Procedure

The application to the Court for a section 8 Order is carried out by filing Form C100. If there are allegations of domestic abuse or violence, Form C1A Allegations of Harm form must also be completed. Prior to issuing the form, the applicant must attend a MIAM appointment (a Mediation Information and Assessment Meeting) with a mediator who will sign the Form C100 to confirm that the meeting has taken place and the applicant has received relevant information about whether the case is appropriate for mediation.

When the application is filed, it will be allocated to a legal advisor or judge for consideration. The Court will then write to the parties and list the matter for a first hearing dispute resolution appointment (FHDRA) approximately four to six weeks after the application is issued. The Court will provide each party with the following:

• Sealed and dated copies of the application and information form;
• Notice of hearing;
• Acknowledgment of Service; and
• Directions for Cafcass to file a safeguarding report within 17 days. Cafcass will subsequently conduct a risk identification interview on the telephone with both parties to identify any concerns, and these will be sent to the Court in a letter.

If there are allegations of domestic abuse, the Court may recommend a fact finding hearing takes place prior to the FHDRA. This is because the court must be satisfied that any allegations are proven or unproven before any decision is made about the children, pursuant to Practice Direction 12J. Therefore, any allegations of domestic violence must be raised as early as possible. Any fact finding hearing will delay the determination of the child arrangements as the Court will often invite parties to prepare schedules of allegations and statements, before dealing with the case in a hearing.

Upon receipt of the application, the respondent must file and serve a Form C7 Acknowledgement within 14 days. If the respondent is seeking orders, he or she must also then file a C100 application, which will usually be listed at the same time as the FHRDA.

The FHDRA hearing

All parties, including Cafcass, must attend the FHDRA, which is listed for 30 minutes. The Court will consider directions for the future running of the case, including the filing of statements and provision of further evidence. The Judge will also list the case for a dispute resolution hearing (a DRA) or list the matter for a final hearing. Furthermore, Cafcass may be ordered to provide a report on a specific issue under Section 7 Children Act 1989, which may involve meeting the parties, the children and conducting home visits. The report can take up to 16 weeks to complete.

The DRA hearing

If Cafcass has been ordered to produce a report, this will be available at the DRA and will be reviewed by the Judge. The DRA hearing is listed for 1 hour, and all parties, along with their legal advisers, must attend.

Pursuant to Paragraph 19.3 of Practice Direction 12B (the Child Arrangements Programme), at the DRA, the court will:

• Identify the key issues to be determined and the extent to which they can be resolved;
• Consider whether the DRA can be used as a final hearing;
• Resolve or narrow the issues
• Identify evidence to be heard on the issues
• Give final case management directions, including filing of evidence and filing statements;
• Listing the final hearing.

Final Hearing

The final hearing will take place in Court over a minimum of 1 day. Both parties and their legal advisers must attend for the duration of the hearing. During the hearing, the Court will hear evidence from both parties and, in certain circumstances, the witnesses. If Cafcass has prepared a report, the Cafcass officer will also attend Court to give evidence.

After hearing all the evidence, the Court will make a final order determining the issues in the case. This is often made at the time of the final hearing. Alternatively, if the Judge needs more time to consider the matter, he or she may “hand down” judgment some days or weeks later.

Family Solicitors London

Our specialist family solicitors, based in London, provide a professional and efficient service. To chat our discreet and confidential family lawyers call us on 020 7123 4600, email us at co*****@**********co.uk or make an online enquiry here.