Residence, contact, access, visitation, custody, care and control: the list goes on. There are a huge number of different terms used in everyday conversation to talk about the ways in which children and their parents get by after separation. Since 2014, most disputes between parents have been dealt with using 'child arrangement orders'. However, in our experience, this terminology hasn’t really made its way into the popular imagination yet.

Let’s take a closer look at what a child arrangements order is and how the courts decide what kind of child arrangements order to put in place.

What is a Child Arrangements Order?

Put simply, a child arrangements order is a court order regulating who a child lives with, who they see or have other types of contact and when.

Before April 2014, disputes regarding arrangements for children were usually decided using residence and contact orders. A residence order stated who the child was to live with; this could be one parent or both parents at different times during the week. A contact order set out when and in what way a child was to interact with a person they did not live with, usually but not always the other parent, and what form this contact was to take, e.g. visits, overnight stays, letters, video calls, etc.

Following various government-initiated investigations, a view developed that the terms 'residence and contact' had become loaded and there could be a perception that the parent with the residence order had “won” some sort of battle and the parent with a contact order had “lost”.

Whether this was in fact the case was quite hotly debated among lawyers and others concerned with family justice at the time. More to the point, there was some scepticism as to whether a simple change of terminology could really prevent a combative dynamic from developing between parents involved in an acrimonious separation. Nevertheless, the decision was taken to replace residence and contact orders with child arrangements orders.

Attitudes towards child arrangements orders differ among the judiciary. Some judges will often grant an order that a child “lives with” both their parents but at different times. Others will very rarely make an order like this unless there is a near-exact 50/50 division of a child’s time between their parents' homes, instead preferring to state that a child lives with parent A and sees parent B at various times. The label should not matter though: the aim is for the child to have as full a relationship as possible with both their parents after separation, taking into account the family’s weekly schedule and provided the proposed course of action is in the child’s best interests.

Factors the Court Needs to Take Into Account

Only a small proportion of separating families will need the assistance of the court to decide what arrangements should be put in place. Of those that do go to court, the majority will reach a settlement before entering into a contested final hearing, during which, a judge or panel of lay justices (magistrates) will decide the outcome. When the court is asked to decide a contested case or approve a settlement proposed by parents who have previously been in dispute, it has to make detailed enquiries and consider a whole range of issues.

The “paramount” - overriding or principal - consideration is the welfare of the child. The law provides more detail as to how this consideration can be put into practice.

The factors the court has to take into account when deciding what form of child arrangements order to put in place, includes:

• The court assumes that any delay in deciding a disputed issue is likely to prejudice the welfare of the child. This is sometimes known as the “no delay” principle. The courts should use their powers to ensure that any relevant investigations are undertaken as swiftly as possible, without compromising their thoroughness. With a busy court system and hard-pressed public servants, such as CAFCASS officers and social workers, doing their best to cope with competing demands on their time, the laudable aim of avoiding delay is not always achieved.
• Unless there is cogent evidence pointing otherwise, the court will presume that a child’s welfare is best served by the continued involvement of both their parents in their life. This expressly does not create any presumption that a child’s time should be divided in a particular way and “involvement” can mean different things in different families.
• When deciding whether or not to make an order, the court should consider whether it would be better for the child if there was no order at all. This is often known as the “no order” principle and roughly equates to a court asking itself whether making an order is genuinely necessary. In a case where there is a live, substantive dispute between the parents as to arrangements for the child, the answer would almost always be yes
• The court also has to look at a list of particular factors, known as the welfare checklist. These help the court to bring into particular focus the most relevant aspects of the child’s welfare. Different factors will weigh more heavily than others in each case. The factors are:
• ‘The ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding)’ - this is likely to be more significant the older or more emotionally mature a child is
• 'Their physical, emotional and educational needs’ - in many cases, both parents will be completely capable of meeting a child’s needs but this is not always the case
• ‘The likely effect on them of any change in their circumstances’ - if the making of a particular order involves a change for the child, the impact of that change must be assessed
• ‘Their age, sex, background and any characteristics of his which the court considers relevant’ - social, linguistic and cultural factors may play a role in deciding the best way to serve a child’s welfare
• ‘Any harm which they have suffered or is at risk of suffering’ - the court will do all it can to avoid a child being exposed to harm or an unacceptable risk of harm. Sometimes this requires an analysis of how likely it is that perceived harm will occur and what strategies for managing risk may be available
• ‘How capable each of their parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting their needs’
• ‘The range of powers available to the court under this Act in the proceedings in question’ - the court often has a choice of different types of orders it could make. It will think carefully about which order or combination of orders is most likely to produce the best outcome for the child

It is worth remembering that, unless certain exemptions apply, all people wishing to apply for a child arrangements order must first attend a mediation information and assessment meeting (MIAM) to find out about the possibility of mediation. The court positively encourages non-court dispute resolution; although, it cannot force someone to enter into what is a voluntary process of negotiation. The court can adjourn a dispute even after it has come to court to give the parents as good a chance as it can to enter into mediation or another form of non-court dispute resolution.

The decision as to the right kind of child arrangements order can be highly complex and in almost all cases, emotions run high on both sides. As well as the main legislation on the subject, the Children Act 1989, there is a wealth of reported decisions of the courts that provide guidance on a wide variety of specific points. It can all seem very daunting, especially if you are involved in a dispute about a child. However, the basic principle is that the law aims to put the child’s best interests at the very centre of all decision-making.

To discuss this article or any related matter with our family team, please do not hesitate to contact us.