An application for a Child Arrangements Order is where the Family Court is asked to make an order in respect of the contact and living arrangements of a child. Such orders are used to resolve disputes between adults in relation to how a child is to spend his or her time until they reach the age of majority.
The process usually begins with an initial dispute resolution hearing. This is a preliminary hearing to identify the disputed issues and whether local authority social services and/or CAFCASS intervention is necessary.
In most cases, the Family Court will require the assistance of CAFCASS and the latter is therefore ordered to prepare a report and provide recommendations relating to the child in question. The recommendations focus on the welfare of the child with reference to the welfare checklist found in section 1 of the Children Act 1989. This stipulates that:
(…) The court shall have regard in particular to
(a)the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);
(b)his physical, emotional and educational needs;
(c)the likely effect on him of any change in his circumstances;
(d)his age, sex, background and any characteristics of his which the court considers relevant;
(e)any harm which he has suffered or is at risk of suffering;
(f)how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;(g)the range of powers available to the court under this Act in the proceedings in question.
The weight given to each welfare consideration depends on the reliability of the available evidence in relation to that consideration, and the relevance of that consideration to the particular case, e.g. where it is determined that the child concerned is not at risk of suffering from any harm, consideration (e) will not apply.
There is usually more than one report prepared by CAFCASS throughout the court process. This is done to ensure that the court is provided with up-to-date recommendations.
In some cases, where there are allegations of domestic abuse, the Family Court is likely to list a fact-finding hearing to determine the truth of the allegations made. The standard of proof in such hearings is the “balance of probabilities”. Where a person has previously been convicted of an offence in relation to a particular allegation, then section 11 of the Civil Evidence Act 1968 will apply to create a rebuttable presumption that the offence was committed.
The findings of fact made by the judge will be considered by CAFCASS in their final report. The latter will contain recommendations on the children’s living arrangements and contact. When all reports have been completed, there is usually a final hearing at which all parties present their proposals. The author of the CAFCASS reports is usually asked to attend the hearing to give evidence.
In the event that a party disagrees with the recommendations set out in the final CAFCASS report, they are able to challenge the recommendations and the basis of those recommendations by challenging the evidence of the author.
After hearing evidence from all the parties and witnesses, the court makes a Child Arrangements Order and gives its reasons for doing so.
The process in summary is as follows:
For expert advice and assistance regarding applications for child arrangement orders, or to arrange representation for a fact-finding hearing, contact our family law barristers. We are Milton Keynes and London-based family lawyers who can help with any aspect of family disputes, such as child arrangements, divorce, and matrimonial finance.