Child Arrangements Orders (formerly Contact and Residence)
It is first compulsory for all potential applicants for a Court order in relevant family proceedings to attend a Mediation Information and Assessment Meeting – known as a ‘MIAM’ appointment with a qualified mediator, before filing their application with the Court.
The purpose of the meeting is to explore the other options available, rather than court proceedings, to divert parties away from the court process and encourage parties to agree. This may be by way of further mediation appointments.
The Children Act 1989 states the most important factor in determining the arrangements for a child is what will be in the child’s best interest. The Court is directed not to make any orders unless it is considered that an order is beneficial to the child.
In family law, what used to be called “Custody” and “Access” then subsequently “Residence” and “Contact” are now known as Child Arrangements.
An order will set out:
- With whom a child is to live, spend time or otherwise have contact; and
- When a child is to live, spend time or otherwise have contact with any other person.
The Children Act states that a child’s welfare is of “paramount consideration” when the Court considers any question in relation to the upbringing of a child. The Court applies what is known as the “Welfare Checklist” to help reach its decision.
Factors considered by the Court are as follows:
- Wishes and feelings, considered in light of the child’s age and understanding
- Physical, emotional and educational needs
- Age, sex, background and any characteristics which the Court considers relevant
- The likely effect of any change in the child’s circumstances
- Any harm which the child has suffered or is at risk of suffering
- How capable each parent is in meeting the child’s needs
All private law proceedings relating to children are now governed by what is known as the Child Arrangements Programme (CAP). Separating parents are strongly encouraged to attempt to resolve the issues outside of court. If court proceedings are necessary, the CAP encourages swift resolution.
The CAP sets out a fixed timetable that will be applied in each case. Upon submitting application in Form C100 with Form C1A, if required, the case will be allocated within the family court to a gatekeeping judge.
The court has power to make directions at this stage if necessary. The papers will also be submitted to Cafcass (The Children and Family Court Advisory and Support Service). Cafcass will carry out safeguarding checks.
A hearing will then be fixed known as an “FHDRA” (First Hearing Dispute Resolution Appointment). This will usually be listed within 5-6 weeks of making the application and a Cafcass officer will be in attendance.
If appropriate an interim order can be made; or, the parties may be directed to attend a MIAM; or, if there are issues of domestic or child abuse a fact finding hearing may be listed. If appropriate parties will be directed to file statements and Cafcass will be directed to prepare a welfare report known as a Section 7 Report.
A further hearing may be listed known as a “DRA” (Dispute Resolution Appointment) and there may also be a final welfare hearing following which a final order will be made, if appropriate.
However, throughout this process the parties will be encouraged to reach agreement and usually parties are able to agree on the arrangements for the children upon considering the Cafcass report thus avoiding the emotional strain and cost of a contested final hearing.
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