When parents separate they will obviously need to sort out arrangements for where their children will live and what time the children will spend with each parent. Hopefully, they will be able to sort out these arrangements by agreement, but if that is not possible then they may need to ask the court to sort out the arrangements for them. This is done by applying to the court for a child arrangements order.

What is a child arrangements order?

The power of the court to make child arrangements orders is set out in the Children Act 1989. The Act defines a child arrangements order as “an order regulating arrangements relating to any of the following—

(a) with whom a child is to live, spend time or otherwise have contact, and

(b) when a child is to live, spend time or otherwise have contact with any person”.

So the order will essentially set out what time the child will spend with each parent.

The order will generally last until the child reaches the age of sixteen.

Note that there is no particular distinction between ‘living’, ‘spending time’ or ‘having contact’ with a parent. Thus the order can be anything from the child spending equal time with each parent, to the child living with one parent and just having occasional contact with the other parent, or even having no contact at all.

And contact can be visiting or staying, direct and/or indirect, unsupervised or supervised.

‘Staying contact’ refers to contact whereby the child stays with that parent overnight, whereas ‘visiting contact’ refers to contact during the daytime, with the child returning to the other parent at night time.

‘Direct contact’ is where the child actually sees that parent, whereas ‘indirect contact’ refers to contact via indirect means, such as letter, telephone, email, text message, and so on. Note that contact can be both direct and indirect, with the child having indirect contact in between direct contact visits.

Lastly, supervised contact is where there are concerns over the parent having direct contact with the child, so the contact visits are supervised by someone trustworthy, for example a relative, or a supervisor at a child contact centre.

How does the court decide what order to make?

So now that we know what a child arrangements order is, the next question is: how does the court decide what order to make?

The overriding principle is that the child’s welfare is be the court’s ‘paramount consideration’. In other words, the court’s decision will be what it considers is best for the welfare of the child.

The court presumes it’s best for the child’s welfare that both parents are involved, unless proven otherwise.

The Welfare Checklist

To determine the child’s welfare, the court considers a ‘welfare checklist,’ prioritizing factors crucial for their best interests. These factors include:

1. The ascertainable wishes and feelings of the child concerned, considered in the light of the child’s age and understanding. Thus, generally speaking, the older the child the greater weight the court will give to the child’s wishes. And there can come a point with an older child when their wishes will actually determine the outcome.

2. The child’s physical, emotional and educational needs. It may be that the child has some special needs, and that one of the parents is best suited to meet those needs.

3. The likely effect on the child of any change in their circumstances. Thus, for example, if the child is living with one parent and the court is considering making an order that they should move to live with the other parent then obviously that move court have a serious effect (good or bad) upon the child.

4. The child’s age, sex, background and any of their characteristics which the court considers relevant. These days the sex of the child is less likely to be relevant to the outcome of the case, but such things as their religious beliefs and particular interests could be.

5. Any harm which the child has suffered, or is at risk of suffering. Obviously, this would have a very significant bearing upon the outcome.

6. Lastly, how capable each of the parents is of meeting the child’s needs. This will cover not just parenting skills, but also practicalities such as work commitments, which obviously could have a bearing on the capability of the parent to meet the child’s needs.

How can we help?

For further information on how we can help, please see our Child Arrangements page.

Walker Family Law is an award-winning family law practice, recognised as one of the leading family law firms in the South West of England with services covering family law mediationdivorce lawchild-law and arbitration.

Please contact us if you require any further information.