Child Arrangement Orders Relating To Residence & Contact

The welfare of any children in a relationship is, rightly, of absolute importance to all involved. Arguments over children tend to be the most confrontational in family proceedings and we believe that by helping you understand the Court’s approach we can work together to get the best outcome for you and your children.

When talking about ‘access’ or ‘contact’ most people are referring to a Child Arrangements Order made under section 8 of the Children Act 1989. These orders decide who the child is to live with and/or who the child will spend time with, and can be granted to more than one person whether they live together or not.

The Court is empowered to do what it thinks fit for the child whose best interests are of paramount importance.

They can also require CAFCASS to prepare a Report which will usually inform the Court of the child’s “Wishes and Feelings” and includes a recommendation as to what is thought best for the child.

Applying for Orders

Any of the following can make an application without having to seek permission from the Court:

1. The parent, guardian or special guardian of a child;
2. Any person who has Parental Responsibility;
3. Anyone who holds a Residence Order in respect of the child;
4. Any party to a Marriage or Civil Partnership where the child is a child of the family;
5. Anyone with whom the child has lived for at least three years;
6. Anyone who has obtained the consent of:
   1. a Residence order;
   2. the Local Authority if the child is in their care; or
   3. everyone who has Parental Responsibility for the child.

Others can apply to the Court for permission to issue an application for a child arrangements order. In deciding whether to give permission the Court will take into account, amongst other things:

1. The nature of the application;
2. The applicant’s connection with the child;
3. The risk there might be of the proposed application disrupting the child’s life to such an extent that they should be harmed by it.

This means that wider family members like grandparents can apply for orders in respect of their grandchildren. 

The Welfare Checklist – section 1 Children Act 1989

When a Court considers any question relating to the upbringing of a child under the Children Act 1989 it must have regard to the welfare checklist set out in s1 of that Act. Among the things the Court must consider are:

1. The wishes and feelings of the child (balanced by their age and understanding)
2. His physical, emotional and/or educational needs;
3. The likely effect on him of any change in his circumstances;
4. His age, sex, background and any characteristics of his, which the Court considers relevant;
5. Any harm which he has suffered or is at risk of suffering;
6. How capable each of his parents is of meeting his needs;
7. The range of powers available to the Court under the Children Act 1989 in the proceedings in question.

For all proceedings under the Children Act 1989 when the Court considers a question of the child’s upbringing the child’s welfare is the Court’s paramount consideration.

Parental Responsibility – sections 3 and 4 Children Act 1989

Parental responsibility means all the rights, duties, powers, responsibilities and authority, which by law a parent of a child has in relation to the child and his property.

The birth mother of a child will always have parental responsibility unless it is extinguished by the making of an adoption order to another person.

Where the child’s father and mother are married to each other at the time of the birth, they both have parental responsibility for the child.

Where the child’s mother and father are not married to each other at the time of the birth the general rule is that the mother has sole parental responsibility for the child. However, an unmarried father will have parental responsibility for a child born after 1st December 2003 if he is named on the Register.

Other ways in which a father can obtain parental responsibility are by:

1. Drawing up an agreement with the mother (a parental responsibility agreement), which is specific form that has to be signed by both parents;
2. Marrying the mother;
3. The Court making a child arrangements order for parental responsibility if the parents cannot agree on the father having parental responsibility.

Whether you are going through a relationship breakdown or are thinking about your family’s future we understand that your children will always be your top priority. You can be sure of a sympathetic approach when instructing us in matters involving your children and we will always consider their needs in any advice we may give.