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28 November 2022
When parents separate, disputes may arise about where and with whom a child will live, or how much time they will spend with the other parent. If agreement cannot be reached it may be necessary to make an application to the Court for a Child Arrangements Order (CAO).
Unless a specific exemption applies, the person who wants to apply for an Order must attend a Mediation Information and Assessment Meeting (MIAM) which the other parent is invited to attend. If mediation is not successful, then an application can be made.
The Court will weigh up all the information available and decide what is best for the child. The parents will be encouraged to agree but if they can’t do so then the Judge will make a final decision.
If the terms of a CAO are not complied with there can be serious consequences including doing unpaid work or imprisonment.
Who can apply for a Child Arrangements Order?
If a person has parental responsibility for a child, they can make an application without permission as can a person who has lived with the child for 3 years, if that period began no more than 5 years before and ended 3months before the application was made. A person who has the consent of the Local Authority where the child is in Local Authority care also does not need permission.
If a person does not fall within one of the categories set out in the Children Act 1989, such as a grandparent then they will need permission of the Court to make an application.
Living Arrangements
The court may regulate a child's living arrangements by:
- Naming one person with whom the child is to live.
- Naming two people, who live in the same household, as persons with whom the child is to live. This could be the child’s parent and their stepparent.
- Naming two persons, who live in different households, as persons with whom the child is to live (a shared care arrangement). This allows a child to live with both parents in their respective households following separation. The Order may specify the time that the child will live in each household which need not be equal.
Allocated time between parents
The person with whom the child resides must ensure that the child spends time with the other person named in the order. This can be indirectly such as by letter, e-mail or telephone or by face-to-face contact which may be specified in days, weekends or longer periods such as school holidays.
If there are welfare concerns supervision or time in a contact centre can be Ordered.
The Court has a wide discretion, but its approach is that the child has a right to know both parents. The right of mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of family life under Article 8 ECHR. However, the court will always consider all the circumstances and may decide it is in the best interests of the child not to allow contact or limit it.
