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The 7 Decisive Factors for a Child Arrangement Order, and the Harsh effects of the Pandemic

The Covid-19 Pandemic has dramatically affected the legal practice. The law and the various legal systems of countries have adapted, and try to accommodate people in this time of hardship. Family law and child arrangement orders are not exempt from these initiatives either. 

What even is a Child Arrangement Order?

A Child Arrangement Order is a legally enforceable agreement, usually between parents and a child, or guardian(s) and a child, that facilitates a relationship between parties. Under a child arrangement agreement, also known as a custody agreement or a parenting agreement, the court and the involved parties decide who the child should live with, when and how the child should contact a parent or guardian, and any other matters relating to its welfare.

The need for a child arrangement order usually arises in situations where a breakdown of relationships has occurred, i.e if parents cannot amicably decide how childcare responsibilities should be divided between them, or- in more tragic situations- if one or more of the child’s parents or guardians have passed away, where a guardian or relative such as a grandparent seeks a court decision in order to provide childcare. This area of the law deals explicitly with parental rights and parental responsibilities, and is referred to as ‘private children’s law’.

This article will explain what a child arrangement order or a child arrangement agreement is, who can apply for it, what the court considers when granting it, and some considerations for its breach amid the Covid-19 pandemic.

Who Can Apply for a Child Arrangement Order?

Parents have a right to apply for the order, as they hold the parental rights and, the responsibility for the child’s welfare. The mother automatically has parental rights and obligations from birth. The father will only have a claim to parental rights and responsibilities in the context of a parenting agreement if he is married to the mother or listed on the birth certificate. However, other people can also apply:

  • Guardians or special guardians.
  • Grandparents.
  • Step-parents.

It should be noted, however, that eligibility to apply for child custody is not restricted to the above only, and others can also become parties to the parenting agreement with the court’s approval.

What are the 7 Factors the Court Decides on?

In a parenting agreement, or any other family law issue involving a child, the court must always place the child’s welfare first and above all; before the interests or welfare of the parents or guardians. At the outset, s.1 of the Children Act 1998 says that the court must regard the child’s welfare when it deals with anything related to their upbringing or when administrating the child’s property or any income arising from it. There is a welfare checklist provided within the Act, which includes an array of factors that the Court should consider:

  1. The ascertainable wishes and feelings of the child concerned.
  2. The child’s physical, emotional and educational needs.
  3. The likely effect on him of any change in his circumstances.
  4. The child’s age, sex, background, and any characteristics of his which the Court considers relevant.
  5. Any harm which the child has suffered or is at risk of suffering.
  6. How capable each of his parents, and any other person concerning whom the Court considers the question to be relevant, is of meeting his needs.
  7. The range of powers available to the Court.

family in child arrangement order session

How Does the Child Arrangement Agreement Process Work?

Mediation

When deciding on child arrangement, parties are encouraged to settle matters via mediation, as litigation is seen as a last resort. All parties will be required to attend a Mediation Information and Assessment meeting during the parenting agreement process to narrow issues down and try to reach a resolution. If it appears that mediation can’t make the parties decide on a child arrangement agreement, then the mediator will make it clear, and the involved parties can apply to the court for a child arrangement order.

‘First Hearing’

Once an application is made, the court will list the matter of parenting agreement for a preliminary hearing, usually attended by the parties, the child and Family Court Advisory and Support Service officer (CAFCASS). CAFCASS is an independent body that represents children in family proceedings, including child arrangement proceedings, to advocate their needs, interests, and feelings.

This hearing aims to resolve issues in the child’s best interests. Not all problems get resolved in this first session of the child arrangement hearing, and the Court will give directions so that the parties can exchange further information or documents for matters to progress more efficiently.

What are the different types of a Child Arrangement Agreement?

There are four main types of child arrangement orders which courts can hand down:

  1. An order which decides who the child will live with (residence order).
  2. An order where the Court decides who the child is to have contact with (contact order).
  3. An order specific to a particular issue, such as which school the child should attend (specific issue order).
  4. An order to stop a parent from carrying out a specific step, i.e. stop one of the parents from taking the child abroad if an agreement is not made between both parents (Prohibited Steps Order).

Can I be Sanctioned for Breaching the Terms of Custody During Covid?

Quick answer: failure to adhere to the terms of the child arrangement order will constitute a breach. However, this doesn’t mean that the breaching party will be subject to sanctions by default.

Coronavirus has caused a state of deadlock. Restrictions, lockdown, self-isolation, and social distancing have led to parties being unable to comply with the terms of child arrangement orders. There’s been a growing concern in the media about some parents using Coronavirus as an excuse to cut off access to children.

Firstly, if the breach is innocent or inadvertent, both parties should try and reason with one another to avoid litigation. Should that fail, then the innocent party generally has a right to petition the Court to enforce the terms of the order, and ask for the guilty party to be sanctioned. The Court itself will consider mediation and whether it is a viable and capable recourse for resolution between parties as an initial checkpoint.

During the Pandemic, the family courts were only hearing urgent cases, which concerned the local authorities. Still, with things going back to normal as early as the beginning of July, things will open up more for private matters, and parties can expect to be heard by the court about issues involving child arrangement.  

The Court will need to be satisfied beyond reasonable doubt that there has been non-compliance, however, it does have the option to consider whether there is a valid excuse for the breach. In such instances, it cannot levy sanctions. In order to assess whether the reason for failure to comply is a reasonable excuse, a two-stage test will be engaged to determine whether the party has acted reasonably, together with the reasons for non-compliance.

This means that Coronavirus does not warrant a party to cease compliance, and parents should make best efforts to try and uphold the agreement. This may include changing the day, or the meeting location, where it is deemed safe for the child and all individuals involved.

The courts will be concerned with whether each parent acted reasonably and sensibly amid the Pandemic. The Lord Chief Justice guidelines already provide that non-resident parents may have the chance to make up lost time and enforced that video chats would not stand as a substitute for face-to-face meetings. Family Courts will now face the task of deciding whether the parents had acted sensibly or not, and it is expected that there will be an influx of grievances by parents who have all come out in great numbers, to say that they were wrongly denied access, with the Pandemic being used as an excuse.

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