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Child Arrangement Orders | Is the pandemic a reasonable excuse?

A Child Arrangement Order is a legally enforceable agreement usually between parents and a child, or guardian(s) and a child, to facilitate a relationship between parties. The Court can decide who the child should live with, when and how the child should contact a parent or guardian, and other matters relating to its welfare.

The need for an arrangement order usually arises in situations such as breakdown of relationships, if parents cannot amicably decide how childcare should be divided between them, or if both or one parent has demised. A guardian or relative such as a grandparent seeks an order to provide childcare. This area of law deals explicitly with parental rights and responsibilities and is referred to as ‘private children law’. This article explained what an arrangement order is, who can apply it, and considerations for breach amid Pandemic.

Who can apply for a Child Arrangement Order?

Parents have a right to apply for the order as they hold parental rights and responsibilities towards the child. The mother automatically has parental rights and obligations from birth. Still, the father will only have parental rights and responsibilities if he is married to the mother or listed on the birth certificate. However, other people can also apply:

  1. guardian or special guardians
  2. grandparents
  3. step-parents.

It should be noted that eligibility to apply is not restricted to the above only, and others can also apply for the order by seeking Court’s permission.

What approach does the Court take?

The Court must always place the child’s welfare first, before the interests 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 its’ upbringing or when administrating the child’s property or any income that comes 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 need
  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.
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How does the application process work?

Mediation

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 to narrow issues and try and reach a resolution. If it appears that mediation cannot assist, then the mediator will make it very clear, and parties can apply to Court.

‘First Hearing’

Once an application is issued, the Court will list the matter for a preliminary hearing usually attended by the parties, the child and Family Court Advisory and Support Service Officer (CAFCASS). CAFCASS are an independent body that represents children in family proceedings to advocate their needs, interests and feelings. This hearing aims to resolve issues following the child’s best interests. Some problems might remain unresolved, and the Court will give directions, so parties can exchange further information or documents for matters to progress more effectively.

What are the different types of Child Arrangement Orders?

There are four main types of 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 agreement not sought between both parents (Prohibited Steps Order).

Can I be sanctioned for breaching the terms of the order during this Pandemic?

Quick answer, failure to adhere to the terms of the order will constitute a breach. However, this doesn’t mean that the guilty 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 the order. There’s been a growing concern in the media about some parents using Coronavirus as a flout to cut off access to children.

Firstly, if the breach is innocent, both parties should try and reason with one another to avoid litigation. However, should that fail, then the innocent party generally has a right to apply to 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 viable and a capable resource 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 Court about issues involving arrangement orders.  

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 face time 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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