Formally known as a Child Custody Agreement
A ‘child arrangements order’ (formally known as a child custody agreement) is a legally binding agreement between parents that determines how they will share the responsibility of caring for their child or children. The court order outlines the specific rights and responsibilities of each parent, such as who the child will live with, when each parent will spend time with their child/children, who will make decisions regarding the child’s education, healthcare, and other important matters, and how the parents will communicate and resolve disputes related to the child.
Child arrangements can be reached through negotiation between the parents or the Courts can determine the outcome of child arrangements if the parents cannot come to an agreement. The welfare of the child is always the top priority in determining these arrangements, and factors such as the child’s age, health, relationship with each parent, and the ability of each parent to provide a stable and nurturing home environment are taken into consideration amongst other things set out in the Welfare Checklist set out in Section 3(a)- (g) to the Children Act 1989.
It is important for parents to work together to create child arrangements that meet the needs of their child and work well for everyone involved. If parents are unable to agree on a child arrangements, they may need to seek professional assistance to help resolve their differences and come to an agreement that is in the best interest of their child.
In a divorce settlement there are several types of child arrangements orders including sole, joint, and shared:
- In sole, one parent has primary physical and legal residence of the child, while the other parent may have visitation rights.
- In joint, both parents share physical and legal arrangements of the child, but the child may primarily reside with one parent.
- In shared arrangements, both parents share physical residence and make important decisions jointly.
At Lloyd Platt & Co you will find the answers to your questions and this article tackles some of those most commonly asked.
Do fathers ever have children living with them?
Over the last fifteen years there has been a societal shift in relation to mothers working longer hours or full time and fathers working from home. As a consequence, the courts are more and more looking to their being a shared care regime or have been more open to granting orders whereby children live with the fathers if the father is capable of meeting the children’s needs under the criteria set out in the Children’s Act 1989.
Every situation will of course be determined on its own facts, but more and more a father who has parental responsibility, meaning he is named on the birth certificate or has acquired parental responsibility by agreement, has a prospect of making a successful application for a sole order in circumstances where the court believes that the making of such an order would be in the best interests of the child or children of the family.
If a father believes that he is more capable of looking after the child than the mother, and can provide for the child’s needs, then we would suggest that they take advice on the suitability of the application. It will need to be structured in a sensible way so that it is not bound to fail from the outset. It should be noted that such application should not be peppered with over criticism of the mother since if a Judge feels that there cannot be any kind of co-parenting the application will be bound to fail.
How long does it take for a judge to decide issues of where a child lives?
When going to court for a child arrangements order, the issue of how long it takes for a Court to determine the issue of where a child should live and with whom, is very much dependent on the circumstances of the case, the workload of the court in question and the complexities of each case.
If there is a dispute regarding where the child will live, there may be a few preliminary hearings that must be worked through first and if there are allegations and counter allegations, then this could involve the appointment of a Cafcass Officer ie an officer from the Children and Family Court Advisory Support Service the local authority. The case may be listed for a “Fact Finding Hearing” where the court can determine whether the allegations being relied on by each of the parties are true.
What is vital in a case of cross applications is for the court to be certain that safeguarding issues are carefully worked through for safety, not only of the child, but also of the other parent if domestic violence issues are raised.
The Cafcass Officer or Social Worker will have to consider safeguarding issues and provide a safeguarding letter and at the preliminary directions hearing Cafcass may be further involved in being asked to prepare welfare reports and being directed to attend court hearings to provide evidence to the Court.
On average there are at least two hearings, but the number is dependent on the circumstance of the case. Sometimes there is a request for hair strand testing, blood tests or urine tests if there are allegations or counter allegations of drug or alcohol mis-use.
There may be directions for the production of psychiatric reports on either the Applicant or the Respondent, or psychiatric reports on the effect of the child living with either of the parents. All of these issues can lengthen the period of time and some of these cases can take a significant period of time to resolve.
Can a father be denied a sole, joint or shared order?
When applying for a child arrangements order, either party can effectively be denied a sole, joint or shared order if the evidence put before the Court shows that it is not in the best interests of the child to live with or spend time with that parent. If that is the case, then an order can be made for the child or children to live solely with their mother or a suitable guardian.
How do you prove a parent unfit to look after a child?
There are many kinds of applications that are made that touch on whether a parent is unfit to look after their child. This can arise when there is an application for a live withs order or any kind of child arrangements order. In order to demonstrate that the other party is unfit you would likely need to provide cogent evidence of a history of drug or alcohol abuse that would render that parent incapable of proper care of the child.
Alternatively, if there is a history of domestic abuse either to the other parent or more importantly directly towards the child, or the parent has a history of mental illness that could incapacitate the parent to look after the child adequately or at all. There may be other grounds to suggest a parent is unfit to look after the child for example a debilitating physical injury.
Allegations and counter allegations are often raised during this process and the court may look to the following:
- Safeguarding issues ie they may look to Cafcass or other organisations to provide details of whether there is any risk of harm to the child or children; or
- May order a psychiatric evaluation of either the person who is being accused of being an unfit parent or of the child themselves
Always be aware that if allegations are made that are not substantiated, and if those allegations are demonstrated to be baseless, malicious and or intended to cause harm, this could result in the accusing party having to pay the legal costs of the proceedings to the accused.
Alternatively, if allegations are made and are substantiated, criteria will be put in place to protect the other parent if there has been ongoing domestic abuse and/or the child.
Sometimes being unfit can be a complete lack of understanding of the needs of the child and how they are cared for generally. The Court may order a parent to a parenting educational course.
Sometimes if the conditions in which a child is living is entirely squalid or unsafe, or there has been a history of criminal offences or imprisonment or an entirely negative attitude of unwillingness to live with that parent, the Court will make orders accordingly.
Take care in making serious allegations, if you yourself are unable to look after the child or children, they could end up in care.
Can a mother legally keep her child away from the father?
If a mother believes that her child is in danger, either from domestic violence, or she herself is at constant threat of domestic violence, then under Practice Direction 12J of the Practice Directions Rules a Court can refuse to Order contact between a child and Father until those allegations have been determined by the Court by way of a fact finding hearing.
There would need to be very strong evidence of this, and the parties would have to go through a first hearing or FHDRA (First Hearing Dispute Resolution Appointment) followed by directions, and this might include a fact-finding hearing. There would be reports ordered for Cafcass officers to provide the report under Section 7 to deal with any risks or potential harm to the child.
The child can be heard and if necessary, the court can appointment a guardian to express the wishes of the child. The Court must at all stages of the proceedings and specifically at the first hearing consider whether domestic abuse is raised as an issue either by the parties or by the Cafcass Officer or otherwise.
You must identify at the earliest opportunity the factual and welfare issues involved, consider the nature of any allegation, admission or evidence of domestic abuse and the extent to which it was likely to be relevant in deciding whether to make a child arrangements order. The Court must give directions to enable contested relevant, factual and welfare issues to be tried as soon as possible and fairly and must ensure that where domestic abuse is admitted or proven, any child arrangements order in place protects the safety and wellbeing of the child, and the parent with whom the child is living, and does not expose either of them to risk or further harm etc.
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It is important for parents to work together to reach an agreement to create a child arrangement agreement that meets the needs of their child and works well for everyone involved. If parents are unable to agree on an arrangement, they may need to seek professional assistance to help resolve their differences and come to an agreement that is in the best interest of their child.
Our expert divorce solicitors are here to offer legal advice to help guide you through your divorce and all the elements that go with that, including childcare arrangements and financial settlements. We will also advise whether your case is appropriate for Mediation Information & Assessment Meetings (MIAM), where you can receive guidance from our trained mediators and a collaborative lawyer.
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