Child arrangements orders are subject to the general ‘no order’ principle in the Children Act. Thus, an order will only be made where it can be shown that the making of an order will benefit the child. This does not however create a presumption against an order where, possibly following mediation, matters have been agreed between the parents.
The court may make an order of its own motion. An order cannot be made in favour of the child himself. The court has a wide discretion to attach directions and conditions to any Section 8 order. Such might be detailed in the arrangements as to how the orders should be carried out, or the court might impose conditions to the order which must be complied with by any person, not only the person who has the benefit of the order.
Child arrangements orders can be always be discharged or varied at any time by the court.
A child arrangements order can order that a child should live with more than one person, such as where grandparents and a parent are raising the child either together at the same address or at separate addresses for different parts of the week. The order can include directions and conditions about the time the child will spend with one person or another.
The person a child will live with under a child arrangement order will obtain parental responsibility if they do not already have it, for so long as the order is in force.
Orders relating to whom the child should spend time (Contact)
The law does not give a parent the right to have contact with his or her child. There is therefore no fundamental parental right of contact within the human rights or legal sense. It is the child who has a right to contact with both parents. To apply to the court on the basis that it is your rights which are being breached by the other parent and to demand that something is done about it is a sure route to failure.
There is the strongest of presumptions that a child should not be deprived of contact with either parent, unless it is shown that it is in the interests of the child that contact should not take place. The courts have said that a decision depriving a child of contact with a parent is an order which the courts should be extremely slow to arrive at. Save in exceptional cases, to deprive the parent of contact was to deprive a child of an important contribution to his or her emotional and material needs, whilst growing up in the long term. Thus, a court should ask itself whether the fundamental emotional need of a child to have an enduring relationship with both parents was outweighed by any harm the child would be at risk of suffering if a contact order was made.
Orders relating to with whom a child should live (Residence)
These orders, previously known as residence orders, are made to decide with whom, not where, a child should live. They are normally made in respect of a child up to the age of 16, but exceptionally may be continued up to the age of 18.
An order will be made deciding with whom the child will live as their primary residence. The parent who has the child living with them is called the resident parent, and the other parent is called the non-resident parent. When the child spends equal time with each parent, for example one week with one parent, another week with the other, then the parents are sometimes said to have shared (or joint) residence of the child.
Based on the fundamental principle of the child’s welfare set out in the Children Act 1989, the order dealing with whom the child should live should interfere as little as possible with the relationship of the child with his or her other parent. Each parent will retain full parental responsibility, and indeed all other rights as a parent. The order simply deals with the question of with whom the child should live and nothing else. It does not in any way interfere with or deplete the non-resident parent’s position as to his child.
The order made should be flexible enough to accommodate all other matters and possible orders that could be required to ensure the child’s welfare. When the court makes an order deciding with whom a child will live, it will almost always make an order dealing with the time to be spent with the other parent.
There will always be a strong presumption that, other things being equal, it is in the interests of the child to remain living with one or other of his natural parents. Judges have referred to the ‘well-established’ ‘natural parent presumption’. The proper approach is for the court to ask itself whether there were cogent reasons which dictated that the child could not live with its parent. Where everything else is equal and both parents are equally capable, the court is most likely to order that the child lives with the parent who has shown themselves most likely to cooperate over contact with the other.
Where there is an order determining with whom the child should live in force, the person in whose favour it has been made can take the child outside England and Wales for up to a month at a time without needing the permission of any other persons who have parental responsibility or the court. This makes holiday trips abroad easier. Therefore, an order may be appropriate in a case where one parent unreasonably withholds consent to normal holiday trips abroad or tends to wait until the last minute when travel has become expensive. Permission will have to be granted however for permanent removal from the jurisdiction or removal of over a month, if the other parent has parental responsibility.