A child arrangements order is an agreement made between the court and the parents or guardians of a child which seeks to regulate the child’s living arrangements, usually until the child is 16 years old. These orders are made under section 8 of the Children Act 1989 and act as a replacement for residence orders and contact orders.
When are child arrangements orders used?
In many cases the parties will be able to come to an informal agreement without going to court. However, even with mediation, this is not always possible. Child arrangements orders are most commonly used in circumstances where parents get divorced or separate and are unable to come to an amicable agreement on their own. The child’s best interests are viewed to be the most important consideration in determining the content of the order. This will take into account, amongst other things, the child’s needs and their own wishes.
Before applying for a child arrangements order, the parties must attend a Mediation Information Assessment Meeting (MIAM). Following this, one or both parties may apply to the court for a child arrangements order to stipulate where the child will live and who they will live with, in addition to any contact arrangements with the non-custodial parent or guardian. This option is not confined to parents. Certain categories of people are entitled to make an application without having to seek permission from the court, including:
- Any person with parental responsibility
- Any party to a marriage or civil partnership where the child is a child of the family
Anyone with whom the child has lived for at least three years in the last five years
Other people must seek permission from the court to be able to issue an application for a child arrangements order. The court will consider the nature of the application, the applicant’s connection with the child, and any risk of harm.
Enforcing a child arrangements order
Unfortunately there are situations where one party does not comply with the child arrangements order and further steps are required to enforce it. Child arrangements orders have specific conditions attached to them, breaches of which can range from major to minor. If the order was made on or after 8 December 2008, it will contain a ‘warning notice’ which sets out the consequences upon failure to comply with the order. If the order was made before this date, and therefore does not have a ‘warning notice’ attached, an application must be made for this notice to be attached before any enforcement application can be made. This is to ensure that the person who is in breach of the order has been notified of the consequences of breach.
Where one party is failing to comply with the arrangements set out in the child arrangements order, an application can be made to the court to enforce the provisions of the order. To make this application, the applicant must be named in the order, either as the person with whom the child lives or as the person with whom the child is to have contact.
When deciding whether to enforce the child arrangements order, the court will consider various factors. The court will wish to ensure that any enforcement order is necessary in the circumstances and also proportionate when considering the original breach of the order. For example, if the party who breached the order had a reasonable excuse for the non-compliance, and the breach was not particularly serious and happened just once, the court would be unlikely to deem an enforcement order an appropriate response in the circumstances. In addition, the welfare of the child is paramount so it is important to consider whether imposing an enforcement order would have a negative impact on the child.
If the court is satisfied beyond reasonable doubt that the party has failed to comply with the child arrangements order and that it is a sufficiently serious breach to warrant an enforcement order, the court has various options available:
- The person in breach of the order could be required to carry out between 40 and 200 hours of unpaid work.
- The person in breach could be ordered to pay compensation if financial loss has been sustained as a result of the breach.
- The court could order a change of residence for the child. This is more likely for particularly serious and frequent breaches.
- The court could impose a custodial sentence.
Is there a need for reform?
There are concerns that, in practice, the courts are being too lenient when it comes to enforcement. In a bill presented to Parliament earlier this year, Conservative MP Suella Fernandes stressed that child arrangements orders should be “robustly enforced” and that reform is crucial. Data from the Ministry of Justice shows that, of the 4654 enforcement applications made in 2015, only 1.2% were actually successful. There are concerns that, if the courts are “reluctant to penalise” when there has been a breach, this sends the message that court orders are optional.
It is clear that reform of some kind is needed. Suella Fernandes has proposed a “three strikes” approach which, after the ‘third strike’, would result in residence being transferred and community service being imposed on the party breaching the order. It is, however, important to consider the impact on the child, as Re S (A Child)  demonstrates that a child can suffer greatly when transferring residence backfires. It is therefore an area which requires a delicate balance to be maintained. It is arguable that parties are more likely to follow an order that has been reached through negotiation and consent so it may be beneficial to increase the options available to parties before the courts get involved. Currently, the Separated Parenting and Information Programme is free for cases where court proceedings have been issued but it is arguable that fewer enforcement applications would be necessary if similar programmes were made available earlier in the process. Once the number of applications is reduced, the courts will be able to focus on appropriate enforcement of those coming through.