A Child Arrangements Order sets out where a child lives and the time they spend with each parent or guardian. However, circumstances can change, and there may come a time when the Order needs to be amended. Below, we answer some key questions about the process of varying a Child Arrangements Order.
Changes to a Child Arrangements Order can arise for various reasons. A parent may relocate, working patterns might alter, or a child’s needs could evolve over time. In some cases, one parent (or guardian) may feel the current arrangement is no longer in the child’s best interests. Understanding the process of modifying an Order can help ensure that any changes are handled legally and in a way that prioritises the child’s well-being.
What is a Child Arrangements Order?
A Child Arrangements Order is a legally binding Court Order that determines where a child lives, who they spend time with, and how often. These Orders replace the previous concepts of “residence” and “contact” Orders. The primary focus is always the child’s best interests, and the Order is designed to provide stability and clarity for all parties involved. The majority of final Child Arrangements Orders have a Warning Notice (also referred to as a Penal Notice) attached. Both parties will have been made aware as to what this means, at the time the original final Order was made.
How do I start the process of amending a Child Arrangements Order?
The first step is to discuss the proposed changes with the other parent or person who has Parental Responsibility. If both parties agree, the Order can be amended without Court intervention. However, if an agreement cannot be reached, an application to the Family Court will be necessary. If a Warning Notice was not attached to the original Child Arrangements Order, it will be necessary to apply for this at the same time. An application to Court involves completing the relevant Court form and submitting it along with the appropriate fee, unless a fee exemption or reduction applies (Help With Fees). It is important to provide evidence to support your request for a variation to the original Child Arrangements Order, which may include documentation or witness statements that outline why the change is necessary.
Is Mediation required before applying to the Family Court?
Yes, in most cases, the law requires individuals seeking to amend a Child Arrangements Order to first attend Mediation. A Mediator will assess whether Mediation is suitable for resolving the dispute. The Mediator will do this at initial separate appointments. If appropriate, you will both be invited to a joint session. If Mediation is unsuccessful or deemed unsuitable, the Mediator will provide a certificate that must be included with the Court application.
Should I try to reach an agreement before going to Court?
It is always advisable to attempt discussions with the other person or parent with Parental Responsibility before making a formal application. This can help narrow the issues and potentially avoid the need for Court proceedings. It is also important to consider the practical implications of any proposed changes and how they will affect the child.
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How does the Court decide whether to allow changes to the Order?
The Court’s primary concern is always the child’s welfare. Judges apply the ‘Welfare Checklist’ set out in the Children Act 1989, which considers factors such as the child’s needs, wishes, and any potential impact of the proposed changes. The Court will only approve amendments if they are deemed to be in the best interests of the child or if the Court believes that making an Order would be better for the child than not making one.
Do I need legal advice before applying?
Seeking legal advice can provide clarity on the process, help assess the likelihood of success, and ensure that the application is properly prepared. Legal professionals have expert knowledge of Family Law and Court procedures, which can be invaluable in navigating this process effectively.
Yes, if both parents (or those with Parental Responsibility) agree to the changes, there is no need to proceed to Court. Another option is that the altered agreement can be formalised into a Consent Order by a solicitor and submitted to the Family Court for approval, which will make the Order legally binding (if approved by the Court). However, if there are disagreements or concerns, Mediation is recommended before considering a Court application.
If one parent breaches the Order without a valid reason, the other parent can apply to the Court to enforce it. The Court can only make an enforcement Order if it is satisfied, beyond reasonable doubt, that a parent has failed to keep to the Child Arrangements Order. The Court cannot make an enforcement Order if it is satisfied that the person had a reasonable excuse for failing to keep to the Child Arrangements Order. The Court has a wide range of powers in the event that it is deemed that an unreasonable breach has occurred, including a referral to Mediation, a referral for attendance on the Planning Together For Children course (previously called the Separated Parents Information programme), a contact enforcement Order/suspended enforcement Order (unpaid work), fines or compensation, or, in some cases, altering the Order itself (which could include a more defined Order and/or reconsideration of the living arrangements of the child). The Court also has the power to order the non-complaint parent’s committal to Prison.
Yes, a child’s wishes and feelings are taken into account, particularly as they grow older. The Court considers the child’s age, maturity, and understanding when deciding whether their preferences should influence the arrangements. However, the final decision is always based on what is considered to be the child’s best interests, which is often led by Cafcass (Children and Family Court Advisory and Support Service) – if required – making certain recommendations to the Court.
Contact us for expert advice Child Arrangements Orders
If you are considering applying to vary (amend) a Child Arrangements Order, our experienced Family Law team can guide you through the process, including Mediation and Court applications. Contact us today for expert support and advice or click here for more information about our Family Law services and fees.
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