An order enabled under Section 12 of the Children and Families Act 2014 which replaced and combined the old orders for Contact and Residence in Section 8 of the Children Act 1989, determining with whom and when a child will live or have contact. The wording of the Act gives the courts considerable flexibility in the drafting of an order and is designed to eliminate any suggestion of winners and losers by conferring a status on the resident or custodial parent that the contact or access parent lacks.
A Child Arrangements Order (CAO) comes in two parts:
Part A regulates with whom a child is to live, spend time or otherwise have contact. This will state simply which adult(s) the child is to live with and which adult(s) the child is to spend time with or otherwise have contact with, including indirect contact.
Part B regulates when a child is to live, spend time or otherwise have contact with any person. This part will set out the schedule showing when the child is living or spending time with each parent, and when any indirect contact is to take place.
From April 2014 Contact Orderbecame CAOs relating to with whom the child was to have contact and when, and Residence Orders became CAOs relating to with whom the child was to live and when.
An applicant will normally want to be named as a person with whom the child is to live – this is like applying for an old Shared Residence Order. If he applies to be a person with whom the child is to have contact – as in an old Contact Order – and the other parent has a CAO making her the person with whom the child is to live this will impose additional restraints on him – he will need her consent to take the child out of the country, for example.
Contact Orders imposed a requirement on the resident parent ‘to allow the child to visit or stay with the person named in the order’. The new legislation imposes no such obligation, but it can be written into the individual order, and it is possible to enforce the order in the same way that Contact Orders were enforced. This resolves the difficulty which formerly existed in enforcing Residence Orders (pre-existing Residence Orders which have automatically become CAOs cannot be enforced).
CAOs apply to both parents; the applicant, too, must abide by the order and respect the other parent. If he returns a child later than specified after a contact period, for example, he will risk being taken back to court with an application for a reduced level of contact.
Applications are governed by Parts 18 and 19 of the Family Procedure Rules 2010. Part 18 applies to making applications to start proceedings, making applications in proceedings already commenced and making applications in relation to proceedings already concluded. Part 19 applies to applications for permission to appeal and those not covered by Part 18.
A biological father (or a woman who is a parent by virtue of Section 43 of the Human Fertilisation and Embryology Act 2008) needs not have Parental Responsibility to apply for a CAO; when the Court makes such an order it must also make an order for PR.
Step-fathers and step-mothers can also acquire PR for their partner’s children by applying to the Court for a CAO in which they are named as a person with whom the child is to live. If arrangements for step-children after a separation cannot be agreed, the Court’s permission will be required before making an application.
The courts will use a Template (CAP04) in order to draft orders, which shows the kind of format a CAO will take:
The child[ren] will live with the [mother/father/ mother and father] as set out in the schedule to this order (if extensive)/as follows…]
The [mother/father] agrees to make the child[ren] available to visit/stay with/have indirect contact with the [mother/father] [as set out in the schedule to this order (if extensive)/as follows…]
The details of the CAO will be defined in a ‘schedule of contact’; this is referred to as ‘defined contact’. The schedule must be detailed and include when and where the child is to be collected, by whom, how long the child is to stay, and when and where the child is to be returned and to whom. It is essential a CAO is written in clear terms, so that both parties are in no doubt how to comply and will be aware if they are in breach. The order should be in injunctive terms to both parties.
The application is made on Form C100 and may only be made after the applicant has attended a Mediation Information and Assessment Meeting (MIAM), unless he is exempt or the application is urgent and to be made Without Notice. As evidence the mediator will have to complete Section 14 of the form confirming the applicant’s attendance or giving his reasons for not attending. If the other party would not engage with mediation or the case was unsuitable the mediator will complete the form stating this and sign it. They will charge about £25 for this service. The Court must give the applicant:
1. A copy of the Application Form C100, together with Supplemental Information Form C1A if there are welfare concerns;
2. The Notice of Hearing;
3. The Acknowledgment Form C7;
4. A blank Form C1A;
5. The Certificate of Service Form C9; and
6. Information leaflets for the parties (including the CB7 leaflet).
The completed C100 application should be taken or posted to the appropriate Designated Family Centre, typically the one nearest the child, and a fee of £215 must be paid.
When the court receives the forms it must send to CAFCASS within twenty-four hours, or forty-eight hours in courts where applications are first considered on paper, copies of the C100 and C1A and Form C6.
Under the terms of the Child Arrangements Programme the courts are expected to list the First Hearing Dispute Resolution Appointment (FHDRA) within five weeks of receipt of the application, or six at the latest. If that is not possible a timetable must be drawn up between CAFCASS and the Courts Service.