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Legal advice on child residence, contact and other arrangements.
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|Child Arrangements - Residence|
Deciding which parent the children will live with
The law in respect of where a child in England & Wales lives is governed by the Children Act 1989. Whilst the phrase is still used today, the 'custody' of a child has not been used in the courts since October 1991. Until April 2014 the courts applied the terminology 'residence' for the parent with care of the child and contact for the non-resident parent. Since April 2014 the courts have used the phrase 'child arrangements order' to cover these issues.
If you are seeking for your child to live with you it is a child arrangements - living with order and if you wish to see your child it is a child arrangements - spending time with order.
If such an order is made either for one person or on a shared basis then that person can take the child out of the jurisdiction of England & Wales for up to a month without the need to obtain the consent of the other parent unless a separate order is in existence stopping the same.
Most child arrangements orders remain in place until a child is 16 but in exceptional circumstances this extends to when a child is 18. Until 2001 the vast majority of private children cases led to a child living with one parent for the majority of time. Since then there has been a growing but still minority of cases where the child spends time with both parents by way of a shared child arrangements order.
The courts in England & Wales operate a no order policy i.e. they will only make an order if it is in the child's best interests to do so.
Case Study A - Mother successful at court hearings to decide who child should live with
We acted for a mother who came to England from overseas with their 2 year old child. The father intended to come over to live in England after the separation. He applied for a child arrangements order.
The court carried out an initial safeguarding check by CAFCASS. As the father was living overseas at the time of the separation there was no obligation for the parties to attend mediation before the father issued proceedings . The safeguarding report highlighted concerns in respect of the father's coercive control of the mother.
The court ordered at the FHDRA (First Hearing Dispute Resolution Appointment) a court welfare officer's report to consider the issues and the checklist contained in the Children Act. The court then ordered at the second hearing the DRA (Dispute Resolution Appointment) statements from the parties as they could not agree the arrangements.
The matter went to a final hearing where the court decided that the child should remain with the mother with the father's time with the child gradually increasing to include holiday contact. The mother was pleased with the outcome as she felt that her voice had been listened to and that the court welfare officer had understood the practicalities of the situation.
Case Study B - Father's contact with child restored after mother had stopped contact
We acted for a father who initially agreed arrangements with the mother on separation in respect of their two children. They agreed an equal time arrangement. As matters were civil between them they did not see the need to have the arrangements placed into a court order.
Approximately 6 months later the youngest child whilst in the care of the father sustained an accidental injury of a relatively minor nature. The mother did not expressly accuse the father of causing the injury but said that he had been neglectful and then said that she had other evidence from other medical professionals that confirmed that the father was unable to look after the children correctly.
She stopped contact between the father and the children. We went to court to list the matter for an urgent interim hearing. Approximately 2 weeks later the judge after hearing evidence restored the shared time arrangement. He ordered a court welfare officer's report. At the dispute resolution appointment the matter was not settled.
A court welfare officer's report was prepared and confirmed that it was in the children's best interest to continue with the shared time arrangement. Recommendations of a court welfare officer will only be ignored by a judge if there is good reason. The mother therefore decided to settle matters before the final hearing. The father was pleased with the outcome and commented that our swift response initially was in his opinion the deciding factor in resolving the matter.
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