What is a child arrangements order during divorce or separation?

A child arrangement order can be required to formalise childcare agreements between parents going through divorce or separation. It can cover issues such as which parent the children should live with and how much time they spend with each parent.

A Child Arrangement Order makes childcare plans after separation or divorce legally binding. It is usually only necessary if one parent is not cooperating or disagrees with the division of care.  Ideally, parents should reach an amicable agreement without needing an application to the court.  However, if an agreement cannot be reached through direct discussions between parents or with the help of a mediator, a solicitor can assist with your court application. You will, however, need to attend one mediation session (known as a Mediation Information and Assessment Meeting) before going to court unless there is a good reason not to do so.

• Why do I need a child arrangement order?
• How do I get a child arrangement order?
• Specific issue arrangements
• What is the difference between a child arrangements order and a special guardianship order?
• Can grandparents apply for a child arrangements order?
• How do I change a child arrangements order?

Why do I need a child arrangements order?

If you have come to an amicable agreement regarding arrangements for your children and they work for everyone involved, you won’t need a Child Arrangements Order. Situations where a Child Arrangements Order may be necessary include:

• if you are not seeing your children as often or for as long as you had agreed
• the other parent is neglecting their responsibilities 
• if you are not able to resolve these issues yourselves or through mediation.

How do I get a child arrangements order?

If you are unable to resolve childcare issues after separation or divorce, a solicitor can advise on how to proceed and will help you start the mediation process. If mediation does not assist in resolving the dispute around childcare arrangements and you need to apply for a Child Arrangements Order, your solicitor will help you to prepare the required legal documents and file them with the court. Your application will then be sent to the court and the process to serve the Order on the other parent or guardian will be started. The court will also be supplied with all the evidence they need to consider the application.

Both parents and guardians (if appropriate) are required to attend a hearing, which will be chaired either by a judge or magistrates who are assisted by a legally trained clerk.  An officer from the Children and Family Court Advisory and Support Service (CAFCASS) will also assist the court by producing a ‘safeguarding letter’ which reports the views of the parents, and undertaking safeguarding checks. During the hearing, you will be encouraged to reach an agreement, with discussion usually supported by a CAFCASS officer, with the focus on what is in the best interests of the child or children. If it is not possible to reach agreement, a further hearing will be scheduled giving you the opportunity to prepare and present more evidence, where necessary, from experts, or call for witnesses to assist you. CAFCASS, or on occasions the Local Authority, can also become more involved and act as independent expert advisers to the court having met with the parents and the child or children prior to reporting recommendations. When the judge is able to come to a decision based on the new evidence, it is made into an order of the court.

In deciding whether to make a Child Arrangements Order, the paramount consideration of the court will be the welfare of the child(ren) which means that the court will always consider what is in the best interests of the child(ren) as the most important factor. The court will also consider a number of other factors such as the child’s needs, how those can be met by each parent, the wishes and feelings of the child, and any harm the child has suffered or is at risk of suffering.

There are also a number of statutory presumptions a court will consider when making a decision, including the presumption that the involvement of both parents in a child’s life will further the child’s welfare, unless the contrary can be shown. The court will also consider the ‘no order principle’ before making a Child Arrangements Order, that the court is satisfied that making of an order is better for the child than making no order at all.

The final arrangements will typically specify with whom the children live (noting this can on occasion be with both parents), where and for how long the other parent will spend time with the child, and confirm other permitted means of contact (such as phone calls and digital communications).

Looking to make a Child Arrangement Order? Talk to us

Specific issue arrangements

Most issues requiring a Child Arrangements Order are about where the child or children should live or when they should spend time with the other parent. However, if you have problems agreeing over other issues, such as where your child or children should go to school or if they should receive religious education, you will need to apply for a Specific Issue Order. There is also a Prohibited Step Order, which you can apply for if you want to prevent your ex-partner from an action such as taking your child or children abroad.

What is the difference between a child arrangements order and a special guardianship order?

A Special Guardianship Order (SGO) is an order which grants parental responsibility for a child or children to a person other than the children’s parents. This does not affect the parents’ legal relationship to the children and they would retain their parental responsibility. The special guardian would though be responsible for the day-to-day arrangements for the children and decisions about the child’s upbringing, such as their schooling. The parental responsibility of the special guardian can be exercised to the exclusion of others with parental responsibility which effectively means it can override the parents’ parental responsibility. However, there are limits to an SGO which are:

• you cannot change the child’s surname or
• remove them from the jurisdiction (of England and Wales) for three months or more without consent of all those with parental responsibility.

Unlike a Child Arrangements Order, Special Guardianship Orders do not explicitly arrange who a child or children live with or spend time with.

Can grandparents apply for a child arrangements order?

A grandparent or other relative may make an application for a Child Arrangements Order, but would need the permission of the court to do so. In circumstances where a grandparent or other relative takes over caring for a child when, for example, one or both of the child’s parents have died or are otherwise unable to perform their duties as a parent, the court can make this into a formal arrangements by granting a Child Arrangements Order for that person. 

Grandparents or other relatives can use the same process to ask to spend time with a child.  It is more difficult for ‘non-parents’ to succeed in such an application, however, the same considerations will apply, which is whether or not it is in the child’s best interests for an order to be made.

How do I change a child arrangements order?

While a Child Arrangements Order is usually made as a long-term solution, it will often incorporate provision for some changes to be made. Your situation may change if, for example, you start a new relationship. This may require a change to the existing order or the need for a completely new one. In cases such as these, the court will usually look at the age of the children involved – children over the age of 16 will probably not receive a new order, whereas younger children will have their needs updated in a new order to reflect your new situation.

“Coming to an agreement over your children can be one of the most distressing stages of the separation process and so it needs to be handled with great care and consideration,” says Sally Powell, Family and Divorce Partner at Tees. “A member of our family team, with specialist experience working with the courts to achieve a child arrangements order, can help you to ensure that your child has their arrangements formalised so that their future is secure.”

Call our specialist solicitors on 0808 231 1320

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