Jessica Firth-Brown
After a relationship breakdown where emotions and tensions are high it can be difficult to make decisions or reach an agreement about what should happen for your children.
If you are able to reach an agreement about what the arrangements should be for your children you do not need a Court Order to put these arrangements in place.
If you are not able to agree the arrangements for your children you should first explore whether mediation is appropriate before making an application to Court. Of course, there may be circumstances where mediation is not appropriate, such as where there has been domestic abuse.
If you are not able to reach an agreement the next step is to make an application for Court. The Children Act 1989 sets out the three main Orders a parent may apply for following a relationship breakdown. These are a Child Arrangements Order, Specific Issue Order and Prohibited Steps Order.
Child Arrangements Order
A Child Arrangements Order sets out who a child is to live with and spend time with. It will also stipulate how the child spends that time, for example, a week with each parent, alternate weekends with one parent and so on.
A Child Arrangements Order can specify that a child lives with both parents and the time that they live with each parent. Alternatively, it may say that the child lives with one parent and spends time with the other parent.
Why would I need a Child Arrangements Order?
If you are unable to reach an agreement about the arrangements for your client and cannot agree through mediation you may require the determination of the Court about how your child/children spend their time.
What difference does a 'Lives With' Order make?
If you have an Order that your child lives with you this does not allow you to make unilateral decisions about the children without the consent of the other parent. The other parent will still hold Parental Responsibility and decisions will need to be made jointly. However, a Child Arrangements Order specifying that a child lives with you does allow you to take that child on holiday out of England and Wales for up to 28 days without the consent of the other parent.
Can I apply for a Child Arrangements Order?
You can automatically apply for a Child Arrangements Order if you:
- Are a Biological Parent
- Are a Special Guardian
- Have Parental Responsibility for the child
- Already have a Child Arrangements Order that the child lives with you
- Are in a marriage or civil partnership to whom the child has been treated as a child of the family
- If the child has lived with you for the past three years
Prohibited Steps Order
A Prohibited Steps Order imposes a restriction on a parent or other holder of parental responsibility that prevents them from doing something without consent of the Court. They may be used, for example, to prevent a change of a child’s name or to prevent a parent from taking a child abroad. A Prohibited Steps Order is often used to prevent one parent removing a child from the care of another parent. This would be appropriate where there are safeguarding concerns in respect of one parent, often where there are allegations of drug of alcohol misuse or domestic abuse.
Specific Issue Order
A Specific Issue Order determines a particular question in connection with a child. It can be used to resolve issues about a child's upbringing, such as where the child should go school (eg state or private), whether they should receive religious instruction or whether they should have a particular form of medical treatment.
Who can apply for a Prohibited Steps Order or Specific Issue Order?
Parents, Step-Parents with Parental Responsibility, Guardians, Special Guardians and anyone with a Residence Order or a Child Arrangements Order in their favour may apply to the Court for a Specific Issue or Prohibited Steps Order without requiring the Court’s permission to do so. Anyone else, including the child him/herself, will need the Court’s permission to make an application for a Specific Issue or Prohibited Steps Order.
An Order can be for a specified length of time or last until the child reaches 16 years of age. In limited circumstances orders can last until the child is 18 years of age.
What will the Court consider when making any Order?
The first concern of the Court is the child’s welfare. The Children Act 1989 provides a list of considerations for the Judge who has to decide the case, which help guide them in making a decision:
- the wishes and feelings of the child concerned
- the child’s physical, emotional and educational needs
- the likely effect on the child if circumstances changed as a result of the Court’s decision
- the child’s age, sex, background and any other characteristics that will be relevant to the Court’s decision
- any harm the child has suffered or may be at risk of suffering
- the capability of the child’s parents (or other relevant people) in meeting the child’s needs, and
- the powers available to the Court
The Court must also be satisfied that making an Order is better for the child than not making an Order at all.
Should you and your co-parent not be able to agree the arrangements for your children and you require any further advice or information then please contact Family Law Partner Jessica Firth-Brown on 07471 033407 or JFirth-Brown@sillslegal.co.uk. We offer a 60 minute Preliminary Advice Meeting via telephone followed up by a full letter of advice for £180 plus VAT.