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Child Arrangements: Frequently Asked Questions

Date Added 28.11.23

Child Arrangements: Frequently Asked Questions

When you separate from your partner, whether you are married or not, there will inevitably be issues to resolve, such as what will happen to the children.  Arrangements will need to be worked out between you.  The best way to resolve any issues will always be to try and agree what should happen without the need for solicitors or court involvement by solicitors, but in some cases, this is not always possible.

Decisions like where will the children live and how often they’ll see the parent they don’t live with will need to be made, but oftentimes there are other difficult decisions to be made such as can I take my child abroad on holiday?  Can I stop my child from having contact with my ex’s new partner? Or can I move away with my child?

If an agreement cannot be reached then, one or other of you will sometimes need to apply to court for what is known as a Child Arrangements Order.

What is a Child Arrangements Order? 

If your child is under the age of 16 then you can apply for a Child Arrangements Order which sets out arrangements clearly in a court order.  The order will specify with whom the child will live, and how much time they will spend with the other parent.

If your child is over the age of 16 the courts are unlikely to make any orders and would expect the parents to try and work out an agreement based on the child’s wishes and feelings.

What is included in a Child Arrangements Order? 

Each family’s circumstances are different, so there are no standard Child Arrangements Orders.  Any order is based on the needs of the children involved and what is in their best interests having regard to the court’s paramount concern which is the children’s welfare (s.1.(1) Children Act 1989).

Who can apply for a Child Arrangement Order? 

As long as you have Parental Responsibility for a child, you can apply for a Child Arrangements Order, so this will generally apply to:

  • Parents, step-parents, guardians and special guardians;
  • A person who has acquired parental responsibility for a child whether by an Order or a Parental Responsibility Agreement;
  • A person who is named in a Child Arrangements Order as the person with whom that child is to live with;
  • Anybody who has the consent of everybody with parental responsibility for a child;
  • Where the child is under the care of the local authority, anybody who has the consent of the local authority; and
  • A person with whom the child has lived with for a period of three years;

If you do not fall into any of these categories you will first need to apply to the court for permission to make an application for a Child Arrangements Order.  If permission is granted, the application for the Child Arrangements Order can then proceed.

What is “Parental Responsibility”?

The Children Act defines Parental Responsibility, commonly abbreviated to “PR”, as:

all the rights, duties, powers, responsibilities and authorities which by law a parent of a child has in relation to the child and the child’s property”.

Simply put, it means as a parent you are responsible for the important decisions to be made in a child’s life, such as where the child will live, what religion they will follow, where they go to school, what their name will be, what school they will go so and what medical treatment they should have.  Parental responsibility ends once the child reaches 18 years of age.

Who has Parental Responsibility?

All mothers and most fathers have PR.

A mother automatically acquires PR once a child is born.  A father will only automatically acquire PR if he is named on the child’s birth certificate as the father or he is married to the child’s mother. If neither of these apply then the father will either have to acquire PR with the mother’s agreement or apply to the court for an order granting him PR.

Can I move away with my child? 

This will depend on whether there is a Child Arrangements Order in place which sets out with whom the child shall live.  If there is, there will be no requirement for the resident parent seeking to move away to obtain permission from the non-resident parent provided the arrangements for the non-resident to maintain their contact with the child remain in place.

Where there is no Child Arrangements Order in place, if the parents can agree on the relocation and the move does not impact the child’s contact with the non-resident parent or their schooling, there will be no need to seek the court’s permission to move.

If the non-resident parent does object to the move, then the resident parent wishing to move will need to make an application to the court for a Specific Issue Order.  The non-resident parent would need to make an application for a Prohibited Steps Order to prevent the move.

Can I take my child on holiday?

This will depend on whether you are planning a holiday within the jurisdiction of the UK or outside of the jurisdiction, i.e. abroad.

There is nothing to prevent you from taking your child on holiday within England and Wales, including Scotland and Northern Ireland, without the permission of the non-resident parent who has PR providing there is no court order that prevents the holiday and the non-resident parent’s contact with the child is not affected.  If contact is affected, then the child’s contact cannot be interrupted, unless an alternative agreement can be reached.

If the plan is to take your child abroad on holiday you require the consent of all those who hold PR for the child, and if this is not forthcoming, an order from the Court giving you permission to take the child abroad.

If you already have a Child Arrangements Order in place which states that the child/children are to live with you, then you are permitted to take the children abroad for a period of 28 days without the consent of others with PR, but if there is also a Prohibited Steps Order in place, you will not be able to take the child out of the jurisdiction, and more than likely will need to make an application to the court for permission to take the child on holiday abroad.

What can I do if my ex-partner is difficult about me seeing our child?

This is always a difficult situation to navigate, especially if there are no obvious reasons why your contact is being prevented or in some cases stopped completely.

Your first step should always be to try and resolve the issues with your ex-partner without involving solicitors or the courts.  Sometimes this is not always either possible or appropriate.  In those situations, other avenues to try and reach a resolution should be attempted such as mediation.  Mediation is a good way of sitting down with your ex-partner and having a non-confrontational discussion about the issues with the assistance of a trained mediator aimed at reaching an agreement that you can both live with.  There may be other ways your contact with the children can be maintained such as writing letters or cards, or using Facetime whilst more permanent arrangements can be agreed.  The aim will be to stress the importance of the children maintaining contact with both parents as being in their best interests.

If mediation is not successful, and you are still unhappy with the situation, you should seek legal advice from a solicitor who specialises in family law and who would be able to advise and assist you on what you should do next.  It may well be that you need to seek a Child Arrangements Order.  Court is always a last resort as it is stressful and costly.  You should try and speak to your ex-partner if the child arrangements you’ve agreed aren’t working – for example, if you’re not seeing your children as much as you would like.

My ex-partner will only agree to me seeing the children if my new partner is not present. Is this allowed?

Generally speaking no, especially if you have a Child Arrangements Order allowing you to spend time with your child.  Your ex-partner can only prevent you from seeing your child with your new partner if your new partner poses some kind of risk of harm to your child.  If you both have PR for your child, then as a parent you are free to introduce your child to whomever you want within reason. If, however, your new partner had a criminal record, for example, whilst this would not prevent you from introducing your child to them, you would need to take extra care with the introduction and take whatever steps necessary to ensure your child’s safety.

If your ex-partner was still not happy with you introducing your new partner to your child then they would need to apply to the court for a Prohibited Steps Order to prevent the introduction or if the concerns were serious, the police should be contacted.

Ultimately, if no agreement can be reached, it will be for the court to determine whether the new partner poses any risks to the child and it will be the court who has the final say as to whether that person should have contact with your child.

Do I have a right to be involved in my children’s upbringing even if they live with my ex-partner?

Put simply – yes. Once you have PR for your child, whether they live with you or not, you are still able to make decisions about their school, name, religion or medical treatment.  This would also entitle you to have access to the child’s medical records and to request the receipt of the school communications for the child.

Do other members of my family (e.g., grandparents) have a right to contact with my child?

Not automatically.  Grandparents or other family members would have to make an application for permission to spend time with a child.  If permission is granted, then the court would decide whether such contact would be in the child’s best interests.

These are just some of the common questions our family law team is asked on a regular basis. If you have a question and would like legal advice in regard to a child arrangements order… Talk to Tollers on 01604 258858, our expert family law team is on hand to answer any questions you may have.

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