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20th May, 2014

“Child Arrangement Orders” – The new name for Residence and Contact Orders

Gone are ‘Residence’ and ‘Contact’ Orders and instead (as of the 22nd April) where there is a requirement for a Court Order recording where a child will live, or the time that a child will spend with someone, there will be what is now called a ‘Child Arrangements Order’.

In fact, the whole way in which the Court deals with disputes about arrangements concerning children has changed.

The process is now governed by the new “Child Arrangements Programme”. The emphasis under the programme is on reaching a safe and child focused outcome for children and wherever possible this should be out of the Court setting.

One way forwards might be the Collaborative process whereby parties can sit in a room with their lawyers over a series of meetings, and with a commitment to avoiding Court, to try and find a solution that is tailor made to their particular family and in particular the needs of the children.

Alternatively, mediation might be an appropriate out of court solution, and indeed save in cases where there is domestic violence, drug or alcohol misuse or mental illness a person thinking of making an application to the Court for a Child Arrangements Order must attend an initial mediation meeting known as a Mediation Information and Assessment Meeting or “MIAM”.

Clearly however if parties are not prepared to commit to the Collaborative process or mediation is deemed unsuitable then there may be no alternative but for the Court to decide.

So what are the main differences between the approach of the Court pre 22 April 2014 and now:-

1. The Court will no longer be able to make Residence and Contact Orders although the reality is that the new Child Arrangements Orders, so long as they are appropriately drafted, can provide a similar outcome.

2. The Judge is obliged to consider at every stage whether other non-Court dispute resolution would be appropriate even if proceedings are issued and on-going. If the Judge takes that view then proceedings can be adjourned or there will be an opportunity at every First Hearing Dispute Resolution Appointment or “FHDRA” for a CAFCASS officer to attempt to conciliate and explore the possibility of negotiated resolution.

3. The role of the CAFCASS officer before the first hearing appears to have changed in that CAFCASS’s remit will be limited to identifying any safety issues. Whereas historically the parties got to talk to the CAFCASS officer about other issues relating to the substance of the application or issues of welfare this will no longer be the case. If, following telephone interviews, risk issues are identified then the parties may be invited to talk to a CAFCASS officer before the first hearing but this will be the exception rather than the norm.

4. As with all other cases concerning children there will now be a much tighter timetable for the Court and the parties and indeed CAFCASS to adhere to. Interestingly instead of the previous 14 working days notice period that had to be given to a Respondent this has now been reduced to 10. Otherwise the timetable is as follows:-

i. Working day 1 – Paperwork received and if in order is issued.
ii. Working day 2 – The case is allocated to the correct level of Court. If there has been no valid MIAM the Court can direct that a MIAM should take place before the FHDRA.
iii. 17 working days from the date the Court receives the application CAFCASS must provide a Safeguarding Letter/Report to the Court.
iv. Week 5 (or latest Week 6) the case is listed for FHDRA (this can be sooner if the time for service has been abridged.

As the number of litigants in person increases I can see the need for greater efforts to be made to try and resolve children matters outside of the Court arena. It is well known that arrangements are more likely to work when reached by agreement between the parties than imposed by the Court. Once in the Court process however it seems to me the changes that have been made make the process even more complicated than it was before and as such it is vital that good legal advice is sought. The Law Society now enables solicitors to act for clients on an ‘unbundled’ basis so that we don’t need to go on Court record for the whole of the case but can offer advice at crucial stages in the process. You may want someone to represent you in court or assist in completing a statement or to advise on the content of the CAFCASS report. In any of these scenarios we can help.

For more information on this or other family matters please contact Sandy Edwards on 01743 453689 or email [email protected].

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