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3.4.11 Child Arrangements Orders

Please also see Summary of Orders which sets out the range of orders available to the court.

This chapter was added to this manual in March 2017.


Contents

1. Definition of Child Arrangements Orders
2. Policy on Child Arrangements Orders
3. Child Arrangements Orders Procedures
  3.1 Requirement to Attend a Mediation Information and Assessment Meeting
  3.2 Who Can Apply
  3.3 Directions and Conditions
  3.4 Eligibility for Financial Support
  3.5 Official Supervision and Contact (Family Assistance Orders)
  3.6 Variation, Discharge or Ending of a Child Arrangements Order
  3.7 Annual Review
  3.8 Child Arrangements Orders: Warning Notices


1. Definition of Child Arrangements Orders

Child Arrangements Orders were introduced in April 2014 by the Children and Families Act 2014 (which amended section 8 Children Act 1989). They replace Contact Orders and Residence Orders.

This legislation applies to England and Wales.

A Child Arrangements Order means a court order regulating arrangements relating to any of the following:

  1. With whom a child is to live, spend time or otherwise have contact; and
  2. When a child is to live, spend time or otherwise have contact with any person.

The 'residence' aspects of a Child Arrangements Order (i.e. with whom a child is to live/when a child is to live with any person) can last until the child reaches 18 years unless discharged earlier by the Court or by the making of a Care Order.

The ‘contact’ aspects of a Child Arrangements Order (with whom and when a child is to spend time with or otherwise have contact with) cease to have effect when the child reaches 16 years, unless the court is satisfied that the circumstances of the case are exceptional.

A person named in the order as a person with whom the child is to live, will have Parental Responsibility for the child while the order remains in force. Where a person is named in the order as a person with whom the child is to spend time or otherwise have contact, but is not named in the order as a person with whom the child is to live, the court may provide in the order for that person to have Parental Responsibility for the child while the order remains in force.

Child Arrangements Orders are private law orders, and cannot be made in favour of a local authority. Where a child is the subject of a Care Order, there is a general duty on the local authority to promote contact between the child and the parents. A Contact Order can be made under section 34 of the Children Act 1989 requiring the local authority to comply with any arrangements for the child to have contact with a named person.

A court which is considering making, varying or discharging a Child Arrangements Orders, including making any directions or conditions which may be attached to such an order, must have regard to the paramount principle, the ‘no order’ principle and the welfare checklist under the Children Act 1989.

Interim Child Arrangements Orders can be made.


2. Policy on Child Arrangements Orders

The option of providing support without a legal order should be considered where all parties are in agreement.

Child Arrangement Orders should be considered, where a decision that a Special Guardianship Order, or an Adoption Order, is not more appropriate to meet the needs of the child.

Where a legal order is required, Child Arrangement Orders as an alternative option should be considered to prevent children and young people from remaining or becoming looked after, and to provide them with a stable, long term home.

Child Arrangement Orders are primarily for those placements which have been assessed as being able to provide stability for the child and where the carers and the local authority are able and confident about meeting the child’s needs in the long term.

In all situations where the local authority is engaged in legal proceedings and reunification to birth parents is not the preferred plan, the local authority should consider whether the child could be more appropriately placed with extended family/friends and whether a Child Arrangement Order (or another order) is the most effective way to achieve stability and permanency.

Child Arrangement Order Allowances may be considered at the discretion of the local authority in the following circumstances:

  • Where the local authority has an active and significant role in the child’s welfare and the Care Plan is permanency with the identified carers;
  • Where the child’s parents are prevented from looking after the child;
  • Where a Care Plan is in place which identifies that a Child Arrangement Order is the most suitable way to ensure the child’s:
    • Continued welfare;
    • Maintain contact with her or his family; or
    • Where the child is already looked after and it is in the child’s best interests for her/his carers to secure permanency.
A Child Arrangement Order Allowance is always at the discretion of Hertfordshire County Council.

In circumstances where the Child Arrangement Order for the child is not the Care Plan for the child made by Hertfordshire County Council but is the outcome of the court decision, there is no statutory requirement on Hertfordshire County Council to provide financial support to the arrangement.

For Eligibility Criteria, please see Section 3.4, Eligibility for Financial Support.


3. Child Arrangements Orders Procedures

3.1 Requirement to Attend a Mediation Information and Assessment Meeting

Under the Children and Families Act 2014, before making an application to court for a Child Arrangements Order (or other relevant family application), a prospective applicant must attend a family Mediation Information and Assessment Meeting (‘MIAM’), to ascertain whether the issues can be resolved by mediation rather than by application to court.

This does not apply where:

  • There is evidence of domestic violence;
  • There are child protection concerns;
  • The application must be heard urgently because delays would, for example, risk the safety of the child or the applicants, cause miscarriages of justice or hardship to the applicant;
  • There has been previous MIAM attendance or a MIAM exemption; or
  • Circumstances mean that MAIM attendance may not be a reasonable or appropriate requirement.

It is the responsibility of the prospective applicant or that person's legal representative to contact a family mediator to arrange attendance at a MIAM.

3.2 Who Can Apply

As was the case with Contact and Residence Orders, any person can apply for a Child Arrangements Order. There are two categories of people who can apply: those who are entitled to apply, and those who require leave of the court first in order to apply.

3.2.1 Those Who May Apply as of Right

  • Any parent (whether or not they have Parental Responsibility for the child), guardian or special guardian of the child;
  • Any person named, in a Child Arrangements Order that is in force with respect to the child, as a person with whom the child is to live;
  • Any party to a marriage (whether or not subsisting) in relation to whom the child is a child of the family this allows step-parents (including those in a civil partnership) and former step-parents who fulfil this criteria to apply as of right;
  • Any person with whom the child has lived for a period of at least three years. This period need not be continuous but must not have begun more than five years before, or ended more than three months before, the making of the application; or
  • Any person:
    • Who has the consent of each of the persons in named in a Child Arrangements Order as a person with whom the child is to live;
    • In any case where there is an existing order for care in force, has the consent of each person in who favour the order was made;
    • In any case where the child is in the care of a local authority, who has the consent of that authority;
    • In whose favour a Child Arrangements Order has been made in relation to the ‘contact’ aspects and who has been awarded Parental Responsibility by the court (i.e. they would be able to apply for a Child Arrangements Order in relation to the ‘residence’ aspects);
    • In any other case, has the consent of everyone with parental responsibility for the child;
    • A local authority foster parent is entitled to apply for a child arrangements order relating to whom the child is to live, and/or when the child is to live any person, if the child has lived with him for a period of at least one year immediately preceding the application;
    • A relative of a child is entitled to apply for a child arrangements order relating to whom the child is to live, and/or when the child is to live any person, if the child has lived with the relative for a period of at least one year immediately preceding the application. (A relative is a child's grandparent, brother, sister, uncle or aunt (by full or half blood), or by marriage or civil partnership).

3.2.3 Those who Require the Leave of the Court to apply

Any person who is not automatically entitled to apply for a Child Arrangements Order may seek leave of the court to do so. The granting of leave does not raise any presumption that the application will succeed.

In deciding whether or not to grant leave, the court will have particular regard to:

  • The nature of the proposed application for the Order;
  • The applicant’s connection with the child;
  • Any risk there might be of that proposed application disrupting the child’s life to such an extent that he would be harmed by it; and
  • Where the child is being looked after by a local authority:
    • The authority’s plans for the child’s future; and
    • The wishes and feelings of the child’s parents.

3.3 Directions and Conditions

The court may contain directions about how it is to be carried into effect, and/ or impose conditions which must be complied with by any person:

  • Who is named in the order as a person with whom the child concerned is to live, spend time with or otherwise have contact;
  • Who is a parent of the child;
  • Who is not a parent but who has Parental Responsibility; or
  • With whom the child is living, and to whom the conditions are expressed to apply.

Activity Directions

In contested proceedings in which the court is considering whether to make (or to vary or discharge) a Child Arrangements Order, the court may make an ‘activity direction’, directing a party to the case, at any stage in proceedings prior to a final order being made, to undertake activities to establish, maintain or improve the involvement in the life of the child concerned of a party to the proceedings. The type of activities covered by this heading may include programmes, classes and counselling or guidance sessions which may assist with establishing, maintaining or improving involvement in a child’s life. Other possible activities are programmes designed to address a person’s violent behaviour in order to facilitate involvement in a child’s life and information sessions about such arrangements, including information sessions about mediation.

An activity direction may only be made where there is some dispute about the provision of a Child Arrangements Order, i.e. whether to make, vary or discharge such an order, or what its detailed provisions should be.

Activity Conditions

Where a court makes or varies a Child Arrangements Order, it may impose an ‘activity condition’ requiring an individual to take part in an activity that would help to establish, maintain or improve the involvement in the life of the child concerned of a party to the proceedings. The activities that may be required by a contact activity condition are the same as those that may be required by an activity direction.

Making an Activity Direction or Condition

A court can only make such directions or conditions if it is satisfied that:

  • The activity is appropriate in the circumstances of the case;
  • The provider of the activity concerned is suitable to provide it; and
  • The activity is available in a place to which it is reasonable to expect the person in question to travel.

The court may ask a CAFCASS officer to monitor compliance with activity directions or conditions and to report to the court if there is a failure to comply.

In addition, a court may ask officers to monitor compliance with a Child Arrangements Order, and to report to the court on such matters relating to compliance as the court may specify. The court may ask the officers to carry out this role for a period of up to a year.

3.4 Eligibility for Financial Support

Financial support may be applicable based upon child’ needs and where the local authority is supporting a care plan for permanency with the applicant(s)/carer(s).

Hertfordshire County Council does not routinely make available financial support in the form of an allowance.

Financial support in the form of an allowance can only be paid to the person, in whose favour the Court has made a Child Arrangement Order.

Any agreed allowance is paid upon the making of an Interim Child Arrangement Order or Child Arrangement Order.

Financial support does not apply:

  • Where the person with whom the child lives, or is to live, is a parent of the child of the husband or wife {or civil partner} of a parent of the child (Children Act 1989, schedule 1, paragraph 15).

When determining eligibility for financial support for non-parents, Hertfordshire County Council will always apply an assessment and means testing process, which includes:

Details of the Child

An assessment of the child’s needs must be completed Assessment of Need Form. The circumstances of the child must be such that:

  1. Where it is necessary to ensure that the carer(s) can look after the child;
  2. Where the local authority consider that the child needs special care which requires a greater expenditure of resources than would otherwise be the case because of his illness, disability, emotional or behavioural difficulties or the consequences of his past abuse or neglect; and the applicants meet the criteria that suggests an allowance should be payable.

Details of the Carer(s)

The financial assessment (means test), will take into account the carer(s) financial resources and the amount required by the carer(s) in respect of his/her reasonable outgoings and commitments (excluding outgoings in respect of the child) and the financial needs and resources of the child.

Hertfordshire County Council will only provide an allowance (where the criteria is met) which is not greater than the standard fostering allowance applied by the Council, as determined by the financial assessment.

The Local Authority will take into account any other grant, benefit, and allowance or resource available to the person in respect of his needs as a result of becoming a carer of a child. Financial support from the Local Authority will not duplicate any other payment available to the carer.

The carer is expected to claim all benefits.

In Hertfordshire County Council, the approval for allowances by the Service Manager or Head of Service will only be given on completion of the required financial and assessment of child’s needs.

If financial support is agreed, funding will only be provided to support the maintenance of the child from the date of the order subject to annual review of any of the arrangements.

The assessed allowance will only be payable from the date of order or from the date of the financial application if the order has already be granted.

Hertfordshire County Council will not provide any backdated payments where the need for financial support was not identified and/or assessed at the time of the Child Arrangement Order application.

Further Discretionary Elements:

Financial support may be paid to:

  • Facilitate the arrangements for a person to provide care of the child where the local authority considers this would be beneficial to the child’s welfare; and / or
  • Support the continuation of such arrangements after a Child Arrangement Order is made; and / or
  • Provide a transitional payment for a defined period of time.

The Local Authority may also provide financial support subject to any other conditions it considers appropriate, including timescales within which, and purposes for which, any payment of financial support should be utilised.

Any agreed arrangements regarding finance or discretionary payments should be reflected in the Child’s Care Plan.

Upon confirmation of an allowance the Service Manager (Family and Friends) will set out in writing the arrangements for review of the allowance. This will confirm that a review of the allowance will take place at least annually which may stipulate that a review of a child’s needs and any other conditions attached to the allowance are also subject to a review. If there is any relevant change in the applicant’s circumstances, breach of any conditions, or at another stage they consider appropriate due to the individual circumstances of the case.

Financial support will be discontinued when any of the following apply:

  1. The child or young person ceases to live with the carer;
  2. The young person attains the age 18, unless they continue in full time education or training when it may continue until the end of the course or training (usually the academic year following the 18th birthday). For the avoidance of doubt this is secondary education or equivalent and will not include university or further training entered into after the child has turned 18;
  3. The young person ceases to attend full time education or training or commences employment;
  4. The child is able to obtain his/her own benefits in his/her own right.

Any Other Support:

Where it is identified that additional support, either at the time of making the placement or in the longer term is required, an assessment of the child’s needs would need to be considered and access to services would need to meet the usual thresholds.

Where support and/or additional needs are identified in such arrangements, carers will be signposted to universal services including universal benefits.

3.5 Official Supervision and Contact (Family Assistance Orders)

If the court wishes to ensure that a Child Arrangements Order related to contact with a child is supervised, it may make a Family Assistance Order requiring a Cafcass officer or a local authority officer (provided the authority agrees and the child concerned lives or will live within their area) to advise, assist and (where appropriate) befriend any person named in the order.

The purpose of a Family Assistance Order is to provide expert assistance and advice to a family for a short-term-period. A court can make a family assistance order only if:

  • To do so accords with the principle that the child’s welfare is paramount, and it is better for the child than making no order at all; and
  • It has obtained the consent of every person to be named in the order other than the child.

Unless a shorter period is specified in the Order, it will have effect for 12 months from the day on which it was made.

3.6 Variation, Discharge or Ending of a Child Arrangements Order

A Child Arrangements Order may be varied or discharged by the court either in existing family proceedings, or on a free-standing application (with the applicant having sought leave to apply if necessary). On a variation application, the court has the full range of orders available to it, including the power to give directions or impose conditions.

A Child Arrangements Order may come to an end because:

  • It ceases to have effect due to the age of the child (aged 18);
  • It ceases because the parents of the child live together for longer than six months;
  • It is discharged by an order of the court;
  • It is discharged automatically upon the making of a Care Order or Special Guardianship Order with respect to the child; or
  • For a Child Arrangements Order concerning the living arrangements of a child only, it ceases when a new such Child Arrangements Order is made;
  • A child dies.

3.7 Annual Review

Child Arrangement Orders are subject are subject to an annual review, which will cover:

  • If the arrangement remains suitable to ensure the safety and well-being of the child and ensuring his/her needs are being met;
  • If there are any changes to the arrangement which will affect the requirements of the Order;
  • A review of any financial support being provided (where applicable);
  • Whether or not further assessment is necessary.

3.8 Child Arrangements Orders: Warning Notices

Whenever the court makes or varies a Child Arrangements Order, it must attach a notice warning of the consequences of failing to comply with the order. The consequences of failure to comply may be an enforcement order, an order for financial compensation, or the use of the courts’ existing sanctions for contempt.

End