Our role in private law proceedings

Applications for child arrangements orders usually involve a disagreement between parents about the best arrangements for their child(ren). An application for a Child Arrangements order is made under Section 8 of the Children Act 1989 and is described as a private law application. Where an order is made by a local authority (LA), this is referred to as a public law matter. 

In private law cases, the child is not usually a party to the court proceedings, unless the circumstances are particularly complex and intractable, and there is disagreement between the adults and sometimes the child. (Someone who is party to court proceedings has the right to be represented, attend each court hearing and to have access to all pertinent reports and evidence.) The court can make an order for a welfare report under Section 7 of the Children Act 1989, either from the local authority or from a Cafcass Family Court Adviser (FCA). The report should include the child’s wishes and feelings when they are old enough to express them. The FCA will take the child’s wishes and feelings into account in making a recommendation to the court about the arrangement that is most likely to safeguard their welfare.

In some circumstances, the court may order that the child is made a party to the proceedings and appoint a children’s guardian (who is a Cafcass FCA) to represent the child in the proceedings. The child’s guardian appoints a solicitor to represent the child. If the child and guardian do not agree on what the guardian recommends to the court and the child is of sufficient age and understanding and wishes to do so, they may be able to instruct a solicitor directly to represent their views. If the court does not give permission for this to happen, the guardian will then continue to present their own views on the welfare issues to the court without legal representation. 

Specified people are entitled to make an application for a child arrangements order under Section 8 of the Children Act 1989 without having to seek permission from the court first. They are:

• the parent, guardian or special guardian of a child;
• any person who has parental responsibility; and
•  any person who is named in a child arrangements order that is in force as a person with whom the child is to live and who holds a residence order in respect of the child. 

The following persons are also entitled to apply to the court for a child arrangements order:

• any party to a marriage or civil partnership where the child is a child of the family; 
• anyone with whom the child has lived for at least three years; and;
• anyone who has obtained the consent of: the local authority if the child is in their care; or everyone who has parental responsibility for the child; or any person named in an existing child arrangements order as a person with whom the child is to live

Other people can make an application to the court for permission to apply for a child arrangements order. It is usually via this route that the child’s wider family members, such as grandparents, can apply for orders in respect of their grandchildren.  However, they will need to seek permission from the court first unless they fall into one of the categories above. In deciding whether to give permission, the court will consider, among other things: 

• the nature of the application; 
• the applicant’s connection with the child; and 
• the risk there might be of the proposed application disrupting the child’s life to such an extent that they would be harmed by it. 

When a court considers any question relating to the upbringing of a child under the Children Act 1989, it must have regard to the welfare checklist set out in Section 1 of that Act. This requires the consideration of: 

• the ascertainable wishes and feelings of the child concerned (considered in light of their age and understanding); 
• their physical, emotional and/or educational needs; 
• the likely effect on them of any change in their circumstances; 
• their age, sex, background and any characteristics of theirs which the court considers relevant; 
• any harm which they have suffered or are at risk of suffering; 
• how capable each of their parents (and any other person the court considers the question to be relevant) is of meeting their needs; and 
• the range of powers available to the court in the proceedings. 

The child’s welfare is the court’s paramount consideration for all proceedings under the Children Act 1989 where the issue relates to the child’s upbringing.  

These orders set out who the child is to live with or spend time with and can be made in favour of more than one person whether they live together or not. If a child arrangements order states that the child will live with a person, that person will have parental responsibility for that child whilst the order remains in force. Contact with a child can either be direct (such as face-to-face in an in-person meeting or via an online video meeting) or indirect (such as exchanging letters).  

Some orders will make very specific arrangements for the child; other orders will be more open, with detailed arrangements to be made between the parties by agreement. Child arrangements orders are not only made in respect of parents; there can also be orders for arrangements between siblings and wider family members. Sometimes the order will specify that contact is to be supervised by a third person, or that contact is to take place in a specific location. 

Failure to comply with an order is a serious matter and may result in the court imposing sanctions on a party for non-compliance and considering enforcement orders which can require a party to undertake unpaid work. 

Parental responsibility means all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and their property. 

The birth mother of a child has parental responsibility automatically unless it is removed by the making of an adoption order to another person. 

Where the child’s father and mother are married to each other at the time of the birth, they both have parental responsibility for the child. 

Where the child’s mother and father are not married to each other at the time of the birth, an unmarried father will have parental responsibility for a child born after 1st December 2003 if they are named on the birth certificate and Register. 

Other ways in which a father can obtain parental responsibility are by: 

• drawing up a parental responsibility agreement with the mother, which is a specific form that must be signed by both parents, witnessed and registered with the court; 
• marrying the mother; and 
• an order of the court.

Other people may acquire parental responsibility by entering into an agreement if they are the husband or civil partner of the mother or if they obtain a child arrangements order for the child to live with them. 

More than two people can have parental responsibility for the same child at the same time. Parental responsibility is shared between everyone, but where more than one person has parental responsibility for a child, each of them may act alone in meeting that responsibility, except in circumstances where the consent of everyone with parental responsibility is required.