On 22 April 2014, child arrangement orders came into force. These orders specify who a child will “live with” and who a child “will spend time with”. They replace the previous terms of residence and contact and the still commonly used and even older terms, of custody and access.
There are various ways of agreeing arrangements for your children:
1. Discussions between themselves
Perhaps not surprisingly, the majority of couples resolve the arrangements for their children between themselves by discussing this directly or with the assistance of a relative or friend. The advantage of this is that there are no legal costs and the arrangements can be flexible and can be varied if future circumstances change. There is no need for a court to approve the arrangements if arrangements are agreed in this way.
2. Through correspondence
Some parents find it difficult to talk to their ex-partner, particularly if the separation was acrimonious. It is however, still possible to resolve child arrangements without face-to-face meetings, for example via text, e-mail, and/or solicitors writing on their behalf. If one feels one’s ex-partner is being unreasonable, it may help to talk things through with a solicitor or mediator (see below).
A mediator is impartial and his or her role is to assist a couple to come to an agreement. The mediator may (preferably) be legally qualified and therefore have the experience to give information about the type of orders a judge may make. Some mediators are qualified to meet with children, so their views can also be taken into account. Whilst mediation may be more expensive than agreeing arrangements between the parents directly, in most cases mediation is significantly cheaper than attempting to resolve children issues through the collaborative law process (see below) or court proceedings.
4. Collaborative law
Parents can each appoint a collaboratively trained lawyer. There is then one (or a series) of four way meetings at which a solicitor will represent a parent and be able to give them advice, but in an open and hopefully, constructive environment. Each party has the opportunity to hear what the other parent’s solicitor advises them. The lawyers should be honest and act in good faith when advising their clients about issues where a judge might have discretion (i.e. there is not necessarily a right or wrong answer).
The collaborative lawyers will encourage the parties to come to an agreement that is acceptable to them both, rather than take the risk of having an order imposed by a judge that both of them potentially might be unhappy with. Collaboration is normally more expensive than mediation because there are two lawyers involved in the discussions, but often significantly cheaper than going to court.
Parents also often comment after collaboration that their relationship is better following the process, not just than it would have been if there had been contentious court proceedings, but also better than it was at the end of their relationship, making it much easier to co-parent going forward.
This should be seen as a last resort, but in some cases it is necessary to ask a judge to decide what is best for one’s children. Either parent can make a court application and, if agreement is not reached at the first court hearing, the judge will normally appoint a Cafcass officer who between the hearings will see both parties and the child(ren) before making a recommendation to the court, as to the future arrangements.
If agreement is still not reached following the Cafcass officer’s recommendations, then the parents have the opportunity to attend a final hearing, at which the judge will hear evidence from both parents and the Cafcass officer before making an order.
Court proceedings is usually the most expensive way of resolving child arrangements and it is not unusual for it to take between 12 and 18 months to obtain a final child arrangements order. There are some potential advantages however, including the fact that any order can then only be varied with both parents agreement, failing which it can be enforced in court, although in practice there can sometimes be difficulties with enforcement.