child arrangements order
An order, introduced by section 12 of the Children and Families Act 2014, which can regulate when and with whom a child is to “live, spend time or otherwise have contact” (s 8 (1) (a) and (b)). The order replaces the former residence order and contact order, the intention being to move away from potentially loaded terms such as “residence” and “contact” and to focus attention on practical issues concerning the day-to-day care of the child. A child arrangements order is typically made where (usually) parents are in dispute and cannot reach an agreement. In all cases the court’s decision must be based solely on the best interests of the child (see welfare principle). When making an order the court also has the power to add activity directions and conditions.

The order will usually determine with which parent the child will live. In some cases, however, the court can order that a child live with a person or persons other than a parent, for example grandparents. The court also has the power to specify the amount of time the child is to spend living with a particular parent. This can range from providing that the child live full-time with one parent to ordering that the child spend, for example, weekdays with one parent and weekends with the other (formerly this would have been expressed as a residence order to one parent and a contact order naming the other). There is no presumption that the child’s living arrangements or contact time should be split equally between parents.

The order can also determine the amount of contact the child is to have with a parent by non-physical means, such as letter, telephone, email, etc. Orders can provide for contact to take place at a child contact centre, rather than the home of a parent. The test, again, is the welfare test, but there is a presumption that the involvement of each parent in the life of the child will further the child’s welfare (see section 1(2A) presumption). Under the European Convention on Human Rights, contact is a right of both the child and the parent that can only be interfered with if there is sound justification for so doing. The leading domestic case on the principles applicable to contact is the Court of Appeal’s decision in Re M (Contact: Welfare test) [1995] 1 FLR 274 (CA). There is a judicial presumption (predating the statutory one) in favour of contact being in the child’s best interests, but each case must be decided on its merits, and in some cases the fundamental and emotional need of a child to have contact with both of his parents might be outweighed by the depth of harm the child might suffer. In Re C (Direct contact: Suspension) [2011] EWCA Civ 521 Munby LJ held that contact between parent and child is a fundamental element of family life and is almost always in the interest of the child. It should only be terminated if it will be detrimental to the child’s welfare. Where a parent is violent, the court must carefully weigh up the risk against the positive benefits of contact, and of particular importance will be the willingness of that parent to change his conduct (Re L (Contact: Domestic Violence) [2000] 2 FLR 334 (CA)).

The parent with whom the child is living will usually make most day-to-day decisions about a child’s upbringing and is not obliged to consult the other under the Children Act 1989 (s 11(7)); for this reason it is important that the child arrangements order is clear on points that might give rise to dispute, for example taking the child on holiday. Case law, however, does support the view that certain matters require consultation, such as a change of school or a decision to circumcise a child (Re G (Parental Responsibility: Education) [1994] 2 FLR 964 (CA); Re J (Specific issue orders: Muslim upbringing and Circumcision) [2000] 1 FLR 571 (CA)).

When a child is living with another person (such as a grandparent or other relative) under a child arrangements order, the order automatically confers parental responsibility on that person.

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