There is a usual expectation for parties to have tried to negotiate (and to have carefully considered mediation) before the court will deal with the case.

There is no requirement to have a formal agreement for child arrangements. However, it is advisable to record an agreement because things often change and relationships do not always stay completely amicable or there may be unforeseen issues which arise.

It is also possible to have a child arrangements agreement reached between parents splitting up approved by the court in a child arrangements order, so it becomes legally binding.

A key first issue which the courts focus on is the decision as to where the child should live. This is often referred to as child custody or residence, though the courts now talk about ‘child arrangements’ instead.

If possible, child custody issues should be sensibly and calmly discussed and if possible agreed between parents. The court will carefully consider the child’s best interests and make decisions on that basis.

Contact between parent and child is the right of the child and, not the parent. Parental Responsibility does not give an automatic right to contact.

Where parents are separated, the starting point is that the parent with whom the child is living will allow reasonable contact between the child and the other parent.

Disputes or bad feeling between parents should not be a reason for restricting contact. The child’s best interests are the sole criteria and there is a presumption in law that ongoing relations with both parents are usually in a child’s best interests. Contact should only be restricted where there are good reasons associated with protecting the best interests of the child.

An order can be obtained where contact is not take place without issue. The non-resident parent will apply for a child arrangements order under the Children Act.

Prohibited steps orders are used for resolving disputes by preventing something from happening such as removing a child from the country, preventing a change in a child’s surname, moving a child to a different part of the country, or preventing a unilateral decision on medical treatment.

Before applying to court seeking a prohibited steps order it is first necessary to attempt family mediation via a mediation information and assessment meeting (MIAM).

This meeting is not a mediation of the underlying dispute, instead it is a short meeting conducted by a trained mediator who assesses whether mediation is an appropriate way forward to resolve the issue.

Mediation and the obligation to attend a MIAM meeting do not apply where there is urgency, such as immediate risk of a child being taken abroad or child safety concerns.

The courts can make prohibited steps and specific issue orders. A prohibited steps order, as the words suggest, contains legal stipulations requiring the receiving party not to do certain things. In contrast, with a specific issue order, the provisions of the order require the party subject to the order to do something. With a specific issue order a particular issue of a child’s upbringing is determined by the court, such as perhaps medical treatment or schooling.

The most common type of breach relates to contact issues such as when a parent does not comply with an agreement and/or order, by perhaps changing arrangements, turning up late or not at all or a parent being prevented from seeing a child despite an arrangement being in place.

In most cases, it’s not advisable to apply to court for a single breach. The correct approach in most cases is to document the breach and if there is a continuous pattern then it may be appropriate to take court action.

Orders made since December 2008 include a standard warning notice setting out the consequences of breaching the Order.

The sanctions for breach may include financial compensation or transfer of a child’s residence and in very serious cases, imprisonment is a possibility.

Technically yes although generally only in exceptional situations and where the court determines termination of parental responsibility is clearly in the child’s best interests.

Examples where the court is highly unlikely to revoke parental responsibility include if the child doesn’t want to see the father or child maintenance is not being paid.

Under the Children Act 1989 (as amended), the court can vary or discharge an existing order. A formal application is required.
Before proceedings are started, by law, there must be an attempt at mediation, unless the parties have attended a formal Mediation Meeting in the last 4 years.

Contact Orders made by the courts including contact aspects of Child Arrangements Orders commonly include a provision stating “such other contact as may be agreed between the parties”. In this way the courts envisage and to an extent encourage flexibility and co-operation in the child’s best interests which may amount to informal variation of the court’s orders.

The courts do not impose supervised contact lightly and will normally need to be satisfied of a clear reason, with evidence and potential risk to a child with unsupervised contact.

The most common situation for seeking an emergency residence order is where there are significant grounds based on physical or emotional risk to a child.

Emergency applications are made without notice to the other party. The application needs to include a statement demonstrating clearly the basis for the application and evidence of the facts and the need for urgent court intervention.

Emergency applications are typically heard by the family court on the same day the application is made.