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How are Child Arrangement Orders Decided by the Court?

05 September 2019

When parents separate, a decision needs to be made about who a child will live with and how contact with the child is arranged between the parents. When deciding a Child Arrangement Order, the child's welfare will be the Court's paramount consideration. This is known as the 'Welfare Principal' and this is based around seven key factors.

Will the Court Always Intervene?

The starting point for the Court in any Children Matter will be a presumption that they should not intervene and make an Order unless it can be shown that doing so will have a positive benefit to the child.

The aim of this is to try to reduce bitterness felt by a parent who may consider that they have 'lost' if a Court Order is imposed ordering the child to live with the other parent. Reducing the bitterness also reduces the potential long-term damage to a child following divorce, and the absence of unnecessary Court intervention will help with this.

For this reason, there is a requirement for parents to attend mediation with the hope that an agreement can be reached before going down the route of Court proceedings.

The Welfare Principle

Of course, if parents can't come to an agreement the Court will then step in to make an appropriate Order. To help the Court focus on the Welfare Principle throughout court proceedings they pay particular attention to the following seven factors:

  1. Wishes and feelings of the child – this reflects the importance of allowing the child's wishes to be heard in deciding what is in their welfare.

  2. Physical, emotional, and educational needs of the child – this looks at accommodation, medical needs and education, as well as how close they are to any siblings they have.

  3. The likely effect on the child of any change in circumstances – this looks at the current arrangements. If the current contact arrangement seems to be working well, the Court is unlikely to change this. This is often referred to as keeping the status quo.

  4. The child's age, sex, background, and any other characteristics which the Court considers relevant. Age is important in this factor as young babies will be more reliant on their mother whereas an older child can generally adapt to living with either parent. That being said, there will always be a presumption that the involvement of both parents in the life of the child will improve the child's welfare. This factor also covers the child's background such as race, culture, and religion.

  5. Any harm that the child has suffered or is at risk of suffering – this covers past or future harm to the child and can cover both physical and psychological harm. This can of course include harm suffered by a child by not seeing both parents.

  6. How capable each parent (and any other relevant person) is of meeting the child's needs – this involves looking at the parents to assess their ability to care for the child. For instance, any criminal record or safeguard concerns will be very relevant. A parent who suffers from a mental or physical illness that could mean a sudden or long-term stay in hospital might also be considered less suitable as a full time carer.

  7. The range of powers available to the Court under the Children Act 1989 – this factor allows the Court to think laterally and consider every option available to them, including not making an Order at all (as mentioned earlier).

The impact that Court proceedings can have on a child, especially if this is going on alongside the breakdown of a marriage, can be significant and damaging. So the court will only intervene as a last resort. When they do need to step in and decide on a suitable Child Arrangement Order, the Court is therefore encouraged to look into every aspect of the child's life and surroundings. This will help to ensure that any Order made is in the best interests of the child's welfare, above anything else.

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