Shared child custody - Child Arrangement Orders - England and Wales
The shared custody order is an order under the Child Act wherein it is ordered that the child lives with both the parents for a defined period of time, While the term 'custody' is no longer in use, the orders define Child Living Arrangements.
Until a few years, back Child Custody in older times entailed whom the child resided with, and the resident parent more or less took all the decisions concerning the child, leaving the non-resident parent with no power. The older terms such as custody, residence', contact orders were replaced in 2014 by an amendment to the erstwhile Children Act 1989 with the term 'child arrangement orders,' which entails orders such as
- Who shall the child live with;
- Who shall the child have contact with;
- Specific issue orders;
- Prohibited steps order
The Children Act 1989 introduced the term 'parental responsibility,' and anyone who has parental responsibility has the right to make all the important decisions regarding the child. It is to be hereby noted that everyone with parental responsibility has equal power and right to make important decisions with respect to a child. If an agreement is not reached unanimously, the person who disagrees can ask the court to make a 'prohibited steps order or a 'specific issue order' to prohibit or allow a specific action respectively.
The word 'child custody' has been actively replaced by the term' child arrangement order' to effectively show the involvement of both the parents in a child's life to suit his best interests, the same shall be kept in mind while reading the article.
1. What does 'shared child custody' mean in today's time after the amendment introduced in 2014 to the Children Act 1989?
Ans: As mentioned above, the words' child custody', 'residence and contact orders,' and 'care and support orders' are no longer in use. These terms were previously used to describe the conditions with whom the child is supposed to live, and with, whom the child is supposed to have contact. However, the terms were replaced since then by 'child arrangement orders' in 2014.
A child arrangement order basically regulates whom the child shall reside and determines with whom and how much the child shall have contact. The whole objective of replacing the older terms such as 'custody,' residence' contact' access orders with the term 'child arrangement orders is to remove the emotive concepts these terms portrayed and suggested control and possession of one parent over the child. It signifies that the resident parent is no 'winner' and the non-resident parent is no 'loser' but rather focuses on the child's arrangements keeping in mind their best interests. So, in conclusion, a child arrangement order primarily includes 'live with' orders and 'spend times with' orders, among other orders, as discussed above. Contact arrangement orders may also include indirect contact within its scope, wherein the non-resident parent can connect with the child over the phone, zoom, or skype. Many times, the court may also order supervised meetings.
Even though 'shared child custody is no longer used by the courts, legally speaking, both parents who are either separated or divorced can share the custody of the child, both physical and legal, provided they have parental responsibility. Under a 'shared care arrangement,' a child may split their time unequally between both the parents. The arrangement need not be on a 50:50 basis. Parental responsibility determines how involved ex-partners will be in the child's life and, consequently who can take important decisions for the child. To this effect, the court may order different arrangements based on the circumstances allowing the child to reside with both the parents alternating between weekdays and weekends and also to take the child on holidays.
2. What do the terms' shared care' and 'lives with,' 'spends time with' child arrangement orders entail? In practical terms, do they mean the same?
Ans: As per the latest amendment, 'lives with', and 'spends time with' orders are the most commonly used terms by family courts while giving out child arrangement orders. This goes on to show how the 'child care' is 'shared' by both the parents instead of projecting one parent as a 'main carer'. Thus, a 'lives with,' 'spends time with' arrangement order is nothing but a 'shared care order,' thereby reiterating the court's stance that the involvement of both the parents in a child's life is equally important unless the pieces of evidence show otherwise.
Earlier, a joint custody order was very rare, and it only happened when there was a 50:50 split of the child's time between both the parents, which was nearly impossible to achieve. With the newfound approach, a 'shared care' arrangement order does not mean that the time of the child is equally divided between both the parents, but it gave an opportunity to the courts to come up with different flexible arrangements for the child keeping in mind their best interests. Children could be seen spending five days with one parent and weekends and holidays with the other parent under a lives with order'. Further, some parents might feel one weekend on/one weekend off works best for them viewing their jobs, and this will also allow the child to spend longer periods with one parent strengthening their bond.
Thus, a 'lives with', 'spends time with' child arrangement order means sharing the care of the child by both the parents and thereby ensuring that the child grows under the guidance and care of both of them.
3. What are the most common and sought-after child arrangement orders to 'share child care' by both the parents?
Ans: It is important to understand that there is no one size fits all rule which can be applied to every case. The court looks into the facts and merits of each case before arriving at a decision. The court is generally of the opinion that both the parents should be present in a child's life as long as it is safe to do so. Even though some terms may suggest otherwise but in each of these arrangements, the 'care' of the child is 'shared' by both the parents taking into consideration all the factors of the parties involved. Some of the most common shared care arrangement orders passed by the court are discussed below:
i) Sole Residency: This certainly means that a child has a primary home with one parent where the other non-resident parent can frequently visit as agreed upon by both the parents or as ordered by the court. Sole residency can be awarded to either the mother or the father of the child, depending upon the circumstances.
ii) Joint residency: This means that the child will have two homes and will frequent between the two homes of both the parents as per an agreed arrangement or as prescribed by the court. This does not necessarily mean that the time is divided on a 50-50 basis between the parents.
iii) Co-parenting: This generally means that the parents who have either separated or divorced and the parents who are not married decide to raise the child together. They may themselves come up with a parenting plan. However, such a plan is not legally binding unless the court has ordered it to be. It is one of the best methods as it ensures the presence of both the parents in the child's life.
iv) Fixed arrangements: As the name suggests, the separated or divorced parents herein agree upon a flexible schedule according to their working arrangements. This basically means that there is no fixed arrangement, and it can change week-wise depending upon the availability.
v) Bird's nest parenting: This is not a commonly known and widely used child arrangement order, and it is generally used by parents of younger children. In this type of arrangement, children are kept in a family home, and parents are the ones who move around.
4. How do family courts devise flexible arrangements/ schedules to cater to the needs of the child while allowing both the parents to share the custody?
Ans: As discussed earlier, there is no one solution that will suffice the needs and requirements of all the families. While planning arrangement orders the court has to take into consideration many factors such as the age of the child, the job of the parents, etc. Below discussed are some of the patterns that work well for most of families. Since it is not necessary to equally divide the time of a child on a 50:50 ratio under a shared child care order, the following plans work well for most parents allowing them to be significantly involved in their child's life.
i) Like living with one parent for the whole week and spendings weekends with the other parent. This pattern might be less favorable for a young child; therefore, alternating each day or every couple of days may be suitable in this scenario.
ii) Alternatively, spending Monday to Wednesday with one parent and Thursdays to Sundays with the other parent and sharing holidays with each parent equally may suit both the parents and the child.
iii) Further, as the situation demands, if one parent works long hours, then planning after-school activities like swimming or playing any sport on weekdays could be considered as an alternative.
Thus, the underlying objective behind carefully devising the schedules is to allow each parent to spend quality time with the child. This approach will allow both the parents to feel equally valuable and important in their child's life without the need to spend an equal amount of time.
5. How does the new approach of 'sharing childcare' by virtue of terminologies such as 'lives with', 'spends time with' orders help courts to overcome the prejudice associated with 'child custody orders?
Ans: First of all, in practical terms, a 'lives with,' 'spends time with' order will mean 'residence' and 'contact' orders. Changing the terminologies over time has helped both the courts and parents to form a new approach. This new approach has helped parents to view the entire 'custody battle' in a new light wherein the concept of 'main carer' for the child was eliminated, and the possibility of the child living with both the parents became more acceptable. Earlier the non-resident parent could feel their value as a parent declining due to them spending less time with the child. However, the new approach of sharing child care has allowed parents to be equally valued, and it promotes healthy and cooperative parenting than viewing 'custody' as a battle that needs to be won. It develops the idea that the child has two homes, and both the parents have an opportunity to live with their child. Since the idea of having only 'contact' with the child rather than 'living with' the child tends to make parents more defensive of their time. When the child lives with them even without spending equal time in each home, parents feel more confident and secure in their relationship.
The only advantage that a 'lives with' order has over a 'spends time with' order is the ability to take the child on holiday for 28 days outside the country without the consent of the other parent. Consequently, a 'lives with' order puts parents on an unequal footing which may undermine the role of the other parent in this aspect. Having said that, each person with 'parental responsibility has the utmost right to make decisions concerning a child wherein the consent of each parent with 'PR' is necessary while making such decisions. It is a symbol of sharing the child care and leveling the playing field with respect to the earlier prejudices whereby a mother as per the traditional view, was seen as a primary carer and undermining the importance of a father.
6. What factors are considered by the court while deciding 'child custody matters?
Ans: It is important to understand that no parent 'wins' or 'loses' a custody battle but rather, matters are settled by the court. Courts are not keen on interfering in family matters unless making an order is important for the welfare of the child. While arriving at any decision, courts pay utmost importance to the interests of the child. They follow a welfare checklist taking into account the following matters:
The court determines the wishes and feelings of the child;
They take into account a child's physical, emotional and educational needs;
How will the child perceive and react to changes in the circumstances;
Any possible threat or harm to the child
The court also considers the age, sex, and background of a child, among other important things.
Section 1 (2A) of the Children Act 1989 provides that the courts shall presume that the involvement of both the parents in the life of a child is in the best interest of the child, and therefore, they tend to keep families together unless the evidence shows otherwise.
In addition to the above points, while making an arrangement order best suitable to the child, courts take into account the following factors. They try to determine the primary caregiver and most probably 'live with' orders are in favor of such person since they are the ones spending on the day-to-day needs of the child. Courts also look into the ability of the parent to provide not just financially but also how well they are receptive to the needs of the child and their well-being. The parent-child bond is assessed by the court in order to make a decision. Further, the relationship between the parents is also looked into since it has the potential to impact the child. In conclusion, courts strive to best meet the needs of the child at all times while making arrangement orders.
7. Is the Child law the same for LGBTQ parents?
Ans: The law with respect to LGBTQ parents is largely similar to heterosexual parents. LGBTQ parents can agree upon a parenting plan through mediation.
How can LGBTQ parents apply for 'shared childcare orders?
If the mediation and negotiation fail, LGBTQ parents can apply to the court in the same way as heterosexual parents. The court, as always, will prioritize the best interests of the child while making the decision. It is important to note that in order to apply for a child care order, parents must have 'parental responsibility as a legal necessity. Anyone who is a father or a parent under section 42 or 43 of the Human Fertilisation and Embryology Act 2008 but does not have parental responsibility can either apply to the court for a parental responsibility order or make an application for a guardianship order if the child has no parent with PR.
In order to read more as to how can civil partners, same-sex couples, unmarried fathers can acquire PR visit this article: Can I take my child on holiday without the permission of the other parent?
8. Why is it important for parents to attend meditation before seeking a child care order from the court?
Ans: It is always desirable that parents must first exhaust all their options before approaching the court. It is better for parents to reach an agreement considering the best interests of the child rather than asking a court to adjudicate the dispute. The court has long recognized the significance of alternate dispute resolution and mediation and thereby promotes its use to settle family disputes. Therefore, before seeking an arrangement order from the court, parents must first resort to Mediation Information and Assessment Meeting (MIAM) and try to reach an agreeable arrangement with the help of a qualified mediator. Having said that, it is also to be noted that certain cases involving issues such as domestic violence and concerns about child safety can directly apply to the court since the matter is urgent.
Furthermore, parents who do not have the monetary means to go for mediation can apply for legal aid. Although legal aid is no longer provided for advice from solicitors or legal representations in the court process, under certain circumstances, legal aid can be extended for mediation once it is 'means tested'. This basically means that the eligibility to claim the amount will depend on the income and capital of the claimant.
9. What is the process to approach the court for a child care order? How many hearings are there before the matter reaches the court?
Ans: Potentially there are three hearings before the matter proceeds to the court. These comprise of FHDRA, the DRA and the Final Hearing. Anyone with 'parental responsibility' can fill the C100 form seeking an arrangement order from the court for their child. The objective and the significance of each of the hearings is discussed below.
FHDRA stands for First Hearing Dispute Resolution Appointment and as the name suggests it is the first hearing in the process. A CAFCASS officer must be present at the court who generally represent children in family court cases. A CAFCASS officer must do mandatory 'safeguard checks' with police officers and social service agencies and confirm the outcome to the court in a written note. CAFCASS officers may also speak to the parties independently to understand the issues. The FHDRA provides an opportunity to the parties to settle the disputes by reaching an agreement. If an agreement is reached between the parties, the court can then make an order. If not the matter reaches the second hearing.
A Dispute Resolution Appointment (DRA) is the second step in the process. The judge presiding the hearing takes into account the evidence filed, the CAFCASS report, and recommendations of the officer to resolve the issues.
If the matter is still unresolved even after the first two hearings, then the case is listed for a final hearing before the judge to adjudicate the matter after hearing the oral evidence of both the parties and the CAFCASS officer.
10. What are CAFCASS and CAFCASS Cymru? What is their significance in shared child care orders?
Ans: CAFCASS, which stands for the Children and Family Court Advisory and Support Service, and CAFCASS Cymru, which is prevalent in the Wales region, are bodies that represent children in family disputes. A CAFCASS officer ensures that the children are rightfully represented before the court. Since they are representing the children, the officers ensure to speak to the children to understand their wishes and feelings and also to both the parents separately. Along with this, the job of a Family Court Advisor is to give the court advice on the applications filed, provide information and advice for children, and primarily promote the welfare of the children.
If an application for a specific issue order or prohibited order is made or any other child arrangement order for that matter, it is the duty of the CAFCASS officer to safeguard checks by contacting the local police and social services and highlight important issues to the court in a report. The court may also ask the officer to prepare specific reports to assist in the case. The official websites: www.cafcass.gov.uk and www.cymru.gov.uk/gcclbtcymru can be visited by a person in order to avail the services living in England and Wales, respectively.
11. Can a child care order was given by the court be overturned or varied?
Ans: The 'live with' and 'contact arrangements' sought in a child arrangement order are generally legally binding up to the age of 16. However, in the case of 'live with' orders, the courts may extend it to the age of 18 under exceptional circumstances. Courts do not generally overturn or vary the existing child arrangement orders since it can have a negative impact on the child. However, if the parents are able to prove that such changes are in the best interests of the child, courts may vary the order.
If you need help with Child Arrangement Order matters, please contact us on 07375757510 or kindly visit incourt.co.uk
Please do note that this article is NOT legal advice and should NOT be treated as Legal Advice.
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