Often when a relationship has broken down one of the most difficult issues to be dealt with is the living arrangements for the children. This has not been helped by the Courts which in the past have referenced unhelpful terms such as custody, residence and contact which, when applied to arrangements for children, are emotive and confrontational terms.
The Children and Families Act 2014 has tried to change things: it has introduced Children Arrangement Orders replacing residence and contact orders. Now when matters are decided by the Court, the order will be a Children Arrangement Order regulating arrangements for children dealing with whom and where a child is to live, spend time with and otherwise have contact.
Unfortunately, it is unlikely that parents who cannot agree arrangements will consider Court orders which reference live with and spend time with rather than residence and contact any less controversial.
Increased emphasis on co-operative arrangements
The Children and Families Act has tried to go further than simply changing the terms used by the courts: it has introduced the Child Arrangement Programme (CAP 2014) which replaces the Private Law Programme. It applies when there is a dispute between parents and / or families regarding children. There is a notable increased emphasis on parents to agree to co-operative arrangements in a non-confrontational way with out-of-court dispute resolution being placed within the process itself, in so much as anyone wishing to apply to Court for an Order (except those entitled to claim an exemption) must attend a Mediation Information and Assessment Meeting (MIAM).
At the MIAM appointment, information will be provided about mediation and other options for out-of-court dispute resolution and there will be an assessment of whether mediation is a suitable option.
In those disputes which go on to be determined by the court, the judge is required to consider at every stage whether non-court dispute resolution is appropriate and the judge has the power to adjourn the proceedings to give parties the chance to consider such options again.
Uncertainty surrounding how a child’s wishes and feelings will be taken into account
If the issues in dispute remain incapable of resolution by agreement and proceedings cannot be avoided, the Court will put the child’s welfare as the paramount concern. An additional aspect of CAP 2014 is that there is an increased focus on the child’s wishes and feelings: to the extent it is appropriate given their age and level of understanding, the Court will seek to involve the child in making the arrangements affecting them, whether those are arrangements agreed by the parents directly or decided by the court.
It will fall to the judge to determine how they will consider the child’s views. This emphasis on the wishes and feelings of the child has been one of the most controversial because of the general uncertainty surrounding how the courts will take account of the child’s views and consider their wishes when implementing such arrangements.
Disclaimer: While we do all that is possible in terms of ensuring its accuracy, this blog contains general information only. Nothing in these pages constitutes legal advice. You need to consult a suitably qualified lawyer from the firm on any specific legal problem or matter.
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