So you’ve got court for child arrangements coming up in the future, and you’re not quite sure what happens? Well, please see my blog post HERE for how to start the ball rolling.
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Today we’re going to take a more in-depth look at what is contained within a typical child arrangements order when you’re going through court. I’ve decided to make one as an example, but it’s written on the exact same forms that the court use when you will receive yours. It’s fictional, and that’s sort of the problem with these things. Because Child Arrangements orders are private they cannot be shared publicly. Anybody doing so faces potential contempt of court proceedings (which at their fullest extent can result in custodial sentences). Instead, we are visiting the fictional court of Hogsmeade, in a case between Harry Potter and Hermione Granger and their equally fictional children. Yes, I’m aware Harry and Hermione don’t actually end up together!
Picture 1
You can ignore the letter B and numbers down the left hand side. Those are ‘markers’ to assist the order writer.
However, much more important are the warnings in picture 1. These are labelled as B5. Again, this is just a marker for the writer. They might not appear in your order at all.
The first warning has already been alluded to in this blog, and tells us that the order is not to be shared publicly.
The second warning is the wording required to make the arrangements legally enforceable. Don’t worry, these warnings are all standard so you will have this in your order’s warnings. If it doesn’t then you’ll need to raise it as soon as possible, as this will be a mistake.
The third warning is one that I get asked about a lot. This in itself is NOT a lives with order, and nor does it give anybody the right to follow unless the condition it states is met. Firstly it tells us that the removal of a child from the jurisdiction (which is usually the UK, but some older orders say England and Wales) without permission of all with Parental Responsibility for the child, unless the court has ordered it, then a criminal offence is committed.
This is something we’ve been saying on our Facebook Group for a long time, but not everyone thinks is true. We’ve always based this on the Government website guidance.
To reiterate, because I can’t say this often enough – you MUST have permission of all with Parental Responsibility or a court order saying you can.
The key exception here is if an order has been made which states that the child lives with them, and we will look further down the order in due course to see whether this is the case in our order. The point here is that we don’t actually know just by viewing the warning notices. It must also give the lives with order, elsewhere in the order.
There is a similar warning about name changes. Nobody has permission to change the child’s surname while the order is in force.
Picture 2
The recitals can encompass lots of different things, and can largely be considered as declarations by the court and / or the parties. It’s important to note that these are not enforceable as they are merely things recorded as said rather than orders. In our example in picture 2 we can see various statements by the court but then one by the parties at the end – not to denigrate the name of each other within earshot of the child. This is a really common recital to have, and one the courts are quite keen on if raised. This will almost always be put in an order upon request. Remember though that it’s a recital, and not an order, so it’s not enforceable.
Undertakings are like recitals but much more serious. An undertaking is a solemn promise to the court to do or not do something. Typically these are used for things like alcohol or drug use. For instance, that the Father gives an undertaking not to drink alcohol whilst the children are within his care. If these undertakings are breached then action can be taken via contempt of court proceedings.
Picture 3
So this above sets out that the issue of who the children live with has been determined, at least on an interim basis. This means that Harry Potter doesn’t need Hermione’s permission to take the children out of the UK, although it should not be during Hermione’s time else he would be in breach of the contact schedule set out later.
Picture 4
This part sets out what the court have left to determine. Sometimes there are parts on here that are quite surprising. For example, it might be that the issue of who the children live with has been resolved, but yet still appears here. If it does then challenge it, as this part is basically the agenda for the next hearing.
Picture 5
So we’re now at the business end of the order. The details. Here we can see a typical order with what we now know will be the resident parent (Harry Potter, has a lives with order) and the non-resident parent (Hermione Granger, has a spends time with order).
Note the wording here that ‘Harry Potter must make the children available….’ What this doesn’t mean is that there is any expectation on Harry to do anything except make the children available. There is no expectation for him to drive the children anywhere for example, but neither is there anything to compel Hermione to take up the contact ordered. Again, this is a frequently misunderstood part of child arrangements orders. The wording is really important. In this wording above it would NOT allow the father to take the mother to enforcement proceedings for her failing to have the children at the prescribed times. All the court have ordered is that Harry must make the children available.
It is enforceable from the other way around though. Hermione COULD take Harry to court for failing to make the children available for contact. This again shows why the wording is vitally important in an order, so that you know what is and isn’t enforceable.
It is more common on a lives with BOTH parents order to have a situation where it is enforceable both ways. This is because it isn’t a case where one parent is making the children available, it is quite simply because that’s a division of the two homes where the children live. It is more likely to say that ‘the children shall live with FATHER for week 1, and MOTHER for week 2, alternating’, for example. This wording IS enforceable both ways. In our example though it is ‘makes available’ though and we shall continue with that as it is the most commonly seen order.
I should also mention that this section can be REALLY long, as parents want to get every different school holiday or eventuality covered.
Picture 6
Sections B13-14 are pretty standard pieces of information. Jurisdiction is almost always correct, and if not it’s a High Court case to challenge, which is extremely specialist. They may also say here which court is nearest to the child and state this as jurisdiction too.
Picture 7
I’ve included some specific issue and prohibited steps orders in here so that you can see how they might appear in as part of a Child Arrangements order. The ** means it could be either Applicant or Respondent.
Note here the penal notice, and how it refers specifically to B35-B36 (the specific issue and prohibited steps order). Some people believe that where there is a penal notice in a child arrangements order it means that the police can get involved when the contact arrangements have failed in some way. This isn’t true*. Police cannot get involved in these sorts of issues unless there is a risk of injury or a breach of the peace, under grounds arising from a child arrangements order.
Police will get involved if, say, a court has ordered them to retrieve a child. This will be the result of a separate and specific application, and is certainly not the normal situation.
*I am extremely aware of some localised instances where the police intervened based on child arrangements orders not being followed. It is a symptom of the systemic inconsistencies across both criminal and family courts & processes that this has happened. However, for the purposes of information here please be aware that the police becoming involved without specific directions to do so from the court is extremely rare
R38 – Right to apply. This only applies if the hearing was held without your presence. It wouldn’t normally be on an order like this where the parties were present. I’ve only included it here to let you know that if you had a non-attended gatekeeping hearing for instance, that if you disagree with anything that’s been ordered, you can write to the court about it, without making a specific application.
Picture 8
This part of an order is often overlooked when litigants are reading through orders, and then aren’t sure what to do next. A witness statement is your call to send in your evidence, and here there is a lot of really important information to digest.
Firstly, note the deadline. A witness statement is a complex beast. Allow yourself several weeks for this, to include information and evidence gathering, setting out your document, writing, re-writing, and referencing your exhibit evidence.
The next section links the court’s default witness statement template – the C120. It’s an awful form. You’ll likely find it way too generalised and has points that just aren’t relevant. Such as details of your house and bedrooms, the children’s routines and activities, their personalities, how you feel you can help the court and much more. To some people these things will be relevant factors but to others they simply will not. Therefore, I would suggest it's better to write your own statement but tailor it to the specific circumstances of your case. You can always use the C120 for a guide as to things you may wish to include.
I’m not going to go any further into discussion of Witness Statements as that would be a blog post entirely of it’s own, except to say do follow the guidelines set out by the court to ensure you are ‘on track’ with the information they are asking about.
A good article for how to write a Witness Statement can be found HERE.
Picture 9
This section deals with a Section 7 report. This is a very common report that is ordered by the court and it can be dealt with either by CAFCASS or the local Children’s Services if they are already involved with the family.
You’ll see from the bullet points some of the most common aspects that the report is asked to consider. Aside from magic. CAFCASS aren’t usually asked about Magic! Insert there a particular aspect that the report has been tasked with considering – perhaps it might be the school the children might attend for instance.
If a parent is not currently having contact with the children but is being considered by the court, it might be that CAFCASS / Children’s Services consider that they need to see that parent interact with the children so supervised contact may be arranged in order to facilitate this unless the court have specifically asked them not to.
The final bullet point on there is about a Section 37. This is a serious report about whether to begin care proceedings for the children. It doesn't usually appear in most orders.
Picture 10
And finally! Picture 10 gives details of the next hearing that is to take place, and some other directions associated with it, such as the author of the section 7 being present.
The bullet point about parties being at court one hour in advance is very standard, and I have dealt with this as part of THIS blog.
I hope that has been in some way useful. Apologies that it is a bit of a ‘dry’ subject, but due to the number of questions I get about contents of orders I did feel quite strongly about writing this one.
Above is the complete Child Arrangements Order I wrote for this blog, should you wish to keep a copy of the whole document.
I am a professional McKenzie Friend, which means I advise and assist people who self represent in Family Court. In particular I founded and lead the team of McKenzie Friends at First Family Law, and run the popular Facebook page Free Family Law Child Arrangement Order Advice UK. To receive help in your case then please contact info@firstfamilylaw.co.uk or through the contact page of this website.
Disclaimer
Nothing in this blog post should be treated as legal advice. All examples given are fictional.
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