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Children: when agreement cannot be reached on contact and residence (England and Wales)

Published Monday, February 10, 2020

This House of Commons briefing paper considers how contact and residence arrangements for children can be settled, for example following separation. If mediation is unsuccessful, then an application can be made for a child arrangements order although for some people the leave (i.e. permission of the court) is required to do so. A link to the full report in pdf format can be found at the bottom of this page.

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When family proceedings are before a court – usually the Family Court – the welfare of the child is the court’s “paramount consideration”. Changes to the legislation made in 2014 introduced a presumption of parental involvement (where this would not put the child at risk of suffering harm), although this does mean any particular division of the child’s time.

For England, a court may ask a local authority officer or a Cafcass officer – known as a Family Court Adviser – to inquire into the child’s feelings and wishes, and also speak to the child’s family and other relevant people. The note sets out what action people can take if they are unsatisfied with the actions of a Cafcass officer or their report to the court. It should be noted that it is the judge – not the Cafcass officer – who determines a child’s contact and residence arrangements.

If someone fails to compile with a child arrangements order, the courts have a number of enforcement powers available which can include contempt of court proceedings. However, if someone has a “reasonable excuse” for failing to comply, then the court should consider this.

Other safeguards include the imposition of a leave requirement on someone who otherwise would not be required to seek the leave of the court before they can apply, for example to prevent vexatious or multiple applications, and supervised or indirect contact arrangements.

A child arrangements order can be appealed against, or an application made to vary or discharge it.

A list of relevant organisations and helpful links can be found at the end of the briefing paper.

This note applies to England and Wales (except for section 4, which applies to England only, and section 9 which applies to Scotland only).

For information specifically on how grandparents can apply to the court for contact and residence with their grandchildren – a topic which the Library receives a number of requests about – please also see the Library briefing paper, Children: Grandparents and court order for contact with grandchildren (Great Britain).

Commons Briefing papers CBP-8761

Author: Tim Jarrett

Topics: Children and families, Family law

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