What is a ‘living with both parents order’?

Going through any relationship breakdown is a very emotional time and agreeing on how and when children spend time with their parents will often be at the forefront of parents’ minds. Understandably parenting when you are no longer in a relationship with the other parent can be challenging. Fortunately, most parents are able to agree on the arrangements for their children without too much difficulty by talking and finding a solution together. This may be with the assistance from a third party such as a family consultant and/ or mediator.

It is best if parents can work together to sort out the arrangements for their children between themselves, without the need for any formal legal action to be taken. There is a ‘no order’ principle that applies to arrangements for children, which means that the Court will not make an order unless it is in the interests of the children to do so.

Sometimes when parents’ separate issues can arise about where, and with whom, the child or children will live with. When the arrangements cannot be agreed, either parent can make an application to the Court for what is known as a ‘Child Arrangements Order’. Sometimes this is referred to as a ‘living with both parents order’.

A Child Arrangements Order is an order that details who a child is to live with, spend time with or otherwise have contact with, and also where a child is to live, spend time with or otherwise have contact with any other person. Every case will be dependent on the circumstances of the individual family and what is in the best interests of the child. There is ‘no one size fits all’ approach.

There is a presumption, when the Court deals with an application for a Child Arrangements Order, that each parent should be involved in the child’s life, although it is important to note that this presumption does not apply where that involvement would not be in the best interests of the child’s welfare.

The following factors, known as the Welfare Checklist, set out the factors that must be taken into account when sorting out the arrangements for children:

• The ascertainable wishes and feelings of the child concerned (considered in light of their age and understanding);
• The child’s physical, emotional and educational needs;
• The likely effect on the child of any change in circumstances;
• The child’s age, sex, background and any other relevant characteristics;
• Any harm which the child has suffered or is at risk of suffering;
• How capable each of the parents, and any other relevant person, is of meeting the child’s need.

How to resolve matters:

When issues do arise, there are several alternative dispute resolution options to resolve matters and put in place arrangements for children. Court proceedings should be considered a last resort, although in some circumstances they are the only option.

So, what approaches are there?

• Negotiations directly between parents – it might be that the parents themselves are able to come to an agreement about the arrangements for their children which they might, thereafter, want to be detailed in a ‘parenting plan’. Take a look at a previous blog post on Parenting Plans here.
• Mediation – this a process whereby the parties, with the assistance of the mediator (who is an independent third party), identify the issues in dispute and work together to see if they can resolve them. Mediation is not always going to be appropriate, especially if the case involves domestic abuse, but it is certainly a process which allows the parties to retain some control over the outcome.
• Solicitor-led negotiation – this is where solicitors, on behalf of the parties, negotiate to try and reach an agreement over the arrangements for the children.
• Collaborative Law – as a process this involves a series of meetings between the parties and their trained collaborative lawyers. Everyone signs what is known as a ‘participation agreement’ committing them to resolving the matters in question without going to court. The collaborative process can provide the parties with a forum to speak openly and freely about matters and is aimed at minimising any conflict.
• Arbitration – this is essentially a private form of Court proceedings and can be an effective method of alternative dispute resolution if the parties are unable to come to an agreement between themselves, within mediation or otherwise. Through this method, the parties appoint an arbitrator who can make a determination about the issues in dispute. The decision which the arbitrator reaches is binding and final. There are several advantages to arbitration over the Court process, and in these uncertain times, one of those advantages is time.
• Court proceedings – whilst they should be considered as a last resort, in some cases, this is the only option. I have set out below some further information about the court process.

Court proceedings – How to apply?

If Court proceedings are inevitable, then how do you apply?

1. The applicant must attend a MIAM unless an exemption applies.
2. Form C100 needs to be completed and if there are any allegations of harm, that form will need to be accompanied with a C1A.

Who can apply for a living with both parent’s order?

If you are one of the following then you can make an application to the Court for a Child Arrangements Order:

• A parent;
• Guardian;
• Step-parent;
• A person with parental responsibility;
• A foster parent;
• Anyone with whom the child has lived with for the past 3 years (and has not ended more than 3 months before the application);
• Any person who has the consent of the Local Authority.

When does the order expire?

Typically, a Child Arrangements Order will end when the child reaches the age of 18. This is unless otherwise specified in the order. These orders automatically end if the parents live together for a continuous period of more than 6 months after the order has been made.

Our expertise?

We are a specialist family law firm with offices in Horsham, Brighton, London and Hampshire. We advise on all aspects of family law, including Child Arrangement Orders. If you have any questions please do not hesitate to get in touch.

Rachel Nicholl is a Senior Associate, Solicitor and Collaborative Lawyer based in our Horsham office.