If you and your child’s other parent cannot agree on the child arrangements following separation, you might need to apply to the court for a Child Arrangements Order. Such an order can decide:
- Where your child shall live
- The time your child spends with each parents
- The format of contact (face to face, phone calls, letters and card etc)
The first part of the order is the preamble and contains recitals and the second is the formal court order.
A recital records matters of fact that are helpful for the court to have on the face of the order, or agreements that cannot properly be framed as an undertaking or court order.
The order must be complied with. If it is not, you will see the warning notices on the body of the order and the consequences, i.e., you may be made to do unpaid work of pay financial compensation. You may also be held to be in contempt of court and imprisoned or fined, or your assets may be seized.
With that in mind, if you feel that the order is not working, given that you must comply with it, you should not act unilaterally and not comply with it; first you must consult the other party and see if they would consent to making changes. It is not unusual for there to be a provision in the final order for “any other contact that can be agreed”, which means that if you want to make changes between yourselves, by consent, then you can do so without the need to return the matter back to court. If this occurs, it is advisable to write down and agree on the changes you seek to make should this be questioned later on if court proceedings are issued.
Alternatively if the court is going well and you are thinking about applying to vary the order so you have more time with your child, the first step in to consult the other party. If they do not agree, the court would expect the parties to engage in mediation (if appropriate in your case) and see if the matter can be resolved before making an application to the court.
However, there might be situations that prevent you from seeking the agreement from the other parents such as a safeguarding issue that arises meaning you no longer feel the order is in your child’s best interest.
A party can also apply to the court vary the order on a C100 application form, but careful consideration would need to be given to this and you would be advised to obtain legal advice in the first instance. A court would not normally expect a party to return the matter back to court less than 12 months after a final order has been made.
However, if you are finding that an interim order is not working and you need the court to take steps to vary it, you can make an application to vary the order at any stage of the proceedings.
In all applications concerning children, the welfare of a child is the court’s paramount consideration and you must be able to demonstrate to the court why the change that you seek is in the child’s best interest. The court will also need to consider if the proposed change will affect the child and this is a factor you need to bear in mind before making your application.
