Child Arrangements Disputes: What Happens When Parents Cannot Agree
Summary
When parents who have separated cannot agree on arrangements for their children, the law in England and Wales offers a structured path from negotiation through mediation to court. The court application fee is £263, and it is a legal requirement to attend a MIAM before you apply to the family court (unless you have a valid exemption). A child arrangements order regulates arrangements relating to the child’s living arrangements and contact with each parent.
Key points
• Parents are required to attend a Mediation Information and Assessment Meeting (MIAM) before applying to court, unless a valid exemption applies (domestic abuse, urgency, or no mediator available within 15 miles).
• The fee to apply for a child arrangements order is £263, and CAFCASS will carry out safeguarding checks before the first hearing.
• The court applies the welfare checklist in section 1(3) of the Children Act 1989, considering the child’s wishes and feelings, their needs, the likely effect of any change, and the capability of each parent to meet those needs.
• The first hearing dispute resolution appointment usually takes place around five weeks after the court receives the application.
• Most cases settle before final hearing through negotiation, consent orders, or court-mandated mediation at interim stages.
You separated from your child’s other parent six months ago. At first, arrangements worked. Now every handover is a row. You cannot agree whether your daughter should change schools, where she spends the summer holidays, or how often she stays overnight with each of you. Emails go unanswered. The situation is getting worse, and your daughter is asking why you and her other parent are always angry.
Applications for child arrangements orders usually involve a disagreement between parents about the best arrangements for their child. In England and Wales, the family court is the final route when agreement cannot be reached, but it is not the first or the preferred route.
What is a child arrangements order?
A child arrangements order is an order regulating arrangements relating to any aspect of with whom a child is to live, spend time, or otherwise have contact. These orders set out who the child is to live with or spend time with and can be made in favour of more than one person whether they live together or not. If a child arrangements order states that the child will live with a person, that person will have parental responsibility for that child whilst the order remains in force. Contact with a child can be either direct or indirect (e.g., exchanging letters).
An application for a child arrangements order is made under section 8 of the Children Act 1989. Other section 8 orders include prohibited steps orders (stopping a parent from taking a specified action without court permission) and specific issue orders (deciding a particular question, such as which school a child should attend).
Do I have to try mediation before I go to court?
Yes, in almost every case. Under section 10(1) of the Children and Families Act 2014, a person must attend an MIAM before making certain kinds of applications to obtain a court order. A MIAM is a short meeting that provides information about mediation and other methods of non-court dispute resolution, as options for resolving disputes. A MIAM is conducted by a trained mediator who will consider and explain the potential benefits of different methods of non-court dispute resolution. A MIAM should be held within 15 business days of contacting the mediator.
It is a legal requirement to attend a MIAM before you apply to the family court (unless you have a valid exemption). The exemptions include cases involving domestic abuse, urgency, the child being subject to care proceedings, or the prospective applicant being in prison and unable to attend online. A MIAM exemption also applies if the prospective applicant has contacted as many authorised family mediators as have an office within fifteen miles of their home (or five of them if there are five or more), and all of them have stated that they are not available to conduct a MIAM within fifteen business days of the date of contact. The names and contact details are provided to the court.
The MIAM is not mediation itself. If both parties attend and the mediator assesses that mediation is suitable and safe, you can then proceed to mediation sessions. Legal aid is available for MIAMs and for family mediation. If you are eligible for legal aid you could receive both the MIAM and mediation sessions free of charge, as well as some advice from a solicitor to support you in the mediation process.
What happens when I apply to court?
You use Form C100 to apply for a child arrangements, prohibited steps, or specific issue order under the Children Act 1989. It costs £263 to apply for a court order. You will need to complete the form carefully and provide details about yourself, the child, the other parent, and the orders you are asking the court to make.
The first hearing dispute resolution appointment will usually take place around five weeks after the court receives it. If the application is a C100 the court will send you and the respondent a copy of the application and a notice of hearing.
Before the first hearing, CAFCASS (the Children and Family Court Advisory and Support Service) will carry out safeguarding checks with the police and local authority children’s services. The Children and Family Court Advisory and Support Service (Cafcass) looks after the interests of children involved in family proceedings. It is independent of the courts and social services, but operates under the rules of the Family Court and relevant legislation to work with children and their families, and then advises the courts on what is considered to be in the best interests of individual children.
A CAFCASS Family Court Adviser will telephone each parent separately to discuss any safeguarding concerns and will prepare a short letter to the court summarising those checks and any risk issues raised.
How does the court decide what is best for my child?
Under section 1 of the Children Act 1989, when a court considers any question with respect to the upbringing of a child its “paramount consideration” is the welfare of the child. In the circumstances where the court is considering whether to make, vary or discharge a section 8 order, the court shall have regard in particular to the ascertainable wishes and feelings of the child concerned (considered in the light of their age and understanding), their physical, emotional and educational needs, the likely effect on them of any change in their circumstances, their age, sex, background and any characteristics the court considers relevant, any harm which they have suffered or are at risk of suffering, how capable each of their parents is of meeting their needs, and the range of powers available to the court. This is known as the welfare checklist.
A court is to presume, unless the contrary is shown, that involvement of that parent in the life of the child concerned will further the child’s welfare. “Involvement” means involvement of some kind, either direct or indirect, but not any particular division of a child’s time. The presumption does not apply if the court has evidence that the parent’s involvement would put the child at risk of suffering harm.
The court also applies the “no order” principle. The court must ask itself whether making an order would be better for a child than making no order at all. If parents can agree, or if informal arrangements are working, the court will not impose an order simply because an application has been made.
When should I consider going to court rather than continuing to try to negotiate?
Court becomes necessary when one or more of the following applies: the other parent refuses to engage in any form of discussion or mediation (and a valid MIAM exemption applies), there is a genuine and urgent risk to the child’s welfare that requires an immediate court order, or the dispute involves a fundamental issue (such as relocation abroad, a change of school, or complete withdrawal of contact) where no middle ground exists and a binding decision is required.
Court is not necessary where arrangements are informal but working, where both parents are willing to attend mediation, or where the disagreement is about a detail rather than a principle. The MIAM mediator will help you assess whether your case can realistically be resolved outside court.
Mediation has significant advantages: mediation and other kinds of non-court dispute resolution give you more control over what happens, and are usually less stressful and can be cheaper than going to court. It can also be quicker and less upsetting for you and your children. Court proceedings typically take many months from application to final hearing. Interim hearings, CAFCASS reports, and contested fact-finding hearings lengthen the timetable. A negotiated or mediated settlement can be recorded in a consent order and submitted to the court for approval without a contested hearing.
What happens at the first hearing?
The first hearing is known as the First Hearing Dispute Resolution Appointment (FHDRA). The court will have the CAFCASS safeguarding letter and the application. The judge or magistrates will explore whether the case can be resolved by agreement at that hearing. CAFCASS may attend to facilitate discussions. If the case cannot be resolved, the court will give directions for the next steps, which may include ordering a full section 7 report (a detailed welfare report prepared by CAFCASS or the local authority), directing the parties to attend further mediation or a Separated Parents Information Programme, and listing a further hearing or a final hearing.
If safeguarding concerns have been raised, the court may direct a fact-finding hearing to determine disputed allegations before any final decision about arrangements is made.
What if one parent does not comply with a court order?
If a child arrangements order is made, the court must attach a warning notice setting out the consequences of failing to comply with the contact order (section 11I of the 1989 Act). The warning notice does not apply to contact arrangements set out in a recital to an order, or recorded as an agreement in a Schedule attached to an order.
If a parent breaches an order, the other parent may apply for enforcement. The court may not make an enforcement order if it is satisfied that the person had a reasonable excuse for failing to comply with the order (section 11J(3)). The burden of proof on this issue rests with the person claiming to have a reasonable excuse, and the standard of proof is the balance of probabilities. Enforcement options include unpaid work requirements (enforcement orders requiring the person in breach to undertake unpaid work) and compensation for financial loss. In cases of persistent and deliberate breach, committal proceedings (imprisonment for contempt of court) are available but rare.
Frequently asked questions
Can I apply for a child arrangements order if I am not married to the other parent?
Yes. Specified people are entitled to make an application for a child arrangements order under section 8 of the Children Act 1989 without having to seek permission from the court first. They are: the parent, guardian or special guardian of a child, and any person who is named in a child arrangements order that is in force as a person with whom the child is to live and who holds a residence order in respect of the child. A parent means a biological or adoptive parent, whether or not they have parental responsibility and whether or not they were married to the other parent.
How long does a child arrangements case take?
There is no fixed timetable, but the court applies the principle that delay is likely to prejudice the child’s welfare. The first hearing in the dispute resolution appointment will usually take place around five weeks after the court receives the application. If the case is straightforward and both parties are willing to negotiate, it may be resolved at the first or second hearing. If a section 7 report is ordered or fact-finding is required, the case is likely to take several months. Contested cases reaching a final hearing may take six to twelve months or longer.
What is the difference between a lives-with order and a spends-time-with order?
Both are types of child arrangements order. A lives-with order specifies the person or people with whom the child is to live. If a child arrangements order states that the child will live with a person, that person will have parental responsibility for that child whilst the order remains in force. A spends-time-with order specifies the time the child is to spend with the other parent (or another person), including overnight stays, holiday contact, and other arrangements. The same order can include both elements, for example stating that the child lives with one parent and spends alternate weekends and half the school holidays with the other parent.
Please note that this article is for information purposes only and does not constitute legal advice.
