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6.2.17 Child Arrangements Orders

AMENDMENT

This chapter was updated in August 2014 to reflect that Residence Orders changed to Child Arrangements Orders which were introduced in April 2014 by the Children and Families Act 2014 (which amended section 8 Children Act 1989). They also replace Contact Order.


Contents

  1. Introduction
  2. Who Can Apply
  3. Applications for Arrangements Orders
  4. Local Authority Carer Applications
  5. Child Arrangements Order Allowances
  6. Procedure for Child Arrangements Order Allowance Applications
  7. Procedure for Payment of Child Arrangements Order Allowance
  8. Review of Child Arrangements Order Allowances


1. Introduction

A Child Arrangements Order is a private law under section 8 of the Children Act 1989, as amended by the Children and Families Act 2014.

Child Arrangements Orders were introduced in April 2014 by the Children and Families Act 2014 (which amended section 8 Children Act 1989). They replace Contact Orders and Residence Orders.

A Child Arrangements Order means a court order regulating arrangements relating to any of the following:

  1. With whom a child is to live, spend time or otherwise have contact; and
  2. When a child is to live, spend time or otherwise have contact with any person.

A person named in the order as a person with whom the child is to live, will have Parental Responsibility for the child while the order remains in force. Where a person is named in the order as a person with whom the child is to spend time or otherwise have contact, but is not named in the order as a person with whom the child is to live, the court may provide in the order for that person to have Parental Responsibility for the child while the order remains in force.

This parental responsibility will be shared with the parents of the child who have had parental responsibility.

The birth parents do not lose their parental responsibilities, but these are limited by the removal of their power to decide where a child shall live and decisions relating to the day to day care of the child.

The degree of parental responsibility of the holder of the Child Arrangements Order is limited to the extent that the person does not acquire the right to consent to adoption or to the making of an adoption order, or the right to appoint a guardian.

No one can change the surname of the child or remove him/her from the United Kingdom without the written consent of every person who has parental responsibility for him/her or the leave of the court.

The 'residence' aspects of a Child Arrangements Order (i.e. with whom a child is to live/when a child is to live with any person) can last until the child reaches 18 years unless discharged earlier by the Court or by the making of a Care Order.

The ‘contact’ aspects of a Child Arrangements Order (with whom and when a child is to spend time with or otherwise have contact with) cease to have effect when the child reaches 16 years, unless the court is satisfied that the circumstances of the case are exceptional.

Residence Orders made before 2009 will usually cease to have effect after the child reaches age 16 years, unless the court specified that it should last until the child's 18th birthday.

Residence Order made after 2009 come to an end when a child reaches 18 years unless the Court specified it should be earlier or another order discharges it. (This was changed by an amendment to the 1989 Children Act made by S37 of the Children and Young Persons Act 2008.)

Child Arrangements Orders are private law orders. Where a child is the subject of a Care Order, there is a general duty on the local authority to promote contact between the child and the parents. A Contact Order can be made under section 34 of the Children Act 1989 requiring the local authority to allow the child to have contact with a named person.


2. Who Can Apply

As was the case with Contact and Residence Orders, any person can apply for a Child Arrangements Order. There are two categories of people who can apply: those who are entitled to apply, and those who require leave of the court first in order to apply.

2.1 Those Who May Apply as of Right

  • Any parent (whether or not they have Parental Responsibility for the child), guardian or special guardian of the child;
  • Any person named, in a Child Arrangements Order that is in force with respect to the child, as a person with whom the child is to live;
  • Any party to a marriage (whether or not subsisting) in relation to whom the child is a child of the family - this allows step-parents (including those in a civil partnership) and former step-parents who fulfil this criteria to apply as of right;
  • Any person with whom the child has lived for a period of at least three years - this period need not be continuous but must not have begun more than five years before, or ended more than three months before, the making of the application; or
  • Any person:
    • Who has the consent of each of the persons in named in a Child Arrangements Order as a person with whom the child is to live;
    • In any case where there is an existing order for care in force, has the consent of each person in who favour the order was made;
    • In any case where the child is in the care of a local authority, who has the consent of that authority;
    • In whose favour a Child Arrangements Order has been made in relation to the ‘contact’ aspects and who has been awarded Parental Responsibility by the court (i.e. they would be able to apply for a Child Arrangements Order in relation to the ‘residence’ aspects);
    • In any other case, has the consent of everyone with parental responsibility for the child.
  • A local authority foster parent is entitled to apply for a child arrangements order relating to whom the child is to live, and/or when the child is to live any person, if the child has lived with him for a period of at least one year immediately preceding the application;
  • A relative of a child is entitled to apply for a child arrangements order relating to whom the child is to live, and/or when the child is to live any person, if the child has lived with the relative for a period of at least one year immediately preceding the application. (A relative is a child's grandparent, brother, sister, uncle or aunt (by full or half blood), or by marriage or civil partnership.)

2.2 Those who Require the Leave of the Court to Apply

Any person who is not automatically entitled to apply for a Child Arrangements Order may seek leave of the court to do so. The granting of leave does not raise any presumption that the application will succeed.

In deciding whether or not to grant leave, the court will have particular regard to:

  • The nature of the proposed application for the Order;
  • The applicant’s connection with the child;
  • Any risk there might be of that proposed application disrupting the child’s life to such an extent that he would be harmed by it; and
  • Where the child is being looked after by a local authority:
    • The authority’s plans for the child’s future; and
    • The wishes and feelings of the child’s parents.


3. Applications for Child Arrangements Orders

The local authority cannot make application for a Child Arrangements Order and Child Arrangements Orders cannot be made in favour of a local authority.

Although a local authority cannot make application for or be granted a Child Arrangements Order, a Child Arrangements Order is one of a range of orders that a court can be asked to make within Care Proceedings.

The local authority would not make any payment of legal fees for applications for Child Arrangements Orders made within private law proceedings.

The local authority would normally only have an interest in a Child Arrangements Order application where it relates to a child or young person who is Looked After by Blackburn with Darwen Council or where a Child Arrangements Order would prevent a child or young person becoming Looked After.

The situations where this could apply are:

  1. All situations where the local authority is engaged in legal proceedings. The local authority could consider whether the child could be more appropriately placed with a relative or friend under Child Arrangements Order as an alternative to placing the child in care or for adoption;
  2. Where a child is being looked after either under a court order or by voluntary arrangement and the social work assessment concludes that reunification with birth parents is not viable. The review process will consider whether a Child Arrangements Order application by a relative, friend or foster carer is the option which best promotes the child's welfare;
  3. Where the local authority are directed by the Family Court to undertake enquiries and provide reports under S7 or S37 of the Children Act 1989.

The local authority may make a contribution to legal fees in the situations described above on occasions when this provides a direct alternative to legal intervention by the local authority and/or the applicant does not have recourse to legal aid.

Where a child lives or is to live with a person as a result of a Child Arrangements Order, a local authority may make contributions to that person toward the cost of the accommodation and care of the child, except where the person is the parent of the child or the husband or wife of the parent of the child.

Child Arrangements Order allowances are payable solely at the discretion of the local authority.


4. Local Authority Carer Applications

The possibility of a Child Arrangements Order application should be considered at every review of the Care Plan for the child.

If a child is in a Family & Friend care placement and has remained there successfully for 6 months and it is proposed that they remain in placement, carers should be supported to make a Child Arrangements Order or Special Guardianship Order application as long as to do so would not place the child at risk.

If a child is in a stranger foster carer placement and the plan is for them to remain permanently in placement but the foster carers do not wish to adopt, there may still be circumstances when the foster carers would be supported to make a Child Arrangements Order application.

If a local authority carer wishes to make application for a Child Arrangements Order and is supported by the local authority, the local authority will:

  • Pay reasonable legal fees associated with the application; The level of funding should be agreed between the local authority solicitor and the applicant's solicitor in advance of any application and approved by the agency decision maker;
  • Assess for payment of a Child Arrangements Order allowance.
The making of a Child Arrangements Order discharges an existing Care Order.


5. Child Arrangements Order Allowances

A Child Arrangements Order Allowance is only available to:

  • Local authority carers applying for a Child Arrangements Order;
  • Applicants where a Child Arrangements Order is an alternative to a Care Order;
  • Applicants where a Child Arrangements Order is an alternative to the child being Accommodated.

5.1 Local Authority Carers:

Entitlement to an allowance is assessed on the same criteria as apply for adoption allowances. The assessment is based on the needs of the child and the financial circumstances of the carers.

The allowance will be calculated on the following basis:

  1. Standard Allowance: Age related Band One Fostering Allowance less Child Benefit and any applicable tax credits at the appropriate rate for the child;
  2. Discretionary / Exceptional Allowance:
    1. Additional costs which have been paid on top of fostering allowances based on the needs of the child or to ensure financial issues are not a barrier to achieving legal permanence for a child.
  3. Additional costs based on the needs of the family. For example; where the family is unable to claim benefits and can evidence their need it may be appropriate to pay an exception until they reach 18 years of age;
  4. All exceptions must be approved by the Director of Safeguarding, and evidence retained on case file.

5.2 Applicants where the Child Arrangements Order is an Alternative to a Care Order or Accommodation

The Department must have been involved in the assessment and planning which resulted in the decision to apply for a Child Arrangements Order. Applicants cannot apply retrospectively for a Child Arrangements Order allowance.

In order to determine the level of financial support, consideration must be given to the entitlement to, and support available, to the child and carers with the Child Arrangements Order from state benefits, other agencies, the child’s family and the carers’ resources. These will include child benefit, income support and family tax credit, maintenance payments through the Child Support Agency, awards made through the courts e.g. compensation, and disabled living allowance and invalid care allowance.

The decision about the provision and level of financial assistance will be made by the agency's decision-maker.

The Child Arrangements Order allowance for both carers and family applicants will be paid until the Child Arrangements Order ceases or until the child reaches their 16th birthday. It will be paid until the child reaches their 18th birthday:
  • If the court has ordered that that the Child Arrangements Order continues in force until the child is 18 years of age; or
  • If exceptional circumstances apply and the agency decision-maker has agreed, to extend payments up to the age of 18 years.


6. Procedure for Child Arrangements Order Allowance Applications

The care planning process and the statutory Looked After Review must determine whether the making of a Child Arrangements Order is in the best interests of the child.

  • Financial issues must be addressed during the care planning process;
  • The social worker must complete a report on the decision to apply for a Child Arrangements Order;
  • The social worker must complete the financial assessment pro forma;
  • The social worker must present the report and the financial assessment to the Agency Decision Maker;
  • The decision about the provision and level of financial assistance will be made by the agency's decision maker;
  • If financial support is refused, applicants must be advised of their right of appeal;
  • All payments are agreed for a maximum of 12 months and their continuation is subject to annual review by Children's Services of both the need for the allowance and the level of payment


7. Procedure for Payment of Child Arrangements Order Allowance

When a Child Arrangements Order allowance is agreed it will be paid from the date of the making of the Child Arrangements Order.

For existing foster carers the Fostering Allowance will cease on the date the Child Arrangements Order is made. The insurance cover provided by the Fostering Service to foster carers will also cease to apply.

Following the decision by the agency decision-maker, the social worker must notify Finance Section of the decision and the amount of Child Arrangements Order allowance. Finance section will set up payments which will then commence on a fortnightly basis.


8. Review of Child Arrangements Order Allowances

The Child Arrangements Order allowance is subject to annual review to identify significant changes in circumstances that may alter the Child Arrangements Order Allowance payment.

The Finance Team will send a review form to families in receipt of payment. Failure to return the forms within the agreed timescales will result in suspension/termination of the payment.

End