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This document can be used to set out an agreement between parents in relation to child arrangements. Child arrangements is the term which is now used for what was formerly called 'custody arrangements'. The document can be used by families who are living in England or Wales only (as different rules and laws apply in Northern Ireland and Scotland).
This document is helpful for parents of a child or children who have separated already or have made the decision to separate in the future. It can be used by any couple who are legal parents of the child or children. This includes those parents who are or have been: married, civil partners or cohabiting. Furthermore, it can also be used by parents who have never been in a formal relationship together but wish to make a written record of the child arrangements where these have been agreed.
The document can be used to change any existing court-ordered arrangements (a Child Arrangements Order) by consent. Where this is the case, the parties should carefully check the current court order for a phrase or clause which permits them to vary the current court order by agreement. A Child Arrangements Order will commonly contain a phrase which states that the Parties may 'agree any additional contact through agreement' or that the Parties may 'change the arrangements through written agreement' (or similar).
This document does not deal with financial matters, as the purpose of the document is to focus upon child arrangements which are considered separately by the Courts to the parties' finances. The Parties may also wish to reach a written maintenance agreement regarding the payment of child maintenance as part of their separation.
Contents of the document
The document can set out what has been agreed between the parties in terms of:
It is also possible make a record of any important parenting decisions which may have been agreed, such as schooling, medical issues, how to manage behaviour and rules for the child or children and travel abroad within the document.
Legal status of this document
It is important to note that this document cannot override or exclude any subsequent court ruling in relation to child arrangements, nor can it be brought before the Family Court for enforcement where a party does not adhere to the agreement. The document is for use where an agreement has been reached by both parents, and they both wish to keep a written record to evidence this so that each party is aware of the arrangements and their obligations.
It possible to submit an application to court, in order to ask the Court to encapsulate a written agreement within a legally binding court order (a Child Arrangements Order). In those circumstances, the written agreement can be attached to the Court application to show the Court what has been agreed. It should be noted however that the general rule is that there should not be a need to refer the matter to the Family Court where there is an agreement in place which works. When considering whether to make a court order, the Family Court will apply what is known as the 'no order' principle, meaning that the court will only make a court order if it considers that it will be better for the child than making no order at all. Therefore, where parents are in agreement and the arrangements are working well, it is not usually necessary to refer the matter to the Family Court for a court order.
Where the parents are unable to agree, they must explore the option of mediation (unless an exemption applies), and thereafter if no agreement is reached the matter can be referred to the Family Court for consideration.
Where the document can be helpful
This document can be useful for parents who wish to ensure that their separation is amicable and to ensure that each parent is aware of the routine for the child arrangements. It can be very helpful to have a written record of the arrangements so that they can always be referred to.
Furthermore, in the event that the arrangements do break down in the future, the document can assist the Court in understanding what the status quo for the child or children has been since separation. As is set out above, the Court has the power to make an order which is different to any previous child arrangements agreement, for example where a child's welfare requires this. However, the Court will also be required to consider the impact of any changes upon a child or children, which is where evidence of the former agreements can be of assistance.
Similarly, where the Parties are varying an existing court order by consent, it is important that they properly document the agreed changes and a written agreement is therefore key in achieving this. The Court cannot impose any enforcement action where a party breaches a term of the written variation, but it can be used as evidence to show that the variation was mutually agreed (so as to try and prevent the possibility of either party being able to argue that the court order has been breached by the other party).
How to use this document
The parties to the agreement must discuss and work out the agreement which they wish to encapsulate within the document. They may wish to discuss and consider factors such as:
The parties should also ensure that they are satisfied that they do not have any safeguarding concerns in relation to the other party before they enter into this type of agreement.
Once the parties have agreed upon the arrangements, they should insert the relevant details so that the written agreement regarding the child arrangements can be created. It is possible for the parties to attach their own calendar/schedule with the dates marked to confirm which days and times the parties will spend time with the child or children.
The document should be signed by both parties to evidence their agreement and each party should retain a copy to refer to. The parties are able to amend and revise the document as the child(ren)'s needs change. The agreement will last until the child reaches or the children reach the age of sixteen, subject to any agreed revisions or future orders of the Court.
Where the parties are unable to agree upon any changes to the agreement informally, they should refer themselves to mediation (unless they are exempt). Where mediation is not appropriate or where the parties are unable to resolve matters through mediation, a court application the Family Court can be made.
The primary piece of legislation which governs private law arrangements for children is the Children Act 1989.
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