Settling child arrangements alongside a divorce, without a contested hearing

The legal issue

Arrangements for children are governed by the Children Act 1989 and are decided on their own footing, whatever is happening to the marriage. Children Act 1989 s.8 is the source of the orders available: a child arrangements order regulating with whom and when a child is to live, spend time or otherwise have contact, together with prohibited steps orders and specific issue orders.

Most separating parents do not need any of them. Children Act 1989 s.1(5) provides that where a court is considering whether to make an order under the Act it shall not make it unless it considers that doing so would be better for the child than making no order at all. That principle points away from an order wherever parents can agree and the agreement works.

The issue in a matter of this kind is therefore twofold: how to reach a workable arrangement without a contested hearing, and then whether that arrangement should be recorded as an order at all.

At the outset, the parents were progressing the divorce separately but had reached an impasse about the practical arrangements for the children. Both wanted the children to have a meaningful relationship with each parent, but they differed about how the children’s time should be organised during the school week, at weekends and in school holidays. No application concerning the children had been issued, and the immediate focus was on narrowing the areas of disagreement and deciding whether a court order was genuinely necessary.

The law this rests on

• Children Act 1989 s.1(1) (welfare the paramount consideration), s.1(2) (the delay principle), s.1(5) (the no-order principle)
• Children Act 1989 s.8 (child arrangements orders, prohibited steps orders and specific issue orders)
• Children Act 1989 s.11(1) (timetable to be drawn up without delay), s.11(7) (directions, conditions, specified periods and incidental provision)
• Children and Families Act 2014 s.10 (family mediation information and assessment meetings)
• Family Procedure Rules 2010 (SI 2010/2955) rule 3.3 (court's duty to consider non-court dispute resolution at every stage)
• Family Procedure Rules 2010 (SI 2010/2955) rule 3.4 (encouraging and directing non-court dispute resolution during proceedings)
• Family Procedure Rules 2010, Part 3, Chapter 3, including rules 3.6 to 3.10 and Practice Direction 3A (MIAM requirement, exemptions, evidence and procedure)
• Practice Direction 12B - Child Arrangements Programme

How we approached it

Separate the two exercises. A divorce application asks the court to bring a marriage to an end. It does not ask the court to decide where the children live or when they see each parent. Those questions are answered under the Children Act 1989, on their own application, applying Children Act 1989 s.1(1) - the child's welfare as the court's paramount consideration. Treating the two as one process is the most common source of avoidable delay, because parents wait for a divorce timetable to resolve something the divorce was never going to resolve. The financial arrangements between the adults are a third, separate exercise again.

Delay is a live consideration, not background. Children Act 1989 s.1(2) requires the court, in any proceedings in which a question with respect to the upbringing of a child arises, to have regard to the general principle that any delay in determining the question is likely to prejudice the welfare of the child. Children Act 1989 s.11(1) then requires the court, in section 8 proceedings, to draw up a timetable with a view to determining the question without delay and to give directions for adhering to it. The statute treats time as a cost the child pays. That is as good a reason to settle as any tactical one.

The mediation requirement, and its exemptions. Children and Families Act 2014 s.10(1) provides that before making a relevant family application a person must attend a family mediation information and assessment meeting. Section 10(3) defines that meeting as one held to provide information about the mediation of disputes of the relevant kind, about ways such disputes may be resolved otherwise than by the court, and about the suitability of those options for the particular dispute. Section 10(2) allows the Family Procedure Rules to provide for exemptions and for the court not to issue an application where the requirement has not been met. Those exemptions are in Family Procedure Rules 2010 rule 3.8, headed "Circumstances in which the MIAM requirement does not apply (MIAM exemptions)". They include evidenced domestic abuse, child protection concerns where the child is the subject of local authority enquiries or a child protection plan, urgency where there is a risk to life, liberty or physical safety or a risk of the unlawful removal or retention of a child, recent prior attendance at a MIAM or other dispute resolution about the same dispute, applications made without notice, and various access and availability grounds. An exemption has to be claimed properly and, where the rule requires it, evidenced. Where domestic abuse is a feature, mediation is not the right forum and the exemption exists for that reason.

The court's duty does not stop at the door. Family Procedure Rules 2010 rule 3.3(1) requires the court to consider, at every stage in proceedings, whether non-court dispute resolution is appropriate. Rule 3.3(1A) allows the court, when it requires, to direct a party to file and serve a form setting out their views on using non-court dispute resolution to resolve the matters raised. Rule 3.3(2) requires the court, in assessing that, to have regard to whether a MIAM took place, whether a valid exemption was claimed, and whether the parties attempted mediation or another form of dispute resolution and what the outcome was. Rule 3.4(1A) provides that where the timetabling of proceedings allows sufficient time, the court should encourage parties as it considers appropriate to obtain information and advice about, and consider using, non-court dispute resolution, and to undertake it; rule 3.4(2) and (2A) allow the court to give directions to that end at any time during proceedings, on application or of its own initiative, subject to rule 3.4(2B), which in proceedings to which Practice Direction 12B applies defers such directions until the court has received the safeguarding letter or report. Settling is therefore not something that has to happen before proceedings begin. The rules expect it to remain on the table throughout.

Where the first hearing fits. Proceedings about children under Children Act 1989 s.8 are governed procedurally by the Child Arrangements Programme, Practice Direction 12B supplementing Part 12 of the Family Procedure Rules 2010. Under that programme safeguarding enquiries are made before the first hearing, and the first hearing itself is a dispute resolution appointment at which the court identifies the issues and considers whether the matter can be resolved by agreement. Many cases that were issued as disputes are resolved at or shortly after that hearing. Practice Direction 12B is a practice direction rather than a statutory instrument, so it is not published on legislation.gov.uk; it is published with the Family Procedure Rules and should be read there.

A parenting plan, and its limits. A parenting plan is a written record of what two parents have agreed - handovers, holidays, schooling, how decisions get made, how changes are notified. It is genuinely useful, because most disputes between cooperating parents are about ambiguity rather than principle, and writing the arrangement down removes the ambiguity. But it has no statutory force. It is not an order of the court, nothing in the Children Act 1989 gives it effect, and it cannot be enforced as an order can. Anyone who needs certainty that can be enforced needs a section 8 order. Anyone who simply needs clarity between two cooperating parents may well not.

Whether to ask for an order at all: the s.1(5) question. This is where the two limbs meet. Children Act 1989 s.1(5) provides that the court is not to make an order unless it considers that doing so would be better for the child than making no order at all. So agreement does not automatically produce an order, and a court asked to make one by consent still applies s.1(1) and s.1(5) - it is not a rubber stamp, and it can decline. The case for an order has to be made on the child's welfare: that the arrangement needs to be certain, or that there is a specific matter, such as foreign travel or a change of school, that needs to be settled definitively. Where an order is made, Children Act 1989 s.11(7) allows it to contain directions about how it is to be carried into effect, to impose conditions on the persons that provision identifies, to have effect for a specified period or to contain provisions having effect for a specified period, and to make such incidental, supplemental or consequential provision as the court thinks fit. That is what lets an agreed order carry real detail rather than a bare formula.

Realistic timescales. A MIAM can usually be arranged within weeks. Mediation itself runs over a number of sessions and depends entirely on both parents engaging. If agreement is reached and an order by consent is sought, the application still has to be issued, listed and approved. If proceedings are issued, the Child Arrangements Programme sets the expectation that a first hearing follows promptly after safeguarding enquiries, but actual listing varies considerably between courts. The honest summary is that a matter resolved by agreement is usually measured in months, and one that runs to a contested final hearing in many more.

The honest limits. Nothing in the rules obliges anyone to settle, and no process can promise that agreement will be reached. Mediation is voluntary and either parent can end it. Where there has been domestic abuse, mediation may be inappropriate and rule 3.8 exists for that reason. And an agreement, however carefully written, is only as good as the cooperation behind it - the Children Act 1989 gives a parenting plan no force of its own.

We assisted the parent to distinguish the broad disagreement from the practical points that could be resolved through clearer communication and a defined routine for the children. The issues were narrowed by focusing on the children’s day-to-day needs, school commitments, holiday arrangements and a workable process for future changes. The parents used non-court discussions to reach a written arrangement, and the question of a section 8 order was considered against the no-order principle. As the agreed arrangements were workable and did not require court intervention at that stage, the parents decided not to seek an order.

The outcome

Where parents reach agreement, there are only two possible landing points. The first is no order at all: the arrangement stands as an agreement between the parents, recorded in a parenting plan if they want it written down, with no order made because Children Act 1989 s.1(5) says the court is not to make one unless doing so would be better for the child than making no order. The second is an order by consent under Children Act 1989 s.8 - a child arrangements order regulating with whom and when the child is to live, spend time or otherwise have contact, and, where a particular question needs settling, a specific issue order or a prohibited steps order. Children Act 1989 s.11(7) allows any such order to carry directions, conditions, a specified duration and incidental provision.

What governs the choice between them is Children Act 1989 s.1(1) and s.1(5). Even on an agreed application the court applies the paramountcy principle and the no-order principle for itself, so the parties' agreement is the starting point of the court's enquiry rather than the end of it.

The arrangements were recorded in a written parenting plan, with no court order sought or made.

Outcomes of this kind turn entirely on the circumstances of the individual family. Nothing here is a prediction or a promise about any other case.

What to take from this

• Divorce and children run on separate tracks. Arrangements for children are decided under the Children Act 1989, with the child's welfare paramount under s.1(1), and nothing in the divorce process determines them.
• Agreeing does not automatically produce an order. Children Act 1989 s.1(5) prevents the court making an order unless doing so would be better for the child than making no order at all, so a court asked to make one by consent still has to be satisfied it is needed.
• A parenting plan has no statutory force. It is a useful record of what two cooperating parents have agreed, but it is not a section 8 order and cannot be enforced as one.
• Mediation comes first as a matter of law, not etiquette. Children and Families Act 2014 s.10(1) requires attendance at a family mediation information and assessment meeting before a relevant family application, with the exemptions set out in Family Procedure Rules 2010 rule 3.8.
• The exemptions matter as much as the requirement. Family Procedure Rules 2010 rule 3.8 covers evidenced domestic abuse, child protection concerns and urgency among others - where abuse is a feature, mediation is not the right forum.
• Settlement stays on the table after proceedings start. Family Procedure Rules 2010 rule 3.3(1) requires the court to consider at every stage whether non-court dispute resolution is appropriate, rule 3.3(1A) allows it to require a party to file their views on it, and rule 3.4 allows directions encouraging it during proceedings.
• Delay is treated as harm. Children Act 1989 s.1(2) requires the court to have regard to the principle that delay is likely to prejudice the child's welfare, and s.11(1) requires a timetable set with a view to determining the question without delay.
• An agreed order can be detailed. Children Act 1989 s.11(7) allows directions, conditions, a specified period and incidental provision, so an order by consent need not be a bare formula.