If the courts need to formally state who is to provide care for a child, they have the power to make a child arrangements order or a special guardianship order. We look at the difference and when each might be used.
In making a decision regarding a child’s care, the courts will always prioritise the child’s best interests. In doing this, they can ask the Child and Family Court Advisory and Support Service, or Cafcass, to help by preparing a report on the child and their family. They can also seek input from the relevant local authority.
For more information about Cafcass, see our Cafcass guide.
What is a Child Arrangements Order?
A child arrangements order is a legally binding court order setting out where and with whom a child is to live, how much time they will spend with their other parent and when and where this will take place. These issues were formerly referred to as custody, residence and contact, but the terms are no longer used by the courts, which aim to reduce conflict when dealing with family law.
The courts prefer that parents work out the details of how childcare will be dealt with between themselves wherever possible. If necessary, a family law solicitor can negotiate with the solicitor for your child’s other parent to try and agree on how much time your child will spend with each of you.
Where it is not possible to reach an agreement by way of negotiation, you can try mediation. A neutral family law mediator will try and find a way forward that is acceptable to you both.
The details can then be put into a draft order and the court is asked to approve and seal it. If an agreement cannot be reached, then the court can be asked to decide the matter and to make the order that it believes will be in the child’s best interests. The court application fee is £232. You will both also need to pay your legal costs.
For more details on this type of order, see Child Arrangements.
What is a Special Guardianship Order?
A special guardianship order places a child in the care of someone other than their parents, usually another relative such as a grandparent. That person becomes their special guardian and will be granted parental responsibility, meaning that they can make decisions on behalf of the child.
The child’s parents will no longer be their primary carers, but they will retain parental responsibility. Their consent will need to be obtained for some major decisions such as lengthy stays overseas, changing the child’s religion or changing their surname. If the parent will not give their consent, the special guardian can ask the court to authorise the decision. The birth parents will also continue to be financially responsible for the child, paying maintenance to the special guardian.
To be eligible to apply to the court to become a child’s special guardian, an individual should be aged over 18 and not the child’s parent. A joint application can be made if two people want to become a child’s special guardians jointly.
You can ask the court to make a special guardianship order in your favour if:
- The child has lived with you for three out of the past five years, provided the child has not stopped living with you within three months of the date of the application
- You are the child’s guardian
- You are the child’s foster carer and the child has lived with you for the year leading up to the date of the application
- The local authority is responsible for the child and they consent to the application
- You have already been granted a child arrangements order or a residence order
- You are related to the child and they have lived with you for the past year
- You have been granted the permission of the court to apply for special guardianship
The children’s services department of the local authority will need to prepare a report on the suitability of the special guardian to assist the court in making its decision.
What is the Difference Between a Child Arrangements Order and a Special Guardianship Order?
A child arrangements order is generally made in favour of a child’s parents, while a special guardianship order appoints someone else to look after the child.
Special guardianship allows a child to continue to have a relationship with their birth parents, unlike adoption, which severs all ties. It is generally made when a child’s parents are unable to care for the child.
When a child arrangements order is made, both parents will continue to have parental responsibility for the child and will need to consult each other over some issues. A special guardian will be given parental responsibility alongside the birth parents and have the authority to make day-to-day decisions unilaterally, as well as more major decisions such as where the child will live, what school they will attend and what medical treatment they will receive.
There may be some support available from the local authority for special guardians, including financial help, support groups and training.
A child arrangements order will usually last until the child is 16, while a special guardianship order lasts until the child is 18.
Contact Our Family Law Solicitors
Our family law team has many years of experience in helping families deal with legal issues relating to children.
We can advise you on child arrangements orders and special guardianship orders and provide the representation you need to ensure the best possible outcome for your child.
If you wish to consult with one of our experienced family lawyers, please contact us by sending an email to info@witansolicitors.co.uk, or completing our contact form. We are available to discuss your situation and explore how we can assist you. Our offices are located in Birmingham, Northampton, London, and Wellingborough.
