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Who Can Apply for A Child Arrangements Order?

Regarding who can ask the court for a Child Arrangements Order (CAO), the following individuals can apply for a Child Arrangements Order in the UK:

  • Parents and step-parents: Parents and step-parents have the right to apply for a Child Arrangements Order without seeking permission from the court.
  • Guardians: Guardians who have been appointed through a court order or a parental responsibility agreement can also apply for a CAO.
  • Special Guardians: Similarly, special guardians who have been granted special guardianship through a court order can seek a Child Arrangements Order.

It is important to note that while parents, step-parents, guardians, and special guardians have the right to apply for a CAO without permission, other family members such as grandparents would need to seek permission from the court before making an application.

Step-By-Step Guide To Fill Out The Application

Starting the Process: When there is disagreement about the child’s living arrangements, a Child Arrangements Order (CAO) becomes necessary. Once this decision is made, you can obtain the required forms from court offices or conveniently access them online.

Gathering Important Information: Begin by meticulously collecting comprehensive details about yourself, the child, and the other parent/guardian, including personal and health information.

Completing the Application Form: Utilise the gathered information to accurately complete the application form. Take utmost care to clearly and honestly state the reasons for your application.

Paying the Application Fee: Depending on your financial circumstances, you may be required to pay an application fee. If so, promptly fulfil this requirement to ensure smooth processing of your application.

Submitting the Application: Once the form is completed and the fee, if applicable, has been submitted, it is time to forward your application to the appropriate court. Ensure all necessary documents are enclosed 

Attending a MIAM: Prior to a court hearing, it is common for parties to attend a Mediation Information and Assessment Meeting (MIAM). This is an opportunity to explore the possibility of resolving disputes through mediation, a less adversarial approach that aims to find amicable solutions.

Going to Court: If mediation does not result in an agreement, the case will be presented to a judge who will judiciously prioritise the child’s best interests when making decisions.

Reaching an Agreement: While court intervention is an option, it is always preferable if both parties can reach a mutual agreement on the child’s arrangements without the need for judicial involvement. This ensures a more collaborative and harmonious outcome.

Court Decision: In the event that no agreement is reached, the court will grant a Child arrangement Order based on a thorough assessment of the child’s best interests.

After the CAO is Granted: Once the CAO is granted, it is of utmost importance to fully adhere to its provisions. If circumstances change over time, parties can revisit the order through proper legal channels to seek necessary modifications.

How To Enforce And Change Orders Regarding Child Arrangements?

Enforcement:

Enforcing child arrangements orders in England and Wales  is crucial to prioritise the well-being of the child. If the other parent fails to make the child available to the non-resident parent you have the option to seek enforcement. The court holds the power to provide evidence of non-compliance and impose penalties such as fines, community service, or even imprisonment in extreme cases. When seeking enforcement, it is essential to contact the same family court that issued the order. The court’s primary focus is always on the best interests of the child and ensuring the enforcement of the order, which contributes to maintaining stability and a secure environment for the child’s upbringing. Throughout this process, it is imperative to keep in mind that the welfare of the child is the priority.

Changes:

Modifications to child arrangement orders in England and Wales are possible when circumstances evolve and necessitate adjustments. If a parent or guardian believes changes are necessary in the existing order, they must apply to vary the order, in the same family court that issued the original order. To succeed in obtaining a variation they must demonstrate that the proposed changes are in the best interests of the child. Factors such as relocation, a change in a parent’s job, or the evolving needs of the child can trigger the need for modifications. The court thoroughly evaluates the situation based on the welfare of the child. By seeking a variation to the order, you can ensure that the child’s arrangements remains aligned with their evolving needs and circumstances.

How Allard Bailey can support you.

When it comes to applying for a child arrangements order, understanding the procedure is paramount for parents and guardians alike. While it can be a challenging time, this legal decision holds the power to shape a child’s future in terms of living arrangements and visitation schedules. By following the necessary steps and seeking legal advice if needed, parents can create a stable and supportive environment for their little ones during family disputes. It is crucial to keep in mind that the ultimate goal of this process is to ensure the child’s well-being and happiness. 

Our team of legal professionals have extensive experience in dealing with cases involving child arrangements orders, and we’re committed to achieving the best possible outcome for our clients. If you’re going through a divorce or separation and need support with child arrangements orders, contact us for a consultation.

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Grounds for divorce – the old regime 

Prior to 6 April 2022, a divorce could only be obtained on the following grounds: 

  • unreasonable behaviour;
  • five years of separation;
  • desertion;
  • two years of separation; or
  • adultery. 

Under the pre-6 April 2022 regime, it was possible to proceed without the other spouse’s consent if the application was made on the grounds of unreasonable behaviour, five years of separation or desertion. However, divorcing on the basis of two years of separation required consent from the other spouse. It was therefore usually preferable to amend the application to unreasonable behaviour or desertion or wait until five years of separation. Similarly, adultery did not require consent, but it did require an admission from the other spouse, making unreasonable behaviour a preferable basis for the divorce application. 

Grounds for divorce – the new regime 

On 6 April 2022 the Divorce, Dissolution and Separation Act 2020 came into effect, changing the legal regime and bringing the concept of a no-fault divorce into English law. This means that there is no longer a need to prove wrongdoing by the other party under one of the five grounds that existed previously. Instead, they need only make a statement that the marriage has irretrievably broken down, and this will be taken as conclusive evidence for the court to make an order for divorce.

The divorce process

Following 6 April 2022, an application for divorce may be made jointly, or by a sole applicant. Couples may make a joint application for divorce if they both agree that they should get a divorce and neither spouse is at risk of domestic abuse. Both parties will be asked at each stage of the process if they wish to continue with the application. Even if the other spouse stops responding, one spouse will be able to continue the process as a sole applicant.

An individual (the ‘applicant’) may need to make a sole application if their spouse does not agree that they should get a divorce, or if they believe that their spouse (the ‘respondent’) is unlikely to cooperate with the proceedings.

Once a sole application is made, the respondent will be sent notice of the divorce proceedings and an acknowledgement of service form which they must respond to within 14 days. Here, they will have the opportunity to state whether they agree with the divorce or not. The respondent will have to complete an answer form providing a genuine legal reason why the divorce should not be allowed. This will have to be one of the following reasons:

  • the marriage was not legal in the first place;
  • the courts of England and Wales do not have jurisdiction to deal with the divorce; or
  • the marriage has already legally ended.

Without one of these reasons, the respondent spouse will not be able to dispute the divorce.

If the spouse does not respond to the acknowledgement of service within the specified timeframe then, as long as the court agrees that they have received the application, the applicant may still be able to proceed with the divorce by obtaining a Conditional Order. This is a document which says that the court does not see any reason why the divorce should not go ahead. There will be a minimum 20-week wait from the date the court issued the divorce application to the date when it is possible to apply for a Conditional Order. On receipt of a Conditional Order from the court, there is further, a mandatory 43 days (6 weeks and 1 day) wait before the applicant may apply for a Final Order, which formally ends the marriage.

There may be difficulty in proving that your spouse has received the application if they are not responding, but you can show the court you have made all reasonable attempts to inform your spouse of the proceedings by:

  • Checking directly with your spouse – it is possible that they have missed the documents in error;
  • Applying to the court for deemed service – if they have not signed the acknowledgement of service but there is other evidence that they have seen it;
  • Sending divorce papers directly to your spouse, ideally using a process server – they will usually be able to track your spouse down and will provide a certificate of service which can be shown to the court as evidence of service;
  • Using an alternative service method with the court’s permission – for example, serving the documents at the address of a relative with whom your spouse may be staying.

If you can show the court that you have made all reasonable attempts to serve the legal documents to your spouse, you may apply for dispensed service, which removes the need for service altogether. 

How we can help

The ability to get a no-fault divorce has significantly limited a respondent’s ability to dispute divorce proceedings so that it is now only possible to challenge a divorce on technical legal grounds. This change to the divorce regime has alleviated much of the stress that can be caused when a spouse refuses to accept a divorce. Our experienced divorce lawyers at Allard Bailey can guide you through this sensitive time and assist with all aspects of divorce proceedings.

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Types of surrogacy

Straight surrogacy is when the surrogate provides her own eggs and the intended father provides sperm, either for self-insemination or artificial insemination.

Host surrogacy is when the surrogate has no biological link to the child. The embryo is created in vitro and transferred into the uterus of the surrogate. This may be done using eggs of the intended mother fertilised with the sperm of the intended father/donor, or, using eggs of a donor fertilised with the sperm of the intended father. 

In both cases, the surrogate will be the child’s legal parent. The transfer of legal parenthood happens by the IP(s) obtaining a parental order from the court.

In order to apply for a parental order, at least one of the IPs in a couple must be genetically related to the child. Certain criteria must be met before the court will issue a parental order, including the following:

  • the IP(s) must be at least 18 years old;
  • the surrogate (and her partner if she is married or in a civil partnership) must consent;
  • the child must have been conceived artificially and be genetically related to one of the IPs;
  • the child must be living with the IP(s);
  • IP(s) must apply within 6 months of the birth of the child.

Legal considerations

Surrogacy is legal in the UK however there are a number of legal considerations which must be taken into account when going through the process. Note that the following apply to England and Wales. The regime differs in Scotland and Northern Ireland.

Surrogacy agreements

Surrogacy agreements are not enforceable in the UK and this means that any agreements made will largely be based on trust. It is important that everyone involved gets to know each other and enters into the arrangement with full knowledge and consent. Surrogates and IPs should be clear on what is expected of them as they go through the surrogacy process and record this in a written agreement that is fully understood and consented to by all parties. Even though it will not be enforceable, it serves as a statement of intention and can be a helpful reference point for discussions throughout the process.  It is a criminal offence for third parties, including solicitors, to negotiate the terms of a surrogacy agreement for any payment, however, there are a number of non-profit organisations which can lawfully assist with this.

Developing trust between all parties and setting clear expectations will help minimise the risk of a breakdown in communication. It is also helpful to seek expert advice to prepare for the  emotional demands of the process as well as the physical and practical demands.

Advertising

It is a criminal offence to advertise that you are seeking a surrogate or that you are a potential surrogate looking for IPs. It is also against the law to advertise that you are willing to arrange or negotiate a surrogacy agreement for profit.

Payments

It is expected that IPs will pay surrogates no more than reasonable expenses. Planned expenses should be set out in a surrogacy agreement, along with details of how and when they will be made. Payments from IPs to surrogates will be considered by the court when considering an application for a Parental order. While there is no definition of ‘reasonable expenses’ the court typically accepts the following:

  • the surrogate’s loss of earnings (or their partner’s loss of earnings);
  • additional childcare to support pregnancy and clinic/antenatal visits;
  • help with additional cleaning to support pregnancy;
  • additional food and other supplements;
  • additional classes or therapies to support pregnancy;
  • maternity clothes;
  • other incidental expenses that relate to the treatment and pregnancy.

If more than reasonable expenses are paid to the surrogate, the court will need to retrospectively authorise the additional payments before making a parental order.

How we can help

There are significant risks involved in entering a surrogacy arrangement so it is important to carefully consider whether it is right for you. At Allard Bailey, we can help you understand and minimise the risks involved.

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