Variation of Child Arrangements Orders

When a Child Arrangements Order Can Be Varied

A child arrangements order settles with whom a child lives and when they spend time with each parent or another named person. Under section 8(2) of the Children Act 1989 an order varying or discharging a section 8 order is itself a section 8 order, so the court decides a variation with the same powers and the same welfare test it used to make the order. Our child arrangements orders page covers the original application.

You can do something different from the order if you both agree, but an informal change cannot be enforced later. Where you agree, a consent order covering the new arrangement goes to the court for approval; where you cannot, you ask the court to decide how to change, or vary, the order. The same application can ask the court to end the order altogether, which leaflet CB1 calls discharging it.

The usual triggers are practical: a new shift pattern, a house move, a change of school, a handover that has stopped working, or an older child who wants a different routine. A move to another part of the country or abroad raises questions of its own, covered on our relocation with children and taking a child abroad pages. A single decision such as a school is a matter for a specific issue order.

Under section 91(10) a section 8 order ceases to have effect when the child reaches 16, but section 91(10A) excludes the provisions about with whom, and when, the child lives, and section 91(11) runs those to 18. Section 9(7) does not stop the court varying or discharging an existing order for a child who has reached 16, as it would stop a new order. Section 9(6) still requires exceptional circumstances for any section 8 order that will end after the child is 16, unless the order regulates only with whom and when the child is to live (section 9(6A) and (6B)).

Who Can Apply and the Test the Court Applies

Section 10(4) entitles any parent, guardian or special guardian, a step-parent with parental responsibility under section 4A, and anyone named in the order as a person the child lives with to apply for any section 8 order, which includes a variation. Section 10(6) adds the person on whose application the order was made and anyone named in its provisions about spending time or having contact with the child. Section 10(5) to (5B) entitle some others to apply for a child arrangements order, including to vary one, such as a person the child has lived with for the qualifying period. Anyone outside the Act's categories needs the court's leave, and section 10(9) directs the court to the nature of the application, the applicant's connection with the child and any risk of disrupting the child's life to the point of harm.

Under rule 12.3 of the Family Procedure Rules the respondents are everyone the applicant believes to have parental responsibility and, on an application to vary or discharge, the parties to the proceedings that led to the order.

The Children Act sets no separate test for variation. Section 1(1) makes the child's welfare paramount, and section 1(4)(a) applies the welfare checklist in section 1(3) whenever a variation or discharge is opposed: the child's wishes and feelings in the light of their age and understanding, their needs, any harm suffered or risked, each parent's capability, and the likely effect on the child of any change in their circumstances.

Under section 1(5) the court must not make an order unless doing so would be better for the child than making no order at all, and under section 1(2) delay is treated as likely to prejudice the child's welfare. Section 1(2A) also requires the court, unless the contrary is shown, to presume that a parent's involvement furthers the child's welfare where that parent can be involved without putting the child at risk of harm; involvement means involvement of some kind, not any particular division of the child's time.

Evidence and Common Problems

The court needs to see what has changed since the order was made, why the current terms no longer serve the child, and a proposed schedule precise enough to be followed. Practical evidence carries weight: a work rota, a school admission letter, a tenancy for the new home, travel times and a record of your attempts to agree. Where a child's wishes are the reason, the court normally asks Cafcass, not a parent, to report them.

Three problems recur.

• Stopping or cutting contact before the court has ruled. The existing order remains binding until it is varied, and a parent who stops following it invites an application for enforcement of the child arrangements order. Where the arrangements cannot wait, section 11(3) lets the court make an order at any stage of the proceedings.
• Applying too soon or too often. Under section 91(14) the court can order that a named person may not make a further application of a specified kind without its leave, including under section 91A where a further application would put the child or another person at risk of harm, and Practice Direction 12B adds repeated and unreasonable applications. On a later request for leave, section 91A(4) requires the court to consider whether there has been a material change of circumstances.
• Raising safety concerns late or without form C1A. Where domestic abuse or harm is alleged, Practice Direction 12J applies and the court should determine as soon as possible whether a disputed allegation needs a fact-finding hearing; see our domestic abuse and child arrangements page. In immediate danger call 999; the National Domestic Abuse Helpline is 0808 2000 247.

How the Variation Process Works

These steps follow the Child Arrangements Programme in Practice Direction 12B, which the London family courts use. Practice Direction 36Z replaces it in the Child Focused Courts areas, formerly the Pathfinder pilot, where the sequence is different, so check which programme your court follows.

1. Try to agree first. An application to vary a section 8 order is one of the proceedings Practice Direction 3A specifies, so the MIAM requirement in section 10(1) of the Children and Families Act 2014 applies under rule 3.6 and you must attend a mediation information and assessment meeting before you apply unless a rule 3.8 exemption applies. GOV.UK says a voucher towards mediation is usually available; our MIAM advice page covers the exemptions.
2. If you agree, we draft a consent order for both of you to sign and lodge it for approval. A consent order application is outside the MIAM requirement and you do not usually have to attend court, but under Practice Direction 12B no order is made without the court's scrutiny and a final order can be deferred while Cafcass safeguarding checks are completed.
3. If you do not agree, the application goes in on form C100, which also covers applications to vary or discharge, online or on paper, with the MIAM confirmation or exemption and a form C1A where harm is alleged. The court fee is in the fees list linked from the GOV.UK court and tribunal fees page and some applicants qualify for help with court fees.
4. A gatekeeping judge or legal adviser considers the application and allocates it. Cafcass carries out safeguarding checks with the police and local authorities, usually speaks to both of you by telephone and reports to the court in a safeguarding letter.
5. At the first hearing dispute resolution appointment the judge, usually with a Cafcass officer present, identifies the issues and explores agreement; an agreed variation can be made into an order there, often the final order. The court must consider non-court dispute resolution at every stage, and where welfare issues remain it can order a Cafcass report or, under section 11A, direct a parent to a parenting programme.
6. If the dispute continues, the case returns for a dispute resolution appointment and, failing agreement, a final hearing at which the court decides the variation on the welfare checklist. The varied order can carry directions and conditions under section 11(7) and must carry a warning notice under section 11I about the consequences of non-compliance.

When Legal Advice Is Especially Important

Moving a child's main home from one parent to the other engages every limb of the checklist and needs evidence about schooling, routine and the child's own views; moving a Friday handover by an hour does not.

Advice matters most where safety is in issue, where an older child's views are driving the application, where the change involves a long-distance move, where repeated applications call for a section 91(14) order, and where you are the respondent and want a working order left alone. Where a parent's immigration status is part of the picture, that side belongs with our family immigration advice.

How RakLAW Solicitors Can Help

RakLAW Solicitors advises on children matters from our office at 42 Shad Thames, a short walk from Tower Bridge in Southwark. In a free 15-minute consultation we look at the order you have, what has changed and what you want instead, and tell you which route fits.

We draft agreed variations as consent orders, prepare the C100 and any C1A, deal with the MIAM requirement, represent you at each hearing and act for respondents who want the existing order kept. Our family law fees page explains how we charge; we are privately funded and do not undertake legal aid work. Call 0203 345 2000 or book a free consultation.