Private Family Law (Children): Child Arrangements Order

Posted 20.05.2019

Emily Ducat

By Emily Ducat

Over the past few months, I have begun to take on files concerned with Private Family Law: Children. In particular, I have been costing Child Arrangements Orders, concerning both residence and contact. Child Arrangements Orders were introduced in April 2014 to replace Contact Orders and Residence Orders. A Child Arrangements Order (CAO) is a court order that regulates arrangements relating to with whom a child is to live, spend time or have contact with and when this is to take place. A CAO regarding residence can last until the child is 18 years old, unless it is discharged earlier by the court or a Care Order is made. A CAO regarding contact will cease to have effect when the child turns 16, unless there are exceptional circumstances. Child Arrangements Orders are a private matter, and thus can’t be made in favour of a Local Authority.

Certain people are entitled to apply for a CAO without having to seek permission from the court: the parent, guardian or special guardian, any person with parental responsibility, anyone who holds a residence order in respect of the child, any party to a marriage or civil partnership where the child is a child of the family, anyone with whom the child has lived for at least three years, or anyone who has obtained the consent of either the Local Authority (if the child is in their care) or everyone who has parental responsibility for the child. Other people can usually apply for permission to make an application for a CAO. It is usually this route which grandparents take.

So far, I have costed 3 CAO files. Two were concerned solely with contact, while the third was concerned with both residence and contact. There were significant differences between the files. The two CAOs regarding contact were reasonably small in size. The CAO regarding both residence and contact was significantly larger than I expected.

As I started costing on Care Order files, my understanding of other files tends to focus on where they are similar to, or diverge from, the way that Care files are costed. The first thing about CAO files that was new to me is the way that their fixed fee scheme works. The fixed fee for Private Family Law: Children is made up of 2 parts: level 3 and level 4. The default is level 3, and then if the final hearing is to be attended level 4 is required. Level 4 must be added to the legal aid certificate. The fixed fee is either solely the level 3 fixed fee, or the level 3 and 4 fixed fees are added together, if level 4 has been granted. To escape the fixed fee, the profit costs must exceed 3 times the fixed fee. With the exception of the rate for advocacy, the rates are all higher than they are for care files.

One thing that stood out when learning to deal with CAO files is that the way they are costed changes drastically depending on which party is being represented.

If the parent is being represented, there is still FAS like there is in care. Regarding FAS, private family law: children has no advocates’ meetings and doesn’t have a bolt on for client lack of understanding. The expert cross-examination is worth 20% as opposed to the 25% that is given in care proceedings.

Things become rather different when the child is being represented. Instead of FAS, it becomes an hourly rates matter. This means there are no one off payments for everything associated with a hearing. Instead, everything that would normally be covered by FAS (preparing for the hearing, travel and waiting, advocacy, attending on the other parties or the client, writing the attendance note etc.) is counted up and charged at the appropriate rate. Counsel also claim at hourly rates rather than FAS when representing the child and they therefore claim their payments first. This means the nil balance fee notes aren’t required. Once the solicitor’s bill is submitted in CCMS, this triggers Counsel to submit their bill, and then the entire bill is assessed.

Child Arrangements Orders are interesting to cost as they can differ drastically; some were initiated simply because the parents separated and needed to come to an agreement, whereas others included safeguarding concerns and a risk of deportation. These differences can make them more complicated to cost as the costing method can differ substantially depending on the circumstances of the case.

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