How long does a child arrangements order last?

So I get asked occasionally how long a Child Arrangements Order lasts and when it lapses. It’s come up twice in a month now so this time I remembered where to look it up and thought I’d write a blog post on it. I thought it was easy, but actually it’s not.

You need to look at s91(10), s91(10A) and s91(11) of the Children Act 1989. Irritatingly s10A is not yet up on the legislation.gov.uk website so I’ll set it out in full :

10 A section 8 order [this includes a child arrangements order] shall, if it would otherwise still be in force, cease to have effect when the child reaches the age of sixteen, unless it is to have effect beyond that age by virtue of section 9(6).

10A Subsection 10 does not apply to provision in a child arrangements order which regulates arrangements relating to –

(a) with whom a child is to live, or

(b) when a child is to live with any person.

11 Where a section 8 order has effect with respect to a child who has reached the age of sixteen, it shall, if it would otherwise still be in force, cease to have effect when he reaches the age of eighteen.

Section 9(6) is referred to there. This says :

No court shall make a section 8 order which is to have effect for a period which will end after the child has reached the age of sixteen unless it is satisfied that the circumstances of the case are exceptional. 

But then section 9(6A) (no doubt also not on legislation.gov.uk) says this :

Subsection (6) does not apply to a child arrangements order to which subsection 6B applies.

You got it. We need to look at subsection (6B) :

This subsection applies to a child arrangements order if the arrangements regulated by the order relate only to either or both of the following  –

(a) with whom the child concerned is to live, and

(b) when the child is to live with any person

Also, don’t forget section 9(7) :

No court shall make any section 8 order…with respect to a child who has reached the age of sixteen unless it is satisfied that the circumstances of the child are exceptional.

 

So, what does this boil down to?

  • Courts usually don’t make a child arrangements order once a child has turned 16.
  • A child arrangements order for contact usually lapses automatically when a child turns 16. This includes a child arrangements order which does not have an end date on it.
  • A child arrangements order which only says where a child should live and when will continue until a child is 18 unless the order says something different or the court decides to end it.
  • The position where a child arrangements order says where a child is to live and when AND spells out contact arrangements seems a bit odd. My view is that it usually lapses automatically when a child turns 16. This includes a child arrangements order which does not have an end date on it.

The reason I say it is a bit odd is this : s9(6) disapplies the exceptional circumstances requirement in some cases – but it refers to orders which ONLY regulates “living with” arrangements. Yet s91(10A), which also disapplies the exceptional circumstances rule seems to refer to a wider class of orders, i.e. all those which INCLUDE “living with” arrangements (which will include a large number of mixed “living with” and “contact” orders. There is a bit of a logic loop here and I can’t crack it, but some bright spark will tell me the answer in comments. These amendments were both inserted by the Children & Families Act 2014 (schedule 2) and it is possible there is a drafting error.

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10 thoughts on “How long does a child arrangements order last?

  1. By virtue of CA 1989, s.9(6), contact orders, specific issue orders and prohibited steps orders would not continue beyond a child’s 16th birthday unless the court was satisfied that the circumstances of the case were exceptional. Residence orders, however, would last until the child became an adult (on turning 18). Paragraph 4 of Sched.2 amends s.9(6) so that the provision applies to all s.8 orders and then by inserting new s.9(6A) and (6B) it disapplies the provision to a CAO which either regulates with whom the child will live or when the child is to live with any person (or both). The result is that a CAO which deals with what a residence order would have dealt with, will have effect until a child is 18. See also amended s.91(10) and new s.91(10A) which make corresponding changes about the duration of s.8 orders and CAOs regulating a child’s living arrangements.

    • Thanks.
      But my point is s9(6B) and s91(10A) DON’T correspond – 6B only applies to “residence only” orders (not “mixed” ones with a dash of contact), whereas 10A applies to any CAO that has a residence provision, regardless of whether it has a contact component or not.
      I guess the intention was to apply the default of 18 to any residence part of a CAO and a 16 default to a contact part – but I’m not convinced that’s what it actually says / does.

      Possibly getting knickers in a twist about nothing – sorry if I’m missing something obvious!!

      • No I see what you mean now. Sorry. Your right there is a gap when the CAO does both and query whether you can carve it up and say the contact bit is until 16 and the living with bit is 18. I think it’s unclear so definitely a good point. Just don’t think there is a concrete answer.

  2. Having looked this all up, I agree that Noel is right. However, the amended sections do look inconsistent. S 9 refers to a CAO which ONLY regulates residence, whereas s 91 refers to an order where residence is a ‘provision in a child arrangements order’. Given that all ROs made after Sep 2009 would last until 18 (or further order) I guess that would still apply to all now.

    • Julie.

      You quote “Given that all ROs made after Sep 2009 would last until 18 (or further order)”….. Where do you reference that from please as there seems to be a contradiction of the ages, 16 & 18.

  3. Craig Richardson

    Hi Lucy,

    I’ve taken my lunch to look at your post through less-tired eyes.

    The outcome is interesting to me as I’m starting to see a fair few people seeking advice in cases where local authorities stopping residence order allowance to family members who obtained residence orders prior to Special Guardianship Orders coming into force where there is a misunderstanding about the length of time that the residence order lasts. Unfortunately, the explanatory notes to the Children and Family Act 2014 shed little light on the construction but I’m not convinced that it’s a drafting error as such.

    My view is that consideration of the the duration of the orders is a red-herring (i.e a consideration of s91(10-10A)) as the logical loop (to me at least!) is that the effect of s9(6) is to say that when the court is considering the arrangements for a pre-16 child that the court cannot make a Section 8 order (of any sort) UNLESS the Section 8 order is to solely regulate those matters prescribed by S.9(10B).

    In a superficial sense, this DOES mirror the pre-2014 provisions which expressly excluded Residence Orders – from a 2013 Red Book I have lying around, the provision was

    “(6) No court shall make a specific issue order, contact or prohibited steps order which is to have effect for a period which will end after the child has reached the age of sixteen…..[expectional etc etc]”

    But on careful consideration, the old and new provisions do not really reconcile themselves with each other. There is a duality – I’d say s91(10-10A) deals with old style residence/contact orders granted pre-2014 whereas post-2014 my reading of the statutory provision is that the court cannot now make a child arrangements order which deals with contact AND living arrangements which last post-16. Before 2014, however, the court could.

    Is that a drafting error? I’m not sure – the explanatory notes aren’t clear but they do talk about removing any terminology which creates a winner/loser ideal and there will be a natural attrition of those orders which s.91(10-10A) applies to but that the inference is that parliament didn’t intend to make any mixed CAOs post the act coming into force unless it dealt solely with the issue of the living arrangements – in which case s.9(6B) applies. In addition to this, we often talk in practice about children voting with their feet when it comes to arrangements concerning them and, purely speculating, the provision could be a salute to children’s autonomy. I mean, it’s hard to think of a situation where it might be appropriate to have a post-16 residence arrangement which isn’t exceptional and so s.9(6) should be sufficient. Maybe I’m an optimist!

    Apologies, if I’ve just added to the confusion.

    • Ahhhhh! Thanks for spending your lunch on it. I am beginning to see (I think) that s91(10A) may relate to the expiry existing “old” orders whilst s9(6A/B) relates to the making of new ones. Maybe…
      But I still don’t see what the policy aim would have been in differentiating between pure “residence” flavour orders – which need no exceptionality to run till 18 and those CAOs which provide for both where a child should live and with whom he should spend time. Why shouldn’t the live with part run till 18?
      By the way I got a bit confused reading your comment at the end of your third para where you say ” the court cannot make a Section 8 order (of any sort) UNLESS the Section 8 order is to solely regulate those matters prescribed by S.9(10B).” Do you mean s91(10B) there?
      Slightly losing the will to live with this….

  4. Craig Richardson`

    Yep – my error, I meant s9(6B)…

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