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.
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.
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.
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….
I meant s9(6B)…
Unfortunate typo….
Yep – my error, I meant s9(6B)…
sorry, slow on approving comments…
With regards to Section 9(6):
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.
Is there any clarity as to what exceptional circumstances are for the purpose of this section?
no statutory definition Daniel, no. Usually things like a significant disability.
Are you able to share any other thoughts on this matter based on your experience to give a clearer picture of how “exceptional” could be interpreted in relation to person older than 16. For example would the court need to see evidence such as a Statement of SEN or similar.
Not really Annon – exceptional is just that – something that doesn’t come up very often. There is therefore very little case law to act as a guide, and whether a case is exceptional will be very fact specific. A statement of SEN (or EHC Plan as they are now called) might well be relevant but there would probably need to be a link between the EHC plan and the need for a continuing order.
Thank you Lucy. Am I right that the age limit even under “exceptional” circumstances would be 18? Is there anywhere I can look at what little case law there is in determining what a court may decide is exceptional?
…or CAFCASS recommendation subject to the age of the child and Section 7 report findings.
[edited] please please help
Fiona,
Your comment was not appropriate for publication. I have attempted to reply by email but I think you have mistyped your email address when submitting your comment as I am getting a bounce back. If you send me your correct email address I will resend my response.
Lucy
My husband has a contact ordering dating from March 2012, both parties had stuck by the agreement and had also helped each other out with the children so not really following as they had a mutual agreement outside of the order, but recently my husbands ex has said she’s going to stop him seeing the children following a stupid argument. Does his court order still stand? His children are 8 & 10. She has said to him that the order doesn’t count anymore, he just wants to know how long the contact order section 8 children’s act lasts for x
I’m sorry Emma, I don’t give legal advice through this blog. And the answer is not straightforward.
Lucy
When does a Residence Order end if it was made before 2009?
the date it was made – whether it was before or after the change of labels (from residence to child arrangements) doesn’t make any difference.
So to sum it all up….if you have a residency order does that stop at 16 years of age?
All the law writers need heads checked. They write in such confusing legal jargon adding to parents arguing, going to court, paying to pricey solicitors, damiging children’s lives by fancy legal conundrums. Id sack them all and block them from any legal profession for decades. It should be simple enough for 16-18 year olds to be able to understand follow and apply!!
Absolutely right .Shameful and to think the legal platform suppose to put the law on the highest level above all?
I spent 20 k went 5 times to court in 5 years with a ex mother to the children. It’s so corrupt I could not get legal aid and recently I see a certain Peterborough MP who ran through a speed camera get legal aid who was earning 5 times my salary. Yet here we are the very desperate fathers who need that legal aid help either have to turn their back and walk away or spend all they gave.My last 2 cases in court I represented myself in court and I got more by doing this than paying the rubbish solicitors I had previously paid a lot of money for .
The process if you act in person should be streamlined and made easier to understand as the previous comment says the court jargon is of no use but for only to muddy the waters of straight talking and it only aids the lawyers to confuse issues
It is high time the legal system put legal aid back on the table for families with disputes over children .
When they give legal aid for those who can afford it or are high profile is a disgrace .
Families need proper legal aid not parenting by a resident parent mother with no recourse for a father who has proven himself.
My kids live with me no thanks to the court system I just never quit
Please legal system wake up.
The first post is from 21.3.2016. Today is just over a year later and still no answer which order ends at age of 16 and which one at 18. Mine was made in Aug 2009, but it’s shared residency stating at what times they live w me and at what times w father. So now at age of 17 at this moment I am none the wiser what law says. I bet expensive solicitor won’t know and will drive case to enter courtroom again just to get money. All of them are conn artists.
A court is very unlikely to enforce any order about a 17 year old unless there are exceptional circumstances. They are old enough to get married!
Exactly; so what is the confusion?
My ex-wife has a Residence Order for our 2 children.
I have a Contact Order (made Oct 2006, amended April 2009.
My question is; at what age does the Contact Order expire?
Both children in full-time education to age 18.
I say it’s 18, my ex says it’s 16.
Who’s correct?
once a child reaches the age of 16 it makes little difference what the order says. if they want to come and see you they will, if they don’t they won’t.
That doesn’t answer the question I asked.
gosh, well aren’t you entitled?
I don’t offer advice via this blog I’m afraid.
Entitled to a civil reply, I’d say, yes.
If you can’t answer my question, say so.
There’s no reason to become sarcastic offensive.
I’m sorry if you found my comment rude. After a long day I found yours rather rude too, but I should not have snapped. You will see that a number of lawyers have attempted to answer this question on the comments thread and the answer is ambiguous / complicated. As I have pointed out to others this is almost always dancing on the head of a pin because child arrangements orders are of little effect where a young person of the age of 16 or 17 knows their own mind.
Indeed!
So would I be correct to assume that, theoretically, a Contact Order remains in force until the child’s 18th birthday, HOWEVER once they reach the age of 16 things can become ambiguous/complicated as they know their own minds?
Otherwise, if the Contact Order was in force only until 16th birthday, there would be no ensuing ambiguity/complications?
Hi
I could do with some advice.
We have child arrangement order for our granddaughter who we have looked after since 2014. but our daughter who is our granddaughters mother is doing really well, good job, partner etc etc and is now expecting her second child.
we would like to see our granddaughter move back with our daughter, but am so confused as to what we do.
if its just a case of taking it back to court to get the child arrangement order overturned, can we do this. and how????
Would be great for some advice, thank you.
Hi Fleur,
I don’t give advice on this blog I’m afraid but in general if anybody wants to change a child arrangements an order they would need to ask the court to do make that change. You don’t need a lawyer to do that. You might find this interesting (it talks about parents but you are in a similar situation) : https://www.advicenow.org.uk/guides/how-apply-court-order-about-arrangements-your-children-without-help-lawyer
Lucy
Hi I have a Residence Order in place which ceases at 16. Totally confused by pre 2014 and pre 2009 Residence Orders. I spoke to Family Team at County Council regarding financial allowance continuing until 18 while my Grandson is in education they advised me to write to them just prior to his 16th birthday and they will consider my appeal. A bit concerned that perhaps leaving it so close to his birthday may be a bit late. My grandson is 15 this year (pre sept 2009 Residence Order) so plenty of time but should I pursue this as soon as possible. I have to say totally confused by all these different dates prior to 2014 or 2009. My financial situation will change dramatically while he is in 16-18 education
Hi Pat,
No idea I’m afraid – and I don’t give advice on this blog. I would try Family Rights Group or one of the grandparents organisations who have some really useful material on things like SG and RO allowances. FRG also has a helpline.
Lucy
I have a question regards to CAOs and court procedure for older children. I have a CAO dated 2015 where residence is with me and other parent has indirect contact only. There was a s. 91(14) attached to the order but that expired in 2016. The other parent has made a new C100 application for a CAO. The child is now 16. Does the residence part of the 2015 CAO stay in effect until the child is 18 but the contact aspect end when they are 16? Would the court be aware of the 2015 CAO as there is no mention of it in the other parent’s application or in the order for a FHDRA? The 2015 CAO was issued in one court but the other parent lodged the C100 with a different court. I guess as a Litigant in Person I’m trying to determine what information the court has or does not have, so a procedural explanation of how the courts work with already existing orders would be helpful.
W,
I can’t give advice on individual cases through this blog.
Generally the court would know about the earlier order because when an application is issued Cafcass will do safeguarding checks and that will include checks on their own computer systems so the child should come up. I wouldn’t say that is necessarily 100% foolproof, but even if that doesn’t catch it Cafcass will speak to you as part of safeguarding checks to I would imagine they would find out then.
The court is unlikely to be able / willing to make an order about a 16 year old.
Can you please tell me if a residence order can continue after 18 if child has disabilities and has an EHC plan.
no, a residence order can’t last beyond 18.
Thank you for your prompt reply
I have a contact order Jan 2009 with shared care arrangement schedule, the oldest child is now 17 and chooses what days he now stays with his dad, which has caused issues between son and his dad, I’ve tried explaining to dad, but insists until 18 and I’m breaking the order.
The 13Yo has decided to stay extra nights but I am repeatedely told I’m breaking the order, although dad consents to the changes our 13yo has asked.
My question is, is our Contact order with shared care arrangement still valid? Or is it best to seek advice to change? I don’t really want to put the 13Yo under unnecessary stress.
Many thanks.
N,
I’m afraid I don’t offer advice about individual cases through this website. You’ll see in the comments that there is some ambiguity about the continuation of orders beyond 16, but they certainly continue to have legal effect until that stage. You would need to take legal advice as to whether or not you should apply to change the order in your particular circumstances, but I’m not sure what the problem is regarding the 13 year old if the additional nights for him are agreed. I would suggest you speak to a family lawyer about these issues and decide whether or not you feel you need to return to court.
Lucy
Hello
I have a contact order in place which also states where the child is resident.
Can the child decide on own contact at 16 without it affecting residency.
Regards
Misc
You don’t need a legal qualification to know that by the time a child is 16 the brutal reality is that they can and will vote with their feet. If they want to see their other parent they will. It is very rare that the law is of any assistance when it comes to a 16 year old making decisions about what time to spend with their parents.
Would there be grounds for an Applicant to take a Respondent to Court for a breach of contract for failing to comply with a Contact Order (pre-2014) that has no expiry date? Children now both aged 16 and 17. I appreciate you say that the children could vote with their feet, but wondering whether you’d be of the opinion that the Applicant has solid grounds to refer back to Court via a C79 Enforcement, or would the Courts not even entertain such action and dismiss such an application? Thank you and apologies for seeking clarification.
LK
I’m not going to give you legal advice about whether you should issue an enforcement application but generally there are real practical issues with enforcing contact orders for children who are old enough to marry or live independently if they don’t want to go. And if they do want to go you don’t need an order.
I am happy to say that there is no way you can enforce a contact order as a breach of contract as it isn’t a contract at all. It’s a court order.
Hello. I have an order from 2017 that states the child “Lives with both parents”. I thought this meant it lasted until the child was 18 due to the “lives with” element. Although I guess technically a 16 year old could leave home, it seems unlikely when they have to stay in full time education until 18 now. Anyway, assuming the child still lives “at home” presumably this means they still have two homes and therefore the arrangements still stand until they are 18. And the point of a “lives with both parents” schedule is that whatever the child does – whether it’s out with friends, or organising their own activities, it is about which home they are living in when they do such things.
It is interesting – because I think 16 year olds are still vulnerable to parental alienation and if not working, are still dependant on parents for a home and a certain amount of care.
I am waiting for a court decision on where my 8 year old son should live . At present his lived with his father from March 2019 . Within this time I haven’t seen my son on the on and off basis to dad rules so I have been requesting to see my son . He took out a order on me November 2019 on the grounds not to take out of school or leave the country. Going forward with court he also added that he felt my son was not safe investigations have take place and no safe guarding issues have been seen. Cafcass has done a report on recommendations that my 8 year old wishes to leave with the father but wants to see mom. It been half a year now and have not heard anything from court base on recommendations. Father blocks. Contact so I don’t get too speak or see my child. I have e. Mail the court of my concerns also local mp. I’m still waiting for the court to give a answer. I want my son back home with his mother his distance mother and son relationship I’m a very sad and up set mother.
A Mum (I’ve anonymised you) – if you are saying its been six months since the cafcass report and there hasn’t been a hearing then I think you need to urgently make contact with the court and get one listed. You should quote the case number and name of the child in any correspondence with the court. Best of luck.
CAO Section 8 Children Act 1989, dated Feb 2014.
Includes residence order in favour of Mother and routine contact outlined with Father.
It is my opinion that the contact part becomes invalid at age 16 and the residency continues until age 18.
I have read through the old thread above but I would welcome yyour fresh perspective please.
Did you ever find any clarification on the issue where a CAO states both residency *and* contact and whether the contact element ends at 16 or not in the eyes of the court?
Especially where the child of the case would be 16 or 17 and refusing the contact set out… Theoretically, could the NRP apply for enforcement leaving the RP open to potential sanctions?
Leaving aside the question of whether an order continues to be valid after 16 (some do some don’t), a court is very unlikely to enforce a contact order where a 16 or 17 year old child is refusing contact. The child’s refusal is very likely to be a ‘reasonable excuse’ which is a defence to any enforcement application. A general response, obviously, so not legal advice.
Hello. Has there been any recent clarity given to the question of whether an order that is not exclusively about the “with whom” and “when” (the subsection 6B conditions), i.e. a mixed order that contains residence, contact plus financial orders, expires at age 16 or 18.
My reading of the 2014 amendment is that the exception to the 16 year old rule is only when the order is exclusively residence and/or contact. Clarity greatly welcome. Thanks
I’m not aware of any case which has dealt with it, hence the lack of clarity. I suspect that in most cases it becomes moot because no court is likely to enforce an order for a child aged 16-18 against their wishes (unless there are some pretty compelling circumstances).
Hi there, I would appreciate in as much detail as you are able to give around what constitutes “exceptional circumstance” and what steps would need to be taken in order to prove this? For example diminished responsibility?
no legal advice via this blog i’m afraid. exceptional likely to turn on the specific facts though.
Hello. I have contact orders from 2009 and 2010 that include provisions for a) residence b) Contact and c) leave to remove children to another jurisdiction and c) financial support in children’s interest.
Only the financial part specifies an end date, saying the father will, by consent, make payment to the mother for the children until they reach the age of 18 or leave secondary education.
My reading of sub section 6B is that it does not apply because the Contact Orders are not “only” concerned with “with whom” and/or “when”.
i.e. the Whole Order except for the financial part expires when the child reaches 16.
I’d be very grateful for comment on whether this is correct.
I can’t advise on specific orders via this blog.
I realise you have tried to explain this issue, but I have been trying to research the age a CAO ends, where no ages/end dates have been put on the order, and have been given varying and conflicting advice from both solicitors and legal advice charities.
It seems the more advice is sought, the less clear it becomes.
Where there is an order solely for contact, the assumption is that it ends at 16 unless there are “exceptional circumstances”.
“Exceptional circumstances” are usually suggested to be where a child suffers disabilities preventing them being able to make their own choices.
Though one advisor said an order solely for contact ends at 18 but a court is unlikely to force a 16 year old against their will.
Where there is an order both for residency and contact, it has been suggested that the contact portion ends automatically at 16, but residency ends at 18, though a court would not usually force a 16 year old to live somewhere against their will (except where there are exceptional circumstances).
*Also, that a child could choose to live with the parent as part of its choice of contact (as contact can include overnights?!) but return to the parent with residency once in a blue moon to uphold the residency order.
*Further advice said they both only end at 18 and the court would have to be approached regarding both contact and residency orders, even if not combined.
*Another suggests that residency also ends at 16, except for exceptional circumstances, where they offered a case which resulted in a child taking their case back to court, when they got to 15 years, because they feared their bullying parent would overwhelm them into returning to their residency when they turned 16.
*Further advice is that there is no need to return to court, but the parent who received residency etc may take it back to ask for it to be enforced.
*As opposed to other advice suggesting the non-resident parent would be best to cover themselves by asking the court to vary or discharge the original order – albeit the assumption is that the child is the one making the decisions here.
*Without cross checking information a parent could be held in breach of order, or can they? Due to the confusing contradictory beliefs it is impossible to tell where a parent stands.
*Just a google asking the question reveals endless contradictory responses from respected legal firms and barristers.
This leads to a totally confusing situation that risks dragging children back through family court, and encountering expense, where there need not have been a return to court.
Or
This could lead to a parent being held culpable for the child voting with its feet and they should have returned to court.
A child trying to find out what it can and can’t do, is utterly confused and defeated (as is any adult).
Is this a case of pot luck? Are there any safe assumptions to be made?
When responding by referring to law, would you mind explaining how they apply in layman’s language, please?
I don’t think there is anything more I can say than that it’s complicated – and that the range of advice given just demonstrates that there are a number of different possible interpretations of the law in this area. In practice it rarely makes much difference because even if the order is technically still in force it is in practice likely to be unenforceable once a child is 16 – though it will potentially still have consequences in terms of child maintenance obligations etc. I can’t and won’t give specific advice on individual cases via this blog and have exhaustively discussed / explored the topic in previous comments.
Thank you for your time. I am aware you do not give advice on individual cases, hence not requesting individualised information. I can see how draining it must be to have to endlessly repeat that you are unable to do so.
I was more hoping for clarification of which, if any, of the information I had acquired was specifically incorrect, and could therefore be completely discounted.
Also, I was hoping it would leave the conversation open for anyone who could add to this matter, especially if they have legal expertise or lived practise of court decisions on this matter – as the original blog post was several years ago.
I had heard rumour of certain judges enforcing children 16, or older, into residency/contact orders. I was wondering if this was true.
For instance I have now learned further that residency until 18 only applies in England and not Wales, Scotland and Northern Ireland, due to the expectation that children remain in some sort of education/training in England, until they are 18. So a CAO in the rest of the UK ends at 16 for both contact and residency.
I think I’ve said all I can say. I’m not going to comment on advice given by others in circumstances I know nothing about. I am definitely not going to comment on Scotland and NI where the law is different (though NI is in many respects similar).
What about in the scenario of the court making a lives with/lives with order. Can this be done for a 16 year old as by its very nature, it requires you to set out what time is spent living with each parent. Or does exceptionality still apply and the order can’t be made?
Has to be exceptional for court to make a child arrangements order after 16th birthday.