Section 1 of the Children Act 1989 sets out the ‘no order’ principle in relation to arrangements for any children of the family. It states that the court should only make a court order if this is better for the child (or children) than not making an order. Parents are therefore encouraged to reach an agreement outside of court rather than enter into litigation. This may be through direct conversations, in mediation together, or through solicitor-led negotiation. There is no requirement for any agreement to be set out in a formal court order but many parents opt to record this in a ‘parenting plan.’ While this is a non-binding document, in the event of any further litigation a court may have regard to the former as evidence of what was intended by both parents and ask why one parent no longer believes this is in their child’s best interests.

Yet for some parents it is an impossible task to reach an agreement concerning the arrangements for their child. In these cases (or where there are safeguarding issues) an application is often made to the court.  Contested proceedings are expensive, time consuming and can be emotionally draining (with parents often cross examined by an experienced barrister). The parents will be bound by the orders of the court.

That court order will remain in place until (i) the child turns 18; (ii) is varied by an agreement; or (iii) further order of the court. Yet there is another scenario where a court order can fall away, which is set out in section 11(5)of the Children Act 1989. In cases with an order where the child lives or is to live with one of the parents and both parents have parental responsibility for the child, the order no longer stands if the parents cohabit for a continuous period of 6 months or more from the date of the sealed court order.

For those who are considering living with the other parent following Children Act proceedings (e.g. owing to financial circumstances or a potential reconciliation), caution should therefore be exercised. Separated couples no longer living under the same roof for a second time may be surprised to find that they cannot just fall back on an older order or enforce the terms of the same.

For those who find themselves in this scenario and are unable to reach an agreement for the child arrangements, then it is likely more time and money will be spent on legal fees obtaining a further court order. It is imperative that they consider all forms of non-court dispute resolution such as mediation to reach an amicable, cost-effective solution that reflects what any new circumstances for the family.

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