When parents agree on how to care for their children after separation, they often create private arrangements outlining care and contact arrangements. While mutual agreements can work well in many cases, they are not legally enforceable. This can lead to confusion or disputes if one parent doesn’t follow through on the agreed-upon terms. To avoid potential conflicts and ensure legal protection, parents can apply to the Family Court to have their agreement turned into a legally binding Parenting Order.
Why Formalize Your Agreement into a Parenting Order?
A Parenting Order provides security for both parents and children. Without it, any informal agreement is only based on trust and mutual understanding. If one parent fails to comply, the other has limited legal options to resolve the situation. A Parenting Order ensures that everyone involved is clear about their rights and obligations—and more importantly, it provides a framework for resolving disputes.
How Parenting Orders By Consent Work
Under Section 40 of the Care of Children Act, parents or guardians can apply to the Family Court to formalize an agreement into a Parenting Order. However, before the court issues the order, it must be satisfied that the arrangement is in the best interests of the child. Once granted, the Parenting Order becomes legally enforceable. If one parent fails to adhere to the agreed terms, the other parent can apply to the court for enforcement, ensuring stability and reducing uncertainty. Its is important to understand the court’s perspective of what is the best interests of the child before asking them to intervene into making a parenting order. The Judge has to be satified that any proposals you are making is in the best interests of the specified child.
Modifying an Existing Final Parenting Order
Life is full of change, and sometimes, so are the circumstances around parenting. If parents need to modify a final Parenting Order, they can do so through a consent memorandum under Section 57 of the Care of Children Act. This allows them to submit an agreed-upon change to the court without the need for a formal hearing. The court registrar can approve the variation if it aligns with the child’s best interests, ensuring flexibility while maintaining stability for the child.
Scenario 1: The Risk of a Private Agreement Being Breached
Emma and James, for example, separated amicably and agreed that their son, Liam, would live with Emma during the week and spend weekends with James. They made this arrangement privately, without involving the court.
For the first few months, everything went smoothly. But then, James started keeping Liam for extra days without consulting Emma. Eventually, James refused to return Liam, believing his new arrangement was better.
Since their agreement wasn’t legally binding, Emma had no immediate recourse. She had to apply to the court for a Parenting Order, which caused delays and unnecessary stress.
Scenario 2: The Protection of a Court-Ordered Agreement
If Emma and James had formalized their arrangement into a Parenting Order, James’ refusal to return Liam would have been considered a breach of a legally enforceable order. Emma could have immediately applied to the court for enforcement, providing her with a faster, more direct resolution.
By turning a private agreement into a Parenting Order, parents protect themselves from potential misunderstandings or non-compliance. The court ensures that the arrangement is in the child’s best interests, providing the certainty and clarity necessary for a peaceful co-parenting relationship.
What Happens if One Parent Breaches the Private Agreement?
If one parent breaches a private agreement, the affected parent will need to start a fresh application for a Parenting Order. The court will treat this as a new case, and it will not automatically enforce the terms of the private agreement. The court may choose to take the private agreement into account, but it is under no obligation to do so. Since the private agreement is not legally binding, it cannot be enforced by the court. This can lead to delays and increased stress for both parents and children.
To avoid such situations, formalizing the agreement into a Parenting Order provides legal security and clear guidelines for both parents, ensuring that disputes can be resolved efficiently if they arise.
The Benefits of Formalizing Your Agreement
- Legal Clarity: A Parenting Order clearly outlines both parents’ responsibilities, minimizing the chances of miscommunication or conflict.
- Enforceability: Should one parent fail to comply, the order can be enforced by the court, providing a quick and clear resolution.
- Stability for the Child: Children thrive when they are having stability, continuity and consistency in their care and contact.
Need Help with Parenting Orders or Parenting Agreement?
If you are considering formalizing your parenting arrangement, need help with a structured parenting agreement, or if you have any doubts or disputes that need resolving, Family Dispute Support Services (FDSS) is here to help. Our experienced team can assist you in creating a solid, clear agreement or help you resolve any conflicts or concerns you may have along the way.
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Disclaimer: This information is provided for general guidance only and does not constitute legal advice. It is intended to offer an overview of parenting arrangements and the Family Court process. For personalized legal advice, please consult a qualified legal professional. Family Dispute Support Services (FDSS) does not provide legal advice or representation.
