This information page provides advice on the subject of ‘consent orders’ which are used in the family court as a means to formalise an agreement which has been reached. This page will explain in further detail what a consent order is, how to apply for a consent order and what to expect of the court process.
What is a Consent Order?
It is often the case that parents will reach an agreement regarding contact and residence. However, informal agreements are not automatically legally binding and therefore there are limited means of recourse if the opposing parent acts in breach of that informal agreement. Consent orders provide a mechanism to make an informal agreement legally binding and therefore enforceable through the family court.
How do I apply for a Consent Order?
- There must be an informal agreement which is written and clearly presented. It is important to be comprehensive and therefore we would suggest that the following areas are considered:
- With whom the children will live with and the schedule for this.
- With whom the children will have contact with and the schedule for this.
- Is there scope for flexibility within the arrangements and the schedule for this.
- Conditions with regard to contact, i.e. handover arrangements, who bears the cost of travel for handover, contact book, what to do in the event that that either party is delayed or unable to attend.
- Arrangements in relation to travelling abroad and what are the conditions of travel.
- This informal agreement will need to be signed and dated and attached to a C100 court form.
- There is a question which asks ”Are you applying for an order to formalise an agreement (consent order)?” on Page 1 of the C100 form under ”Additional Information Required”. The box for ‘Yes‘ would need to be ticked here.
- The draft informal agreement must be attached to the C100 form and submitted to the local family court.
- There is a £215 fee to make the application but an EX160 (Fee Exemption Form) can be submitted if the applicant is in receipt of income-based benefits.
There is not a legal requirement to attend mediation (MIAM) prior to applying to court for a consent order.
Do I require a solicitor to draft the informal agreement?
It is not a legal requirement to have a solicitor draft the informal agreement but it is recommended in order to ensure that the agreement is watertight and all relevant aspects are covered.
However, a litigant in person can attach a Cafcass Parenting Plan as evidence of their informal agreement, a mediation service may be able to assist with drafting an informal agreement, or alternatively, the parents can draft their own informal agreement.
In drafting their own order, litigants in person may wish to consult these Model CAP Orders which have been produced by Sir James Munby. This document is a form of template which is intended to ensure a consistent approach in drafting private law orders for children.
The informal agreement will generally be used as a guide in assisting a court clerk to draft the final court order which has the mandatory information such as warning/penal notices etc included.
What can I expect from the court process?
Applying for a consent order is generally a straightforward process because there are no areas of dispute that require investigation from the court. Therefore, it is often seen as being a rubber-stamp exercise.
However, the court will ensure that the agreement which has been reached is in the best interests of the child/ren concerned. An agreement will not be made legally binding if it is deemed to not be in the best interests of the child/ren.
There will generally be a hearing which both parties will be invited to attend where the court will verify that the agreement has been reached by consent and it will be determined whether any safeguarding checks need to be conducted.
Section 1 of the Children Act 1989 provides: ‘where the Court is considering whether or not to make one or more orders under this Act with respect to a child, it shall not make the order… unless it considers that doing so would be better for the child than making no order at all.
This is known as the ‘No Order’ principle.
The concept of a consent order does appear at odds with the ‘No Order’ principle given that there is effectively no dispute between the parties applying. Therefore, the court will be required to balance this principle against the grounds put forward in support of a consent order being made.
How can I enforce a Consent Order if it is breached?
Another means of describing a consent order would be a ‘child arrangements order that has been reached by consent’. Therefore, the relevant court form in order to enforce a consent order would be a C79 form, as it is in the case of a typical child arrangements order.