Variation and discharge of an order for contact or residence

This how to guide explains the steps required in order to apply for a variation or discharge of a section 8 order. 

Introduction

A section 8 order is a short-hand reference to the orders that the court can make under Section 8 Children Act 1989. A section 8 order includes child arrangements orders (previously known as residence orders and contact orders prior to 22nd April 2014).

It may be necessary to apply for a variation or discharge of a section 8 order if there has been a significant change in circumstances and the terms of the court order are no longer in the child’s best interests. Furthermore, it may be necessary if a party is no longer complying with the terms in the order, i.e. failing to turn up for contact sessions.

Any person named under the order can apply for a variation or discharge of a section 8 order.

When may it be necessary to apply for variation or discharge?

It is important to note that the parties to a section 8 order can act outside of the terms in the order if they are in agreement. In such circumstances, it is not necessarily a requirement to apply back to court to vary or discharge the order. However, the new agreement would not be legally binding and technically the original court order would still be in place.

An order cannot be amended unilaterally and therefore an application to court for a variation or discharge will be necessary if an agreement cannot be reached to act outside of the terms in the order. An example of when variation of an order would typically be applied for is to increase or decrease contact, to transfer residence or to vary a specific aspect of the order such as the arrangements in relation to pick-up/drop-off. An example of when discharge of an order will typically be applied for is if the non-resident parent is failing to attend contact sessions consistently.

How to apply for variation or discharge?

It is a legal requirement to attempt mediation before an application can be made for a variation or discharge of a section 8 order.

If mediation is unsuccessful, the applicant has 4 months in which to submit the application for variation or discharge to court. The applicant will need to attempt mediation once again if the 4 month time period has elapsed.

A person does not need to attempt mediation if they meet one of the exemption requirements. These exemptions can be found on the C100 form and our information page on family mediation.

The following court forms are required to make an application for variation or discharge:

• C100: Application for a variation or a discharge of a child arrangements order. This has a £263 application fee.
• CB1: Guidance document to assist in filling out the application form.
• EX160: Fee exemption form
• EX160A: Guidance document to assist in filling out the fee exemption form.
• C1A: Supplementary form where the applicant can expand on welfare and safeguarding concerns.
• Form C8: Only to be used if the applicant does not wish for the respondent to know their contact details. If you use this form please ensure that your contact details are not filled in on any other form or documents which you supply to the court as these may be visible to the respondent.

The applicant will be required to submit three copies of the C100 and C1A form (if applicable) and one copy of the EX160 and C8 form (if applicable) to the court closest to where the child is living. The application can be sent through the post or delivered to the court in person; some courts also allow for online applications. 

What will the court take into consideration? 

The court applies the welfare checklist, which can be found in S.1 Children Act 1989, in determining what is in the child’s best interests. The welfare checklist includes:

• The ascertainable wishes and feelings of the child concerned (considered in the light of his/her age and understanding);
• His/her physical, emotional and educational needs;
• The likely effect on him/her of any change in his circumstances;
• His/her age, sex, background and any characteristics of his which the court considers relevant;
• Any harm which he/her has suffered or is at risk of suffering;
• How capable each of his/her parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his/her needs;
• The range of powers available to the court under this Act in the proceedings in question.

Variation or discharge of a Child Arrangements Order or Contact Order – Flowchart