Procedure in cases about children
Procedure in cases about children
The procedure for cases about children is described below and is based upon an application relating to children made under The Children Act 1989. The procedure applies to married parents, civil partners, unmarried parents, grandparents and any other person who has permission from the Court to make an application.
In Family Law generally, but particularly in relation to matters affecting children, you will be given every encouragement at every stage in the proceedings to reach an agreement with the other party. This could be through the process of mediation, collaborative law or use of a parenting plan. As with applications relating to financial matters, it is only a minority of cases which proceed all the way to a trial.
In a very few cases it is not possible for the arrangements for children to be agreed. It may then be necessary to make an application to the Court to ask for a decision to be made regarding issues such as:
- Parental responsibility;
- Which parent the children should live with;
- How much contact children should have with the parent that they do not live with;
- Whether the children should have contact with their grandparents or other members of the extended family;
- Whether children can be removed temporarily or permanently from the Jurisdiction and
- Some other issue relating to the children, for example, which school they should attend.
Application to the Court
Once the Court receives an application it will list the case for a : First Hearing Dispute Resolution Appointment (FHDRA), approximately one month later, which you and the other party will have to attend.
After issue of the application a Court Reporting Officer (*CAFCASS Officer) will carry out safety enquiries including checks of local authorities and police and conduct telephone risk identification interviews with you and the other party. They may meet with you separately, however, they will not be able to discuss any issues with you other than those which relate to issues of safety. No contact with a child will be initiated by the CAFCASS officer. [*Children and Family Court Advisory and Support Service - CAFCASS].
A record of the outcome of the safety enquiries is made and sent to the Court in a report prior to the FHDRA so that this can be reviewed by a Judge on the day.
At the FHDRA, you and the other party will be asked to discuss the position in private with the Court Reporting Officer (*CAFCASS Officer) and a mediator (if available) without your Solicitors present. This is to encourage an agreement if possible and, where this is not possible, to discuss other options for a resolution of the issues.
If an agreement can be reached then the Judge can make an order by consent provided the safety checks referred to above have been completed.
What happens if matters affecting children cannot be agreed?
If you are unable to agree matters affecting children the following procedure will take place. The Court will consider whether a report by a CAFCASS Officer will be necessary after considering whether there are alternative ways of working with you and the other party.
Children's welfare
The Court must at all times consider the children’s welfare to be the paramount concern and have regard to the matters contained in the “welfare checklist” in The Children Act 1989 as follows:
- The ascertainable wishes and feelings of the child (considered in the light of his/her age and understanding.
- The child’s physical, emotional and educational needs.
- The likely effect on the child of any change in circumstances.
- The child’s age, sex, background and any characteristics of his/her which the court considers relevant.
- Any harm which the child has suffered or is at risk of suffering.
- How capable each of the child’s parents (and any other person in relation to whom the court considers the question to be relevant) is of meeting his/her needs.
A CAFCASS report will deal with all these issues in detail.
Whether or not a report is required, you and the other party would then attend, with your Solicitors, before the Judge. The Judge would then make a direction for a report, or not as the case may be, and make other directions for the filing of further evidence, such as statements from you, your former spouse, your partner and anyone else that the Court considers to be relevant. Statements are usually exchanged two or three weeks after the First Appointment. If appropriate, the Court can also order medical reports to be obtained.
Finding of fact hearing
In some cases where the Court considers it to be appropriate there might be a separate 'finding of fact' hearing where, as a result of the safety checks carried out by the CAFCASS officer, the Court is of the view that the final hearing cannot proceed without a separate investigation of allegations one party may have made against the other which, if found to be true, would affect the outcome of the case. Where possible, however, the Court will endeavour to deal with all the issues at one hearing.
This final hearing would usually take place approximately two or three months later depending upon the amount of time that the Court estimates that the trial will take and the availability of Court time.
Most children's cases are settled by agreement
We would emphasise, once again, that most children's cases settle by agreement either at the FHDRA or once the CAFCASS Officer has made his/her recommendations.
For further information or advice about family law cases involving children, contact Anne Blenkinsop.
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