Court Procedure in Cases About Children
Before someone can make an application to the court in children matters, in most cases they need to have a Mediation Information and Assessment Meeting (“MIAM”) with a mediator, in which the mediator provides information about the various ways to resolve conflicts in family law and checks if the case is suitable for mediation. The idea is that those cases which are suitable for mediation will not even reach court at all.
In addition to the law set out in places like the Children Act 1989 (with lots of amendments, most of which may not yet be included in the official government version) and the Family Procedure Rules there is also a rather rambling and lengthy practice direction, the “Child Arrangements Programme”, and a lot of points are duplicated here.
Most applications for an order in relation to children in the Family Court are started on form C100, accompanied by a further form (C1A) if there has been (or is a risk of) violence, a fear of violence or other harm. There is a court fee payable when the application is lodged at court. To find the court to which you need to send your application, use the Children category on the Court Finder website with the postcode of the child’s home. There is no need for a long statement of the background or the facts at this stage (unless the application is an emergency application) and this is actively discouraged.
Before you can start court proceedings about children or finances on divorce or civil partnership dissolution you usually have to meet with a mediator, who will give you information about mediation and other dispute resolution options. This has to be a mediator who is specially trained to provide such a Mediation Information and Assessment Meeting (MIAM). The mediator may then also meet with the other person in your case and you may then attempt mediation. If mediation is not suitable or breaks down, the mediator will complete the relevant page on the C100 form, which you can then use to show that you have gone through this process when you start court proceedings. In urgent cases this may not be necessary and you need to consider this with a specialist solicitor.
Below you find information about:
Permission to Make an Application
If you fall into any of the following categories, you will not need permission from the court to make the application:
- a parent of the child (whether or not they have parental responsibility),
- a guardian or special guardian of a child,
- step-parents with parental responsibility,
- someone in whose favour a child arrangements order is in force which provides that the child lives with them (formerly a residence order).
If you only want to apply for a child arrangements order (but not specific issue or prohibited steps orders) and you fall into one of the following categories, you also do not need special permission:
- a stepparent (spouse or civil partner where the child is a child of the family),
- a person with whom the child has lived for three years,
- anyone who has the consent of all persons with parental responsibility for the child,
- if a child arrangements order which provides where the child should live is already in force anyone who has the consent of the persons in whose favour that order has been made, or
- someone who has parental responsibility by order of the court ancillary to a child arrangements order which provides for the child to spend time or have contact with them.
Otherwise you will first need to apply for permission to the court. To apply for permission, use form C2.
Conciliation Appointment ("FHDRA")
On the day after issuing the application a “gatekeeper” judge should look at your application form and see if anything urgent needs to be done and allocate the case to a level of judge in the Family Court, which may be lay magistrates.
The papers are then either
- returned to the applicant (or their solicitor) who has to send a set to the other party or parties in the case or
- the court will itself send them to the other party if you apply for a child arrangements order, a specific issue or prohibited steps order unless you ask the court to return them to you so you can send them to the other party.
The other party will then have to complete a form confirming that they have received them. In most cases the court will list a short hearing of usually half an hour, which should be listed not more than 4-6 weeks ahead and which is officially called a First Hearing Dispute Resolution Appointment or FHDRA or often also a conciliation appointment. Unless the court has made an order for short notice, the papers must be sent to the other parties so that they have at least 14 days’ notice of the hearing. All parties must go to the court hearing. Different courts have different practices about how these first hearings are conducted although the “Child Arrangements Programme” set out in Practice Direction 12B is supposed to apply to all courts. The local court may well send out an information leaflet about it with the application, which will probably also tell you whether the children have to be brought to the court.
Before the FHDRA, a CAFCASS Child and Family Reporter will carry out safeguarding enquiries, including checks of local authorities and police, and telephone risk identification interviews with parties. The parties and the CAFCASS reporter should not discuss any other issues in the case before the FHDRA.
At that hearing the judge will try to see if the parties can come to an agreement and the judge may give an indication of what they think the court would do at a final hearing. Neither of you will need to give evidence as a witness at this hearing.
The CAFCASS Children and Family Reporter, a specialist social worker, will be there and may be given the opportunity by the judge to talk to both parents (and the children if they are there) in a private room and may then report back to the judge. This may help the judge give an indication about the case. At some courts a mediator is in court (or in a separate room) so that the parties can discuss the option of mediation with them.
If you agree on what should happen, the judge can make an order there and then and if this is a final overall agreement, the case will be over. In some courts the judge will make interim orders even if you do not agree, in others, the judge will only make orders at the FHDRA if all parties agree. If you do reach an overall agreement, the judge can adjourn the matter for another short hearing (for example to allow you the opportunity to attempt mediation), or the judge can give directions for the further conduct of the case.
Typically they would look as follows:
All parties will probably be required to file and send to all other parties written witness statements by a set date, e.g. within 14 days, setting out
- the background to the case,
- any recent events that have triggered the application and
- proposals for the future.
At a final hearing most judges will read the statements before the hearing starts and may already form a view of the case. It is therefore vital to get the statement right. It must set out all relevant facts, but neither be too boring nor too long. It must be readable. There are also rules of evidence which provide what you can and cannot say in your statement. Even if you represent yourself, you should seriously consider to get a good solicitor to draft the statement for you because to get it right is so important.
In most cases the judge should also order that a Children and Family Reporter, a specialist social worker, working for CAFCASS (the Children and Family Court Advisory and Support Service) will prepare a report. The order is then sent to the local CAFCASS office who will allocate it to someone within a few weeks. The reporter will then arrange to meet both parties and the children and prepare a report recommending what should happen. Typically this takes about three months. CAFCASS reports are highly persuasive to a judge and although the judge is not bound by the recommendations in the report, in most cases the court follows the recommendation. Often the report leads to an agreement between the parties.
Since CAFCASS apparently has severe managerial problems and a lot of staff have left in the last few years, courts have stopped ordering CAFCASS reports in all but the most controversial cases and then sometimes order only a “wishes and feelings report”. This is regrettable as the voice of the child is not properly heard. It may be difficult to persuade a judge to order a full report. Staff changes at CAFCASS have also let to reports which a lot of parties regard as being of low quality in many aspects. There are massive regional variations.
Further Directions Appointments
To enable the parties to come to an agreement and to focus everyone’s mind on it, the court also often lists a further directions appointment some two weeks or so before the final hearing, but after the CAFCASS report has been produced and digested by all parties. This is not compulsory and up to the individual judge.
The court will also in most cases list the matter for a final hearing, which can be some four to six months ahead or much later, depending also on the availability of court hearing dates. This would typically be listed for one day or longer, depending on the issues involved.
If your case does reach a final hearing a barrister would probably represent each party as their advocate. The barristers would first take the judge through your application forms, any statements, and then put each party’s case forward. Both parties would then give evidence, first the applicant and then the respondent. Before giving evidence, each witness needs to swear an oath (or affirm) that they will tell the truth. First your own barrister would ask you questions and then you would be cross-examined by the other party’s barrister. The judge can also ask questions. If one party is not represented, the judge will ask questions along the lines that the barrister would otherwise have asked. If there is a CAFCASS report, the Court Reporter can also be asked questions by the judge and can be cross-examined by the parties or their advocates.
The judge will then make their decision, usually giving the reasons for the judgment in full. Sometimes they will reserve judgment and everyone has to come back on another day, usually a week or so later, where the judge will then give the judgment. Sometimes the judge sends out a written judgment.
Most cases in the Family Court are heard by a district judge or lay magistrates, who are addressed as “Sir” or “Madam”. Sometimes a circuit judge will hear the case, who is addressed as “Your Honour”. Only High Court Judges are addressed as “My Lord” or “My Lady” (click here for the official Guidelines for addressing judges). In all cases, the hearing will be in private and neither the judge nor the barristers will wear wigs or gowns.
With applications about children, it is rare that the court orders one party to pay the other party’s costs because the law does not see applications like these in terms of “winners” and “losers”. This may be frustrating because legal fees can be high, especially if a case goes to a final hearing. Only in very rare cases where one party tries to mislead the court or seriously conducts the litigation in an inappropriate way would the court order that party to pay all or part of the other party’s costs.
In practice this means that each party who does not receive legal aid will have to think about whether the issues are worth it to make the financial investment that is necessary to bring or oppose the application. It also means that alternative methods to resolve the issues should be considered because they can avoid these costs.
You will find any forms you may need through the Court Form Finder.
It is always best to try to avoid court proceedings of course because the judge can only make an order. An order does not enforce itself and if someone does not comply with the order or takes a “work-to-rule” approach, matters can continue to be difficult. There will also be issues arising in the future of a child’s life where parents have to work together.
It is of course always best to try to avoid court proceedings because the judge can only make an order, but cannot physically oversee the time a child spends with each parent. An order does not enforce itself and if someone does not comply with the order or takes a “work-to-rule” approach, matters can continue to be difficult. There will also be issues arising in the future of a child’s life where parents have to work together.
Mediation is an inexpensive way to find solutions outside the court system and it is particularly suitable to resolve issues about children. This is why it is compulsory for anyone who wants to make an application to the court for a child arrangements order to attend a Mediation Information and Assessment Meeting (MIAM) first (with some exceptions). Our support page has a wealth of resources for parents to help them to parent together successfully, nurturing their child.
For advice on your specific circumstances please contact a solicitor
10 August 2015 by Andrea Woelke