Procedure in Cases About Children

Applications for an order in relation to children in the county court are started by a simple form (C100, see panel on the right), accompanied by a further form (C1A) if there has been violence, a fear of violence or other harm. There is a court fee payable when the application is lodged at court. 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.

Below you find information about:

special permission to make an application
conciliation appointments
state ments
CAFCASS Reports
further directions appointments
the final hearing and
costs.

Permission

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 residence order is in force.

If you only want to apply for residence or contact orders (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, or, if a residence order is already in force the consent of the persons in whose favour the residence order has been made

Otherwise you will first need to apply for permission to the court.

Conciliation Appointment

When the court has issued the application, either the court or the applicant’s solicitor will send it to all the other parties in the case, who will then have to complete a form confirming that they have received it. At the same time as issuing the application the court will list a short hearing of usually half an hour some six weeks or so ahead, which is sometimes called a conciliation appointment. All parties must go to the court hearing. Different courts have different practices about how these first hearings are conducted and 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.

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. Other than interim orders the judge is unlikely to make any order then unless the parties agree. Neither of you will need to give evidence as a witness at this hearing.

At some courts a 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.

If you do not agree, 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:

Statements

All parties will probably be required to file and send to all other parties short 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.

CAFCASS Report

In most cases the judge will 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.

Directions Appointment

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.

Final Hearing

The court will also in most cases list the matter for a final hearing, which can be some four to six months ahead. This would typically be listed for one day, depending on the issues involved.

If your case does reach a final hearing a barrister would probably represent each party. 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. 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 does not have a barrister the judge will ask questions along the lines that the barrister would otherwise have asked. Before giving evidence, each witness needs to swear an oath (or affirm) that they will tell the truth.

The judge will then make their decision, usually giving in full the reasons for the judgment. Sometimes they will reserve judgment and everyone has to come back on another day, usually a week or so later, where the judge will give the judgement.

Most cases in the county court are heard by a district judge, who is 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". In all cases, the hearing will be in private and neither the judge nor the barristers will wear wigs or gowns (See what Marcel Berlins writes on this in the Guardian “Time for judges to drop absurd forms of address”, 7 January 2008; or click here for the Ministry of Justice's Guidelines).

Costs

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 public funding (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.

It is always best to try to avoid court proceedings of course because the judge can only make an order, which those involved still have to comply with. 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. 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 contact Alternative Family Law: ring or email us.

February 2010

Alternative Family Law

Children

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