Parents are generally best placed to agree where children live following separation and how often they see both parents. Choosing schools and making important decisions should also be made by the parents and if both parents have Parental Responsibility, the decisions should be made jointly. However, this is not always possible and Solicitors and in some cases the Court need to be involved. It is always a good idea to seek legal advice promptly to try to reach an agreement amicably. In some cases some carefully worded correspondence is all that is needed or mediation. However, this is not always possible and if parents cannot agree, an application to the Court is the only option.
When dealing with an application, the Court will decide what is in the best interest of the child(ren) after working through the Welfare Checklist:
The flowchart below summarises the way cases involving children are dealt with by the Court following the introduction on 22 April 2014 of the Children and Families Act 2014. The terminology relating to applications for children has changed and Residence Orders and Contact Orders have been replaced with Child Arrangement Orders. The Child Arrangements Programme contains steps to be followed by the Court and includes the following steps:.
The attendance at a MIAM by the person wishing to make an application to the Court is compulsory unless the application is extremely urgent, there are exceptional circumstances or an exemption applies. The exemptions include domestic violence, child protection concerns and lack of contact details for the respondents. Please seek advice from a Solicitor or Mediator to find out if you are eligible for an exemption. The respondent is also expected to attend a MIAM, either separately or with the applicant. If one party is eligible for Legal Aid, both parties will qualify if they both attend a MIAM. At any stage during the Court process, the Judge may adjourn (put on hold) proceedings to allow the parties to attend mediation. Some Courts may also have mediation facilities in the Court building.
Applications must be made using forms prescribed by the Court, and the forms must include either confirmation that a MIAM has taken place or details of any exemption. The Court will then send a copy of the application forms and a notice of when the first hearing is to take place to the applicant and also send copies to the Respondent and CAFCASS.
CAFCASS (Children and Family Court Advisory and Support Service) assist the Court by providing Officers (social workers) to undertake safeguarding enquiries and checks. CAFCASS Officers will contact both parties before the first hearing and report their findings to the Judge. The enquiries may be limited to a telephone call to each party or may involve meeting the parties before the first hearing.
Within 5 to 6 weeks of making an application, the first hearing takes place. The FHDRA is attended by both parties and by CAFCASS. It is an opportunity for both parties to understand what issues and problems there are and hopefully reach an agreement. If an agreement is reached it is possible to obtain a Final Order to reflect the agreement and the matter is at an end. If an agreement cannot be reached or there are welfare concerns to be investigated, the Judge may make an Interim Order to deal with where the children live and how often they see both parties in the meantime and also whether they should be a Fact Finding Hearing, a Welfare Report by CAFCASS and/or the parties should file statements. What Order is made depends on the circumstances and is at the discretion of the Judge.
If domestic violence is an issue, the Judge may decide that a Fact Finding Hearing take place to consider evidence relating to such domestic violence. Domestic violence is not limited to physical abuse or violence, but includes ‘controlling behaviour’ and ‘coercive behaviour’.
A DRA can take place directly following a FHDRA, or following a Fact Finding Hearing and/or Welfare Report. If matters can be agreed, it is possible for a Final Order to be made. If not, there will then be a Final Welfare Hearing.
If the matter cannot be resolved at the DRA, there will be a Final Welfare Hearing, following which the Judge will make a Final Order. Court proceedings can be expensive and take months to resolve. By seeking early legal advice this may be avoided. We offer an initial free 30 minute no obligation consultation.