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When married or co-habiting couples separate one of the major concerns is that of the children. Who will they live with? Will I get to see them? How often should I expect to see them? These questions are also raised of grandparents and other wider family members. For more information for Grandparents please visit our dedicated website at Grandparentslegalcentre.co.uk
Ideally separated parents will be able to make their own joint decisions about the welfare of the children, including
- where they will live
- who will be the primary parent and
- how often will the non-resident parent get to see them
- where will the children go to school
Unfortunately, some parents require legal assistance and intervention.
The children’s needs, both physically and emotionally, are the major factors which all separating parents should prioritise above all else.
The Children Act 1989 as amended by s11 of Children and Families Act (CAFA) 2014 says:
“each parent should continue to be “involved” in their children’s lives so long as it is safe to do so”.
Although not all separated parents end up in Court, it is useful to know that when making arrangements for children the following three principles apply:-
- The child or children’s welfare is of the paramount importance;
- The court must consider whether any delay is likely to prejudice the welfare of the child or children; and
- The court shall not make an order unless it considers that doing so would be better for the child or children than making no order at all.
In deciding whether an order should be made, the court will have regard to:
(a) the ascertainable wishes and feelings of the child or children concerned (considered in the light of the child or children’s age and understanding);
(b) the child or children’s physical, emotional and educational needs;
(c) the likely effect on the child or children of any change in his/her circumstances;
(d) the child or children’s age, sex, background, and any other characteristic which the court considers relevant;
(e) any harm which the child or children has / have suffered or is /are at risk of suffering;
(f) how capable each of the child or children’s parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting the child or children’s needs;
The court will only make a formal order if there is a dispute – otherwise no order will be made.
Frequently Asked Questions
A Child Arrangements Order can say where a child should live. It used to be called a residence order, and before that it was a custody order.
The Court take into account all sorts of factors when making the decision as to whether the parent has an arguable case including the nature of the application for contact, any risk there might be of the application disrupting the child’s life to the extent that the child might be harmed by it, if a child is being looked after by a Local Authority, the Authority’s plans for the future and the wishes and feelings of the child’s parents.
A Child Arrangements Order can say who a child can spend time with and where the contact will take place (formerly called a contact order). For example, a parent who wants to have contact with a child and the other parent refuses to grant it, after exhausting all other avenues including negotiation, correspondence and mediation, will need to apply to the Court for help. Another example is where there is a dispute between parents about who is best to care for the child.
The Court can make orders on what are known as Prohibited Steps and Specific Issues. As the names suggest, on an application for Prohibited Steps the Court can order that a child is not removed from a person or place without authority of that person or the Court, and in respect of a Specific Issue application, the Court can be asked to make decisions about specific things, such as what a child is called, what school they should go to, whether they can be taken abroad temporarily or permanently.
Not necessarily. You only have to make an application to Court if all other avenues have been exhausted. Sometimes when communication between parents has broken down, some legal advice is all that is needed and negotiations between the parties either by way of communication from Solicitors, or a referral to mediation, is all that is required to reach an agreement for what is in the best interests of the children.
Unfortunately, provided you have attended a formal Mediation Information and Assessment Meeting, and either mediation has broken down, or the case is unsuitable,then it would appear that an application to Court will be necessary. (See also our Mediation FAQ)
Before an application can be made to court, you have to have attended a Mediation Information and Assessment Meeting (MIAM).
The Court can accept applications from you directly. You do not have to have a Solicitor, however you may feel that you would like a Solicitor to represent you as there will be at least one, and in most cases more than one, Court hearing.
The application is made on a form C100. That application is then lodged to the Single Family Court. The case will then be allocated to a Local Family Court – usually the Court nearest to where the children reside. A Court fee is payable (unless you qualify for an exemption of fees). Currently, the Court fee is £215.00 to make such an application.
It is very difficult to predict each individual case. Timescales depend on the circumstances of your case and what can be agreed. The Court have a duty to deal with Children Act proceedings as quickly as possible. As a guide four to six months is not unusual.
The procedure is as follows:-
- The application is made to the Court
- The Court sends back the papers to the applicant to serve upon the other person, or people.
- The Court gives a date (usually one month to six weeks after the date of issuing the application). The Court hearing is for a “directions appointment”. A lot of people think that the case will be disposed of there and then at Court on this occasion. However, it is the first time that the Judge has heard from both sides and quite often, the Judge will decide that further information is needed before making a final decision.
- Prior to the first appointment, CAFCASS (Children and Family Court Advisory Service) will prepare what is known as a Schedule II letter, or Safeguarding Report. This is a brief form of correspondence to the Court which confirms that they have undertaken Police Checks of the parties involved (to include any past criminal and/or domestic violence history), that they have spoken to the parents or parties involved, and to make a brief recommendation as to whether further CAFCASS intervention is necessary and to recommend to the Court any Orders or otherwise the Court may feel it is appropriate to make. This is not a full report but is a useful tool for the parties involved and more particularly is to assist the Judge.
- At the first appointment, if the Court orders further CAFCASS involvement, CAFCASS will be ordered to prepare a report – the time that it takes varies from area to area although generally, this takes approximately twelve to fourteen weeks. If CAFCASS is involved, the case will be adjourned for a period of approximately twelve to fourteen weeks to hear what CAFCASS recommend. As part of their enquiries, CAFCASS are likely to speak to all of the people involved in the case including the parents and often grandparents and teachers. They may also speak to the children although this will very much depend upon the children’s age and understanding. Sometimes the Local Authority (Social Services) may be asked to prepare a Report depending on the issues raised.
- When the case goes back to Court the Judge will want to know whether or not the parties to the proceedings are all in agreement. If they are, final orders can be made (only if the Judge approves them, and believes that the orders are necessary). If the people involved in the case still do not agree, after the involvement of CAFCASS, as to what should happen with the application, the Court is likely to list the case for a contested hearing.
A contested hearing means that everyone involved in the case will have to give evidence. This generally means the parents but other parties depending on the circumstances may be required to give evidence. Both parties can call witnesses if they choose to do so but Judges do not want to take up too much Court time on hearing from people who may not be able to assist the Court so they should only used sparingly and wisely. The Judge then decides whether or not the application will be granted and what Orders should be made under a Child Arrangements Order. The Judge can ask for the case to be reviewed in a few months to see how the arrangements are going.
CAFCASS stands for Children and Family Court Advisory and Support Service. They have a really good website that can be found at www.cafcass.gov.uk. CAFCASS are appointed by Judges to become involved in cases once an application has been made to the Court. Their staff are professionally qualified and are called Family Court Advisors. They will work with families to make recommendations to the Judge about what should happen in particular cases. They will also, if considered appropriate, speak to children, schools, health visitors and anyone else they consider to have important information.
The Courts are now saying that applications for contact cannot be made without the Applicant having referred the case to mediation and having attended a Mediation Information and Assessment Meeting (MIAM). Mediation is an alternative way of trying to sort out the dispute. The mediator meets offers separate appointments to each of the people involved in the dispute. This is to assess whether or not it is a case that is suitable for mediation and to discuss the mediators role with them and to see if it is something that the individuals are prepared to agree to attend. If mediation is considered suitable and everyone is prepared to agree to attend, the mediator will then organise a meeting. Generally, these meetings are joint meetings which are conducted in the same room with a mediator who is an independent third party who tries to assist people in reaching agreements. It is generally cheaper than going to Court and can be a lot more effective than going through the Court which can cause bitterness and unpleasantness. Mediation is seen as a good alternative way of trying to sort out peoples disputes. As from April 2014, has been compulsory for the person applying for contact to attend a MIAM before issuing an application to the Court. This will show that mediation has been attempted. There are some exemptions to having to attend the initial mediation appointment, but there are quite strict guidelines, and the necessary evidence must be produced to the Court to show the reason why the attendance at MIAM is not required.
If the other person to the dispute does not attend mediation or the mediator considers the case and the circumstances unsuitable, they will then issue a form FM1 which a person can use to make an application to Court.
The only people who are entitled to go before a Judge in family cases are the people who are named in the application as Applicants and Respondents. Generally this will be both parents. Because the Court proceedings are about children they take place in private chambers and generally, the Judge will only allow those people to be present in Court provided everyone agrees that another person can be present. The only people allowed to speak in Court are the Applicants and Respondents to the application, and their legal representatives.
Legal Aid is very rarely available for applications to the Court for contact to children, unless one of the parents (or in some cases the children themselves) are the victims of domestic violence or abuse. https://www.gov.uk/legal-aid/overview
The Court fee is £215.00 but if you do instruct a Solicitor, there are additional costs incurred. Please see the list of prices for assistance from us in being able to help resolve matters. Since Legal Aid has all but disappeared, solicitors practices have had to work hard to offer fixed fees and different levels of service. This means that if you feel confident to prepare the application and serve it on everyone yourself, you may not decide to instruct a Solicitor to deal with that but you might not feel confident enough to represent yourself at Court, in which case it might be more appropriate to instruct a Solicitor. You may decide that the initial Court hearing is something that you can deal with but when the case becomes contested, you want a Solicitor to act on your behalf. In the circumstances, there are all sorts of prices and guidance. Solicitors can also charge at an hourly rate. They are required to give you a costs estimate at the start of your case and to keep you updated about costs regularly. Generally, Solicitors will ask for some money up front from you to represent you. This is because they need some security that they are going to be paid for the work that they deal with. Many firms now offer access to loan agreements, and you may want to speak to the solicitor about that.
This depends on the circumstances of your case. If you are able to reach an agreement without the necessity of Court proceedings, it may be possible to reach this within a matter of weeks. If Court proceedings are necessary, the case may take several months.
You do not have to have a Solicitor but it is recommended that you at least obtain some legal advice. It is possible for you to conduct proceedings yourself.
The local family or County Court may be able to provide you with the application forms alternatively, you download and print copies directly from the Court Website at http://hmctsformfinder.justice.gov.uk/HMCTS