Guide to Applications relating to Children
What matters can the Court assist with?
If you have a child and are getting divorced or separating from your partner, you will need to consider where your child will live and how often they see each parent. Technically, this is known as ‘residence’ and ‘contact’.
Parents are usually the best people to decide upon arrangements for their childbut where the parents are unable to reach an agreement on these arrangements, an application to the Court can be made for a Residence or Contact Order.
The Courts treat the welfare of the child as paramount, and therefore will only make orders which are considered to be in the best interests of the child. In addition to Court applications for residence and contact matters, the Courts deal with applications for:
- Parental Responsibility Orders
Where Parental Responsibility is granted to fathers who do not automatically have Parental Responsibility in respect of their child and cannot obtain this by consent from the mother.
- Specific Issue Orders
Court is is asked to make a decision on an important aspect of a child’s life; for example moving the child out of the jurisdiction
- Prohibited Steps Orders
Where the Court can prevent a parent from taking a particular course of action in respect of a child; for example moving a child to a different school.
What is CAFCASS?
CAFCASS stands for Children and Family Court Advisory and Support Service. They are an independent body who attempt to assist parents in reaching an agreement concerning their child and who advise the Court on what they consider to be in the child’s best interests.
If you make an application to the Court about the arrangements for your child, the Court may ask CAFCASS to become involved. They will usually contact the relevant local authority and the police before the first hearing, to find out if they hold any information which might indicate safety or welfare concerns about your child that the court should be aware of.
Before the first hearing, CAFCASS will write to the Court detailing the enquiries which have been made. CAFCASS may also contact you by telephone to discuss the Court application and any concerns you may have.
What happens at the First Hearing?
The first hearing is known as a Conciliation Appointment and Directions Hearing and usually takes place 4-6 weeks after the application is filed with the Court.
The CAFCASS officer will usually be at Court to assist the Judge who will decide how to deal with the application and whether further assistance from CAFCASS is required.
In most cases, a CAFCASS officer will speak to you and the other parent separately at Court before going into the hearing, particularly if they have not already spoken to you on the telephone.
The CAFCASS officer may also conduct a Conciliation Appointment with you where you and the other parent sit down together with the CAFCASS officer and discuss the issues concerning the arrangements for the children in an effort to assist you in reaching an agreement at Court which can be recorded in a Court Order.
If an agreement cannot be reached, the Judge will decide at the hearing how the case will proceed. The Judge will make directions for the case which may involve a report being filed from CAFCASS, statements being filed by each parent and the matter being set down for a further hearing. In some cases, the Court will also make directions for a report to be obtained from a medical professional such as a Psychiatrist or for a parent to undergo certain medical tests, such as drug or alcohol testing.
The Court can make an interim order at the first hearing, particularly if for example one parent is being denied contact with a child. This will depend on the circumstances of the case and any welfare concerns raised by CAFCASS.
Other methods of resolving the issues in dispute can also be considered at the first hearing such as a Parenting Information Programme. An order can be made by the Judge for parents to attend a Parenting Information Programme which is provides advice and guidance on how parents can help themselves and their child at the time of family breakdown.
What is a CAFCASS Report?
Courts rarely take evidence directly from child and the Judge will almost invariably never see the child. Instead the Court normally orders a CAFCASS Officer to prepare a report once the parties themselves have filed their statements.
The CAFCASS Officer will be given all the Court papers and meet with all the relevant parties including the child. They will then prepare and file a CAFCASS report with the Court setting out their recommendations on the issues concerned in accordance with what they consider to be in the child’s best interests.
In practice, most CAFCASS reports will recommend that the child will see both parents regularly. The report of the CAFCASS Officer should be given careful consideration by both parents. The Court attaches great weight to the CAFCASS report, and although it has the power to depart from the recommendations, it will only do so if there is good reason. As a result of this, it is sometimes possible for the parents to reach an agreement based on the recommendations of CAFCASS without proceeding to a Final Hearing.
What happens at a Final Hearing?
If an agreement still cannot be reached, the final step is for the matter to be heard by the Court at a Final Hearing. It is only a small minority of cases which are contested before a Judge at a Final Hearing. At this stage, both parents are required to give oral evidence to the Judge and the Judge will give careful consideration to the evidence before the Court, as well as the CAFCASS report before making a final decision, known as a Judgment.
In all cases regarding a child, the Court will always make its decision in the light of what it considers to be in the best interests of the child. There are other factors, of course. For instance, if a teenage child is opposed to contact with one parent then a Court is very unlikely to make an order which has little chance of being obeyed. With a younger child, the wishes of the child are taken into account depending on age but they are not decisive.
Generally speaking, a Court will consider contact with both parents to be in the interests of the child and it is very unusual for a parent who does not have residence to be denied contact with the child.