CHILDREN ACT PROCEDURE

CHILDREN

We recognise that issues relating to children are most important to you. If there are children involved in the breakdown of a relationship, the main priority is to agree where they will live and how their time is to be shared between you and your former partner. We understand that it can be difficult to reach agreement and we will deal with this sensitively, avoiding the creation of more upset and acrimony, and making sure that the children’s welfare remains the priority at all times.

We are pleased to say that in the vast majority of our cases it is possible to reach agreement in relation to the arrangements for the children without having to use the Court system and children do not become the subject of Court Orders.

We are members of Resolution and, in accordance with Resolution’s code of practice, we will always endeavour to advise, negotiate and conduct Court cases in a manner calculated to encourage and assist both parties to achieve a constructive resolution of their difficulties as quickly as possible.

PARENTING PLANS

Communication is key – if it is safe to do so and you are your former partner are able to communicate effectively and reach agreement upon the arrangements for the children you may wish to consider recording the same within a “Parenting Plan”. You can access this via the CAFCASS website https://www.cafcass.gov.uk/.

We would certainly recommend that you consider this document at an early stage of separation as it will help you in your direct discussions with your partner.

MEDIATION

Where a dispute arises, which cannot be resolved through negotiation, a referral is made to Mediation prior to any application being made to the Court.

We would urge you to consider trying, through Mediation, to reach agreement with the other parent regarding your children before starting Court proceedings.

We are members of Resolution and, in accordance with Resolution’s code of practice, we will always endeavour to advise, negotiate and conduct Court cases in a manner calculated to encourage and assist both parties to achieve a constructive resolution of their difficulties as quickly as possible.

Mediation is a process in which an impartial third person assists those involved in family breakdown to communicate better with one another and to reach their own agreed and informed decisions about some or all of the issues relating to or arising from the separation, divorce, children, finance or property.

One advantage of reaching an agreement through mediation is that mediation does not involve going to Court and it is therefore almost always considerably cheaper.

Another advantage of reaching agreement through mediation is that such agreements usually last and you will therefore be more likely to have a better relationship with the other parent in the future. In cases where children are concerned, you will always have a connection to the other parent through your children. It is extremely important for the sake of your children that both parents can parent effectively and without disagreement.

There are a number of different organisations and individuals who carry out mediation and conciliation. Please let us know if you want further details of these organisations.

COURT ORDERS

In the event that an agreement cannot be reached and an application to the Court becomes necessary the Courts have the power to make various Orders in relation to a child, namely:

  1. Child Arrangements Order – if the parents cannot agree on who the child should live or the amount of time the child should spend with the other parent, the Court will resolve the issue by way of a Child Arrangements Order
  2. Specific Issue Order – parents may agree on most issues but there may be particular matters which they cannot agree on, for instance immunisation or the school the child is to attend. In such cases, an application could be made to the Court for a Specific Issues Order, and the Court will decide on that particular issue.
  3. Prohibited Steps Order – if one party threatens to do something, with regard to the child, which the other party believes is not in the child’s best interests and matters cannot be resolved amicably then application can be made for the Court to decide the issue.

The Court will give the following three principles the highest priority:

  1. The child’s welfare is of the paramount importance;
  2. The Court must have regard to the general principle that any delay is likely to prejudice the welfare of the child; and
  3. The Court will not make an Order unless it considers that doing so would be better for the child than making no Order at all.

In deciding whether an Order should be made, the Court will take into consideration:

  1. the ascertainable wishes and feelings of the child concerned (considered in the light of the child’s age and understanding);
  2. the child’s physical, emotional and educational needs;
  3. the likely effect on the child of any change in his/her circumstances;
  4. the child’s age, sex, background, and any other characteristic which the Court considers relevant;
  5. any harm which the child has suffered or is at risk of suffering;
  6. how capable each of the child’s parents are of meeting the child’s needs, and any other person in relation to whom the Court considers the question to be relevant;
  7. the range of powers available to the Court under the Children Act in the proceedings in question.

Under the Children Act, the Court will only make a formal Child Arrangements Order, or any other Order, if there is a dispute, otherwise no Order will be made. There is also a presumption that the Court should not intervene unless it is in the best interests of the child. When making any decision, the Court’s paramount consideration is the welfare of the child. The Court recognises that delay is likely to be harmful to the child’s welfare.

APPLICATION FOR A COURT ORDER

If an agreement cannot be reached quickly, either party can start Court proceedings, which will involve the preparation of the application forms on the applicant’s behalf.

Once the forms have been sent to the Court, the Court will then list what is known as a First Hearing Dispute Resolution Appointment (FHDRA) at which the Court will try to see if an agreement can be reached. If no agreement can be reached, the Court will give directions as to how the case should progress to the next stage.

We will then have to prepare a Statement setting out the facts of the case.

That Statement will be sent to the Court and a copy sent to the other parent who will then have to prepare a Statement in reply. Sometimes the Court orders that Statements are prepared simultaneously, although the District Judge could order that the Statements be served consecutively, so that both parties can see the case that they have to answer.

At the directions hearing, the Court sometimes Order that a CAFCASS (Children and Family Court Advisory and Support Service) officer must prepare a report on the Applicant’s case. The CAFCASS officer or reporter is an independent person with a Social Work background who will investigate the case and will normally make a recommendation as to what Order should be made.

It is important that the parties co-operate fully with the CAFCASS officer, since he or she is an important person whose recommendations will have a strong impact on the outcome of the case.

Also at the First directions hearing, the Court will fix a date for a DRA (A Dispute Resolution Appointment) to see whether it is possible to reach an agreement after Statements and reports have been received.

If an agreement cannot be reached then the case will be listed for a Final Hearing where the Judge will hear evidence from each party and CAFCASS if they are involved and will then make a decision as to what order is in the best interests of the children.

It will take several months from the start of the case before a Final Hearing takes place. Delay is deemed prejudicial to a child and accordingly we will make every effort on your behalf to try to reach agreement as your case progresses and for all hearings to be listed without undue delay.

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