Parents often find it difficult and emotional to decide about the arrangements for their children after separation and to agree on what is in their children’s best interest in the changing circumstances the family is facing. Our family team will advise you and help you try and resolve any such issues amicably and constructively and work out ways to effectively co-parent from different homes. If you need additional help and support, we can refer you to a wide range of qualified and reliable professionals such as counsellors, family therapists and psychiatrists.
Anyone who wants to issue an application at court must first attend a Mediation Information and Assessment Meeting (MIAM) unless, in a small number of cases, they are exempt from doing so. Mediation can be a suitable and cost effective way to resolve a dispute away from court and involves both parties sitting down with an independent mediator and trying to resolve the dispute between them with the mediator’s assistance.
Unfortunately, mediation is not suited to all cases and if the other party refuses to attend, or you are unable to reach agreement, then you may decide that seeking assistance from the court to resolve matters is a better option.
MAKING AN APPLICATION TO COURT
If parties are exempt from mediation or unable to reach an agreement then an application can be made to the court for a Judge to intervene and provide assistance in resolving matters. Generally, the courts will try and encourage parents to settle matters between themselves and the court will only make an order if it is deemed that it is better for the children if it does so than if it does not.
WHO CAN APPLY FOR COURT ORDERS?
- Parents (including fathers without parental responsibility).
- Any person in whose favour a Child Arrangements Order (formerly a Residence Order) is in force.
- Step parents where a child has been living with them, or any person with whom a child has been living for at least three years.
- Anyone with the consent of those with parental responsibility for the child or with the consent of a person with a Child Arrangements Order.
- Any person including other relatives, family friends etc, may apply to the court for permission to bring an application in respect of the child.
Parental responsibility is the rights, duties, powers, responsibilities and authorities which by law a parent of a child has in relation to a child and their property.
The mother of a child has parental responsibility automatically. The father of a child has parental responsibility if he was married to the mother when the child was born, or conceived, or he later marries the child’s mother. A father can also acquire parental responsibility by executing a legally binding agreement with the mother or by court order. From 1 December 2003, fathers who are named on the birth certificate will also acquire parental responsibility.
If someone would like to make an application to the court then an application will need to be issued and a court fee paid. Once the application has been issued the court will list a First Hearing Dispute Resolution Appointment (FHDRA).
At the FHDRA the court will firstly consider whether there are any safety or welfare issues with the help of an officer from the Children and Family Court Advisory and Support Service (CAFCASS). The court will hear what the main issues are in the case and will try and encourage and assist parents to settle their dispute with the assistance from the CAFCASS officer and/or a mediator. If parent are unable to reach agreement, the court will set a date for a Dispute Resolution Appointment (DRA) and will provide a timetable for things to be done in the lead up to that hearing. This could include such things as CAFCASS providing a report as to the children’s wishes and feelings, transferring the case to a different court and appointing a children’s guardian or solicitor, if necessary.
At the DRA hearing the court will try and narrow any issues in dispute and will consider whether the hearing could in fact be used as a Final Hearing. If it is not suitable to be used as a Final Hearing then the Judge will set a date for the Final Hearing with another timetable of things to be done in the lead up to it. This could include such things as statements being filed, evidence being filed and bundles being prepared.
At the Final Hearing the Judge will consider all of the evidence put before them and will make a final order to resolve the dispute.
WHAT SORT OF ORDERS CAN THE COURT MAKE?
- Child Arrangement Order: This determines which person a child shall live with and how much time they should spend with the other parent or relevant person.
- Specific Issue Order: This determines a specific question in relation to a child, for example, which school the child should attend, whether a child should have an operation and other major issues concerning a child’s life.
- Prohibited Steps Order: This prevents someone from doing something which they could normally do if they have parental responsibility for the child. For example, they could be prevented from taking the child out of the jurisdiction or from having contact with a particular person.
- Guardianship: If there is nobody that has parental responsibility for a child then a guardian can be appointed to look after the child.
The court can make orders prior to a Final Hearing if the Judge thinks that it would be in the child’s best interests to do so, although Judges are often reluctant to make any decisions until they have all of the information and evidence before them.
For example, a court could decide with who the child should live in the interim period before a Final Order is made.
HOW LONG DOES IT ALL TAKE?
On average, a set of contested proceedings concerning a child takes six to nine months to reach a conclusion.