This will help those considering an application to the court for a child arrangement order where there are no allegations of domestic violence (DV). The court process is reasonably straight forward and there are normally three stages or appointments (with the court) and the courts may reduce this to just two or if an agreement is reached during the first stage and, it can end there.
BEFORE THE FIRST HEARING
If a parent has made an application or received notification (of an application), it will be as a result of the submission of a C100 form to the family courts. Before issuing the notifications, there are several things that take place first. The application will have been through the ‘Gatekeeping’ process and, will normally have been reviewed by a judge or legal advisor to determine the urgency of the matter and what level of judge or magistrate it should be heard by. At the same time, a copy of the application will be sent to CAFCASS (Children & Family Court Advisory Support Service). They will be involved with the matter through to its conclusion. They will check the safeguarding and welfare of the children and will listen to both parents and the issues that exist. They will be involved in providing reports to the court and making recommendations, which the courts very often follow.
The notification will advise the applicant or parent making the application of the first appointment which is called the ‘First Hearing Dispute Resolution Appointment’. The respondent (other parent) who receives notification must complete and submit a response using the C7 Form to acknowledge receipt. The notification will include a case number to allow both parties to reference the matter if they need to speak to the court or solicitors. It will also state that each party will need to speak with a CAFCASS officer. This is normally conducted by telephone and can last between 30 minutes to an hour. CAFCASS will draft a Schedule 2 Safeguarding Letter to the courts. It may also include recommendations for the court to consider prior to the first hearing.
COURT STAGE 1: FIRST HEARING DISPUTE RESOLUTION APPOINTMENT
Both parents will be asked to attend the court approximately one hour prior to their First Hearing Dispute Resolution Appointment and meet with a duty CAFCASS officer. They will want to know if anything has changed or if any agreements may have been reached during the time it has taken to be heard in court. If an agreement has been found, it is very likely that the judge may issue an order by consent (Consent Order). If no agreement has been found, the CAFCASS officer will see if other means to find agreement may be found and this may include returning to mediation. If no agreement can be reached, then the appointment with the judge will go ahead.
The judge will want to hear from both parties during the appointment. They will still prefer the parents to reach an agreement together rather than having to rule and issue a court order. A court order can often lead to further breakdown in the parent’s relationship with each other and invariably impacts the children.
WHAT ARE THE COURTS LOOKING FOR?
In the ideal world, the courts want parents to make decisions about their children. They also want both parents to play an active role in the upbringing of their children and be part of the support and decision-making process whilst they are too young to make decisions for themselves. The safeguarding and welfare of children is the courts’ paramount concern. They have the power to impose many conditions upon parents where they feel it benefits the children. This could include restricting visits to being supervised or demanding a parent attends a parenting course to improve the skills. They also have the power to stop a parent from having contact with their children, but this tends to be in a minority of cases.
The courts are also very interested in the feelings and wishes of the children involved. When the application is about younger children, where they are deemed too young to express their wishes (below 10 years old), the judge may decide to omit the second stage of the process and move directly to a Final (Contested) Hearing where an order may be made. For older children, the courts will want to hear from them and therefore may request a Section 7 report.
A Section 7 report is created by CAFCASS and can include reports from other agencies including Children’s Services. Very often the child will be seen by a trained CAFCASS officer alone and with each parent. They may also speak with education and medical professionals if appropriate. The Section 7 report will be shared with all parties in the matter including the parents.
INTERIM CONTACT ORDER
As a result of the First Hearing Dispute Resolution Appointment, the courts may issue an Interim Contact Order, especially where one of the parents has not had contact or has been restricted. This will normally be in place until a final outcome has been arrived at. This can include imposing conditions, such as supervised contact or restricted overnight stays for the child.
COURT STAGE 2: DISPUTE RESOLUTION APPOINTMENT
If a Section 7 has been requested, it will be presented along with its finding to the court. It will often provide recommendations based on the information that has been received from meeting the children and parents and other reports submitted as part of the information gathering process. Whilst the courts will often follow recommendations from CAFCASS they still prefer the parents to find their own agreements. The chances of any arrangements being adhered to depend largely upon both parents being able to agree with each other. If they do, then the court will issue a consent order detailing the arrangements.
The court follows the guidelines as detailed in Section 1.3 of the Children Act 1989 when considering any ruling or next steps.
The seven criteria set out in the welfare checklist are:
1. The ascertainable wishes and feelings of the child concerned
2. The child’s physical, emotional and educational needs
3. The likely effect on the child if circumstances changed as a result of the court’s decision
4. The child’s age, sex, backgrounds and any other characteristics which will be relevant to the court’s decision
5. Any harm the child has suffered or may be at risk of suffering
6. The capability of the child’s parents (or any other person the courts find relevant) at meeting the child’s needs
7. The powers available to the court in the given proceedings
If the parents cannot still agree, the judge may order them to return to mediation, particularly if in their judgement, the agreement can be found, otherwise, a final hearing date will be set.
COURT STAGE 3: FINAL (CONTESTED) HEARING
The court will ask both parents to prepare a statement they wish the court to consider before a ruling is made. The statement will cover what the parent would like in terms of living and contact arrangements, it will also include any evidence or views to support their wishes.
At the final hearing, that will normally last a whole day, CAFCASS will be asked to present the Section 7 report and give their recommendations for the court to consider.
The courts will ask the parents if they agree with any or all of the recommendations made by CAFCASS in an attempt to reach an agreement through a consent order. Where the parents cannot agree, the judge will be making a ruling and issue a court order detailing the arrangements moving forward.
Contact FMACS for Child Arrangement Orders
When a relationship breaks down, the living arrangements for your children will be the most important thing to agree on. Family Mediation and Counselling Services offer friendly and compassionate family mediation services that can help you work through your differences with your ex-partner in a collaborative and constructive way.
We offer a free no-obligation consultation to determine whether mediation is right for you.
Call us on 0330 113 0005 or you can request a call back here.