A Guide to Disputes Involving Children
In a dispute involving children the focus is always on the need of the children
In a family dispute the focus is always on the needs of the children. Whether you are married or not, you may need advice when you split up about Parental Responsibility for your children.
These days the Courts will not interfere in your arrangements for your children unless you are unable to agree. Custody and access are now referred to as Child Arrangements.
What is Parental Responsibility?
This gives parents a legal status and a right to participate in the important decisions concerning their children.
Unmarried Fathers who are named on the Birth Certificate have it. Married Fathers, like all Mothers, automatically have Parental Responsibility towards their children.
Mothers can grant Parental Responsibility to the un-named Father, who does not have automatic Parental Responsibility, by an agreement. This needs to be sent to the Principal Registry of the Family Division in London. If the Mother will not agree, then the Court can grant Parental Responsibility. In the vast majority of cases the Courts will grant Parental Responsibility on a Father’s application.
What if you cannot agree?
If you cannot agree where the children are to live then one or both parents can apply to the Court for a Child Arrangements Order. It is important to remember that this is not a “best parent” contest. The Court is only concerned with what is in the best interests of the children. It is much better for the children if you can agree.
Even if you are able to agree where the children are to live, you still may not be able to agree how much time the children should spend with the other parent.
The Court can also decide other disputes such as schools, changing the children’s surname and other major disputes. These are called Specific Issues and Prohibited Steps Orders.
What if an application to Court becomes necessary?
Issuing the application
Before making an application to Court all applicants must firstly attend a MIAM (Mediation Information and Assessment Meeting) unless they are exempt or the application is made on an urgent basis. The aim of a MIAM is to explore settling the problem by mediation. If the case is not suitable for a mediation or it breaks down the mediator will confirm this, which allows and application to be made to court.
The application for a Child Arrangements Order is made on a form C100 and a C1a (if appropriate) and once issued this sets a timetable in motion. The current Court fee is £323. The person making the application is known as the Applicant and they must serve the paperwork on the other party known as the Respondent, at least 14 days before the first Court hearing.
The other party should acknowledge receipt of the application.
Early CAFCASS involvement
Once the application has been issued CAFCASS will start making basis safeguarding enquiries with the Police and Social Services. Both parties will be contacted by CAFCASS for an initial discussion. At this stage they will only want to discuss any safety issues regarding children.
2nd Gate Keeping Appointment
This hearing takes place upon receipt of the CAFCASS safeguarding letter and take place usually without the parties being in attendance. The Court will set out various Directions as to how the case shall progress. This may include for the parties to file statements or evidence sought from a third party such as a GP or Police records. If there are welfare concerns about the children raised by one or both parties the Court may order CAFCASS to prepare a report. These usually take 12 weeks to prepare and will include at least one meeting between the allocated Officer and the parties. In some cases where the wishes and feelings of the children are deemed as important factor the officer may wish to meet with the children directly. This will always be conducted safely and sensitively. CAFCASS will make recommendations at the end of their report as to what the arrangements for the children should be. Other Directions can be made such as one or both parties attending parenting programmes, drug and alcohol testing and mental health assessments. All Directions are made with the view of progressing matters in the best interest of the children concerned.
Dispute Resolution Appointment
The First Hearing Dispute Resolution Appointment. At this hearing the parties will be in attendance and the Court will try and encourage the parties to resolve the matter by agreement. If everything can be agreed the Court will make a Final Order and the case will end.
The Court will listen to both parties at this hearing but will not hear evidence. In the event matters cannot be fully agreed the Court will make Directions to progress the case or prepare a fuller hearing. Interim orders can be made at this stage about the children’s arrangements, for example interim contact – whether this is direct or indirect, unsupervised or supported by a third party or formal contact centre.
If there are factual disputes that are important to the decision the Court has to make about the children (such as domestic abuse allegations that are denied) the Court might decide to deal with those first and direct a Finding of Fact Hearing. Both parties have to prepare written evidence and then give oral evidence on the day of the hearing. In the event findings are made at the Finding of Fact Hearing the rest of the proceedings continue on the basis of those findings.
If there is continued disagreement the case will be listed for a Final Hearing. The Court usually will direct the parties to file and serve statements of evidence they seek to rely on prior to the Final Hearing.
This is a form of trial when usually both parties will give evidence and will be able to challenge the other parties evidence by asking them questions . If CAFCASS have prepared a report in the proceedings the Officer will often present at the Final Hearing and can be examined on his or her recommendations.
The Judge will listen to all evidence and come to a decision making a Final Order for the arrangement for the children.
This is usually the end of the matter however in some circumstances if the Order is not being complied with there may need to be an additional application to the Court for enforcement.
How long does it take?
Contested Child Arrangement Applications usually take between six and twelve months although many do take longer. If the case is urgent then the Court can act quickly.
It is very difficult to appeal a decision about children, although it is possible to ask the Court to vary the Order if the arrangements are not working. Always remember if you go to Court there is always a risk neither of you will like the result. It is always much better to agree if you can.
Costs in Children Cases?
In children cases, both private and public law, case law has established the proposition that it is unusual to order costs. A number of reasons are advanced for the practice of no order for costs in children cases. In all family proceedings, an order for costs inevitably diminishes the funds available to meet the needs of the family. Proceedings to determine the future of a child are partly inquisitorial and the focus is the best interests of the child. The Court does not wish the prospects of a Costs Order to discourage those with a proper interest from participating reasonably in the proceedings and the debate.
In children matters the Court retains the jurisdiction and the discretion to award costs in suitable cases. All circumstances must be considered in relation to the exercise of the Court’s discretion. Examples of circumstances in which costs may be awarded in children cases include those where one party has been guilty of unreasonable conduct in relation to the litigation and where there is a marked disparity in the means of the parties.