Although no two cases are ever the same, as far as possible the Family Court will try to manage proceedings in a structured and timely way in line with the ‘Child Arrangements Programme’. The programme is set out in the court’s ‘Family Procedure Rules’ (https://www.justice.gov.uk/courts/procedure-rules/family/practice_directions/pd_part_12b) and requires, as far as possible, that child-related court proceedings progress as follows:
Before starting court proceedings, prospective applicants are generally required to first attend a ‘Mediation Information and Assessment Meeting’ to see whether there is any scope for matters to be settled through mediation. If mediation isn’t appropriate, or if it is attempted but doesn’t lead to agreement, then a court application can be made. (It is possible to avoid the mediation requirement completely in certain circumstances e.g. if you have been a victim of abuse at the hands of the other party.)
A court application is made (for example, an application by a father to spend more time with his children) with the relevant court fee paid. Parents are permitted to pursue an application without first needing the court’s permission. The person making the application will henceforth be referred to as the ‘Applicant’ in the proceedings.
The court will process and issue the application. A date is fixed for the first court hearing, and copies of the application papers are sent to the other party who will henceforth be referred to as the ‘Respondent’. The Respondent is requested to acknowledge receipt of the application papers and confirm his/her position, although the proceedings will not pause if the Respondent fails to do so. The court also sends copies of the application papers to Cafcass (https://www.cafcass.gov.uk/): the agency that advises and assists the court in making the right decisions in children-related cases. Prior to the first hearing, Cafcass will make basic safeguarding enquiries with the Police and Social Services and also try to speak to both parents. Cafcass will then send the court an initial letter/short report summarising the situation and making recommendations to help the court decide what to do at the first hearing.
The first hearing is called the ‘First Hearing Dispute Resolution Appointment’ (‘FHDRA’) and will usually take place at least four weeks after the application was issued in order to give Cafcass time to do the necessary safeguarding checks. At the FHDRA the court will encourage the parents to settle matters by agreement if possible, or at least agree as many issues as they can. If, however, the parents and/or Cafcass are raising safeguarding concerns then it is unlikely that the case will conclude at the FHDRA. Usually the FHDRA is an exercise in making the appropriate directions to move the case forward. It should also be said that at this early stage in the proceedings the court will take a better safe than sorry approach. Accordingly, a parent will need to be patient if serous allegations are being made against him/her. If there are difficult issues in the case (and often there are as otherwise why would the case have ended up in court?) the court might order Cafcass to do a more thorough investigation and prepare a more detailed report. Such reports usually take Cafcass around ten to twelve weeks to complete. If serious allegations of abuse are being made, and if those allegations are disputed, then the court may decide that these need to be addressed at what is called a ‘Fact Finding Hearing’.
A Fact Finding Hearing has many similarities to a criminal trial. Perhaps the most important difference is that the Family Court will make decisions on the balance of probability, rather than requiring allegations to be proven beyond a reasonable doubt. For example, if the Respondent alleges that the Applicant was physically violent during the relationship, the court will only need to be satisfied that it is more likely than not that the violence took place. If findings are made in the Family Court (e.g. that the Applicant was violent towards the Respondent) the Family Court does not have the power to apply criminal sanctions such as fines or terms of imprisonment. However, the case will then proceed on the basis of the findings – this will inevitably have a significant impact on the court’s subsequent decisions with regards the child arrangements. At the Fact Finding Hearing the court will usually hear evidence from both parents, and possibly from other witnesses if there are any (although, given the nature of family law disputes, it is often the case that allegations relate to incidents that took place behind closed doors). It is also common for the court to consider police documentation and medical records. It is certainly the case that Fact Finding Hearings are often pivotal moments and will likely have a significant impact on the subsequent direction of the proceedings.
Once a Fact Finding Hearing has taken place (if one was necessary), and once Cafcass have filed a more detailed report (again, if the court ordered them to), the case will proceed to what is called a ‘Dispute Resolution Appointment’. Cases can often settle at this stage of the proceedings with parents reaching agreement in light of the recommendations Cafcass have made. Although Cafcass do not have the power to make final decisions in a case – that is the role of the court – their recommendations do carry great weight. Of course, one or both parents may feel that Cafcass have got things badly wrong, and if the parents are still unable to agree then the case will be listed for a contested Final Hearing.
The Final Hearing is another form of trial. However, whereas Fact Finding Hearings deal specifically with allegations made, the Final Hearing is all about the final decisions that need to be made to resolve the central issues in the case. For example, if the parents are arguing about whether the Respondent should be allowed to move to another part of the country with a child, the court will now look to make that difficult decision. The court will likely want to hear evidence from the parents and from the Cafcass officer. Those giving evidence can be cross-examined. The court will consider all the evidence carefully and make a final order.
If you are unhappy with the final decision, it might be possible to appeal. The difficulty with appeals in child arrangements cases is that so often the decisions needing to be made are incredibly difficult and there are no clear right and wrong answers. Judges or magistrates therefore have to apply a large amount of discretion and personal judgement. Accordingly, it is rare for decisions simply to be clearly ‘wrong’ in a technical/legal sense. This is not to say that appeals are not an option, but if you do appeal a decision it will not be easy to convince the appeal court that the decision made was so clearly wrong that it should be set aside.
Sometimes an order is made (whether by agreement, or after a final hearing) and one of the parents subsequently fails or actively refuses to comply with it – for example, a Respondent Mother is ordered to make a child available to spend time with an Applicant Father, but consistently makes excuses not do so. In such circumstances the Applicant Father could make an application back to the court for enforcement. If a party is found to have breached a court order without good reason the Family Court has various powers to punish the breaching party including by way of fines and/or unpaid work orders.