CHILDREN ACT APPLICATIONS
If you have an unresolved dispute with the other parent of your child about your child then it may be necessary to apply to the court. This is by way of an application under the Children Act 1989 requesting that the court should make an order which directs what must happen with your child in respect of the disputed matter.
This can include:-
Child Arrangements Order – Residence: resolving disputes as to which parent the child should live with. Contact: resolving disputes as to the time the child should spend with the parent they do live with.
Prohibited Steps Orders – resolving a dispute about matters by asking for an order to prevent the other parent doing something in relation to the child, for example, not to remove the child from the care of the parent with whom the child lives.
Specific Issue Orders – an order about something specific relating to a child, for example, which school the child should attend.
The Court Process
Initial discussions and attempts to resolve the dispute:-
Before any application can be made to the court there should be an attempt to contact the other parent to put forward your proposals regarding your child and your reasoning for your proposed way to deal with matters. As parents of a child you both have a number of years to “parent” your child. This process always works better if there is “goodwill" and “give and take”. Research suggests that your child will benefit from good communication between their parents and a lack of confrontation and dispute.
If you cannot agree by discussions and wish to refer the situation to the court, you will have to attend an initial meeting with a mediator who will assess whether your case is suitable for mediation.
Mediation is a process which attempts to get the parents together in the same room to discuss the problem together with a mediator. The mediator will encourage the parents to listen and to explain their point of view and to consider practical difficulties. It is hoped that the parents can work towards an agreement in this way and that any agreement will work well as both parents have accepted this.
If you are not suitable for mediation or if one parent refuses to attend mediation then the mediators will provide a standard form confirming this. It is not possible to apply to the court without this form.
The court application
The process if started by way of a standard Application form which provides all the information about the child; the parents and what is in dispute. The application is issued by the court and that gives rise to a formal court matter being created.
The application must be sent to the other parent and this gives the parent notification that the formal court process has started. It also states when the matter is first to be considered at court at a first appointment hearing.
When the Application is issued the Family Court send a copy to CAFCASS.CAFCASS is the Children and Family Court Advisory and Support Service and they look after the interests of children involved in family court proceedings and advise the family courts on what it considers to be the best interests of individual children. They have a duty to safeguard and promote the welfare of children. They also give advice to the court, make provision for children to be represented (if needed) and provide information, advice and support for children and their families. They work with children and their families, making sure children’s voices are heard and their needs are met.CAFCASS is independent of the Courts, Social Services, education and health authorities, and all similar agencies.
Upon receipt of the application CAFCASS do safeguarding checks on the people involved, usually the parents and often the new partners of the parents.These checks are with the Police and Local Authority.CAFCASS will usually also phone the parties to ask them about any domestic violence issues or other safeguarding issues and, where such calls indicate the need for further clarification of allegations of violence or allied safety issues, CAFCASS may arrange a meeting with either or both of the parties to take place before the first hearing.
The application will usually be listed between three and four weeks of the date of the application to enable CAFCASS to make their initial enquiries.
CAFCASS carry out safeguarding checks before the first hearing.The general and welfare issues in the case will not be discussed until the first hearing and CAFCASS will not initiate any contact with the children before that first hearing. Prior to the first hearing CAFCASS will send a note to the Court outlining any safety issues that have emerged and will usually send a copy of the note to the parties.
At the First Hearing
1. The first hearing is an opportunity for the parents to use the time to attempt to resolve the dispute by negotiating. If the parents reach agreement, the Court will scrutinise and approve or not, the agreement, taking account of any safety issues.
2. Where agreement is not reached, the Court will consider the outstanding issues and areas of dispute. The court will then make directions (Orders) for timetabling the obtaining of evidence and listing the case for a hearing.
3. In some cases the court requires CAFCASS to prepare a Report to address particular issues and will, in conjunction with the parties and the CAFCASS Officer, identify such issues as narrowly as practicable to enable CAFCASS to prepare a short focused Report without delay.
The Next Steps
The case will either be adjourned for certain action to be taken and listed for a further hearing or if no agreement can be reached as matters progress then the court may be asked to determine the dispute by way of full final hearing. At a final hearing the court will hear all the evidence an make a decision about the matter. They will make a binding order which will be the future outcome in respect of the disputed matter. The court may order such things as with whom the child should liveand the time the child spends with the other parent under what is called a Child Arrangements Order”. Then, “the Court’s involvement concludes with that final order. Court’s involvement will usually be concluded at that point although these is a possibility of a review hearing should the court consider it necessary to review how arrangements it has imposed work out.