When a relationship breaks down it is hoped that an agreement can be reached between the parties about the arrangements for the children.
The courts do not generally intervene unless there is a dispute which cannot be resolved.
If an agreement cannot be reached, before resorting to court action, family mediation is another way that issues of dispute may be resolved. A mediator is a neutral person who is trained to listen to both parties and to try and help them resolve their differences. If an agreement is reached this will not be legally binding but is much quicker, less formal, and less costly than court action.
If a dispute that cannot be resolved then the court can make a decision on the behalf of both parties.
The court will only make an order if by doing so it would be better for the child than making no order at all.
When considering making an order the welfare of the child is the court’s paramount consideration.
The court refers to a statutory checklist:
- the wishes and feelings of the child, in light of their age and understanding.
- the physical emotional and educational needs of the child.
- the likely effect of any change in the child’s circumstances.
- the child’s age, sex, background and any other characteristics the Court considers relevant.
- any harm the child has, or is at risk of suffering.
- how capable each parent is of meeting the needs of the child.
- Powers available to the court.
The court process
Once an application is made, the court will allocate ‘The first hearing’. This hearing will be before a District Judge.
If an agreement is reached at the First Hearing the District Judge may decide to make an agreed order if deemed necessary.
If the parties cannot agree, the District Judge will generally order a return date and that the Children and Family Court Advisory and Support Service (CAFCASS) visit both parties to prepare a report (which takes eight weeks or more) before the next hearing.
CAFCASS Reporters are former probation officers with special training. Their recommendation carries weight with the judge, but does not bind him. It is their job to assist the court in understanding the situation, not to attempt conciliation.
If the matter is not resolved at the second hearing a date will be set for a full hearing before a Circuit (Senior) Judge. At that hearing you will be expected to give verbal evidence, and will be cross-examined.
What orders can the court make?
- whom the child(ren) should live with (a residence order).
- when and how the children are to see the parent they do not live with (a contact order).
- Stopping a parent doing something (a prohibited steps order).
- issues about the child’s upbringing (a specific issue order)
We help clients with all aspects of family law and mediation services, so if you need to speak to someone, call us on 020 8318 4345.