Resolving child disputes between parents

The law dealing with resolving disputes between parents over their children is almost entirely contained within the Children Act 1989. The thread running throughout the Act is that when a court is asked to decide a matter concerning children, the child’s welfare will be their paramount concern. The concepts of custody care, control and access are abolished, and rather than considering the ‘rights’ of parents, the Act talks of parental responsibility.

When parents separate and no longer live together, the children are not ‘awarded’ to one of the parents, as was once the case, by the making of a custody order. Contact and residence orders are no longer made, and instead parents are encouraged to agree the arrangements for their children and make a parenting agreement. Only when this is not possible will the court intervene and make a child arrangements order deciding such issues as where the children will live for most of their time and the time spent with a non-resident parent. This will often be helped by the use of mediation, and the court will expect parents to have attempted mediation and only resort to court proceedings when it has failed.

Embedded in the Law is the belief that children are generally best looked after by their parents, with both parents playing a full part in their upbringing. Parents are encouraged to make every effort to agree the arrangements for their children between themselves, using mediation when necessary, and only resorting to the courts when everything else has failed. Parental rights and parental responsibility will be shared equally between parents, whenever possible.

Just about all cases concerning children are dealt with in the family court. The only exception will be particularly complex cases and appeals which could be dealt with in the Family Division of the High Court. Cases are heard in family courts by either lay justices (magistrates) or judges. As the family court will not usually have a separate building, a case may take place in the magistrates’ court building, the County Court or even on occasions in the Crown Court.

The Family Procedure Rules (FPR) are the rules which the court must follow when deciding a family case. However, there is no need for a litigant in person to get too bogged down with the procedural rules. Judges have considerable discretion over how a case is conducted and will always explain carefully to a litigant in person what needs to be done.

The FPRs have the overriding objective of requiring the court to deal with a case justly, and having regard to the welfare issues involved. This must be achieved by dealing with the case expeditiously and fairly, and in a way proportionate to the nature, importance and complexity of the issues. It is a requirement that the court must ensure that the parties are on an equal footing, and the court must save expense and allot to the case an appropriate share of the court’s resources, whilst taking into account the need to allot resources to other cases. Judges must be proactive in managing cases in order to make sure that these overriding objective are achieved, and everyone involved in the case must help the court with this.

The Welfare Checklist

The court must comply with and have regard to the checklist in the Children Act 1989, when considering making a child arrangements order. This is commonly known as the welfare checklist and requires the court to take into consideration specifically:

‘…the ascertainable wishes and feelings of the child, which must be considered in the light of the child’s age and understanding.’

A child’s stated wishes and the importance of what the child wants will depend upon his or her age and understanding. If the child is 16 or over, it is extremely unlikely that a court would make an order contrary to the child’s wishes. Enforcement would in any event be extremely difficult.

Under 16 years, the court will take the child’s views into account, but not necessarily be bound by them. In the case of young children, although their view will be noted, they are likely to be treated with caution. With 5, 6 and 7 year olds, their wishes as to spending time with an absent parent will carry little weight. If there is a suspicion that a child has been coached by a parent, then the stated wishes of that child will be completely ignored. The court will condemn a parent who alienates a child against their other parent, and is likely to consider making an order that the child should live with the non-alienating parent, if he or she has shown that they will cooperate over the child arrangements.

2. the child’s physical, emotional and educational needs

At one time, the courts would give weight to the belief that young children should be brought up by their mother. This was based upon the natural bond between young children and their mother, but any presumption has now been rejected by the court. This will still be a consideration, but is not as decisive as at one time. The law can be taken as being that it is usual for very young children to be with their mothers, but where there is a dispute, this will be a consideration but not a presumption.

3. the likely effect on the child of any change in his or her circumstances

Where a child has had regular contact with a non-resident parent and there are now attempts to prevent this, a court will not hesitate in making an order that the child should have contact with that parent. Changes to the amount of time spent are however unlikely to be made initially. The court will wish to establish the amount of contact in line with what has been established, and then increase it gradually if appropriate.

If a child is settled living with one parent without problems, a parent wishing to change this arrangement will have an uphill struggle. When a status quo has been established and an arrangement shown to work, a court will not readily make changes unless short-term disruption is outweighed by other factors.

When considering a change in the circumstances, much may depend upon the nature of the child. Some children are able to deal with change better than others. Unnecessary changes to schooling will rarely find favour with the courts.

4. the child’s age, sex, and background and any characteristics of the child which the court considers relevant

5. Any harm which the child has suffered or is at risk of suffering

Protecting a child from any risk of harm will always be at the forefront of the court’s considerations.

6. How capable each of the child’s parents is and any other person, in relation to whom the court considers the question to be relevant, of meeting the child’s needs

This brings into play a parent’s conduct, which is often an issue in child arrangements orders applications. In Children Act cases, the behaviour of a parent is only relevant in the way that it affects the child’s welfare. The behaviour of parents to each other may well be considered quite irrelevant.

Misconduct between parents may however be relevant in throwing light on the probable behaviour of the parents in the future, and might tip the scales where each parent has an equal case. It is understood by the courts that when relationships break down, partners can behave in a reprehensible way towards each other, but this does not of itself necessarily exclude either parent from being a good or adequate carer of a child.

Attitudes to contact between the child and the other parent can reveal whether a parent is genuinely concerned with the welfare of the child by allowing the other parent contact to the child or whether a parent is more interested in hurting the other parent by refusing contact, even though it is in the child interest to have contact with the other parent. In one case, where a father expressed himself as being reluctant to allow the mother to have contact if he was given residence, this was taken by the court as a serious matter and weighed heavily against his application for a residence order.

Before applying to the court for an order, parents are required to attend a mediation information and assessment meeting (MIAM).When making any order, the court will be required to apply the ‘welfare checklist’ in Section 1(3) of the Children Act. They will not make an order unless it is considered to be in the child’s best interest to do so. As any delay could affect the child’s well being, this must be avoided.

Applying to the Court

Once you have attended a MIAM and received a notice of the result from the mediator, an application for a child arrangement or other Section 8 Children Act order application can be made using the prescribed Form C100. The court must within 2 days of the application being lodged issue the application, provide you with a copy and fix a hearing date. You will need to serve the application and hearing date upon the respondent yourself, unless the court have agreed to do so. At the same time, a copy of the application and details of the hearing will be sent to CAFCASS. You are then not allowed to file any further documents or evidence, until required to do so by the court.

The C100 application form is not difficult to complete, as for now you only need to give basic information. Should your application become contested, it is only then that the court will require you to provide and file further evidence in support of your application. The reason for this is so as not to inflame the situation and make early settlement by agreement more difficult.

Once issued, the application will be considered by a nominated legal advisor or district judge, who will be known as the ‘gatekeeper’.

CAFCASS will undertake safeguarding inquiries and may make telephone risk identification inquiries with the parties. They will then note any issues which arise from the checks, and within 17 days of receiving the application send a ‘safeguarding letter’ to the court, with copies to the parties.

A first hearing dispute resolution appointment (FHDRA) will be fixed, and must be held between 5 and 6 weeks following issue of the application. The respondent must be given as much notice as possible of the hearing, and is required to file a response no later than 10 days before the hearing. Both parties must attend the FHDRA together with the CAFCASS officer, who will speak separately to the parties before the hearing. Throughout the hearing, the CAFCASS officer will endeavour to conciliate and broker agreement, and advise the court on ways to resolve the issues.

Where agreement is reached an order can be made.

The First Hearing Dispute Resolution Appointment (FHDRA)

At the FHDRA, a judge or lay magistrate, often with the assistance of a CAFCASS officer, will explore ways of sorting out the issues and decide what the problems are really all about. It is in effect a conciliation hearing. Notwithstanding this, if any safety issues have become apparent from the checks carried out by CAFCASS, any orders necessary to safeguard the position for the children will be made.

The court will look at any factual issues which need to be decided before an order can be made, and if so, fix a fact finding hearing. They will also need to decide whether a report is needed from CAFCASS or social services. Directions will be given if reports or evidence from other parties are needed. A timetable will be fixed for the preparation and filing of reports, a hearing date fixed, should a fact-finding hearing be needed, and for a final hearing when evidence will be heard and the case decided, if not. Sometimes, a further directions hearing may be arranged, to consider progress and any changes in the parties’ positions.

If the parties cannot reach an agreement, further hearing date will be arranged.

You are likely to be required to prepare statements of your cases, for a CAFCASS officer to investigate and report, and possibly a report from other relevant experts. If CAFCASS are to write a report, the next hearing date is likely to be listed for two weeks after their report is prepared. The court may decide to make a temporary order (also called an interim order), which may last until the next hearing or beyond.

We have an e-book Children in the Family Court available for download, which fully explains the law and procedure relevant to disputes between parents over their children. We also have downloadable law guides on Appointing a Guardian for your children and Removing a Child from England and Wales.

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