Children Act Proceedings

The law relating to children is governed by the Children Act 1989.  The welfare of the child is the guiding principle.  Any decisions taken by the Court are based on what the Court considers to be in the child or children's best interests.

It is important to consider carefully the potential damaging effect upon the children of prolonged Court proceedings.  Research has clearly shown that if issues concerning the children can be agreed amicably and positively between the parties themselves then this benefits the children.

Courts Powers and Procedure

The Court has the power to make Emergency orders on short notice if they consider a child to be at risk.  There is a general principle that a delay in Court proceedings relating to children is detrimental though unfortunately the Court process itself can be lengthy.

Mediation

In recent years the government has supported and developed schemes for mediation which offer an alternative way of resolving differences between people involving children matters. If both parties agree to be referred for mediation, then any court proceedings can be put on hold until the mediation option has been fully considered. Mediation is where a trained mediator uses his/her skills to encourage the parties to reach a settlement between them which reflects both parties needs, interests and responsibilities and of course those of the children. The role of the mediator is to facilitate that agreement reached between the parties rather than to impose an agreement which is what a Court may do.

The mediator cannot give legal advice but is independent of both parties and the Court.  Each mediation session normally lasts about 1½ hours and mediation involving finance can take between 3 and 6 sessions before a conclusion is reached.  Children matters normally take between 1 and 4 sessions.  It is essential that both parties give full and frank disclosure of their personal and financial circumstances.  In certain situations where a dispute involves children and the children are old enough the mediator can see the children and feed back to the parties what the children say.

The advantages of mediation are that it can be a cheaper, quicker and more effective method of settlement that Court proceedings. This is because the parties themselves have reached an agreement that they are reasonably happy with and therefore it is one that is likely to be fair and effective.

At any time during the mediation process you would be able to take advice independently from us and then resume the mediation. Mediation may not be appropriate if you consider that you would not be in a fair bargaining position with your spouse or former spouse or that you feel that for whatever reason you would have difficulty discussing matters directly with your spouse or former spouse even through a mediator.

Procedure

In most cases the first step in the proceedings after the application is issued will be a first hearing Dispute Resolution appointment which, hopefully, will be between 4-6 weeks after the application has been made.  Here, the Court will give directions on how the case is to proceed, but also consider ‘in Court Conciliation' using CAFCAS (Children & Family Reporters) to assist in considering whether the case can be resolved by mediation and agreement.

You must attend this appointment.  At this first appointment, the Court will identify the issues that cannot be agreed and timetable the case for future progress.

The Children & Family Reporter is independent of all the parties in the case and the Court. He or she will talk with all parties either separately or together and sometimes, according to the age and maturity of the child, with the child or children themselves.  Parties are often able to resolve a dispute at this early stage with the assistance of a Children & Family Reporter at a conciliation appointment. The Children & Family Reporter is someone who is trained and experienced in dealing with children.

The best Order you obtain is likely to be one which has been reached by agreement.

If the dispute continues, the District Judge will direct that written evidence should be produced by all parties, and if appropriate, by third parties on their behalf.  The written evidence is in the form of a written statement which the party signs after confirming the truth of the statement.

The Court may order a CAFCAS Report in contested cases although there are considerable delays in the preparation of these reports resulting from a shortage of Children & Family Reporters and often the proceedings can be delayed for four or five months whilst awaiting the preparation of the report.  This is regrettable but unfortunately is unlikely to improve until more resources are made available.  The CAFCAS report, once prepared, is made available to both parties and their Solicitors.  The Court is guided by the recommendations, if any, of the Reporter at the final hearing.

All documents prepared and filed with the Court in connection with Children Act proceedings are confidential and must not be shown to anyone apart from the parties and their legal advisors.

If the matter goes to a full hearing parties are often represented either by a Solicitor or a Barrister who they would meet before the hearing, in conference, so that they would have an opportunity to discuss their case, its strengths and weaknesses and relevant evidence, before the full hearing.

Also the Court proceedings themselves will be heard in private. The proceedings are not open to members of the public or indeed anyone who is not a party to the proceedings. Therefore you would not be able to bring friends or colleagues into the Court room with you but they may of course come with you to the Court building to give you support if that is what you wish.

Main Issues for the Court

The children's interest under the Children Act are paramount.  This means they override any rights or interests of the parents.  The children's interest and welfare will be the first consideration for the Court.

The Children Act sets out certain issues which the Court must consider in every case relating to the children before reaching the final decision.  This is called the ‘Welfare checklist' and is as follows:

1. The ascertainable wishes and feelings of the child concerned considered in the light of his or her age and understanding.
2. His or her physical, emotional and educational needs.
3. The likely affect on him or her of any change in circumstances.
4. His or her age, sex, background and any characteristics which the Court considers relevant.
5. Any harm which the child has suffered or is at risk of suffering including violence and, for example, impairment suffered from seeing or hearing the ill-treatment of another child or parent.
6. How capable each of the parents and any other person in relation to who the Court considers the question to be relevant, is, of meeting the child's needs.

The Court can of course take into account all relevant facts and attach varying degrees of weight and importance to those factors according to the circumstances of each case.  It is very rare indeed for the children themselves to go to Court or give evidence.

Other Aspects

If the child's father was not, and is not married to the child's mother, and there is no Parental Responsibility Order or Agreement in force, the child's father does not currently have Parental Responsibility for the child.

You may also wish to consider making a Will for you and your family at this important time.  Our Probate Team specialise in this area and would be able to give you expert advice as to what is best for you in your current situation.  We can give you a fixed quote for the cost of your Will at the outset which is a cheap way of ensuring that your wishes are effectively taken care of after your death with the minimum of distress and worry for your family and dependants.

You may even be eligible for the Legal Help Scheme to cover the cost of your Will, particularly if you wish to appoint a Guardian to look after your children in the event of your death.