Children - Private Law

Residence, Contact & Other Orders

In divorce proceedings the Court can intervene at any time to determine any question regarding the children and any applications made in respect of the children should be issued under the divorce proceedings using the divorce case number.

If you are in dispute about the arrangements for your children you should always consider mediation first before resorting to issuing court proceedings.

The Common Applications are:

• Residence (where the children will live)
  Often Parents find it hard to agree who the children will live with and the Court is asked to sort out the arrangements.
  
• Contact (writing to, seeing or visiting a child)
  The absent parent can sometimes be prevented from seeing or even writing to their children and the Court is asked to order that contact arrangements be put in place.
  
• Prohibited Steps (stopping the other parent from doing something)
  A parent with Parental Responsibility can ask the Court to order that another person is prevented in taking certain steps to do with the child's upbringing. The only steps that can be prevented are those which could be taken by a parent in meeting their parental responsibility. E.g., preventing a change of school.
  
• Specific Issue (dealing with a single important issue)
  This order is intended to allow the Court to deal with specific questions relating to a child. These can include disputes such as medical treatment or religious upbringing.
  

Financial Provision for the Child

The Court can order the transfer of property or assets to either parent with Parental Responsibility for the benefit of the Child.

The Procedure

• Complete form C1 Application for an Order
• Complete C2 if applying within existing proceedings
• Pay Court fee to HMCS £80.00
• Issue at Court where Child resides

The Court will then issue you with a case number which needs to go on all documents and correspondence.

e.g., Smith –V- Smith. Case No. SN CP. 00 123

CP signifies they are children proceedings.

The Court in most cases will set a date for an initial Directions Appointment and a Court Welfare/Mediation appointment.

You will then arrange to serve the Respondent with the documents, either through the post or by process server or Court Bailiff.

The Court Welfare Appointment will usually be before the Directions hearing.

Why do they do this?

The Court has experts in children issues attached to it called Court Welfare Officers who intervene in cases where there are issues of Children’s Welfare to be considered.

They will attempt to see both parents before the Directions hearing to see what the issues are and whether any arrangements can be agreed.

If there are Welfare issues the Court Welfare Officer will recommend another Court Welfare Officer prepare a Report to advise the Court what in their view would be in the best interests of the child.

In some courts you can also see a local Mediator to see if Mediation would be suitable for you as an alternative to the Court proceedings.

Most Courts set aside special Family Days when Children’s cases can be heard. E.g. every other Thursday.

Directions Appointment

At this appointment you will meet with the District Judge in their Chambers. No one is allowed in with you except your lawyers and the other side.

They will want to know what the issues are and whether there has been any agreement at all prior to seeing them. They will also have been briefed by the Court Welfare Officer as to the outcome of your discussions with him.

If there are disputes as to the facts of a case then they will order statements be filed by a certain date. These can include the parties, witnesses and experts you may need such as Doctors or a Health Visitor.

They will then consider whether the Court Welfare Officer should file a report in the circumstances.

The Courts are reluctant to order Welfare reports unless absolutely necessary as there are too few Court Welfare Officers and too many cases.

If you wish to have someone else prepare a report such as a Child Psychiatrist you will need leave of the Court to do so.

They will then list for further Directions after the outstanding procedural matters have been done and reports filed.

Further Directions Appointments

Sometimes agreement may be reached for interim arrangements and these will need time to be looked at or work. The Court will make sure that if things go wrong there is not a long wait to the next hearing. They will review any interim arrangements and either makes further directions or indicate when the final hearing will be.

Statements

If you are directed to file and serve Statements they should be prepared well in advance of the date they are due so they are not late and delay the proceedings.

They should be to the point and we would advise you set out your evidence in clearly defined sections. e.g. in this Residence Statement:

• History (background info)
• My Current Status (e.g. housing, job, relationships)
• Other Side’s Status
• Reason for Application
• Other Sides Behaviour since Separation towards Child
• Proposals for the Future
• This is just an example of headings but it keeps the statement neat, focused and easy to read.

Final Hearing

Most Children cases are settled after a Court Welfare Officer has reported to the Court on the basis of their recommendations. However, some do not settle and a final hearing is necessary.

The final hearing will again be in private.

The Judge may be a district Judge or Circuit Judge.

The Applicants case starts the proceedings with the Applicant giving evidence to the Court based on their statement. The evidence is given on oath. (Evidence in chief)

The Respondent will then have the opportunity to ask questions (cross examination)

The Judge may ask their own questions as well.

If the Parties are represented there will be a re-examination by their advocate.

The Applicants witnesses will then be examined in the same way.

The Respondent will follow the same procedure after the Applicant has finished setting out his evidence.

If the Court Welfare Officer is to give evidence he may go first so he can be released early to attend to other urgent business.

Once all the evidence has been heard, the parties can summarise their case and present any Authorities (Statute & Case Law to the Judge).

The Judge will then give his judgment to the Court either there or then or later.

The Judge when coming to a decision has to refer to the Welfare Checklist contained in Children Act 1989 S. 1(3).

The Welfare Checklist states:

In the particular circumstances of the case a Court shall have regard to:

• The Ascertainable wishes of the child (depends on his age and understanding)
• His physical, emotional and educational needs.
• The likely affect on him of a change in his circumstances.
• His age, sex, background and any characteristics of his which the Court considers relevant.
• Any harm which he has suffered or is at risk of suffering.
• The capability of each of his parents, and any other person in relation to whom the Court considers the question to be relevant in meeting his needs.
• The range of powers available to the Court under the Act in the proceedings in question.
• In the proceedings we have highlighted the Court has powers to make other Orders even if they have not been asked for.

Other Proceedings

Child Abduction

Where a child has been taken without consent outside the jurisdiction of the Court and where a residence Order is in force or where only one parent has parental Responsibility.

See Also

Contemplating Divorce » Children
Getting Help » Children
What Happens Next » Children
What Happens Next » Organisations
Consult our experts in the community section
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Information on this page is current and last updated: 4/2/2012