Disputes involving Children

Relationship breakdowns are difficult for all involved and become even more stressful when arrangements for your children are not agreed

Our Family Law team has a wealth of knowledge and experience in helping families work out the most appropriate solution to ensure the best interests of the children are maintained. Please contact us on 01274 561666 for advice.

The court process

If a dispute is referred to the court to resolve through issuing proceedings then the court will need to consider all the circumstances of the case. The Children Act 1989 lists various matters which the court must always take into account (‘the welfare checklist’). Your child’s welfare is the court’s paramount consideration.

The court has to consider the following:

The ascertainable wishes and feelings of your child (considered in the light of his or her age and understanding)
Your child’s physical, emotional and educational needs
The likely effect on your child of any changes in circumstances
Your child’s age, sex, background and any characteristics which the court considers relevant
Any harm which your child has suffered or is at risk of suffering
How capable each of you are as a parent (or any other person the court considers relevant) in meeting your child’s needs
The range of powers available to the court in the proceedings

Other principles the court must apply include:

The court should consider whether it is best for your child to make any orders at all
The court should be mindful that any delay may prejudice your child’s best interests
There is also a presumption in favour of both of you as parents being involved in the upbringing of your child

Every case is unique and decided on its own facts, taking into account the decisions made by the court in previous cases.

To apply for a court order you must first fill in the relevant court form and send it to the family court. You’ll need Form C100 to apply for a child arrangements order, prohibited steps order or specific issue order.

Once the application is received by the court, it will be issued (stamped and given a case number). It will be returned to the party making the application (the applicant), who must serve a copy on the other party (the respondent). The respondent should then file an acknowledgement of service indicating his or her position.

Court hearings

The case will be listed for a hearing once your application and response has been received and the necessary safeguarding checks have been carried out. This is called a First Hearing Dispute Resolution Appointment (FHDRA) where the court will encourage you and the other party involved to resolve your issues. A CAFCASS officer will be present to help you with any discussions.

If you’re unable to reach a settlement, the court will do one of the following:

Order you and the other person(s) involved to file statements explaining the facts and your positions
Further investigations be carried out by CAFCASS and/or social services
Expert evidence be obtained
The case be transferred to a different court
Your child be joined as a party to the proceedings (this means that your child will have someone to speak for them (a Guardian) and their own lawyer)
Further hearings be listed to deal with some of the issues in dispute or to decide on disputed areas of fact

Some cases settle during the proceedings in which case the judge will be asked to approve the agreed order. Other cases don’t settle and require a final hearing. The court will hear evidence from all persons involved in the process (not usually the child but maybe their Guardian) before the judge reaches a decision and imposes an order on all parties involved.

The role of CAFCASS

CAFCASS, also known as the Child and Family Court Advisory and Support Service, is part of the family court system. It provides independent assessment and reporting which assists judges hearing children cases. Also known as family court reporters, reporting officers, court welfare officers or welfare officers, CAFCASS officers are qualified to work with children and often have a social work background.

Their role is to:

Investigate and report to the court on issues concerning the welfare of children
Assist separated parents to resolve disputes concerning arrangements for their children, if possible during the course of their enquiries
Act as a children’s guardian (also known as a guardian ad litem) where the child is a party to the proceedings

The initial safeguarding checks on all parties involved in your case are carried out by CAFCASS when you apply for a court order. This enables them to identify whether anyone involved is already known to social services and if there are concerns regarding safety, such as allegations of abuse or domestic violence.

CACASS do the following:

Have direct contact with your child to establish his or her wishes and feelings.

Read social services files concerning your child
Interview members of your child’s family
Speak to the school or nursery and other professionals involved with your child
Carry out an assessment of your child’s welfare

Parental Responsibility (PR)

Parental Responsibility is defined as 'all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property'.

If you have parental responsibility you have the right to be consulted in key decisions about your child’s upbringing, such as medical treatment and education.

Who has Parental Responsibility?

A woman who gives birth to a child, automatically has Parental Responsibility. She is usually the child’s mother, but not always, for example in some surrogacy arrangements
A father will automatically have Parental Responsibility if he was married to the mother either at the time of the child’s birth or subsequently
A father who is not married to the mother will only have Parental Responsibility automatically if the child was born after December 2003 and he is named on the birth certificate
In all other circumstances, a father will not automatically have Parental Responsibility and he must obtain it by one of the methods described below
In some families, people other than a child’s parents will have Parental Responsibility; such as stepparents, grandparents, uncles and aunts. The ways in which people other than a child’s parents can get Parental Responsibility are explained below

How a father can obtain Parental Responsibility

Parental Responsibility Agreements – it is possible to obtain parental responsibility by agreement with all others who already have it.
Parental Responsibility Orders – if no agreement can be reached then you can make an application to court.

Can anyone else have Parental Responsibility?

Only a mother or a father (in the circumstances described above) automatically has parental responsibility.

Other people can obtain parental responsibility in the following ways:

By applying to the court for a Child Arrangements Order that the child should live with them
By being appointed Guardian by a parent with parental responsibility
By adopting the child
By applying for a Special Guardianship Order