Stuart Barton (Head of Department) and Paula Fraser
Whenever parties cannot agree arrangements over their children, it must be stressed that court proceedings should be the last resort. Contrary to common perception, going to court is not glamorous nor is it guaranteed to provide an outcome that ensures long-term stability for the children. Court proceedings are often stressful, time-consuming, unpredictable and expensive.
For the above reasons, any decision to start court proceedings should be made with caution and professional expertise is recommended. Too many court applications are presented where negotiations or discussion can resolve matters. However, there are clearly situations when these options are not appropriate or fail to resolve matters. In those circumstances, court proceedings are the only option.
Powers of the Court
The court has very wide powers in relation to children but there are five common orders relating to children. These are: residence, contact, parental responsibility, prohibited steps and specific issue. In all cases, the court must carefully consider which type of order is appropriate:
Residence simply confirms with which person a child should reside. Please note that a child may reside with more than one person – this is known as shared residence. A shared residence order does not automatically mean that care of a child is shared equally.
Contact is where the person who is caring for a child makes that child available to visit or stay with another person. Contact orders tend to be the most common orders made by the court. Sadly, they also appear to be the most problematic orders to implement and follow.
This provides a person with a recognised right to have a full say in all the issues concerning a child’s upbringing. Such issues could include the health care that a child receives, their ongoing educational arrangements or their religious orientation. All mothers have parental responsibility but fathers do not always have this responsibility. An umarried father may acquire parental responsibility by registering the birth, via an agreement with the mother or by making an application at court. It is also possible for the step-parent of a child to obtain parental responsibility in some circumstances.
Prohibited Steps Order
This order can be obtained where the court wishes to restrict the exercise of parental responsibility. For example, the court can prevent a parent taking a child outside of England and Wales if there is a risk of harm occurring. Such orders should only be made in rare circumstances owing to the impact they have.
Specific Issue Order
This order is made when there is a dispute over how parental responsibility should be exercised. For example, the court can decide upon whether a child should attend a specific school or go on holiday to a specific country. Again, such orders are not made very often
Which order should be made?
In order to decide whether any order should be made, the court will consider the welfare checklist. This is detailed within the Children Act 1989 and refers to the following:
A. the ascertainable wishes and feelings of the child concerned (considered in the light of their age and understanding);
B. the child’s physical, emotional and educational needs;
C. the likely effect on the child of any change in their circumstances;
D. the child’s age, sex, background and any other characteristic which the court considers relevant;
E. any harm which the child has suffered or is at risk of suffering;
F. how capable each of the child’s parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting the child’s needs;
G. the range of powers available to the court under the Children Act 1989 in the proceedings in question.
A central principle of the Children Act is the ‘no order’ principle. This means that the court will only make an order if that order is better for the child than not making any order. There is a presumption that the court should not intervene unless it is in the best interests of the child to do so. When the court does intervene, the main consideration is the welfare of the child and the court recognises that delay is likely to be harmful to a child’s welfare.
Agreement, Mediation and Conciliation
In most cases, the first step is to write to the other party involved in the dispute to see if an agreement can be reached without the need to involve the court. Mediation must normally be tried to help with this objective. If an agreement cannot be reached and court proceedings are started, the court will normally list a conciliation hearing. Conciliation is designed to see whether the court can assist the parties in reaching an agreement at an early stage, without the need for further hearings or directions.
If a case cannot be resolved at the conciliation stage, the court must consider what further information and evidence is needed to bring it to a conclusion at the earliest opportunity. It may be the case that the parties are directed to prepare statements, setting out their positions and detailing the background to the case. In more extreme cases, it may be necessary to obtain information such as police records, medical records or an expert’s report from a psychologist or psychiatrist.
Cafcass are the Children and Family Court Advisory Support Service. Their main role is to give advice to the court and provide information, advice and support to children and their families. Cafcass officers will usually be at court to assist the parties at the conciliation stage and will assist the court in reporting on cases where there are concerns over the welfare of children. If a Cafcass report is ordered during your case, it is important that you co-operate fully with the reporter as their recommendations have a strong impact on the outcome of a case.
Enforcing an order
It is not unknown for a person to disobey or ‘breach’ a contact order made within Children Act proceedings. If this occurs then the court can consider punishing the person at fault by ordering them to pay financial compensation or perform community service. Cafcass may also be asked to monitor the situation and report back to the court if necessary.
In very serious cases, a person may be fined or sent to prison if they continually disobey court orders. These powers are used rarely owing to their extreme impact. Where there is a continual history of a parent flouting court orders, the court must strike a balance between punishing the parent at fault without compromising the welfare of the children involved. This is often far more difficult than first appears.