Court Proceedings

This is a brief guide on the law and procedure relating to applications for Court Orders, Court Proceedings and Child Arrangement Orders. It is not an exhaustive explanation of the law, but is designed to assist you in taking most of the steps yourself with a view to keeping legal fees to a minimum. However, you should always seek specialist legal advice if you find yourself in difficulty.

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Initial Points To Consider

How does the Court decide what is best for the child?

The Court will apply the Welfare Checklist when deciding how to deal with issues relating to children. The Court is likely to require assistance in gathering the information required and they may obtain a report from a Probation officer, Local Authority Social worker, or, as is more usually the case, a member of Cafcass (the Children and Family Courts' Advisory and Support Service). The Court is also likely to be of the opinion that any delay in determining matters relating to the Child's welfare is likely to be prejudicial to the Child, and therefore they will draw up a timetable for the proceedings.

Who can apply?

There are extensive provisions about who can apply for Orders under the Children Act 1989. The following is a summary of the main provisions.

You have an absolute entitlement to apply for an Order under s8 of the Children Act 1989 in respect of a child if you are:

  • a parent of the child
  • a guardian of the child
  • a Special Guardian of the child
  • a step parent or civil partner with parental responsibility for the child
  • a party with a residence Order in force with respect to the child.

Additionally, you can apply for a Child Arrangement Order if you are:

  • a party to a marriage or civil partnership where the child was a child of the family
  • someone the child has lived with for at least 3 years in the last 5 years, ending no more than 3 months before the application is made
  • acting with the permission of everyone with parental responsibility or a residence Order with respect to the child.

If you do not fall into any of the categories above you must obtain the permission of the Court before you can bring any application. When considering whether to grant permission the Court will consider the nature of the proposed application, the connection of the person applying with the child and any risk of harm being caused to the child by the application.

Making An Application

The Application

The government provides some good guidance on making an application. Before applying you will have to attend a MIAM (Mediation Information and Assessment Meeting) unless an exemption applies. Once you know you want to apply for a court order, you will need to make the application on a C100 court form.

How much does an application cost?

It presently costs £215 to apply for a court order covered by the Children Act 1989. You may be able to get help with court fees if you’re on benefits or a low income.

Which Court?

Where do I send the C100 Form?

Once filled in, you then need to send three copies of the C100 form, (one for you, one for the court and one for the other party) with your payment to your nearest court that deals with cases involving children. Applications can generally be issued in the Family Court, County Court or High Court, although some applications are restricted to certain Courts and not all Courts have family jurisdiction, so if you’re not sure which court to send your application to contact us and we’ll be able to advise you.

If there have been divorce proceedings the Application would normally be issued in the Court where the divorce was or is being dealt with. While it would be normal for most Applications in other cases to be issued in the Family Court, a lot of lawyers prefer bringing the proceedings in the County Court where possible. The matter is then dealt with by experienced judges, rather than Magistrates, and it does not cost any more. This does not stop the case being transferred to the Family Court in any event.

Once the application for is received, the court will stamp it and send a copy back to you. They will either send a copy to the other side or send it to you to “serve” it on the other side is issued it must be served on the other side (although in urgent cases Orders may be obtained before service). Service must take place at least 14 days before the first hearing and if there are any problems with serving the papers the Court can be asked to give further directions on how this should be done.

The Court Process

The First Hearing

The first hearing is normally a Dispute Resolution Appointment and should take place ideally within 4 weeks, and no later than 6 weeks, of the application being issued. Prior to the hearing Cafcass will only contact the parties to discuss possible safety issues, and will not discuss any other matters. At the hearing most Courts will have at least one social worker/Cafcass Officer available to try and mediate the dispute between the parties. The goal is to help the parties reach agreement as to, and understanding of, the issues that divide them. Certain cases, such as where there has been violence, may not be suitable for mediation. If the mediation resolves the matter then an Order can be entered straightaway.

If the matter does not resolve alternative methods to resolve the issue can be considered, such as attendance on a Parenting Information Programme. Alternatively the Court will usually prepare a timetable for the proceedings, decide whether the child is to attend Court and give a list of documents which must be served. They will also consider whether a Cafcass report is required, and whether it is necessary for a Cafcass officer to attend any final hearing. A report may take between 14 and 18 weeks to prepare, and the Court will give their reasons for requiring the report. In some cases, other reports (for example a psychologist's report, or a report from the local authority if a social worker has been involved) may be necessary. The Court will not order a report without good reason. The first hearing is usually used to resolve as many of the issues between the parties as is possible.

Pending any further hearing the Court can Order interim arrangements to be put in place. This means, for example, that the Court can Order contact to recommence if this has stopped. What will be Ordered depends partly on what is agreed and what the issues are.

Attending Court

Dress smartly. Address the judge as Sir or Madam when speaking to them. Do not interrupt the judge or anyone else who is speaking. If there is more than one judge (Family Court) you should primarily address your comments to the one in the middle. You will be given a chance to put your case.

It is generally accepted by the judges that you do not agree with everything the other side is saying, so you do not have to keep interrupting to make this clear. Where you have a legal representative they will speak on your behalf, although the judge may have some questions for you. If you are acting on your own then you should try to take notes of what is discussed and you should DEFINITELY take a note of anything you need to do and the timescales for this.

The Review Hearing

Most Courts will list a review hearing for further consideration of the matter prior to trial once the Cafcass report is received. The Court may hold back on requiring statements in the meantime and then Order them at this stage.

The Final Hearing

The Applicant will normally give evidence first, followed by any further witnesses they have, and then the Respondent, followed by any other witnesses they may have. The Court must give all findings of fact and reasons for the decisions. When considering the matter the Court will apply the Welfare Checklist.

If the Court makes an order, normally that Order will only last until the Child reaches the age of 16 or, in exceptional circumstances, 18.

Costs And Solicitors

Costs

It is rare for any party to be Ordered to pay the costs of the other party. The normal rule is that each party will pay their own costs, including any legal costs. Cost Orders will only normally be made if someone acts unreasonably.

Withdrawing an application

An application can only be withdrawn with the Court's permission.

When do I need a Solicitor?

The golden rule is if you feel you are getting in over your head, then you should seek legal advice. However, you should not encounter any difficulties up until the first hearing. The Court forms are relatively straightforward to complete and, if necessary, Court staff can provide assistance on completing these.

Where you do attend a hearing on your own and the other side is legally represented their lawyer will be professionally obliged to explain any procedural issues to you and if you need guidance you should ask them before going into Court.

It is a matter for you whether you wish us to represent you at the first hearing. If you feel able to deal with this then we would recommend you only pay for advice on any issues you wish to have explained further.

If the matter does not resolve at the first hearing, then you should consider instructing us. In any event, we strongly recommend you instruct us well in advance of any deadline for filing and serving statements. Where you are considering taking legal advice you have to bear in mind that the later you speak to a lawyer the less they can do to help.

If you would like us to represent you at a hearing it is important you tell us at least 14 days before the hearing. Remember, the earlier you instruct us, the more use we can be, especially if you would like us to assist you in preparing witness statements or for trial. You are always free to contact us for an initial consultation up to 30 minutes at no charge.

Please remember, we are always here if you need us, but to be able to help you properly we need some warning and information.