This is the final part of our 3-part series on the proceeds of divorce with children. So far, we have covered the three different court orders available in detail in Part 1: What orders can the Court make? Then, we discussed how to go through the legal application process in Part 2: How to make a Child Court Order. For this final entry, we will be discussing what happens during the Family Court hearing process, after court proceedings have been set in motion.
This article is a useful guide if you are currently getting divorced from your spouse but are having disagreements about arrangements for your child or children.
This article focuses on the process of a Child Arrangement Order specifically. We have highlighted the main differences between this and a Prohibited Steps Order or Specific Issues Order at the end of this article. You can jump to Prohibited Steps Orders and Specific Issue Orders here.
The first stage of the Family Court hearing process is a First Hearing Dispute Resolution Appointment (FHDRA). This appointment will be made when the court receives your application. It will usually be listed for a 30-minute hearing. The Court sends the application and notice of this hearing to us as your Solicitors and to the Respondent at least 14 days before the date of the FHDRA.
The purpose of the FHDRA is to identify the issues in dispute and try to resolve them as quickly and inexpensively as possible.
All parties must attend the FHDRA. The Court Welfare Officer (also known as the Children and Family Court Advisory and Support Service (Cafcass) Officer) will attend as well.
Cafcass is an organisation responsible for safeguarding the interests of children involved in Court proceedings. Prior to the hearing, you will have been contacted by the Cafcass Officer, who is obliged to prepare a safeguarding report to the Court.
They will have made enquiries of the Police and Social Services, before speaking to both parents involved. They aim to have an understanding of any welfare issues that the parents are raising, the reason for their application, and the other parent’s view on the issues.
Cafcass will make recommendations based on these initial investigations as to whether they feel they should be involved further – and, if so, what welfare issues they may be concerned about. This report is normally released to the parents a day or two prior to the hearing, or at the hearing itself.
The Cafcass Officer will also be present at the FHDRA to discuss any issues they may have raised with the parties or their legal representatives, and will be available to the Court if their assistance is required. If the case is relatively straightforward (i.e. a dispute as to the amount of time the child should have contact with the non-resident parent), it is unusual for Cafcass to be involved further.
If, however, there are serious concerns about the welfare of the child (e.g. emotional problems, witnessing violence or serious disputes between their parents, or one parent has housing or addiction problems), then Cafcass will normally be requested by the Court to undertake a Section 7 Report. This report will consider the various welfare criteria for the child and make recommendations as to what they feel would be in their best interests going forward.
Whilst their recommendations are not binding on the Court and their suggestions can be challenged by either parent, the Courts do take the Cafcass Officer’s reports very seriously. Therefore, it is important that both parents co-operate fully with their investigations.
The FDHRA is the key stage of the Family Court hearing process. Parties are asked to arrive at Court early, normally an hour before the time scheduled, for the FHDRA to allow time for discussions between the parties’ lawyers and their clients. This is to see if it is possible to agree on some or all of the issues, or agree on temporary arrangements for the child whilst the case continues.
It is possible that a final order could be made at the FHDRA if all matters can be agreed upon and Cafcass has no welfare concerns. If an agreement cannot be reached, the Court will identify the remaining disputed issues. The Court will also identify evidence that will be required to enable another Judge on another day to reach a decision about the disputed matters (e.g. requesting the parties to prepare statements and other evidence that they propose to rely on).
During the FDHRA, the court may:
The general process of the Family Court hearing process can change if allegations are made by one parent regarding serious conduct of the other – usually domestic abuse – which:
the Court may direct a separate hearing in order to establish the facts.
At the end of the FHDRA, the Court will either schedule the dispute resolution appointment or a final hearing. What the court chooses to schedule will depend on the issues for resolution and whether there are any disputed allegations that cannot be left to a final hearing. A final hearing is most likely to be ordered if the only dispute is the amount of time the child can spend with one parent, assuming that there are no other welfare issues.
Should you require our services, we are happy to help guide you through this process, and make recommendations or raise objections to the Court as to what directions we feel are appropriate in your case.
A DRA is usually scheduled if Cafcass has been directed to produce a report to assist the Court in deciding the issues in dispute during the Family Court hearing process. The Court will first identify the extent to which the dispute can be narrowed or resolved at the DRA, before doing so by hearing evidence from the parties. If an agreement is reached, the Court will make an Order reflecting the parties’ agreement.
If no final agreement is reached at the DRA, the Court will direct the parties to file any further evidence and schedule a final hearing. For example, if Cafcass have filed a report, both parties will have the opportunity to file further statements and evidence responding to the report’s recommendations.
The last stage of the Family Court hearing process is the final hearing. At the final hearing the Court will have before it the party’s statements, along with all relevant reports and other evidence. The Court will hear oral evidence from the parties and, sometimes, from other witnesses.
If a Cafcass report has been prepared, the Officer is only required to attend Court to give evidence if the Court considers that necessary. Anyone who gives evidence will be questioned on it by their legal representatives, the other parties’ legal representatives, and sometimes by the judge/lay justices/legal advisor.
After hearing the evidence and listening to the legal arguments, the Judge will make an Order deciding on the issues in dispute.
This section covers the differences between a Child Arrangement Order (covered above) and Prohibited Steps Orders or Specific Issue Orders during the Family Court hearing process.
The application process for a Prohibited Steps Order (PSO) and a Specific Issues Order (SIO) are similar to the process described above for a Child Arrangement Order. The main difference is that these Orders are urgent and therefore a Mediation Information Assessment Meeting (MIAM) is inappropriate.
Orders can initially be made without the other parent being advised of the application or on short notice depending on the urgency of the situation.
The application is submitted in the same way as the Child Arrangement Order, although in these cases a supplemental form is required, listing the emotional abuse or domestic violence/abuse suffered by the child. This would include examples of damage to health, physical or mental emotional or intellectual development, including damage suffered from seeing or hearing the ill-treatment of another.
If the application is urgent, it will be accompanied by a statement setting out the reasons why the Order should be made and why it is urgent.
If an Order is made with one parent absent, that Order must be given personally to the other parent once it is made. The Order will not be effective until it is personally delivered. Once the order has been personally given to the other parent, there is a 48-hour period where they can apply for the Order to be set aside.
An application made without notice will have a minimum period of time which must pass before the Court can have a full hearing with all parties present. This is because the other party will be notified about the hearing, but may not have enough time to instruct solicitors to represent them. Again, normally an Order will be made limited in duration until the hearing of the FHDRA when it will be reviewed.
If there is a serious dispute, then the matter will be given a full hearing for the Court to hear all the relevant facts and decide whether or not the Prohibited Steps or urgent Specific Issue Order is required.
Depending on the issues raised in the Prohibited Steps application or Specific Issue application, the Court will decide if there is a need to extend the emergency Prohibitive Steps order or Specific Issues order. It may be appropriate for the parties to give a legally binding promise (referred to as an undertaking) to the Court. This undertaking is a promise that the parents the status quo in relation to the child’s welfare until a final Order can be made. If this cannot be achieved, or is felt to be inappropriate because of the seriousness of the situation, the Court may extend the Prohibitive Steps Order or Specific Issues Order until the final hearing, when a final decision is made as to whether it remains in place or ends.
Thereafter the processes for the Dispute Resolution Appointment (DRA) and Final hearing will be the same.
As previously stated, every case is different. We will ensure that you are guided throughout the Court proceedings as outlined above. We cannot always give you the legal advice that you want to hear but you can be sure that we will do our best for you and your children.
If you’re separating from your spouse and are struggling to agree child arrangements, our Divorce and Family Law team are on-hand to assist in applying for a child court order. Our dedicated staff are able to offer advice on your specific needs.
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Table of Contents Child care during divorce seriesPart 1: What orders can the Court make?The Family Court: Where is it ...Read More
Nigel Smith, Divorce & Family Solicitor and Collaborative Lawyer at Astle Paterson, discusses a pilot scheme for a new Court ...Read More
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