When couples are separating, one of the most difficult decisions they face is what arrangements are in the best interest of their child. Parties are encouraged to discuss this with one another or use services such as mediation. However, in some cases, an agreement can’t be reached and the court has to intervene.
Children Act Proceedings can be necessary if parents are unable to agree on arrangements, relocations or if the child’s parents need assistance from the court in resolving specific issues relating to their parental responsibility.
Under the Children Act 1989, the child’s welfare is the court’s paramount consideration.
Why engage in Children Act Proceedings?
The most common dispute between parties is in relation to where the child should live and if or when the child should spend time with the other parent. This is known as a Child Arrangement Order.
Children Act Proceedings deal with a wide range of other issues, such as Specific Issues Order whereby the Court resolves issues as to whether the child should be allowed to relocate with one of the parties, what religion they should practice and which school the child should attend.
The Court also deals with Prohibited Steps Order which stops a party from doing something with the child, for example, if one party has concerns that a child will not be returned, the Court can put any Order in place to prohibit such steps.
What Happens During Child Care Proceedings: The Three-Stage Format
Children Act Proceedings tend to follow a three-stage format, as outlined below.
Stage One: First Hearing Dispute Resolution Hearing (FHDRA)
This Hearing will be used to set the direction of the case. In readiness for the First Hearing, the Children and Family Court Advisory and Support Service (CAFCASS) will conduct background checks on both parties and obtain their respective positions on the matter. The CAFCASS officer will see if the parents can agree to an arrangement there and then. The Court may direct CAFCASS to prepare a “Section 7 Report” as to what is in the best interest of the child. This usually involves the officer meeting the child and the parents.
Section 7 of the Children Act 1989 states that “a court considering any question with respect to a child under this Act may ask an officer of the service or ask a local authority to report to the court on such matters relating to the welfare of that child as are required to be dealt with in the report”. The court can order a Section 7 welfare report. This will inform the court of the child’s wishes and feelings. The court will make a recommendation based on what they think would be in the best interests of the child.
In some complex cases, the Judge can make other directions such as the filing of witness statements or involving any other experts.
The Court may also direct a “finding of fact” hearing where one or both parties make an allegation of domestic abuse or harm.
Stage Two: Dispute Resolution Appointment (DRA)
The court and the parents will have received the CAFCASS report, making recommendations in relation to the child’s future arrangements. The parents are expected to reach an agreement, where appropriate, with the assistance of CAFCASS and/or the court to avoid a final hearing.
Stage Three: Final Hearing
Both parents are to attend and give evidence, which will usually be submitted by way of a written statement, as well as oral evidence in front of the court. Having heard the evidence and the recommendations of the CAFCASS officer, the judge will make a final decision.
The Welfare Checklist Criteria
To reach a decision regarding child arrangements, the court must consider the welfare checklist. It has the following 7 statutory criteria:
- The feelings and wishes of the child in question
- The child’s physical, emotional and educational needs
- The possible impact the court’s decision could make on the child
- Any of the child’s characteristics that may be relevant to the decision, such as age, sex and background
- Any harm the child has suffered or may be at risk of suffering
- The capability of the child’s parents (or any other person the courts find relevant) at meeting the child’s needs
- Any limitations of the powers given to the court in these specific proceedings
A final order is a legally binding court order and should be followed at all times.
There can be additional hearings if further directions hearings or interim hearings are required to assist the case.
Alternatively, if the case is relatively straightforward, the matter may be streamlined and listed for a final hearing straight after the first hearing.
Need Legal Advice on Children Act Proceedings?
Please contact Witan Solicitors if you require assistance with the Children Act Proceedings or if you would like to discuss the process and what we offer. You can reach our expert family lawyers in London, Birmingham and Northampton by emailing us at info@witansolicitors.co.uk. Alternatively, you can fill in our contact form.
