Child Arrangements & Going to Court: What to Expect

We are only too aware that, even when everyone is trying to resolve child arrangements amicably, sometimes an application to the Court needs to be made for a Child Arrangements Order. We understand that making a Court application in itself is daunting, and that coupled with the uncertainty and unfamiliarity of dealing with the Family Courts, it is easy to feel overwhelmed. Our aim in this article is to explain the Court process, so that you know what to expect. We will also look at what alternatives there are, as going to Court is not the only option available when trying to agree child arrangements.

The court charges an application fee of £215.00* for processing an application for a Child Arrangements Order. There are limited circumstances in which an application might benefit from a fee rebate. Consideration of eligibility for public funding should also be given, if an applicant thinks they may be eligible. You can find out if you are eligible for public funding on the Government website.

During the course of proceedings, additional expenses may also be incurred if expert reports or specialist testing is ordered.

*Court fee correct at time of writing.

The Court has a statutory duty under s.1(2) Children Act 1989 to ensure that matters concerning the upbringing of a child are progressed without delay, so as to avoid any undue harm being imposed on a child. The length of Court proceedings is greatly dependent upon the complexity of the matters before the Court.

The progress of an application will also be dependent upon the workload of a particular Court. An application to resolve general contact arrangements for a child will ordinarily take in the region of 4-6 months to resolve. Matters of greater complexity are usually managed within a year.

In order to apply for a Child Arrangements Order, an applicant must submit Form C100 to the Court. This can be done online or with a paper application sent to the Family Court based closed to the child’s primary residence.

The C100 form requires a lot of factual information relating to the children and the parties to the application. The Court also requires some detail and explanation as to the nature of the orders being sought by the applicant. It is important to ensure that the application is correctly completed in order to avoid any unnecessary delays. It is, therefore, helpful to obtain independent legal advice from a specialist child solicitor about the nature of an application before it is sent to the Court.

Before the first Court hearing, the Court’s advisory service – CAFCASS – will be in touch with both parties to consider any immediate safeguarding or welfare concerns. The CAFCASS report will be provided to the Court and the parties in advance of the hearing.

The hearing will usually be heard by a bench of Magistrates, who will be supported by a Legal Advisor. The parties will make oral submissions on their respective positions and the points in dispute, and with the assistance of the Legal Advisor, the Magistrates will provide directions on the additional information they require to determine the dispute.

It is possible for the parties to compromise the points in dispute before a hearing. The terms of any agreement will be recorded in a Final Court Order after the Court has considered the compromised terms.

It is important to note that once proceedings in relation to children have begun, they cannot be withdrawn without the Court’s consent.

The Court’s primary concern when determining an application for a Child Arrangements Order is the child’s best interests. To consider how best to settle a dispute, the Court is obliged to reflect on the factors set out in s.1(3) Children Act 1989 – known as the welfare checklist.

The Court has a broad discretion as to what weight to attach to the criteria of the welfare checklist and will base its decision on all the available evidence. In assessing competing evidence, the Court will base any determination on the “balance of probabilities” – i.e. is it more likely than not that an issue happened as reported by a party.

In the face of a continuing dispute, the Court will gather the evidence it requires to resolve a dispute. The Court tries were possible to ensure that the information before it is objective and so rarely seeks evidence from third parties that are not experts.

In addition to evidence from the parties or expert third parties, the Court frequently instructs CAFCASS to prepare welfare reports (known as section 7 reports) providing a holistic analysis on the advisory service’s views and recommendations on what orders the Court should likely be making at the conclusion of the proceedings. These recommendations are not binding upon the Court or the parties, but are generally seen as being very persuasive.

The parties will be given the opportunity to try and resolve their dispute in advance of every Court hearing throughout the process. Ultimately, if the parties are not able to settle upon their differences, the Court will provide its determination at a Final Hearing.

If a Final Hearing is required to resolve a dispute in relation to child arrangements, both sides will have made their positions clear in written witness statements prepared in advance of the hearing beginning. Those witness statements will also likely address what orders the party wants the Court to make.

During the course of the hearing, after opening positions are submitted to the Court by the parties’ barristers (should they choose to be represented), the parties themselves will also give oral evidence to the Court and be cross-examined on both their oral and written evidence, so as to provide all the information the Court considers necessary to determine the outcome of the application.

Following the evidence and closing submissions, the bench of Magistrates will retire to consider its decision and provide a judgment to the parties. In more complex matters, the Court may need to provide a written judgment at a later date. Following the judgment, the terms of a final order will be prepared and once approved and sealed by the Court, the proceedings will be closed.

There are three main alternatives to Court proceedings that parties might consider when determining how best to resolve a dispute without going to Court:

1. Mediation
2. Collaborative law
3. Arbitration

Mediation is a voluntary, confidential process in which a trained Mediator speaks to you and your former partner – separately at first – with the aim of getting everyone round a table to talk about what arrangements will be made for the future. It is a process that focuses on the future arrangements, rather than trying to determine the rights and wrongs of the parties’ past decisions.

Collaborative law is so called because the parties’ lawyers and clients work together to sort things out. The aim is to achieve a fair resolution of the issues for everyone involved. In order to achieve this, the parties’ solicitors work in a non-positional, non-confrontational way. Collaborative law is also a voluntary process.

Finally, arbitration is essentially a private judging service and can determine basic disputes regarding children. Before arbitration starts, both parties sign an agreement that you will abide by the arbitrator’s decision.

These forms of alternative dispute resolution require voluntary engagement from both parties but offer the attraction of a speedier resolution and the possibility to craft a bespoke dispute resolution process.

Any dispute that involves your children is likely to take an emotional toll, especially when you need to interact with a former partner. As well as obtaining legal advice from a family law solicitor, it is also worth considering getting in touch with a counsellor so that you are able to focus clearly on the issues that matter the most. We have partnered with Emma Chamberlain, an experienced and respected therapist, who can provide guidance and support if you are experiencing challenging child arrangement disputes.

Hawkins Family Law are a family law specialists, which means we have years of experience with cases regarding child arrangements, family matters and more. If you are looking for reliable and accredited legal advice regarding child arrangements, speak to one of our team today.