Guide for separated parents: Children and the family courts

Deciding what should happen to your children when you and your partner have split up can be difficult.  You might not be able to agree who your children should live with, or who they should see.  This guide can help you whether you are thinking about coming to court or are already involved in a court case.  We have written this guide for parents.

Help with deciding what should happen with your children

Your children may want to have a say in their future, especially if they are older, so take time to listen to them.  The most important thing when discussing things with your children is not to put any pressure on them to give their views, and not to ask them to choose between you and their other parent.  Listening to your children’s needs, wishes and feelings will help you and the other parent make better decisions about the children’s future.

Sorting out arrangements without going to court

Family mediation is one way of settling differences during and after separation and divorce.  Our mediators will help you and your ex-partner to agree arrangements for looking after your children.  A mediator is a qualified independent person who will not take sides or try to get you back together.  Mediation can help you and your ex-partner together to agree arrangements for your children by talking things through.  A mediator will not tell you what to do but can help you and the other parent to make agreements that are best for your children.

Family mediation can be quicker, cheaper and easier than the stress of going to court

The court will require you to either have been to a mediation information and assessment meeting (a MIAM), or to show why you do not have to go to a meeting, before applying for a court order.  If you are eligible you can receive legal aid for the MIAM and for any family mediation sessions you decide to take part in.  If at least one parent is eligible for legal aid for mediation, the Legal Aid Agency will pay the cost of the MIAM for both parents (but will only pay for any mediation sessions for the eligible parent).

If you apply for a court order, the court will require you to have attended a mediation information and assessment meeting first to consider with the mediator and the other parent whether mediation might be a suitable way to settle the dispute.  The court will also require your ex-partner to attend that meeting if the mediator has asked them to.  You or the other parent can ask to see the mediator separately if you would prefer to do this.

What happens at mediation?  A trained mediator helps you and the other person to talk about the things you cannot agree on.  The mediator will help you both see if there is any way that you could agree with each other.  Not all cases are suitable for mediation, especially where there has been violence in the relationship or there are other serious welfare concerns.  The mediator will be able to help you to decide if your circumstances are suitable for mediation and will not start mediation if they think it is not appropriate.  Anything that you talk about during mediation will usually stay private and will not be reported to the court unless issues of child protection or alleged criminal offences are raised.  There is a fee for mediation but you may be able to get legal aid to pay for it.

If you decide that you still need to go to court, you will need to confirm that you have attended a MIAM, qualify for a mediator’s exemption or that a MIAM exception applies.  The mediator will need to either sign the form to confirm your attendance at a MIAM or to certify that you are exempt from attending a MIAM.

If you do go to court

The three types of court order are as follows:

Child arrangement orders – A child arrangements order regulates the arrangements for whom a child is to live with, spend time with or otherwise have contact with and where a child is to live, spend time or otherwise have contact with any person.  For example, if your child lives with your ex-partner and you want to see your child at weekends, or you can not agree which parent the child is to live with, you might want to apply for a child arrangements order.

Specific issue order – A specific issue order relates to something specific that either parent raises about the way the other parent is looking after the children.  For example, you and your ex-partner may not be able to agree on where your children should go to school.

Prohibited steps order –  A prohibited steps order prevents a parent from doing certain things without the court’s permission.  For example, you (or your ex-partner) might need to get the court’s permission before taking the children abroad.

What the court will do

The court will try to help you and the other parent to agree a positive, joint approach to looking after your children.  You are still jointly responsible for making decisions about your children and this does not stop just because you have split up with the other parent.  It is usually best if you can reach your own agreements (with the help of the court if needs be) rather than the court having to decide for you.

There are many different arrangements that a court can order for families.  What the court orders will depend on the details of each case, which can be different for each family and each child.  When you are talking about your case in court, it is important to focus on what your children need.  The court will always put your children’s best interests first and do what it considers to be best for them, and this might be different from what you want.

At court

The court will send you and the respondent, a ‘notice of hearing’, which states the date and time of the hearing and the address where the hearing will take place.  The respondent will also receive a copy of your application.

The court will also send your information to Cafcass.  Cafcass will give the court an independent view of your children’s best interests.  The job of Cafcass is to give advice to the court to protect and promote the welfare of children who are involved in family court cases.  They will look carefully at what you and the other parent have said about violence or abuse and carry out safeguarding checks.  Cafcass may contact either parent (usually by phone)  about what has been said on the court forms.  They will only ask you to talk about things which are to do with your children’s safety.  They will not ask you about the things you can not agree on – you will be able to talk about these things at the first hearing.

Cafcass will tell the court about the results of their checks, which will help the court to decide what will be best for your children.  Cafcass will not speak to your children at this stage.  This is because the court will decide at the first hearing how to involve your children.

To help you prepare for the first hearing, you may find it useful to make a note of what you would like to say at court.

What the court will be like

The first hearing will be quite informal and will normally be help in a small room called a ‘hearing room’ or ‘chambers’ which are probably different to the large court rooms you might have seen on television.  Everyone at the court will treat you with dignity and respect and it is important that you do the same to everyone involved.

The purpose of the first hearing is to establish what the issues are in your case and look at what can be done to settle them.

At the first hearing

The court will have sent you a date for the first hearing on a notice.  The notice will tell you the time of the hearing and how long it should last for.  It will also tell you what time you should get there.  You should aim to get there at least 30 minutes early so that you will be calm and not feel rushed.  Please be patient if you are asked to wait for a while before the hearing begins.

Reaching an agreement in court

If you can agree about your children, the court will decide whether you need a court order to help you make this work.  The court will write an order based on what you have agreed.  This is called a consent order.  If you don’t agree but the court thinks there should be an order, it will write an order about the decisions it thinks it best for your children.  Check the order carefully and make sure it says what the court has decided.  It is much better that you take part in working out any agreement about your children, rather than have an order given to you that has been decided by the court on its own.  An agreement made between the parents is much more likely to work than an order decided by the court.

If the court thinks that it would be helpful for both of you to talk for longer, it can take a break (called an adjournment) so that you, the other parent and Cafcass can talk about what is best for your children.  The court may also direct that you both go to a mediation information and assessment meeting if you haven’t already done this and the court thinks that there is no reason why you should not go.

It is not always possible for everyone to agree.  When this happens, the court will decide if there should be another hearing and if so, when that should be.  The court will make an order saying what the next hearing will be about and what reports or statements are needed to help them decide about your case.  The court will tell you the dates when you should send your papers to them and to the other parent.  If the case is fairly straightforward, the court might, at the first hearing, set the timetable for dealing with the whole case.

The court will also decide at the first hearing the best way to find out how your children feel about the situation and what they would like to happen.  The court may order a  Cafcass report (known as a ‘section 7 report’).  This means an officer from Cafcass will interview you and the other parent separately.  They are also very likely to need to meet with your children, alone if your children are old enough, or with you or the other parent (or both of you).  You will also need to send your statements to Cafcass if they are preparing a report.  If your children are already receiving services from the local authority children’s services, the court may decide to ask the local authority to prepare a report.

If the other parent has a solicitor, the court may ask them to draft any order made.  If the other parent’s solicitor agrees to do this, you should check the order before it is returned to the judge or legal advisor in case anything has been left out or needs to be changed.

Allegations of harm

If you have said that the other parent has been violent or abusive, this is known as making ‘allegations of harm’.  Harm is not just about the way that the other parent has treated you, it is also about whether your children were there at the time and the effect that seeing or hearing violent or abusive behaviour may have had on them.

If you have made allegations of harm against the other parent and you not feel safe facing them in the court building, you should let the court know as soon as possible before your hearing.  The court can make arrangements to help make you feel safe, such as providing separate waiting areas for you and the other parent, or arranging for you to give evidence from another location using a video link.

If the other parent denies the allegations of harm, the court will decide whether a ‘finding of fact hearing’ is needed.  A finding of fact hearing is when the court decides whether the things that you have said the other parent has done are true.  The court will then decide whether your children or any other person might be at risk if they agree to make the order you have asked for.  It is important to remember that a finding of fact hearing will decide whether something is true, based on whether the evidence shows it is more likely to have happened than not.

At the final hearing

The final hearing is quite different from the other hearings you will have been at and will probably take place in a larger court room to allow room for any witnesses or experts that need to attend.  A final hearing can be stressful for everyone involved in the case.  This is your opportunity to convince the court that you are doing your best to protect your children’s best interests.