The best way to resolve most family law disputes is by negotiation and agreement. This is usually better for the children who see their parents engaging positively with one another and for the parents who are not in a state of conflict with one another.
If an agreement can’t be reached then it is possible to apply to the court for a child arrangements order when the court will decide who the child should live with and who the child should spend time with, sometimes referred to residence and contact respectively.
The family court can decide who the children live with and how and when they see the other adults in their life. These orders are called child arrangements orders.
The court can also make orders about specific issues (for example, if you cannot agree about where they are going to go to school or whether the child should have an operation) and things that parents may not do, like take the child abroad (a ‘prohibited steps’ order).
When making an application for an order you will usually have to demonstrate that you that you have considered whether you would be able to resolve your case using mediation. Mediation is a voluntary process whereby you and your partner meet with a trained mediator to discuss your issues and, wherever possible, reached a negotiated agreement that fairly meets both of your needs. You would usually demonstrate that you had considered mediation by attending a Mediation Information Assessment Meeting (MIAM). However, mediation is not suitable for every couple. This is often the case where one or other partner has suffered domestic abuse perpetrated by the other.
After an application has been made to the court a hearing will be arranged called a First Hearing Dispute Resolution Appointment and Cafcass, the Children and Family Court Advisory and Support Service, will be asked to provide a short report setting out any issues they think the court should be aware of. This will include any safeguarding issues such as domestic abuse, previous involvement by Children’s Services and the parties’ criminal records. Cafcass officers are all trained social workers who work with families involved in the family court. The first hearing is used by the court to consider the issues and to encourage the parties to try to reach an agreement. It’s often the case that with the support of the court, Cafcass and their legal professionals, parents find that they are able to reach an agreement. If this happens then the court case is often adjourned to allow time for the agreed contact to take place. If that contact goes well, then the case will usually come to an end at the next hearing.
If agreement can’t be reached then the court will set out a timetable for how the case should proceed. The court might order a more detailed report from Cafcass on how they think contact should take place. If Children’s Services have previously been involved with the family then the court might ask it to prepare a report. If one or either of the parents are said to be using drugs or drinking too much then the court might ask them to undergo tests to determine whether that is the case.
The court will then use the various reports to decide what should happen next. This will usually be at a further hearing called a Dispute Resolution Hearing. This is another chance for the parents to agree arrangements. If there is no agreement then then the court is likely to arrange a final hearing.
At a final hearing the court will hear evidence from each of the parents and any experts in the case such as the Cafcass officer. It will then decide what is in the children’s best interests and a make a final order.
The arrangements in a child arrangements order remain will remain in place until the children reach the age of sixteen, unless the order specifically states otherwise or it is varied by the court. After this point it will be up to the children to decide how much contact they would like to have with the parent they do not live with. If an order sets out who the children should live with then this remains in force until the children reach the age of eighteen, unless varied by the court. However, as the children get older the court will pay more attention to their wishes and feelings and once a child reaches the age of sixteen is unlikely to force a child to live with someone they do not want to live with unless there are exceptional circumstances.
Once a final order has been made the court’s involvement comes to an end. The children’s parents are expected to stick to arrangements unless doing so would harm the children. If a parent felt that the children were being harmed then they would be expected to apply to the court as soon as possible to vary the child arrangements order.
If a parent was not following the arrangements set out in the order then it is possible to make a further application to the court for an enforcement order to make the non-complying parent comply with the order. The court will only make an enforcement order if it is satisfied beyond reasonable doubt that a person has failed to comply with the order. It will not make an enforcement order if it is satisfied that the person had a reasonable excuse for failing to comply with the order.
When making an order the court might attach a penal notice. A penal notice is a warning to one or other of the parents that if the order is not complied with then they will be in contempt of court.
If a parent is alleged to be in breach of a penal notice then an application for a committal order can be made. If the court is satisfied that there has been breach and that they are in contempt of court then the court has the power to imprison, fine or seize the assets of that person. The court will usually only punish a person found to be in breach of an order as a matter of last resort and where other attempts to encourage engagement in proceedings and compliance with orders has failed.
Paul Dodds Law are family law experts. Contact our dedicated team of experienced family lawyers to discuss how we can help you to put in place arrangements for your children that work for you and them.