Children and the law: the Family Court process

 

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How to make an application to the Family Court

Cafcass and Cafcass Cymru

First hearing

Allegations of harm and domestic violence

Final Hearing

What if I need to take urgent court action?

Can I appeal the court’s decision?

Can the court change orders it has made previously?

 

This guide provides an overview of the family court process and procedure for disputes between parents which need to be resolved by making an application to the court for a child arrangements order, prohibited steps order or specific issue order. For information about what these types of orders are and the options available to separating parents, see Children and the law: when parents separate

Before you apply to the courts for an order you must first contact a mediator and arrange for a mediation information and assessment meeting (MIAM). You may not need to attend a MIAM if an exemption applies (for example if you are a victim of domestic violence or your case is very urgent). For further information, see our Guide to alternatives to the Family Court.

 

How to make an application to the Family Court

The application procedure can be complicated and we recommend you seek legal advice from a solicitor or our advice line.

To start a new application you should:

  • Complete form C100 (available from your local family court, or alternatively you can download a copy from hmcourtsservice.gov.uk/HMCSCourtFinder/FormFinder.do)
  • Complete supplemental form C1A if you or your child have suffered, or are at risk of suffering, any harm from domestic violence or abuse, child abduction or other conduct or behaviour that could be considered harmful.
  • Pay the relevant court fee or complete form EX160 if you are applying for a fee exemption.

People other than the child’s mother and father may need to apply to the court. They should complete the form C2 in order to apply for permission to make the application. Contact our advice line (see Useful Contacts) for further information.

You should take all forms (with sufficient copies for yourself, the court, Cafcass (see below), the other party and anyone else with parental responsibility) to your nearest family court. You can find the full list of courts and information about what type of work they do online at www.courttribunalfinder.service.gov.uk

The court office will issue your application and give you a court reference number. You should also receive a date for the first hearing. If you have issued your application using a form C100 then the court will send the applications forms and hearing date to the other party.

You will be referred to as the applicant in the proceedings. The other party will be referred to as the respondent.

If there are already ongoing court proceedings in relation to the children but you wish to make a further application in relation to the same children, you can apply to the same court, using the same court reference number using a different form (form C2). You will need to send a copy of the application forms and hearing date to the other party. Contact our advice line if you require further information.

 

What if I don’t want the child’s father to know our address?

If you feel that you or your children will be at risk of harm if the father has your contact details then you do not need to put this information on the forms, but you will need to provide your contact details to the court. You can do this using a form C8. The court should not send the C8 or reveal your contact details to the other party.

 

I have received an application from my child’s father from the family court

If you receive an application from the court which has been issued by someone else in relation to your child, you are a respondent in the proceedings. The court should also send you a blank form C7 which you should complete and return to the court not less than 10 days before the hearing. If you are concerned that there is a risk of harm to your child that the court should know about, you can complete form C1A and return this to the Court at the same time as you send them the form C7.

 

Cafcass and Cafcass Cymru

Cafcass (the Children and Family Court Advisory and Support Service) and Cafcass Cymru (in Wales) are involved in most children disputes at court. The role of Cafcass is to provide judges with advice, information and recommendations and help them reach a safe decision for the child.

If there is an application for a child arrangements order (and sometimes if there is an application for a prohibited steps order or specific issue order) Cafcass will carry out background safeguarding checks before the first hearing and report to the court to highlight any safety issues. This will include contacting the local authority and police. An officer from Cafcass should also contact you and the other party by telephone to discuss any safety issues.

The court may ask Cafcass to prepare further reports during the case. The officer from Cafcass may speak to the children to find out their wishes and feelings (if they are old enough to express these) and they will usually speak to both of the parents.

 

First hearing

The first hearing is called a “First Hearing Dispute Resolution Appointment” (FHDRA). Sometimes parties are able to reach an agreement at the first hearing. If this happens then the court may make an order setting out the agreement. This is known as a consent order. You should check the consent order to ensure it reflects what you agreed to. You should not consent to the order unless you are happy with it. Sometimes, if the judge thinks that your case would be suitable for mediation or you and the other party need more time to try and agree matters, the judge may adjourn the hearing (this means to take a break and come back to court at a later date) and can direct that you attend mediation.

If the parties cannot agree then the judge may make a decision and put the decision in an order. Remember to check any orders to ensure that they reflect what the judge said.

Alternatively, if the judge needs more information before they can make a decision, they may list a further hearing or further hearings for future dates, and ask for various things to happen in the meantime. For example, the court may ask you and the other party to file statements, or request reports or disclosure from the police or social services. They may also direct that Cafcass meets your child or children and reports to the court about their wishes and feelings.

 

Allegations of harm and domestic violence

The court should consider whether there has been any domestic violence or harm to you or the child early on in the case. The court needs to think about whether or not the violence or harm affects the decision that the court has to make.

If you have alleged that the other party has been violent towards you or the children and the other party denies the allegations, the court may hold a finding of fact hearing. This is a hearing when the judge will look at all of the evidence and decide whether they think the evidence shows that the alleged abuse is more likely to have happened than not. In order to make this decision, it is likely that the judge will ask you and the other party to give oral evidence in court and you may be asked questions about what has happened by the judge and the other party or his lawyer. You are also allowed to bring other witnesses that can support your case but you should inform the judge of these witnesses at the first hearing and obtain statements from them before going to court. If the judge has directed that the finding of fact hearing is necessary, they will give directions to you and the other party which you must comply with. If, for any reason, you are not able to comply with the directions in the time given, you should write to the court and inform them of this.

At the end of the finding of fact hearing, if the court decides that the other party has been violent towards you or the children then any order it makes will need to ensure that the child is not at risk of harm. The court’s order should also take into account other issues, e.g., whether the perpetrator should attend a domestic violence programme, and how the children have been affected by the perpetrator’s behaviour.

 

Final Hearing

There may have been several hearings before you reach a final hearing. If you and the other party reach agreement then there may be no need for a final hearing. If you do have a final hearing then it is likely that you will have provided the court with written statements to support your case.

At the final hearing you may be required to give oral (spoken) evidence. You will be asked take an oath or affirm (make a formal declaration) that you will tell nothing but the truth to the court. You will have a chance to tell the judge your side of the story. The other party, or his lawyer, will ask you questions. The other party will also have a chance to tell the judge his story, and you or your lawyer can ask him questions.

After hearing the evidence the judge will either take a break or give a decision straight away. The judge will summarise what you have said and what the other party has said and give a decision on what should happen with the child’s future. The judge will give reasons for the decision, which you should try and note down.

 

What if I need to take urgent court action?

If your case is urgent then you should inform the court staff that you need your case to be heard urgently. You should contact the court before going there as some courts require you to make an appointment first. The court staff will either allow you to see a judge or magistrates that day, or as soon as possible depending up on the circumstances of your case.

When seeking an urgent order you should, generally, tell the other party that you are making an application. You can do this informally, by writing to them, phoning them, texting them or e-mailing them.

In certain circumstances, you can ask the court to hear your application without the other parent knowing about it. This is called a without notice application. In order to have a without notice hearing you will need to show that if you told the other parent that you were making the application:

  1. this would enable the other parent to take steps which would defeat the purpose of your application (for example, take the child abroad before the hearing);
  2. you, or the child, would not be safe if you gave notice to the other parent (for example if he has been abusive in the past or threatened abuse);
  3. there is some other exceptional urgency, which means there is no time for you to give notice.

During a without notice hearing, the judge will hear your reasons for making the application without informing the other party and may make the order you request or may postpone making the order until they have also heard from the other party. Even if the court makes the order you have requested, it will usually set a date for a further hearing to decide whether or not the order should continue. The other parent will be informed of this hearing date and asked to attend the hearing to put forward their views.

 

Can I appeal the court’s decision?

The court’s decision is usually final. In certain circumstances you may be able to appeal the court’s decision. You can only appeal in very limited circumstances, for example if the judge made a very serious mistake or because the judge did not follow the proper legal procedure.

If you intend to appeal a decision of the family court you must normally do so within 21 days of the decision (unless the judge who gave the decision provided a different time limit).

You need the court’s permission to appeal. You can request permission from the judge who made the decision. If you didn’t ask for permission, or if the judge who made the decision refused to give you permission to appeal, then you can ask permission from the court that you are appealing to.

Appeals can be costly and complicated and you should seek legal advice from a solicitor or a barrister.

 

Can the court change orders it has made previously?

Sometimes circumstances change after the court has made a final decision. For example, the arrangements in a Child Arrangements Order may no longer work as the father has moved away, or the other parent may not be collecting the child when he is supposed to. If circumstances change you can apply to the court to “vary” the order. The same procedure applies to this application, so you will need to follow the procedure set out above.

 

The issues relating to orders about children can be complex and we have provided a very basic overview of terminology, law and court practice and procedure. We would also strongly advise you to seek legal advice by either telephoning our legal advice line or a solicitor. 

Please note that the law as set out in this legal guide is the law in England and Wales as it stood at the date of publication (August 2014). The law may have changed since then and accordingly you are advised to take up to date legal advice. Rights of Women cannot accept responsibility for any reliance placed on the legal information contained in this legal guide.

This legal guide is designed to give general information only.

 

For free, confidential, legal advice contact our advice lines

 

Useful Contacts

National Domestic Violence Helpline (domestic violence support) – 0808 2000 247www.womensaid.org.uk or www.nationaldomesticviolencehelpline.org.uk

Child Maintenance Options – 0800 988 0988www.cmoptions.org

Gingerbread (advice for separated parents) – 0808 802 0925www.gingerbread.org.uk

Working Families – 0800 0130313www.workingfamilies.org.uk

Reunite (for advice on child abduction) – 0116 255 6234www.reunite.org

Legal Aid Agency – 0345 345 4 345

Finding a solicitor or barrister

The Law Society – www.solicitors.lawsociety.org.uk/

Resolution – 01689 820272www.resolution.org.uk

Bar Council – 020 7611 1472www.barcouncil.org.uk

Court forms - www.justice.gov.uk

 

 

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