How the Family Court Works and Child Arrangement Orders
Family Courts are there to make decisions around children and finances when a couple separates. When a relationship breaks down, there can be disagreements about how the finances are divided, how children should be raised, or whom they should live with. When all other resolution methods have failed, the court is there to step in and essentially take the decisions out of the separated parties’ hands and make the decisions on their behalf.
What happens once I have made an application to the Family Court?
Once you have applied to the family court, there will be a First Hearing and Dispute Resolution Appointment (FHDRA). This hearing helps the court identify the issues that the concerned individuals have to see if it is possible for them to come to any agreement.
A Position Statement is non-mandatory but can be helpful as it gives you a platform to outline where you stand in the situation, your position and what you would like to achieve before the hearing takes place. It can prove very useful in that the other party involved may accept your position if you provide the statement to the other party, and therefore the case can be concluded at the FHDRA rather than having to go through a full hearing. It also provides you with a plan for the hearing as it sets out your objectives and what you would like to achieve. It is always hoped that a resolution will be reached before a full hearing, and the Judge or Magistrate, along with the Cafcass Officer, will help the parties in this. Sometimes a mediator is also in the courts to further assist in this process. In some cases, a court may well order mediation to be undertaken if it has not already done so.
What if an agreement has been reached?
If an agreement is reached at the FHDRA, then a final order may be made there, and then setting the terms of the agreement if the court feels they are in the best interest of the child/children. If an agreement is not reached, the areas of disagreement and the reasons behind these disagreements are established.
Before the hearing takes place, Cafcass will provide both parties with a ‘Schedule 2 Letter’ which details the background checks of the parties, the parents and who the children will be living with. The court will also look at what evidence they feel may be required to assist them in making a decision that is in the children’s best interests at a later date and arrange for this evidence to be gathered. If there happens to be allegations made of a serious nature against one of the parties, then the judge/magistrate may decide that the party will not have contact with any children whilst the allegation is being looked at and investigated. This is not a final decision, but merely the court acting in the children’s best interests by ensuring that no harm can come to them whilst the facts are being established. In some cases, they may decide that contact is permissible but only if it is supervised, in which case it will be done through a contact centre in the interim period. If no serious concerns are raised, then the court may also order that contact be resumed immediately until a final order has been made at a later date.
What is a fact-finding hearing?
In cases where allegations have been made, and evidence has been collected, a Fact-Finding Hearing takes place to consider this evidence and make a decision regarding the alleged incidents. A decision is made as to whether the court feels that the alleged incidents have taken place or not based on the evidence provided. The parties involved will also be cross-examined, and potentially any witnesses will be called upon to give their account of events.
The evidence provided by the parties determines the decision made by the Judge, and it is up to the person making the allegations to provide the evidence and prove that what they are saying is true. For this hearing, the person making the allegations will need to send a list of the allegations that they are making, detailing the incidents that have occurred in date order, the details of any witnesses and whether there was police involvement, and any medical records pertaining to the incident and a statement declaring that this is a true record of events and sign and date the document. The person whom the allegations have been made against will also see this document and have the opportunity to respond to it by a specific date. They will then have to make their response to each of the incidents that have been detailed, whether they deny that it has happened or their individual account of the incident.
If the judge deems that on the balance of probabilities (more likely than not) that the allegations are true, having looked at all the evidence from both parties, including police and medical records where relevant and witness statements etc., then this decision is taken into consideration during the Final Hearing and any final decisions made there also.
Child Arrangements Order
During the Final Hearing, the Judge will consider all of the evidence gathered throughout the proceedings, including evidence provided by the parties involved, Cafcass reports, the decision reached, and the findings resulting from the Fact-Finding Hearing. Assessing all of this information, the judge will make a decision deemed to be in the best interest of any children involved in conjunction with the ‘welfare checklist’. Sometimes the Judge will make no order whatsoever pertaining to the children, or they may decide upon a Child Arrangements Order that details where any children will live and any contact arrangements that the Judge feels are appropriate.
Once this Final Order has been made, a Judge may still require a Review Hearing. A Review Hearing can occur at any point throughout proceedings and may be required, especially in long cases, to keep the case on track. In this way, they can ensure that evidence is submitted on time or that contact that has been ordered as an interim measure is indeed taking place. A Review Hearing is also used when a case may be left open despite a Final Order being made. This sometimes happens where it is necessary to ensure that the details of the Final Order are being carried out, i.e. contact etc. It is not a common occurrence, but sometimes it can be useful to have a clause in the Final Order permitting a Review Hearing in a couple of months so that if the Order is not being complied with, then you can return to court without the requirement to pay additional fees and deal with any problems arising from the decisions of the Final Order not being adhered to, in a potentially easier way.
Alternatives to court proceedings
Court proceedings are suitable where parties have failed to reach an agreement via alternative methods. Therefore parties must, where appropriate and safe, attempt other solutions before making a court application. Some parties use family mediation to support them in creating a parenting plan. Where alternative methods have not been attempted and a court application made, the courts can order mediation, meaning that parties must attempt mediation before returning back to the courts.
