The Courts Approach

The advent of the Children Act 1989 changed the arrangements relating to custody, care and control and access, as they used to be called. The Act introduced three new arrangements in connection with children namely, residence, contact and Parental Responsibility. Although the Act is over 20 years old, people tend to confuse the terminology although, broadly speaking, they mean the same thing. Unfortunately, there has been yet another change that the government have introduced with the Children and Families Act 2014 which came into effect on 22 April 2014 and introduces the concept of “Child Arrangements Orders”.

In brief, a Child Arrangements Order is defined as an Order regulating arrangements relating to with whom a child is to live, spend time, or otherwise have contact, or when a child is to do so and it is important to keep in mind the different types of Child Arrangements Orders. In short, a Child Arrangements Order can be either a Residence Order or a Contact Order. A Residence Order was an Order under the old law which determined where a child was to live. A Contact Order set out the types of contact and the frequency of it. They are now one and the same under the heading of “Child Arrangements Order”.

Parental Responsibility is shared jointly between all married parents, even after a divorce, so long as the child is under 18. Unmarried fathers can acquire Parental Responsibility either by agreement with the mother of the child or by Order of the Court, and now, if the father’s name is on the Birth Certificate of the children.

The court also has power to make two other types of order, namely prohibited steps and specific issue orders. A prohibited steps order limits when certain parental rights and duties can be exercised. A specific issue order contains directions to resolve a particular issue in dispute in connection with the child. A prohibited steps or specific issue order could be obtained where there is a dispute as to the child’s education, determining whether the child can be taken abroad, or preventing a parent from seeing the child.

The court will give the following three principles the highest priority:

  1. The children’s welfare is of paramount importance;
  2. The court shall have regard to the general principle that any delay is likely to prejudice the welfare of the children; and
  3. The court shall not make an order unless it considers that doing so would be better for the children than making no order at all.

In deciding whether an order should be made, the court will have regard to:

  1. the ascertainable wishes and feelings of the child concerned (considered in the light of the child’s age and understanding);
  2. the child’s physical, emotional and educational needs;
  3. the likely effect on the child of any change in his/her circumstances;
  4. the child’s age, sex, background, and any other characteristic which the court considers relevant;
  5. any harm which the child has suffered or is at risk of suffering;
  6. how capable each of the child’s parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting the child’s needs;
  7. the range of powers available to the court under the Children Act in the proceedings in question.

Under the Children Act, the court will only make a formal residence order, or any other order, if there is a dispute – otherwise no order will be made. There is also a presumption that the court should not intervene unless it is in the best interests of the child. When making any decision, the court’s paramount consideration is the welfare of the child. The court recognises that delay is likely to be harmful to the child’s welfare, which is entirely separate to the delay when listing a matter for hearing if the court calendar is exceptionally heavy or busy. If the matter is urgent, then it is possible to request an early date due to the nature of the application.


There can often be delays in the progress of a case because of delays at Court, or because of delays by the other parent in providing information and documents or taking part in the Court’s proceedings.

Our first task, as Solicitors, is to try and negotiate an agreement between yourself and the other parent to avoid legal proceedings. If an agreement cannot be reached, it may be necessary to start Court proceedings, which will involve us in preparing the Application Forms on your behalf. As of 22 April 2014, it is now a requirement that you be referred to a mediation service to consider the possibility of mediation. This is a compulsory step which, if unsuccessful, will add another layer of cost to the proceedings. As Solicitors, we always seek to negotiate and/or mediate your dispute as opposed to litigate on the basis that if an agreement can be reached, it can be more beneficial. If proceedings prove to be necessary, we will fill in the forms on your behalf that need to be sent to Court and the Court will then list the matter for a First Hearing Dispute Resolution Appointment (FHDRA). At this appointment, the Court will try to see if an agreement can be reached. If no agreement can be reached, the Court will give directions as to how the case should progress.

You made need to prepare a statement setting out the facts of your case. That statement will be sent to the Court and a copy sent to the other parent who will then have to prepare a statement in reply. Sometimes the Court insists on statements being exchanged simultaneously, although the District Judge could order that the statements be served consecutively, so that we (the other side) can see the case we/they have to answer.  You may be given an opportunity to reply to the other parent’s statement, by filing a further statement.

We must then consider what evidence, information and documents we need to obtain in support of your case and it may be that there are points in the other person’s statement which we will need to disprove with documentary evidence.

At the FHDRA, the Court will normally order a CAFCASS Officer to prepare a report in your case (Children and Family Advisory and Support Service). The CAFCASS Officer or reporter is an independent person who will investigate the case and will normally make a recommendation as to what Order should be made. It is important that you co-operate fully with the CAFCASS Officer, since he or she is an important person whose recommendations will have a strong impact on the outcome of your case.

The Court will then list the matter (after receipt of the documents already mentioned) for a Dispute Resolution Appointment (DRA). At that hearing, the Court may fix a date for a final hearing or alternatively, the Court will require a further short directions hearing to take place once a CAFCASS Officer’s report is received. It may be that only then will a final hearing date be fixed.

It is unfortunately a fact of the Court process that from the date of the Application to the date of the final hearing, a considerable amount of time may have elapsed. There may be a number of intervening events of significance. It is essential that you receive advice from an experienced and specialist Solicitor on the circumstances of your situation to achieve a fair and reasonable result causing the least amount of disruption to you and your family.

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