Before you do anything, before you start to make any applications or start to write statements or find a solicitor you need to have a general idea of the structure which will determine the resolution process and the route your case will take.
The procedure the courts must follow in family cases is now governed, from 22nd April 2014, by the new Child Arrangements Programme, a streamlined version of the Revised Private Law Programme which in turn built on the claimed success of the Private Law Programme which had aimed to resolve the majority of cases by consent at the First Hearing Dispute Resolution Appointment (FHDRA), and incorporated the measures to enable contact introduced by the Children and Adoption Act 2006 which came into force in December 2008.
The new Child Arrangements Programme (CAP) is designed to replace both the Pre-Application Protocol and the Private Law Outline. It is designed to keep couples out of court or to enable swift resolution where court is unavoidable. It recognises, as its predecessors did not, that LIPs will now constitute the majority of users of the family justice system and it utilises simplified language and procedures; it will also include a glossary. The CAP is arranged under the following headings:
Resolution of disputed arrangements for children
This is what used to be called Alternative Dispute Resolution. It is recognised that negotiated agreements are better for children and last longer. They are cheaper, less stressful and much quicker. The word ‘alternative’ has been dropped to convey the idea that this is what you should be trying to achieve first, before you resort to court.
The CAP builds on the Pre-Application Protocol for Mediation Information and Assessment introduced by the Coalition Government in April 2011 which obliged couples to ‘consider’ mediation as their first step unless there were excepting circumstances such as bankruptcy or allegations of domestic violence. This extended the existing requirement for legal aid claimants to try mediation to all couples wishing to litigate, and was governed by Part 3 of the Family Procedure Rules 2010 and a Practice Direction.
Section 10 of the Children and Families Act 2014 establishes this principle in law and obliges an applicant to attend a Family Mediation Information and Assessment Meeting (MIAM) before making any application. There are exceptions and we shall cover them later.
Contrary to what logic would suggest, there is no obligation for the respondent also to attend, but this would not have been legally possible to incorporate. However, it is likely a judge will expect a respondent to have tried mediation before proceeding.
There are three points at which you will have to demonstrate your compliance with this requirement:
1. When you start the case by submitting your C100 form;
2. at the Gatekeeping stage when the case is allocated to the appropriate level of judge; and
3. at the First Hearing Dispute Resolution Appointment (FHDRA).
There may also be other points during a case when the judge will put it ‘on hold’ so that the parties can attend a MIAM.
Before making his application a would-be applicant in relevant family proceedings must contact an accredited mediator and provide contact details of the respondent. The mediator will then contact them both to arrange for the couple to attend a single Mediation Information and Assessment Meeting (MIAM) to determine suitability. If you are using a solicitor they will contact the mediator on your behalf. The mediator can also suggest other methods of alternative dispute resolution such as collaborative law.
In addition to attendance at a MIAM, you will be encouraged to work together to produce a Parenting Plan. This is still an essential task even if you end up litigating, and we strongly urge you to prepare one very carefully. This will make it much clearer for yourself to understand how you intend to continue parenting your child and it will provide you with a document to present to the Court when you are making a child arrangements application.
Don’t turn up to court without having attended a MIAM; you may be sent away again.
The Court is further required – under Rule 1.4(2)(e) of the Family Procedure Rules 2010 – to consider at every stage of proceedings whether alternative dispute resolution may be appropriate. The Court may adjourn proceedings at any point (under Rule 3.3) to give you an opportunity to obtain information about alternative dispute resolution or to allow it to take place. The Court can make this direction on its own initiative or on application, and will tell you how and by when you must tell the Court whether alternative dispute resolution has been effective.
Signposting services for families
As part of the CAP the courts will guide you to use various services to assist in the resolution of parenting and financial disputes.
Most of these are either Government-run or Government-approved and the first listed, sortingoutseparation.org.uk, which is where the Government expects you to start, will lead you to some organisations which might well give conflicting advice and exacerbate conflict. We would advise you to start with an independent service such as Wikivorce.
Local good practice
Practice varies widely from one court to another, with some courts implementing services well and others not at all. The CAP aims for consistency across the country, but recognises that where services are working well locally they should not be disrupted.
Application to court
An application to the Court made on Form C100 may only be made after you have attempted mediation, unless you are exempt or the application is urgent and to be made without notice. As evidence you will have to produce to the Court a completed Family Mediation Information and Assessment Form (Form FM1) confirming your attendance at a Mediation Information and Assessment Meeting or giving your reasons for not attending. If the other party would not engage with mediation or your case is not suitable for mediation the mediator must complete the form stating this and sign it. They may charge for this service – £25 is typical. Otherwise you or your solicitor (if you have one) must complete it.
The FM1 form is very simple to complete – it’s just a matter of ticking some boxes. Enter the full names of yourself and the other party; it is assumed that you are the applicant.
You (or your legal representative) fill out Part 1; the mediator fills out Part 2.
In Part 1 you explain why as the applicant you have not attended a MIAM, either by ticking the appropriate box which makes you exempt or by ticking the appropriate box relating to domestic violence.
You (and your legal representative) then sign and date the form.
Where a mediator has determined that a MIAM is not appropriate, or you have attended a MIAM but mediation cannot proceed, they must tick the appropriate box in Part 2 and sign and date the form; you or your legal representative must then countersign.
The Court must give to you:
i. a copy of the Application Form C100, together with Supplemental Information Form C1A/C100A (if provided);
ii. the Notice of Hearing;
iii. the Acknowledgment Form C7;
iv. a blank Form C1A/C100A;
v. the Certificate of Service Form C9; and
vi. information leaflets for the parties.
It must also send to CAFCASS the C100 and C1A/C100A forms and the Notice of Hearing.
Failure to complete the C100 application fully and correctly will lead to delay or to the application being rejected.
Allocation and Gatekeeping
The application will be passed to a ‘Gatekeeping’ judge whose role is to ensure the application is satisfactory. He must consider the application within one working day of receipt.
If the Gatekeeping Judge is not satisfied that mediation has been attempted he can make directions for the applicant to attend a MIAM. If he thinks it necessary he may give directions for an accelerated hearing. He may also give directions for further evidence.
The Gatekeeping judge will decide what level of judge should determine your case; this will normally be Magistrates or a District Judge.
Judicial continuity
It is one of the objectives of the CAP that that the judge to whom your case is first allocated should then manage the case through to the final hearing.
Where a case is heard before magistrates, at least one member of the panel, preferably the chairman, should provide continuity.
Key welfare principles
All applications will be determined under the principles set out in Section 1 of the Children Act, i.e.,
· (the Court is to presume that involvement of the applicant in the life of the child concerned will further the child’s welfare;)
Note: that this clause is not yet enacted.
· the child’s welfare is the court’s paramount consideration;
· delay is likely to be prejudicial to the child’s welfare; and
· no order shall be made unless the court considers that doing so would be better for the child than making no order at all.
The Court must follow the principles of the Overriding Objective.
The Court and parties shall consider the need to ensure that children are involved appropriately in the decision making process according to their age and level of understanding.
The Court will exercise the discretion available to it, which includes the ability to cancel or repeat a particular hearing.
Urgent/Without Notice Applications
Where you need to make an urgent application without notice there is no requirement to attend a MIAM. Such applications may only be made exceptionally where:
· For the applicant to give notice to the respondent would enable the respondent to take measures which would defeat the purpose of the application;
· It is necessary to conceal the application from the respondent (such as emergency medical treatment the respondent would be likely to disrupt);
· There has literally been no time to give notice of the application to prevent a specific action (such as taking a child abroad);
· Giving the respondent notice would expose the child to unnecessary physical or emotional risk.
Safeguarding
Rather than produce the full Section 7 welfare report, which is enormously time-consuming and can introduce delay of a year or more, CAFCASS will be asked to produce what is termed a Safeguarding Letter (this used to be called a Schedule 2 letter).
CAFCASS will be expected to identify any issues raised in the C1A Forms relating to ‘safety’ and only those relating to ‘safety’. All other issues will be deferred to the FHDRA (see below) so that both parties can know what issues the other has raised and so be on an ‘equal footing’. To achieve this a CAFCASS officer known as a Family Court Advisor (FCA) must,
· Carry out inquiries including interviews with the parties by telephone and checks with the local authority and the police;
· Meet with the parties individually if safety issues are raised in order to clarify them;
· Record and outline safety issues in a Safeguarding Letter for the Court within 17 days and no less than 3 days before the hearing;
· Not initiate contact with the child.
The limitations on the information the police will disclose to CAFCASS are set by a joint agreement with the Association of Chief Police Officers (ACPO) and were clarified in G v B [2010] EWHC 2630 (Fam):
· CAFCASS may not seek information on third parties such as new partners without the express permission of the Court.
· CAFCASS may discuss the information received with the relevant party and with the other parent, but only if there are child welfare issues. They may only include in the report police information which is relevant to the child’s welfare.
· They may not give copies of police documentation to the parties or their legal representatives, or attach copies to the report.
· CAFCASS may pass on police information to social services but only where there are urgent child protection issues or for the preparation of a Section 7 report.
If CAFCASS receive nothing from the police or the local authority they will report that the parties are not known to them and that there is therefore no further need for their involvement. The intention is that this should end the use of s.7 reports where they are not needed; many courts have been over-using CAFCASS and this has contributed to the backlog, there is wide variation between courts, with CAFCASS used in anywhere between 5% and 90% of cases. The view of CAFCASS is that if the courts want an appropriate service they need to use CAFCASS properly and only where their intervention is essential.
Note that CAFCASS have only 17 working days to produce this report. Note also that this procedure makes a presumption that there will be ‘safety’ concerns; i.e. that the applicant is a threat to the child.
Under Paragraph 3.9 of Practice Direction 12B the Court must inform the parties of the contents of this report unless it would create a risk of harm to a party or to the child. The Court must also consider whether there is need for,
· A risk assessment; or
· A Finding of Fact Hearing to determine the actuality of any allegations made.
Inevitably reality lags behind the ideal and Safeguarding Letters will not always be produced to the courts by the due date. Unallocated cases have been reduced, but largely through the strategy of allocating more cases to each worker, and especially to managers; this doesn’t actually guarantee the cases will be dealt with and means that these cases are not always subject to regular review and monitoring.
FHDRA
Each appearance you make in court is known as a ‘hearing’. Unlike other areas of law there will usually be a number of hearings in each case and there are different types. Some cases can be over and done within a few hearings, but others can run to many – a hundred or more – depending on how stubborn and litigious you and your ex decide to be. At the end of the first hearing the Court will set a date for the next. This is supposed to prevent the delay which so often blights proceedings but, unfortunately, the process rarely runs smoothly and there will be cancelled, delayed and additional hearings, and many cases can involve several ‘final’ hearings.
You should be given a date for the First Hearing Dispute Resolution Appointment (FHDRA) in the 5th week – and certainly no later than the 6th week – after your application. This first hearing is also known as the ‘Directions Hearing’ or sometimes the ‘Conciliation Hearing’. The respondent should be given 14 days’ notice but the Court may abridge this time; the respondent must respond no later than 14 days before the hearing on Form C7, and on Form C1A if necessary.
The CAFCASS FCA must attend the hearing even if, it appears, there are no safeguarding concerns, and a mediator should attend if available. The FCA should speak separately to each party outside the courtroom before the hearing.
You are advised to read the CAFCASS publication Putting your children first: a guide for separating parents in advance.
Arrangements for a mediator will be made locally by CAFCASS. If necessary, you and the other party will be asked to give your consent for the mediator to be allowed to see relevant papers. No pressure should be brought to bear on you to agree to this.
A Directions Hearing will typically be brief – perhaps only 30 minutes will be allocated – on the assumption that agreement won’t be reached so soon. You need to be organised and have a list written out of the directions you want the judge to make. Don’t allow time for the judge to start introducing unnecessary directions or delay; keep him focused. It is also at this hearing that you must ask the judge to make appropriate directions if you wish to call an expert witness. The Court can then consider whether obtaining any expert evidence is necessary.
The majority of cases are resolved through a consent order, the judge will explore options for resolving your dispute without further court intervention. The CAP intends that this hearing will provide the parties with a forum in which they can be helped towards ‘agreement as to, and understanding of, the issues that divide them. It recognises that having reached agreement parties may need assistance in putting it into effect in a co-operative way’.
If agreement is not reached it is likely the Court will direct that you should attend a Separated Parents Information Programme (SPIP).
At the hearing the Court should have before it:
· your application on Form C100;
· your Form C1A (if one has been completed);
· the other party’s Acknowledgement of Service on Form C7;
· the other party’s Form C1A (if one has been completed);
· the Notice of Proceedings on Form C6; and
· the safeguarding letter from CAFCASS.
The Court will inform you of the safeguarding letter and its contents unless it thinks that to do so would expose the child or other party to harm. It will also tell you if it considers a risk assessment or finding of fact hearing to be necessary.
At the FHDRA the Court must consider:
MIAMS
Whether the applicant has complied with the MIAM requirements and whether proceedings should be adjourned so that the applicant or respondent can attend a MIAM, together or separately.
Mediation
How many of the issues between you your ex and yourself can ‘safely’ resolve through the assistance of the FCA or a mediator and in collaboration with the court.
Once the issues and the CAFCASS report have been stated you will be encouraged, with the support of the CAFCASS officer, mediator and judge, to explore the possibility of reaching agreement on some or all of the matters in dispute. Court time is expensive and should be kept to a minimum. If all or any issues can be resolved through mutual agreement, or perhaps through mediation, the judge can make what is called a ‘consent order’, that is, one to which both parties consent.
Other options for resolution will be considered such as further intervention by CAFCASS, or the use of collaborative law or a parenting plan, or the Court can send parents to a Separated Parenting Information Programme (SPIP).
Safeguarding
If either party has completed a C1A form alleging domestic violence or abuse the judge can order a ‘Finding of Fact Hearing‘ to determine the truth or nature of such allegations, though you may need to request this and such hearings are rare.
The Court can also direct the Local Authority to undertake an investigation under Section 47 of the Children Act where there is reasonable cause to suspect that a child is suffering or is likely to suffer significant harm.
In extreme cases where the Court considers that it may be appropriate to take a child into care it will direct the Local Authority to undertake an investigation into the child’s circumstances under Section 37 of the Children Act.
Dispute resolution
Further resolution which may be necessary.
Consent orders
The judge must determine whether consent orders are appropriate – consent orders will be made only under the Court’s scrutiny, if further assessment or reports are necessary proceedings must be delayed for no longer than 28 days to a fixed date, but CAFCASS must provide written justification for this. If the evidence supplied to the Court is satisfactory the order can be made without the attendance of the parties.
Consent orders will often be drafted by the lawyer representing one or other side, or the judge will do it himself; you must check carefully any order drafted by a solicitor before it is given to the judge. It is not unknown for judges to make ‘consent’ orders even where one party objects to the contents. Much depends on how much common ground there is, and what the differences are. Be prepared to compromise, but don’t accept anything you feel is against your child’s interests. Above all, don’t accept any false allegations: you will not be able to refute them later on.
A consent order cannot be approved unless it is confirmed that safeguarding checks have been completed or that the safeguarding duty of CAFCASS under Section 16A of the Children Act 1989 is not required.[1]
Reports
The judge may order a welfare report under Section 7 of the Children Act. Courts rely heavily on these reports; they are difficult to challenge and the FCA can only be cross-examined if the Court orders it.
Full welfare reports should only be ordered in a minority of cases in which there are welfare concerns and other measures such as mediation or parenting classes have been tried, though they are often ordered where there are no such concerns. They can introduce considerable delay: it can take a couple of months to find a Family Court Advisor (FCA) to undertake the report, and another 3 to 9 months for them to complete the report. Delay within CAFCASS has become so bad in some areas that judges are no longer ordering s.7 reports even where there are welfare concerns.
The Court must direct in the order that the report be limited to the specific factual and other issues which are still disputed. The Court can direct CAFCASS to prepare,
a) A ‘needs, wishes and feelings’ report within 6 weeks;
b) A single issue report within 6 weeks;
c) A report covering more than one issue within 6-12 weeks depending on complexity;
d) A risk assessment within 6-8 weeks.
All of these reports are enabled under Section 7 of the Children Act 1989, but only C is recognizably a Section 7 report. They must be prepared according to the welfare checklist at Section 1(3).
Wishes & feelings
The CAP expects that the child’s wishes will be taken into account and that the child will be informed of the proceedings and their outcome. The Court must consider how the child’s view will be incorporated into proceedings and whether the child should be joined as a party to the application. If the Court is considering whether it should appoint a Children’s Guardian it must first discuss this with CAFCASS to determine how long it will take for one to become available and how much this will delay proceedings.
Case management
It is vital that the Court manages the case effectively to ensure that the issues in dispute are identified and that only they should then inform proceedings. The Court must move swiftly to the directions it must make before further resolution can be achieved and make interim orders where it can while awaiting the reports it has directed. The final hearing must be listed as soon as practicable.
Allocation
The Court should observe judicial continuity, allocating the case to a judge who can stay with it from FHDRA through to final hearing.
If the Court decides to re-allocate or transfer proceedings to another court it must give its reasons and make directions.
Orders
If no final order is made the court must make case management directions and include the following in the order:
a) The issues about which the parties are agreed;
b) The issues that remain to be resolved;
c) The steps the Court plans to resolve the issues;
d) Any interim arrangements pending such resolution, including arrangements for the involvement of children;
e) The timetable for such steps and, where this involves further hearings, the date of such hearings;
f) A statement as to any facts relating to risk or safety; in so far as they are resolved the result will be stated and, in so far as not resolved, the steps to be taken to resolve them will be stated.
g) Whether the parties are to be assisted by participation in mediation, SPIPs, or other types of intervention, and to detail any activity directions or conditions imposed by the court;
h) The date, time and venue of the next hearing.
Capacity of Litigants
You lack capacity in relation to a particular matter if at the crucial time you are unable to make a decision for yourself about the matter due to an impairment of or a disturbance in the functioning of, the mind or brain. This impairment may be permanent or temporary.
Whether you lack capacity must be decided on the balance of probabilities and cannot be based on your age, appearance, medical condition or an aspect of your behaviour.
The Court’s assessment of your capacity will be based on:
a) Whether you can understand the information relevant to the decision;
b) Whether you can retain that information;
c) Whether you can use and weigh that information as part of your decision-making process; and
d) Whether you can communicate your decision through speech, sign language or other means.
You will not be regarded as lacking capacity if you are able to understand the information via an explanation given in a way appropriate to your circumstances, through simplified language, visual aids, etc. Nor does being able to retain the information for only a short period necessarily mean that you lack capacity. You must, however, be able to understand the consequences both of your decision and of a failure to make a decision.
The leading judgement on the issue of capacity is Masterman-Lister v Brutton & Co (Nos 1 and 2) [2002] EWCA Civ 1889; Masterman-Lister v Jewell and another [2003] EWCA Civ 70.
Evidence
You must not submit evidence to the Court until after the FHDRA without its prior approval unless the application is made without notice or the Court directs it. If you do the evidence will not be admissible.
The Court may direct the parties to produce Position Statements. If, for example, you are being denied contact with your child, your Position Statement will explain that, detail the arrangements made for contact, and show how contact has been frustrated. Your children’s other parent will also have to write a Position Statement explaining why they are denying contact.
Timeframe for the child
Delay is one of the most damaging aspects of the family justice process, and the Children Act specifically demands that it be kept to a minimum; accordingly the Court must, under Section 11, establish a timetable for the proceedings and give details of this timetable in the order.
There is no time limit as there is in public law cases, but cases are expected to be processed expeditiously.
While the Court awaits reports and the outcome of further hearings it may well make an interim order if it considers that to be in the child’s best interests. Interim orders also help to minimise the effects of delay, and prevent the cessation of contact becoming the status quo. If it is appropriate in your case you are strongly advised to make an application for an interim order; you won’t be awarded contact if you don’t.
You should come out with some contact at that time by consent (i.e. both parties agree) and an appointment to see CAFCASS for a welfare report if it has been ordered. You will also be given a date for your next hearing.
Rule 16.4 Guardians
The court should be vigilant to the necessity of appointing a Rule 16.4 Guardian, first taking advice from CAFCASS regarding the appointment, the availability of guardians and the timescale. The order must make clear why a guardian is being appointed and the timetable of work to be undertaken.
Dispute Resolution Appointment (DRA)
Once all the statements and all the reports from CAFCASS or from expert witnesses are in the Court will arrange a further directions hearing. There may then be an Issues Resolution Hearing (IRH) at which further attempts will be made to reach agreement. If agreement is reached at any of these stages, the process can stop there.
If no agreement can be reached at any of the previous stages the Court can progress to a ‘full’ hearing at which all the contentious issues of the case can be discussed and, it is hoped, resolved.
Due to its probable complexity a full hearing is scheduled to last several days – 3 is typical; 5 is not uncommon. This is why it is important to follow the timetable set by the judge; delay at this stage can mean having to wait for another 5 consecutive days in court to become available, which could be many months away.
The judge will consider the Family Court Advisor’s report, the parents may call witnesses and examine them, and the judge will then decide on the case. The Court can make a number of orders according to Section 8 of the Children Act 1989 for Child Arrangements, Prohibited Steps or Specific Issues.
If matters are not resolved the Court can give a further case management direction which will include:
a) Filing of further evidence;
b) Filing of a position statement of facts/issues remaining to be determined;
c) Filing of a witness template and / or skeleton arguments;
d) Ensuring Compliance with Practice Direction 27A regarding Bundles;
e) Listing the Final Hearing.
Depending on the complexity of your case, the full hearing may be one of several, or it may be your final hearing. Very often the Court will refer to full hearings as final hearings; it would be inadvisable, however, to get your hopes up, as some cases can run to numerous ‘final’ hearings.
The full hearing will probably take place in a conventional court rather than in chambers. It will be more formal and more stressful than hearings which are conducted in chambers. If the other side has been using a solicitor so far, it is likely that they will now be represented by a barrister.
The position statement you prepare for this hearing must be more comprehensive and detailed than previous statements, and will contain all the relevant evidence. Keep it clear and concise, and write it in a logical sequence. At the end put the order(s) you wish the judge to make.
The Court may direct that a Finding of Fact Hearing be conducted where there are serious allegations the determination of which has an impact on the outcome of the case.
Enforcement
If an order is breached a party may apply to enforce it through the existing procedure. If the original order is more than 3 months old, CAFCASS will have to be engaged again for further safeguarding checks. There are proposals for new powers to be given to District Judges to commit parents to prison and for an Enforcement Parent Information Programme (EPIP) analogous to the existing SPIP.
Timetable
Day 1: the court office receives your application and checks that it has been completed correctly and there is a completed Form FM1.
Day 2: your application is considered by the Gatekeeping team and is allocated to a judge. If no MIAM has taken place the judge may direct that you attend one.
Day 17: CAFCASS must have completed the safeguarding checks and provided the Court with the Safeguarding Letter.
Week 5 (or 6 at the latest): the case is listed for the FHDRA.
Review & monitoring
To avoid the errors of the past when litigants can become dependent on the Court to regulate every aspect of their children’s lives it is intended that the Section 7 reports should set out phased recommendations for the short, medium and long term to be incorporated into orders. This will enable levels of contact, for example, to increase over time to a more beneficial level.
If monitoring is necessary it will be carried out by CAFCASS under the provisions of the Children and Adoption Act 2006 or by means of a Family Assistance Order.
Relevant Family Application (definition) Relevant family proceedings include private law proceedings involving children and proceedings for financial remedies. They exclude emergency proceedings, enforcement proceedings (where obviously there will already have been court proceedings) and proceedings for financial compensation.
