When parents separate there’s always a period of adjustment while they get used to co-parenting after the end of the relationship. This is undoubtedly difficult, and parents need to focus on putting the children’s needs before their own. This does not always happen and may lead to the need for other parties to help make the right decisions.

Children’s needs will always be the first and most important consideration when dealing with their living and contact arrangements, as well as anything else that will have an impact on their life. This is true during any separation or divorce scenario, no matter how these arrangements are finalised.

Custody is the term that used to be most common when referring to child arrangements, so you might have heard of terms like “custody hearing” or “custody dispute”. These terms are outdated and have not been used in English law for many years. We now refer to “child arrangements orders” since they were Introduced in The Children and Families Act of 2014.

For most parents, it is possible to reach agreement about child arrangements through discussions together or other forms of dispute resolution, such as mediation or negotiation through solicitors. This is generally the preferred approach, both for the court and for the parents involved, though it is not suitable for every situation.

Unfortunately, for a small but significant minority of separating parents, where it is not possible to agree things through mediation or negotiation, an application to the courts is necessary.

When is mediation not appropriate?

Mediation is a popular and less stressful option to avoid court hearings, but the process does not work for every family. There are some specific instances where mediation cannot be an option, and also many situations where it’s more of a grey area. You should discuss the options with your legal representative.

As a rule of thumb, mediation is absolutely not an option in instances where there has been domestic abuse, emotional distress or trauma, or where there is a strong likelihood of coercion.

Mediation sessions are also voluntary and you cannot compel either party to attend, whereas court proceedings are enforced and must be attended. This means that if one partner is not willing to attend or engage with mediation sessions, court may be necessary.

When is court necessary?

What are the other situations for which parents can apply to the court? These are some of the circumstances for which you may need to apply for court proceedings:

  • A child arrangements order, setting out where the child(ren) will live, when they will spend time with each parent and the arrangements for any other contact (such as phone calls, skype etc)
  • A specific issue order, for a decision about a particular point such as where the child(ren) will go to school
  • A prohibited steps order preventing the other party from doing something, such as prohibiting a child from being taken abroad

Anyone considering an application to the court must attend a Mediation Information and Assessment Meeting first, to consider whether they could resolve their issues through mediation rather than through the court.

In cases where mediation is not appropriate, or it has been unsuccessful, a court application can then be issued.

What’s the first step of court proceedings?

The court will ask CAFCASS (The Children and Family Court Advisory and Support Service) to conduct safeguarding checks and consider the best way to deal with the case. A CAFCASS worker will do some background checks on the parties involved in the case, speak to them to discuss the case and then write a letter to the court setting out their thoughts.

The court will also list the first hearing, which will take place after the CAFCASS safeguarding checks.

What decisions will the court make?

The court has made it very clear in the past that they do not think they should be routinely involved in parenting decisions or the minutiae of a child’s day to day life. They see their role as being a last resort, to be taken up in exceptional circumstances.

For this reason, the court process is structured around encouraging parties to reach agreement rather than continue with litigation, since the stress caused by court proceedings can often have serious indirect consequences for children. This is why mediation is generally the first step, with the aim of that process to be avoiding court proceedings.

In the event that court proceedings go ahead, it is expected that there will be some discussion and negotiation between the parties, through their lawyers, immediately before the hearing to agree issues where possible and narrow the scope of what the court needs to deal with.

The court will consider any risks to the child(ren), what evidence is needed to make decisions about the case and whether there needs to be involvement from any other professionals, such as a report from CAFCASS about a child’s welfare, or the appointment of a Guardian to represent the child in the proceedings.

In very rare circumstances, a Guardian could be appointed to ensure the child(ren)’s interests are represented and that the child(ren)’s welfare is safeguarded. They will report back to the court, make recommendations for further investigations, or make recommendations as to what type of orders they consider appropriate. They are used most often in adoption cases, but occasionally may be relevant in child arrangements cases where the court is concerned that the child(ren)’s interests are not held at the forefront of everyone’s minds.

How many court hearings will there be?

Most cases require at least 2 or 3 hearings, to allow time for evidence and reports to be prepared, filed and considered. Parties are encouraged to agree where possible as a case proceeds. If this is not possible, the court will work towards a ‘final hearing’ at which the evidence will be considered and examined in detail. After this has happened the judge or magistrates will make their final decision which will be imposed on the parties.

Anyone who is due to attend a court hearing should be aware that it will be a stressful experience. Any discussions before the hearing can be conducted in private and negotiations can happen through lawyers. However, during the hearing itself (and subject to Covid-19 restrictions at the time) you will be in a court room with the other parties to the dispute. This can be an unpleasant experience, especially in contentious cases.

If you do not think you would feel safe being in the same room as the other party in the proceedings, perhaps due to domestic abuse, violence, or intimidation, you should discuss this with your solicitor in advance. They need to be aware so they can make any appropriate special arrangements to protect you, so you should let them know as soon as possible.

Should I expect to speak in court?

If you have a lawyer, you should not generally expect to speak in court. It is usual that you would only speak if you are sworn in to give evidence (for example at a final hearing). Your lawyer will be able to represent your best interests based on their discussions with you and their knowledge of your case.

If you have concerns about any arrangements for your children or would like to discuss any of the matters raised in this post, please do not hesitate to contact one of our solicitors using the contact details below.

If you would like to arrange an initial consultation with a member of our specialist family law team, please do not hesitate to contact us on T: 0117 3751780 or E: mail@harbourfamilylaw.co.uk. Check out our article on what you can expect from a consultation with Harbour Family Law.