The child’s welfare is the court’s paramount consideration for all proceedings under the Children Act 1989 when it considers a question of the child’s upbringing.
Applications for Child Arrangements Orders are usually between private individuals under Section 8 of the Children Act 1989. These include applications for the following: –
- Where the child should live (previously known as a residence order)
- What contact a child is to have with his/ her parents
- Prohibited Steps Order (eg. An application to prevent the child being taken abroad)
- Specific Issue Order (eg. An application to decide what school a child should go to)
In private law cases the child is not a party to the proceedings unless there are particular circumstances that make the case complex. However, in some cases the Court can request a welfare report under Section 7 of the Children Act 1989, which is generally carried out by an officer appointed by Cafcass. The report will usually inform the Court of the child’s wishes and feelings, but the officer will also make a recommendation to the Court based on what they think is in the child’s best interests.
When an application is made to the Court, a date will be set for the First Hearing Dispute Resolution (FHDRA). Cafcass will then carry out a safeguarding report, where both parties will be contacted for safeguarding checks in respect of any police or local authority involvement. Cafcass will also ascertain whether the parties have any specific safety concerns in respect of the other parent.
At the FHDRA, there will be an opportunity for the parties to speak with Cafcass prior to the hearing to see if agreement can be reached. This is known as a conciliation appointment. If no agreement can be reached, the Court will consider what Directions are necessary and list the matter for a Dispute Resolution Appointment (DRA). It is at this stage where the Court may consider that it is necessary for a Section 7 Report to be ordered so that the wishes and feelings of the child can be considered.
The DRA hearing is designed to try and settle the case by agreement. The parties will have by now also considered the Section 7 Report, if one was ordered. It is generally the position that a Court is likely to following any Cafcass recommendation in the Section 7 Report, as it is often the Court’s only objective piece of evidence in the case. It is therefore important for parties to fully engage with the Cafcass Officer in the preparation of their report – not only expressing their views and concerns in relation to the particular matter, but also taking on board the Officer’s advice to show that they are willing, cooperative and most importantly, child-focused. The Cafcass Officer will have by now also seen the child with each of the parents, and in most cases, on their own (i.e. They can visit the child at their school).
If an agreement cannot be reached at the DRA Hearing, then the Court will make further directions to progress the case to a Final Hearing.
At a Final Hearing, both parties will give evidence on their statements and other disclosed documents to the Court. Each party will then be cross-examined by the other party or their legal representative. Any witness evidence will also be heard and cross-examined. The Judge will then give judgement and make a decision taking into account the:
welfare checklist under Section 1(3) of the Children Act 1989: –
(a)the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);
(b)The child’s physical, emotional and educational needs;
(c)The likely effect on the child if circumstances changed as a result of the court’s decision;
(d)The child’s age, sex, backgrounds and any other characteristics which will be relevant to the court’s decision;
(e) Any harm the child has suffered or maybe at risk of suffering;
(f) Capability of the child’s parents (or any other person the courts find relevant) at meeting the child’s needs; and
(g) The powers available to the court in the given proceedings
Wendy Hopkins Family Law Practice is Wales’ largest Family Law firm with one of the largest Family Law team throughout the UK. If you have any questions in relation to the information above please do not hesitate to get in touch with one of our Child Law experts.
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Published 19/03/19