Children and Disputes over Custody, Residence and Access etc

 

 

If a court has to be asked to decide what is in a child's best interests in a private law matter then the procedure is basically the same whether the dispute arises from a divorce or from a relationship between an unmarried couple or between any parties. The forms used may be slightly different but the procedure is essentially the same. It is, however, important to realise that many questions relating to children are resolved by agreement and that these contested cases are very much the exception. This can be difficult to appreciate during the heat of a breakdown of a relationship. Disputes concerning children can resolve themselves over time and only intractable cases normally come before the courts. Nevertheless, making an application to a court is sometimes absolutely necessary if one parent is being completely unco-operative or unreasonable. This does sometimes happen.

If a party wants to ask the court to resolve a dispute concerning a child then an application must be made and a fee paid. The application will give various details about the child - age, date of birth, with whom the child lives, schooling arrangements etc. Most importantly, of course, the application will state what it is that the applicant seeks from the court - whether it is an order to prevent the changing of a surname, an order for contact or residence or whatever - and the reasons for making that application. It will then go on to ask for details of the person against whom the order is sought - ie the person who is proposing a course of action with which the applicant disagrees or who is refusing contact etc.

When the court receives this application and the appropriate fee it will send a copy of the application sealed with the court seal (together with a document called an Acknowledgment of Service) to the respondent (the person who would oppose the application). It will also send a notice of a "Directions Hearing" which is an appointment at which the parties are expected to attend and at which the court will decide what steps need to be carried out before the case is ready to be heard by a judge.

The procedure does vary a little from court to court but it is quite usual for the parties to be offered the opportunity to meet a mediator either immediately before the directions appointment or soon afterwards. The mediator is a social worker and both parties are encouraged to attend such an appointment if at all possible. Unless a criminal offence is disclosed at the mediation hearing the proceedings are all confidential and no note may be taken of them for use in any other proceedings. This is to encourage the parties to speak freely and so that they know they may do so without anything they say being held against them at a later stage.

Naturally, it is better if the parties can come to an agreement and that is excellent if it happens but it has to be said that if one party already feels so strongly about the matter that a court application has had to be made the chances are that every effort has already been made to reach an agreed solution. The respective positions of the parties may already be quite entrenched at this stage and if that is the case the mediation appointment may serve little purpose and so it will be omitted if the parties do not agree to it.

Matters then move on to the "directions appointment" proper at which the court will consider what should be done next. Proceedings are normally quite informal and the judge will simply be trying to establish what the issues are and what needs to be done in the way of preparation of evidence for the court. In the majority of cases the court will order each party to file a statement within so many days (usually 14 days or so). These statements will set out the history of the matter, explain what each party wants from the court and why. Obviously, what goes into such statements will vary from case to case but it is important that they are prepared with care because it is the applicant and the respondent's opporutunity to set out their side of the story fully and in as much detail as they think necessary. These statementsare an important part of informing the court what the issues are.

Courts very rarely take evidence directly from children and, indeed, it is strongly discouraged in this type of proceeding. The judge will almost invariably never see the child and will make a final decision without ever meeting the child. People are often worried about the prospect of the child having to appear in court but in practice this very rarely happens. Instead what the court almost always does is to order a Court Welfare Officer ("CWO") to prepare a report once the parties themselves have filed their statements.

The CWO is a social worker employed for this purpose and he/she will first read the application and all the court papers including the statements of all parties. The initial impression of the issues is therefore given to the Court Welfare Officer by the statements of the parties and so they do need to be drafted carefully. After the CWO has done this he/she will make an appointment to see all the relevant parties - very often at their home but sometimes elsewhere including the CWO's offices.

The Court Welfare Officer will certainly want to see the child and, if the child is old enough, probably alone. Ideally, the CWO will want to see the child with both parents or with any other party to the action but sometimes this just isn't possible because of the circumstances of the case. Enquiries will be made of the child's school and GP if that is appropriate and after the Court Welfare Officer has seen everyone involved and listened to what they have to say she will prepare a report. In practice it is the length of time which it takes to get a Court Welfare Officer to take on a case, to see all the parties and to prepare a report that causes most delay in children's cases. Although the time varies from court to court it is unusual for the report to be ready in less than three months from the date on which the report is ordered.

Sometimes this delay is not a problem because the court can grant certain interim relief if the case is suitable for it. For instance, it might grant interim contact pending the final hearing. In other cases, though, interim relief is not appropriate - where, for instance, one of the parties is asking for a change in the child's principal residence - because to grant such relief would be to pre-judge the final issue. If no interim orders are available then the parties have to wait for the Court Welfare Officer's report. Matters then proceed to the next stage.

Please contact David Terry at David_Terry@dterry.demon.co.uk if you need specific advice or assistance. If a dispute involving a child has got to the stage where an application has had to be made to the courts it is almost always sensible to seek legal advice.