Children - Custody, Residence, Contact, Access and Maintenance etc

 

 

Once the Court Welfare Officer has prepared a report this is filed with the court and a copy sent to each of the parties. At this point the Court Welfare Officer may have sided with the views of one of the parties to the action or she may have made some sort of compromise proposal. It is always worth considering the report very carefully and if it clearly sides with one party against the other it ought to give the person with the minority opinion very serious pause for thought. One should always take the report of the Court Welfare Officer fully into account before deciding whether to proceed further and many people do simply decide to accept any recommendations made at this stage.

There is good reason for taking the Court Wellfare Officer's report seriously - it is because the judge hardly ever sees the child and so the Court Welfare Officer will in most cases be the only independent person who has seen the child and considered the merits of the case. The court therefore attaches great weight to the report of the CWO and although it has the power to depart from the recommendations made in that report it will only do so for very good reason. If, therefore, the report of the CWO is against you it would be sensible to think very carefully before insisting on a hearing.

In practice it has to be said that many reports by Court Welfare Officers are banal in the extreme and tend to follow the structure, "Mother says X, father says Y. Child is bouncy and well adjusted. It is normally a good thing for children to see both parents on a regular basis therefore it would be a good thing for child to have contact with her father". This is something of a caricature but most reports are quite anodyne and rarely contain anything surprising. In practice it is rare that a Court Welfare Officer will depart from the "conventional" view on any given subject and so the contents of the report can usually be predicted reasonably accurately. This "conventional view" is actually based on the decisions of the courts and so should be well known to most practitioners. Nevertheless, having it in writing from a third party can often have an effect on the person whose wishes are unrealistic.

Assuming that the report still does not resolve matters the last and final step is for the matter to be heard by the court. Even at this late stage it is not inevitable that a judge will have to decide. Many people come to an agreement at the doors of the court because appearing in court is not something most people enjoy and there is no absolute certainty what the outcome will be. The barristers representing both sides may well have come to the matter fresh and will be able to give the party who is being obdurate suitable advice if the stance being taken is unrealistic or unreasonable. Very often this last minute pressure and nervousness about the outcome produces an agreement at the very doors of the court. This is very common and judges will almost invariably allow time for this type of negotiation if it looks like being productive. If agreement is reached the court will be told, the judge will invite the parties in and then commend them on their good sense.

It is only a small minority of cases which are contested before a judge. If this happens the person making the application will open the case and all his/her evidence will be called first. The person opposing the application will have the opportunity to cross examine the witnesses of the applicant. The Court Welfare Officer is almost invariably present and may be questioned by both parties. Once the applicant has presented all his/her evidence it is the turn of the respondent and all of the respondent's witnesses will give evidence. In this case it is the applicant who has the right to cross examine them. Once all the evidence has been given the judge will sum up the evidence and will then give judgment. In most cases he will follow the Court Welfare Officer's report although not in all cases.

The above is a summary of what happens in most cases but all cases are different in some subtle way and different steps may need to be taken or different witnesses called depending on the nature of the case. For instance, in exceptionally difficult cases the Official Solicitor might be called in to represent the child and it may be necessary to obtain the evidence of a Child Psychiatrist as to what is in the child's best interests. This latter type of case is very uncommon in numerical terms and is given simply as an example of how certain cases can be different.

Please contact David Terry at David_Terry@dterry.demon.co.uk if you need specific advice or assistance. Problems involving children which result in court applications almost always need professional advice and there are many pitfalls involved of which any applicant ought to be aware.