AWB Charlesworth’s Skipton Solicitor Andrew Foulds take a look at the latest installment of Frequently Asked Questions relating to Family law matters, and at what is often the most emotional aspect of cases; arrangements in respect to Children.
- What powers do the Court have in dealing with child arrangements?
The law in respect to Children applications is predominantly covered by the Children Act 1989 and sets out that “the child’s welfare shall be the court’s paramount consideration” The Court will therefore consider applications deemed to be in the best interests of the child.
- What Orders can the Court make?
Although the Court considers many types of applications, the three most common Orders made are:-
Child Arrangement Order – Specifying with who the child should live and what contact arrangements with others should be made.
Prohibited Steps Order – To prevent a person taking a step that they would otherwise be entitled to do. Examples include taking a child outside of the UK indefinitely or removal of the child by one person who has Parental Responsibility from another.
Specific Issue Order – Determining a certain aspect of a child’s upbringing, such as what should a child’s surname be or what school should the child attend.
- Who can apply for an Order?
There is an automatic right for anyone with Parental Responsibility to apply for such an Order. This includes the child’s mother and the father of the child provided they are married to the mother or named on the child’s birth certificate. People without Parental Responsibility may also apply for such orders but would first need to obtain the permission of the Court to do so. This often includes grand-parents, step parents and fathers without Parental Responsibility.
- When can you apply for a Child Arrangement Order?
This would be dependent on whether you first need to attempt mediation. An application can only be made without first attending mediation if it is deemed to be urgent or there has been a recent incident of domestic violence between the parties.
- What happens when I file my application?
Once the application is filed the Court will list the matter for a Directions Appointment. In the interim period before the hearing takes place, all parties will be contacted by CAFCASS to ensure that the child’s welfare is not in danger.
- Who are CAFCASS?
CAFCASS stands for the “Children And Family Court Advice And Support Service” Their duty is to represent the child during the court case to ensure all decisions are taken in their best interest. CAFCASS are asked in all cases to conduct an initial assessment of the case and if they believe there are issues to be explored, may conduct a more thorough investigation, usually referred to as a Section 37 Report.
- Will my child get a say in proceedings?
CAFCASS have the authority to speak to the child while carrying out their assessments and the Court can in certain instances, ask that a “Wishes and Feelings” Report be conducted so as the child can voice their position. This usually takes place by way of a written report and the child should not be asked to attend at Court to provide evidence.
- What if we cannot agree?
Whilst the Court have a no Order principle, on the basis families will find an agreement reached by consent more amicable then one imposed by the Courts, they will, if the parties cannot agree, make a final determination based on the evidence available and what is deemed to be in the child’s best interest.
- What’s an Undertaking?
Often in place of an Order, parties provide the Court with an Undertaking. This is a form of promise made directly to the Court that if knowingly breached, can amount to Contempt of Court and will be dealt with severely by Judges.
- I have an Order but my former partner won’t adhere to it, what should I do.
In such circumstances there may be no option but to have the matter returned to Court. Whether a party breaches an Order or Undertaking, the Court has similar powers to impose sanctions. The sentence will often be determined by the degree of the breach and how often it has taken place. Sanctions can include fines, unpaid work and in the most severe cases, even imprisonment.
If you find yourself in a position that you are asking some of the above questions, or they have raised any thing else you need answers on, please contact Skipton Solicitor, Amanda De Winter.