How Will the Family Court Make a Decision about My Children?

Posted on: 11 Jun 2020 - 8 mins read

Last updated: 03 Apr 2024

Partner, Family Law

What Is The Welfare Checklist?
Making A Decision Without Going To Court
How Do You Apply to the Family Court?
What Happens at the Family Court?

In England and Wales, the Court makes decisions by considering what is in a child’s best interests, not the parents’ best interests.

This may be confusing and upsetting if you believe it’s your right to see your child but the Court is stopping you from doing so. In reality, the Court will prioritise the rights of the child over the parents’ rights, so it’s always important to put your child’s needs first.

We appreciate that during a separation, this can be difficult to see. It’s important to try and separate the needs of your child from the separation with your partner, although these can often seem to overlap.

Even if you think you’re acting in your child’s best interests, you may feel that your former partner isn’t. If you can’t come to an agreement with your former partner however, you can ask for the Court to become involved to address certain issues or in specific circumstances.

What Is The Welfare Checklist?

When deciding what is in a child’s best interests, the Court will follow certain guidelines called the Welfare Checklist.

The Welfare Checklist contains the law that the Court must consider when making any decision about a child after a parent makes an application to Court.

The Welfare Checklist means that the Court have to think about a number of different things when making a decision about your child. Some of these include, but are not limited to:

The wishes and feelings of the child if they are old enough
The child’s physical and emotional needs
If a child has suffered harm as a result of the care that they have received from either parent
If each parent is able to care for the child
If the child is at risk from the care that they are likely to receive

Additionally, the Welfare Checklist allows the Court to decide where a child will live. For example, this could be with just one of the parents or a shared arrangement with both of them. If the Court decides that the child should live just with one parent, the Court might also decide how much time the child should spend with the other parent too.

These sort of decisions are called Child Arrangements Orders. You can get a Child Arrangements Order by making an application to the Family Court.

Child Arrangements Orders used to be known as Residence Orders and Contact Orders. A Child Arrangements Order now covers both, and any parents who have the older Orders do not need to re-apply.

However, before you can apply for a Child Arrangements Order, you must first attend a Mediation Information Assessment Meeting which is often referred to as a MIAM unless they are exempt. The purpose of the MIAM is for the mediator to explain what’s involved with mediation and to try to work out whether this method of alternative dispute resolution suits the parties involved.

Unfortunately, this isn’t always possible, and a Court Order is sometimes the only way for some couples to achieve a resolution after separating.

There are instances where mediation wouldn’t be appropriate, and in those circumstances, the mediator must sign off the relevant form to say why there might be an exemption to attend mediation. For instance, if domestic abuse has occurred or if the other party is unwilling to attend mediation.

This form is essential if proceedings are to be issued, so should always be passed on to your Child Law Solicitor even if you aren’t immediately thinking of going down the Court route.

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Making A Decision Without Going To Court

However, it may be possible to come to an agreement with your former partner without going to Court at all. It’s important to at least try and come to an agreement with your child’s other parent before applying to Court, where appropriate. Your agreement can be in writing if needed or you can get a Child Arrangements Order with consent from both of the parents.

Before applying to Court you will need to show that you have been to a Mediation Information and Assessment Meeting (MIAM) anyway which may actually assist in allowing you to reach an agreement without the need to proceed any further to Court.

If you haven’t tried mediation the Court may reject the application or ask you to attend a MIAM which might delay the process of making a decision about your children.

A MIAM is a pre-mediation meeting between you and a mediator to find out about mediation and explore ways to find solutions to your dispute. This meeting can actually be booked online if you are ready to proceed to this step. In the MIAM, the mediator will discuss:

What your options might be
What mediation is, and how it works
The benefits of mediation and other appropriate forms of resolving disputes
The likely costs of using mediation
If you are eligible for free mediation and Legal Aid

In a MIAM you will have the opportunity to tell the mediator about your situation and the issues that need to be agreed upon, the mediator will also explain the mediation process to you. At the end of the meeting, the mediator will tell you whether your case is suitable for mediation, and you can decide whether you want to proceed with mediation or explore another option for resolving your issues.

The MIAM usually lasts around 45 minutes and costs in the region of £95 to £120 per person depending on the mediation service you use. Additionally, there may be the cost of the MIAM certificate which is required before you can submit an application to court. This may be included in the initial fee or you may face an additional fee for this. You should check the cost with your mediation service provider before you start.

If you are eligible for Legal Aid then this will cover all your individual mediation costs, including your MIAM and your former partner’s MIAM if they do not qualify in their own right.

If mediation cannot be arranged or breaks down, then a form is provided so that you can still make an application to Court.

It is important to note however that you won’t need to go to a MIAM in very urgent cases, such as those cases involving child abduction or failure to return after a visit with the child’s other parent. You also won’t need to show you have tried mediation in cases where there has been domestic abuse as you will be likely to be exempt from mediation.

How Do You Apply to the Family Court?

You can apply to the Family Court by downloading a Form C100 from the UK Government Website and completing it. In this form you will need to include:

Your details and the child’s other parent’s details
Proof you have been to a MIAM (except in certain circumstances, such as cases involving child abduction and domestic abuse, for example, as outlined above)
The type of Court Order that you are applying for
If needed, a Supplemental Information Form C1A which sets out any allegations if there has been domestic abuse

One of our Family Law Solicitors can help you apply to Court by getting to know your case and filling in the application forms with you over the phone.

What Happens at the Family Court?

When you apply to the Family Court, the Court use the Child Arrangements Programme, which sets out various steps and the timetable for the Court to make a decision.

The first step of the case will be a First Hearing Dispute Resolution Appointment (FHDRA). This will usually happen between 4-6 weeks after you make an application to Court.

During the 4 to 6 weeks before you go to Court, the Child and Family Court Advisory and Support Service, more commonly referred to as ‘Cafcass’, will speak to the child’s parents, the police and local Social Services. This then allows them to consider if there are any reasons why the Court shouldn’t make the Order that you have applied for.

If you and the child’s other parent cannot come to an agreement at the FHDRA, then the Court may ask you to go to a Final Hearing immediately. If more information is needed for the Court to assess the parents’ different positions, you may need to make statements of evidence. Your solicitor can advise you on how to do this.

If there has been domestic abuse, the Court may also hold a separate Finding of Fact Hearing. This Hearing will help the court determine the truth of the allegations.

In some cases, the Court may ask Cafcass to submit a Section 7 Welfare Report. Sometimes a Local Authority Social Services could be asked to prepare the Section 7 Welfare Report, if they have already been involved with your family.

The Court might also ask for more information, such as medical reports or drug and alcohol tests if they feel that these are needed before they can make a decision about your child.

When the Court has all the information it needs, the Judge will make a decision at a Final Hearing. At a Final Hearing the Court will make whatever Order it believes is needed for your child.

We understand that you might feel very uneasy when there are court proceedings about your children. Our Family and Children Law Solicitors can guide you through the process of going to Court and will put your child’s best interests at the forefront of everything we do.

At Simpson Millar, we always handle each case with the sensitivity it deserves and will tailor our service to your unique circumstances to reach the best outcome for your child.

For initial advice get in touch with our Family and Child Law Solicitors who will be happy to assist you. Our expert team can be contacted on 0808 239 3465 or alternatively you can request a call back.

References:

Cafcass. (n.d.). Court Process and What to Expect. [Online] Available at: https://www.cafcass.gov.uk/parent-carer-or-family-member/my-family-involved-public-law-proceedings/court-process-and-what-expect (Accessed: 19/12/2023).

The Law Society. (09/02/2014). How to Prepare for a Fact-Finding Hearing in Family Cases. [Online] Available at: https://www.lawsociety.org.uk/topics/advocacy/how-to-prepare-for-a-fact-finding-hearing-in-family-cases (Accessed: 19/12/2023).

Cafcass. (n.d.). Court Process and What to Expect: Court Asks FCA to Write Report. [Online] Available at: https://www.cafcass.gov.uk/parent-carer-or-family-member/applications-child-arrangements-order/court-process-and-what-expect/court-asks-fca-write-report-if-your-case-goes-beyond-first-hearing-section-7-reports (Accessed: 19/12/2023).

Cafcass. (n.d.). Cafcass. [Online] Available at: https://www.cafcass.gov.uk/ (Accessed: 19/12/2023).

LexisNexis. (n.d.). First Hearing Dispute Resolution Appointment. [Online] Available at: https://www.lexisnexis.co.uk/legal/glossary/first-hearing-dispute-resolution-appointment (Accessed: 19/12/2023).

UK Government. (n.d.). Family Justice Reform: CAP Flowchart. [Online] Available at: https://www.justice.gov.uk/documents/cap-flowchart.pdf (Accessed: 19/12/2023).

National Family Mediation. (n.d.). Book an Appointment. [Online] Available at: https://www.nfm.org.uk/about-family-mediation-services/book-an-appointment/ (Accessed: 19/12/2023).

National Family Mediation. (n.d.). What is a MIAM? [Online] Available at: https://www.nfm.org.uk/about-family-mediation-services/what-is-a-miam/ (Accessed: 19/12/2023).

UK Government. (21/12/2020). Form C1A: Allegations of Harm and Domestic Violence - Supplemental Information Form. [Online] Available at: https://www.gov.uk/government/publications/form-c1a-allegations-of-harm-and-domestic-violence-supplemental-information-form (Accessed: 19/12/2023).

UK Government. (08/09/2023). Form C100: Application under the Children Act 1989 for a Child Arrangements, Prohibited Steps, Specific Issue, Section 8 Order, or to Vary or Discharge. [Online] Available at: https://www.gov.uk/government/publications/form-c100-application-under-the-children-act-1989-for-a-child-arrangements-prohibited-steps-specific-issue-section-8-order-or-to-vary-or-discharge (Accessed: 19/12/2023).

Lorraine Harvey

Partner, Family Law

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Areas of Expertise:

Family Law

Lorraine is a Partner at Simpson Millar, specialising in Family Law for over 20 years.

She handles middle to high net value cases, including pension claims and complex trust, and also advises on pre-nuptial and post-nuptial agreements.

Lorraine has unrivalled knowledge of public sector pensions, in particular police pensions, having advised police officers on pension claims for two decades.

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How Will the Family Court Make a Decision about My Children?

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