In the event that all avenues such as Collaborative Law and Mediation have been exhausted and parties are unable to agree on the arrangements surrounding children, the most usual course of action will be a Court application.
The Court application should be issued in the local Court where the child(ren) reside and will be allocated to the appropriate level of Court. Cases will usually be heard in the first instance by a Legal Advisor or Law Justices, unless there is an element of complexity which will see it heard before a District Judge. The paramount consideration of the Court when dealing with any application relating to children will be the welfare of the children. This means that whenever making a decision, the Court must first consider whether that decision would be within the best interests of the children.
CAFCASS (The Children and Family Court Advisory and Support Service) which is public body for England and Wales set up to safeguard and promote the welfare of children involved in court proceedings are initially involved to draft a ‘Safeguarding Report’. This is triggered by the Court application and CAFCASS in their report will highlight any identified issues of risk or harm. This report should be provided to the Court and the parties prior to the first appointment and will include any Police National Computer entries and any involvement with the Local Authority.
At the First Hearing Dispute Resolution Appointment (FHDRA) the parties will usually engage in a conciliation meeting prior to the hearing which is in effect a mediation session with the CAFCASS officer. This sometimes does not go ahead when there are risk related issues (such as allegations of domestic violence). The reason for the meeting is to identify and hopefully narrow the issues that exist and provide the parties with an opportunity to agree without the matter proceeding any further.
If the matter does proceed further the Court will consider what directions (i.e. timetable for filing and serving evidence) should be made to progress the matter. The Court must also at this stage determine whether there are any ‘welfare issues’ i.e. any suggestions that the Court’s decision could affect the welfare of the children. If so, the Court may order the involvement of a CAFCASS officer to prepare a Welfare Report. If there has been any Social Services involvement, they can prepare the report instead of CAFCASS. The report will include observations and investigations following meetings with the parties and children together with a recommendation on how the issue should be resolved.
Once all of the evidence is in and when the parties have had an opportunity to file and serve their statements of evidence, if the matter hasn’t managed to settle then the Court will list a final hearing where both parties and the author of the Welfare Report (if any) are likely to give evidence. Once the evidence has been heard the Court will then give judgement and may depart from the advice of the CAFCASS officer regardless of recommendation. The Court will always try and deal with matters swiftly however it must be accepted that the Court process can take months to resolve unless an agreement is reached at any stage.