The decision of where a child or children of the family should reside after the breakdown of a marriage is often a difficult and emotionally charged decision. Parent can often find it difficult to agree arrangements for contact. It is always preferable to reach agreement between the parties without any need for intervention by the Court.
However if issues of residence and contact can not be agreed an Application can be made to the Court for a residence and/or defined contact Order.
WHO CAN MAKE AN APPLICATION UNDER CHILDREN ACT 1989?
The following individuals are entitled to make an application for a residence or contact order under Children Act 1989, without having to seek permission from the court:-
1. The parent, guardian or special guardian of a child;
2. Any person who has parental responsibility;
3. Anyone who holds a residence order in respect of a child;
4. Any party to a marriage or civil partnership where the child is a child of the family;
5. Anyone with whom the child has lived for at least 3 years;
6. Anyone who obtains the consent of (i) the local authority the child is in the care of or (ii) everyone who has parental responsibility for the child.
If you do not fall within the above list (i.e. if you a grand parent), this does not mean that you can not make an Application. However you will need to make an application to the court for permission to issue an application for residence or contact. In deciding whether to give permission the Court will take into consideration the following:-
1. The nature of the application;
2. The applicant’s connection with the child;
3. The risk there might be of the proposed application disrupting the child’s life to such an extent that they should be harmed by it.
APPLICATION FOR A RESIDENCE/DEFINED CONTACT ORDER
The Application must be lodged with the Court and state the reasons for applying to the Court and the Order being sought. A Court fee for the Application is payable. Once the Application has been issued the Court will list a Conciliation Appointment.
A Conciliation Appointment is designed to allow the parties, with the guidance of the Court and the duty Court Welfare Officer, to agree issues of residence and contact. Both parties and their legal representatives are expected to attend Court as are children over 9 years of age. However children rarely attend.
The Conciliation Appointment is usually listed for between 30 minutes to 1 hour. If the parties are unable to conciliate and reach agreement in relation to residence and contact then the Court has 2 options available:-
1. adjourn the Conciliation Appointment to another date;
2. give various directions including making an Order for interim contact (if this can not be agreed), obtaining a report from CAFCASS (Court Welfare Officer) and for both parties to file statements setting out their respective positions in relation to residence and contact and list the matter for a final hearing.
The length of the final hearing will depend on the number of witnesses each party intends to call.
Children and Family Court Advisory and Support Service (“CAFCASS”) Report
CAFCASS (Court Welfare Officers) are engaged by the Court to prepare a report which assists the Court in deciding what is in the best interests of the children when issues of residence and/or contact are in dispute.
In preparation of the report the Court Welfare Officer will arrange:-
- A meeting with each parent on their own.
- A meeting with both parents with the children.
- A short discussion with the children (subject to their ages) to ascertain their wishes and feelings.
The Court Welfare Officer’s report will comment on discussions with the parents and the children and will make recommendations as to the appropriate arrangements for both residence and contact based on the factors which must be considered by the Court as set down in the Welfare Checklist:-
1. The ascertainable wishes and feelings of the children (subject to age and understanding);
2. The child’s physical, emotional and educational needs;
3. The likely effect of a change in circumstances;
4. The child’s age, sex, background and any other characteristics the Court deems appropriate
5. Any harm that the child has suffered or is at risk of suffering;
6. The ability of both parents to meet the child’s needs.
Once the report is prepared it will be sent to both parties for their consideration and filed with the Court. This allows the parties time to reflect on the Court Welfare Officer’s recommendations and, if possible, reach agreement without the need of proceeding to a final hearing. Depending on when the final hearing is listed it may be necessary for the Court Welfare Officer to provide an updating report.
It is unusual for Applications for residence and/or contact to proceed to trial unless there are complex circumstances. However in the event that the matter does proceed to a final hearing the Court will have regard to the report(s) prepared by the Court Welfare Officer, the parties respective positions and the Welfare Checklist.
At the conclusion of the final hearing, once the parties and the Court Welfare Officer have given evidence the Court will make a final decision with whom the children should reside and arrangements for interim and long term contact (which includes school term times, holidays and special days such as birthdays during the year).
OTHER APPLICATIONS UNDER CHILDREN ACT 1989
There are a number of Applications which can be made pursuant to the Children Act 1989 as follows:-
Schedule 1 Application
This Application is made when one parent is seeking financial relief for a child or children in circumstances where the parents of the children are not married. An Application can be made to the Court for one or more of the following Orders for children:-
- Periodical Payment Order
- Secured Provision Order
- Lump Sum Order
- Property Adjustment Order
The Court procedure for Applications made under the Schedule 1 Children Act 1989 is very similar to the procedure adopted in ancillary relief proceedings in divorce. Both parties must provide full financial disclosure by way of Financial Statements and supporting documents.
This is a complex Application and we which are happy to discuss in more detail at your request.
Prohibited Steps Order
This is an Application for an Order preventing one or both parents (or any other person with parental responsibility) from doing something that affects a child i.e. one parent from removing the child from the jurisdiction without consent of the other parent. This is a form of injunction and the Application must be made with a supporting Affidavit detailing the reasons for the Order being sought.
This Application is made when there is the threat of abduction of a child. This Application is usually made without notice to the other party and if an Order is made, the responding party and the children will be located and will have to hand to the Court Tippstaff all passports held on behalf of the children and themselves. The passports are then retained by the Tippstaff until further Order from the Court. Any Respondent to a passport Order can apply, on notice, to have the Order discharged and the passports returned but must satisfy the Court that there is no threat of abduction and/or provide an undertaking (a promise to the Court) not to remove the child from the jurisdiction of England and Wales without prior consent or permission of the Court.
This is an Application which must only be pursued when there is a real threat of abduction and only after careful consideration of the specific facts of the case.
Specific Issue Order
This is an Application for the Court to make a decision on a particular issue which arises in connection with a child i.e. which school the child should attend or a course of medical treatment that should be undertaken.
This is an Application which must only be pursued after careful consideration of the specific facts of the case.
Please also see our Information Sheets on Financial Provision for Children and Leave to Remove & Child Abduction.
Please note the information provided in this article is only intended to be an overview for general guidance. Further information and more detailed and case specific advice can be provided on all aspects on request.