Since 6 April 2011, those who are in dispute over arrangements with the children are obliged to attend a Mediation and Information Meeting (MIAM) with a Family Mediator before issuing court proceedings.
Court proceedings should only be issued as a last resort, after all other avenues have been exhausted. Contested children proceedings can be very expensive and protracted. Attending court is stressful, and the result might not be what you might have anticipated.
The following court orders are available:
- Parental Responsibility order – this confers parental rights;
- Residence order – this governs where and with whom the children live;
- Contact order – this sets out how often the children see the absent parent and will stipulate the arrangements including direct forms of contact such as face-to-face contact and indirect forms of contact such as letters, text, email, Skype and telephone calls;
- Specific Issue order – this determines a specific contested issue between the parents. The parents might have a difference of opinion as to whether the children should move to a different area, or different country; and
- Prohibited Steps order – this will restrict one or both parents from taking certain action without the consent of the court.
The court will often only make an evaluation as to what should happen after the Children & Family Court Advisory & Support Service(CAFCASS) have had an opportunity of making enquiries of the parents and the children and making their own recommendations in a CAFCASS report. CAFCASS reports are very influential in determining the outcome of a case. Sadly, it can take at least 16 weeks for CAFCASS to produce their report, which causes a great deal of delay and anxiety for the family in the interim.
The court will follow statutory guidelines laid down in section 1 of the Children Act 1989 when determining what sort of orders would be appropriate. The welfare of the child is of paramount importance. The statutory checklist of factors is as follows:
- The ascertainable wishes and feelings of the child (in the light of his/her age and understanding);
- His/her physical, emotional and educational needs;
- The likely effect on him of any change in those circumstances;
- His/her age, sex, background, and any characteristics of his which the court considers relevant;
- Any harm which he/she has suffered or is at risk of suffering;
- How capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his/her needs; and
- The range of powers available to the Court under the Children Act 1989 in the proceedings in question.
There is a presumption that matters are best dealt with by agreement with no order being made at all. The court will only make an order if it considers that doing so would be better for the child than making no order at all.
It is important to note that there has been a steady reduction in the amount of court applications under the children’s act which is closely related to the increase in individuals choosing mediation and other alternative methods.
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