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I want to sort out a dispute about kids… what next?

Last week we looked at the role of CAFCASS in cases concerning children. We now turn the spotlight on the procedure itself. This blog will of course be an overview of the system – it’s just for informational purposes, as ever. We are posting it in a few instalments (each one of approximately the length which you need to get through a cup of tea or coffee whilst reading!), with this part looking at the initial steps in an application about children, and the second half the run up to a final hearing.

Step 1: a Mediation Information and Assessment Meeting (“MIAM”)

Before you can make an application to court for an order relating to children, you must organise a meeting with a mediator, who will give you information about mediation and other dispute resolution options. This meeting is known as a Mediation Information and Assessment Meeting (MIAM), and must take place with a specially trained mediator. At CFLP we can offer MIAMs, or can refer you to other local mediators.   The mediator might also meet with the other person in your case and, if suitable and you decide to use the process, you will then attempt mediation in order to resolve the dispute.

If mediation is not suitable for your case, or you start it but it does not work for you, the mediator will give you a form which you can then use to show that you have gone through this process when you start court proceedings.

In some urgent cases, or if you are exempt from the requirement because of domestic abuse, a MIAM may not be necessary – a specialist solicitor will be able to advise you whether you need to attend a MIAM before issuing proceedings. Legal aid may be available for your MIAM, and for mediation too, subject to the mediator being able to provide that service and a means test.

It’s important to remember that mediation itself isn’t compulsory, simply the meeting with the mediator to investigate whether it might be of use. Also, for technical legal reasons it is only compulsory for the party who wishes to start proceedings to attend the meeting, although the other party is ‘expected’ to do so. Nobody can be forced to mediate – it’s essential to want to try to resolve the dispute yourselves if mediation is going to have a chance of working.

If mediation doesn’t work or isn’t suitable, or you don’t want to mediate after hearing about the process in a MIAM, you can issue your application at court.

Step 2: Issuing an application

Subject to attending a MIAM, some people have an automatic right to apply to the court for an order relating to children, whereas others require the court’s permission before they can apply.

Any parent or person with parental responsibility for a child may apply to the court for a child arrangements (formerly contact or residence) order. This includes special guardians, anyone with a child arrangements order relating to residence in their favour, current and ex-spouses / civil partners, anyone with whom the child has lived for 3 years, and in certain cases foster parents and members of the child’s wider family. For a specific issue or prohibited steps order parents, step-parents with parental responsibility, guardians, special guardians, and anyone with a child arrangements order relating to residence, or old-style residence order in their favour can apply without requiring permission of the court.

Anyone else will need the court’s permission (notably grandparents who don’t fall into any of the pre-approved categories). If you are unsure whether you need permission, a solicitor will be able to advise you.

Applications are started at court by filling in and filing an application form. There is a court fee payable when the application is lodged at court.   At this point there is no need for a long statement setting out your reasons for applying and your supporting arguments – that comes later.

The court will process the paperwork and return the papers to the applicant or their solicitor, who must then send a set to the other party or parties in the case (this is known as service). They must complete a form to confirm they have received the papers.

The court’s cogs then turn, and will let the applicant and respondent both know the date for the FHDRA – the First Hearing Dispute Resolution appointment, where both must attend at court. We’ll pick up here next time and explain what happens then.

In the meantime, if you’d like to talk to someone about a parenting dispute or any other aspect of family law, you can make an appointment to see Sue, Simon, Gail or Adam on 01223 443333.

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