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In court about the kids? The process

In this week’s blog, we’re carrying on explaining the procedure in children cases.  You’ll find the first two parts of the series here: all about CAFCASS, and about the MIAM and making an application to court.

The First Hearing Dispute Resolution Appointment (or “FHDRA”)

The court will list a short hearing known as the FHDRA (often oddly pronounced ‘fuh-hed-ruh’), or sometimes called the conciliation appointment.  Usually, this comes before the lay justices in the family court, or possibly a district judge; higher levels of judge may get involved if the issues are particularly difficult.

Both of you, applicant and respondent, must attend the court hearing.  The court’s main aim here is to identify the areas of dispute, outline the issues on both sides and to decide what needs to happen to manage the case going forward.

Before the FHDRA takes place, a CAFCASS officer will carry out safeguarding enquiries (see here), which the judge or justices review on the day.  A CAFCASS officer will be around at court, and you should have the chance to discuss the situation with him or her, and possibly also see an in-court mediator to investigate whether other dispute-resolution methods might be useful.

During the hearing itself the court may try to broker an agreement, or may give an indication of what the court might consider to be in the children’s best interests.  Nobody should need to give evidence as a witness at this hearing, although there will be submissions – ie telling the court what you want and why.  If the two of you are able to agree on what should happen next, the court can make an order on the day, provided all the safety checks have been completed.  This order could be for an interim period, or it could be a final order.  Also, the court might order another hearing or give directions for the further conduct of the case.

In giving directions the court will consider whether a written report from a CAFCASS officer will be necessary. The court might also want you and the person on the other side of the dispute (and other relevant people) to prepare and file statements setting out the background to the case, recent events and your proposals for the future.  These statements form the basis of your evidence later on.  In a few cases it might be thought necessary to obtain a report from an expert, such as a medical professional or a child psychologist.  However these cases are rare and the hurdle for permission to use expert evidence is a high one.

The process of information and evidence gathering may take a while, particularly if the involvement of CAFCASS or an expert is necessary, and the court is likely to set the date for the final hearing in about 4 months or more.

Statements are prepared and exchanged on an agreed date. The CAFCASS officer will arrange to meet with you, the person on the other side of the dispute, and the children if appropriate in order to prepare his or her report.

Remember, it’s never too late to negotiate.  Wherever you are in the process, you always have options for how to move forward.

The final hearing

At the final hearing, if you have legal representation it is normal to engage a barrister; however, it is possible for a solicitor to argue your case, or indeed for you to do it yourself.  The court is taken first through your application forms, any statements, and then each side’s key arguments.

All parties then give evidence, first the applicant and then the respondent, and then anyone else involved.  Before giving evidence, each witness needs to swear an oath (or affirm) that they will tell the truth.  When you give evidence your barrister, if you have one, starts by asking you questions, then you will be cross-examined by the other party’s barrister. The justices or judge can also ask questions.  If one or both sides don’t have legal representation, the court will ask questions along the lines that a barrister might otherwise have asked.  The same process applies to a CAFCASS officer and any expert.

After hearing evidence, the court will make its decision, usually giving the reasons for the judgment. Sometimes the reasons come later, particularly if the case is a complex one, but often it all happens on the same day.

The law

In coming to a decision, the paramount concern of the court is the child’s welfare.  The Children Act 1989 provides a list of considerations, which when taken together help guide the court in making a decision.  The checklist includes:

  • the wishes and feelings of the child concerned, in light of their age and understanding
  • the child’s physical, emotional and educational needs
  • the likely effect on the child if circumstances changed as a result of the court’s decision
  • the child’s age, sex, background and any other characteristics which will be relevant to the court’s decision
  • any harm the child has suffered or may be at risk of suffering
  • the capability of the child’s parents (or other relevant people) in meeting the child’s needs
  • the powers available to the court in the proceedings

The court must also be satisfied that making an order is better for the child than not making an order.

A word about costs

In court cases about children each side usually has to pay their own costs.  This is because the law does not view cases about children in the same way as commercial cases with winners and losers.  If one party has tried to mislead the court or conducts the litigation in an inappropriate way the court might order that party to pay all or part of the other party’s costs, but this is very rare.

The costs of going to court may be significant; that’s why everyone involved should give serious thought to alternative methods for resolving the dispute, such as mediation or collaborative law.

We hope that this short series of blogs has been useful.  As ever if you would like to make an appointment to talk to us about any aspect of family law, please call us on 01223 443333.

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