Children disputes (the law)

Children disputes can concern who a child should live with, who a child has contact with, or specific issues about things like medical treatment and schooling. If a dispute cannot be resolved,
mediation must now be considered as the first legal step; the parties must attend a Mediation Information Assessment Meeting (MIAM) before they can issue court proceedings. Find out more about mediation.

If mediation does not resolve things, an application can be made to the family court for an order under the Children Act 1989. Legal parents and certain other adults are entitled to apply; others need to ask the court's permission.  The court can make the following orders:

A child arrangements order - This will set out who a child should live with and what contact they should have with anyone else. Contact might include indirect contact by letter and telephone, visiting contact, or periods of overnight staying contact (such as for weekends or holidays). Child arrangements orders replaced residence and contact orders from April 2014. 

A specific issue order - This will decide a particular issue, such as which school a child should attend or making a decision relating to a religious or a health issue.

A prohibited steps order - This will prevent a parent or person with responsibility for a child from doing something, for example prohibiting them from removing the child from the country.

There are also other kinds of disputes about children, such as disputes about legal parenthood/ parental responsibility, and about financial provision for a child.

What the court assesses

child in the woodsThe court's paramount consideration is always the child's welfare, not the adults' rights or interests. The court will consider the ‘welfare checklist' which is:

  • the ascertainable wishes and feelings of the child (considered in the light of his/her age and understanding)
  • the child's physical, emotional and educational needs
  • the likely effect on the child of any change in his/her circumstances
  • the child's age, sex, background and any other characteristics which the court considers relevant
  • any harm which the child has suffered or is at risk of suffering
  • how capable each of the child's parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his/her needs
  • the range of powers available to the court.

There are also a number of other principles the court must apply.  The court should only make an order if it is best for the child for the court to intervene.  The court should be mindful that delay is likely to prejudice the child's best interests.  There is also now a new presumption in favour of both parents being involved in the upbringing of a child.  

Children disputes involving families created through assisted reproduction often involve particular issues.  Find out more about known donor and co-parenting disputes, disputes with surrogates, disputes between parents through surrogacy, and disputes between lesbian parents.

The court process

The first step is to complete the appropriate court form and send this to the family court. An application for a child arrangements order, prohibited steps order or specific issue order is made on Form C100.  Once the application is received by the court, it will be issued (stamped and given a case number) and returned to the applicant, who must serve a copy on the respondent. The respondent should then file an acknowledgement of service indicating his or her position.

There are no longer different levels of lower family courts, the old magistrates' and county courts having been combined into the single Family Court from April 2014. In practice, what this means is that an application can be made to a local family court and the court will decide on the seniority of judge who should hear the case (although in some particular types of cases it is sensible to apply to the family court in London).

Once the application and response are received, the court will list the case for a hearing. This is usually initially a First Hearing Dispute Resolution Appointment (FHDRA) at which the court will encourage the parties to resolve things. If this does not happen, the court will make directions as to what should happen next. The court might direct that:

  • The parties file statements explaining the facts
  • Investigations be carried out by CAFCASS and/or social services
  • Expert evidence be obtained (for example medical or psychiatric reports)
  • The case be transferred to a different court (perhaps a more appropriate local court, or the High Court)
  • The child be joined as a party to the proceedings (this means that the child will have someone to speak for them and their own lawyer, usually state-funded)
  • Further interim hearings be listed to deal with some of the issues in dispute or to decide on disputed areas of fact.

There are usually several hearings in children proceedings. A bundle must be prepared for each court hearing, and the court rules set out how it should be formatted. Every case is unique in terms of the issues and how it progresses. Some settle, in which case the judge may be asked to ratify an agreed order. Others do not, and there is a final hearing at which the court will hear evidence from the parties and the judge will make an order which is imposed on all the parties.

The role of CAFCASS

The Child and Family Court Advisory and Support Service (CAFCASS) is a government body which is part of the family court system. Its role is to provide an independent assessment and reporting function to help judges hearing children cases. CAFCASS officers are qualified to work with children, and often have a social work background.

Preliminary safeguarding checks on the parties to a case are routinely carried out by CAFCASS when an application is first made. CAFCASS may then be asked by the court to carry out a more in-depth investigation. This involves a CAFCASS officer interviewing the parties and possibly the child, depending on his or her age. The CAFCASS officer may also speak to the school or nursery and anyone else relevant. He or she will then prepare a report which makes a recommendation about the child's best interests.  CAFCASS reports typically carry significant weight in court proceedings. The judge does not have to follow the recommendations made, but will usually do so.

In some cases involving children, the court will appoint the CAFCASS officer (or more rarely someone else) to act as the child's guardian. This means that the CAFCASS officer will represent the children's interests in the proceedings (rather than having a more neutral role) and can instruct lawyers to provide advice and to make arguments in court (those lawyers usually being funded by legal aid). This power is rarely exercised, but may be appropriate where it is felt that the child's interests are not otherwise being adequately represented.