The court process for Child Custody?
What is the court process for Child Custody in England & Wales?
Many parents find themselves in a situation where they need to apply for the court process, but do not know what will happen if they go to court?
To help parents who find themselves in the difficult position of having to deal with family law and family law solicitors, we have written a general child arrangements process for referral purposes.
Mediation Information and Assessment Meeting (MIAM)
Court rules require that before making an application to issue certain kinds of family proceedings the applicant must attend a mediation information and assessment meeting (known as a MIAM) to consider with a mediator whether the dispute may be capable of being resolved by a method other than the court process.
Mediation is a confidential process and none of the parties to mediation may provide information to the court as to the content of any discussions held in mediation and/or the reasons why an agreement was not reached.
The court requires all applicants in the majority of family proceedings to have complied with this requirement before commencing proceedings, save in certain circumstances (see Potential MIAM exemptions below).
The requirement to attend a MIAM does not apply to all family proceedings, but it does apply in relation to an application for Child Custody / Child arrangement orders, and consequently, as you are the applicant, unless an exemption applies, you must attend a MIAM.
The purpose of a MIAM is to enable information to be provided about:
• Whether mediation may be a way in which your dispute may be resolved without going to court? and
• The suitability of any other type of dispute resolution outside of the court process that may assist in resolving the dispute
Is mediation necessary for making child arrangement order applications?
No, not always. There are situations when mediation is NOT necessary. Examples include but are not limited to: situations where:
If there is domestic violence or risk of harm
If there is an urgency to make the application for ensuring the best interest of the child/children
If there is a history or prosecution for past domestic violence
The rules state that the court will expect the respondent, to attend the MIAM, but it is not compulsory for them to do so. If your husband, wife, partner or person with parental responsibility declines to attend a MIAM you will not be prevented from subsequently issuing proceedings.
A MIAM may take place with either both you and your husband, wife, partner or person with parental responsibility attending at the same time or by separate meetings.
If court proceedings are issued, the court will ask at the first hearing whether either or both of you have attended a MIAM. If an exemption applies, evidence of this will be required. The court will take into account any failure to comply with this requirement and may refer you to a meeting with a mediator before the proceedings can continue further.
Exemption from mediation in Child Custody dispute:
You are not expected to attend a MIAM if an exemption applies (as specified in the court rules), including where:
• you have previously attended a MIAM, or participated in another form of non-court dispute resolution, within the previous four months in relation to the same, or substantially the same, dispute; or
• at the time of making the application, you are participating in another form of non-court dispute resolution relating to the same or substantially the same dispute; or
• you have filed an application confirming that a MIAM exemption applies, within the previous four months in relation to the same, or substantially the same, dispute; or
• the application would be made in existing proceedings which are continuing and you attended a MIAM before issuing those proceedings; or
• the application would be made in existing proceedings which are continuing and a MIAM exemption applied to the application for those proceedings; or
• there has been, or is, a risk of, domestic violence; or
• in relation to cases involving children, where there are child protection concerns involving a local authority; or
• the dispute concerns financial issues and you are bankrupt (specific evidence of this is required); or
• you are in agreement with the other party and, therefore, there is no dispute to mediate, ie you will be asking the court to make an agreed order by consent; or
• the whereabouts of the other party are unknown; or
• the prospective application is to be made without notice to the other party (usually because of urgency); or
• the prospective application is urgent (what is regarded as urgent is defined in the rules); or
• geographical and other limitations (such as disability) have made it impossible for attendance at a MIAM to be arranged
In some cases it would appear that none of the above exemptions apply and therefore you must attend a Family Law Mediation (MIAM). In certain situations, a mediator may decide that a MIAM is not suitable.
We have published a short video on Mediation which is available here:
Completing the court forms
When filing an application at court for an order in family proceedings, either the MIAM section of the application form or in some cases, a separate Form FM1, must be completed confirming attendance at a MIAM or giving the reason(s) for not attending. The section/form must be completed and signed by the mediator who conducted the MIAM, where applicable, and counter-signed by you. In certain circumstances, I may be able to sign the form on your behalf.
You must confirm in the MIAM section/form that you have either:
• attended a MIAM; or
• not attended a MIAM and either:
– a MIAM exemption applies; or
– the mediator is satisfied that mediation is not suitable because of either the nature of the case or because ie your Ex-partner is unwilling to, or has failed to, attend a MIAM without good reason
How does the Family Court decide child custody?
The Court has the power to determine with which parent a child should live and how much time a child is to spend with each parent. This is called the Child Arrangement Order.
The application needed to make a child arrangement order is called C100.
There is an assumption that it is in a child’s best interest to have a relationship with both parents. The Court does not like parents struggling for power over the “label” of who the child should be living with.
Subject to any safeguarding concerns, the Court will be looking to reintroduce regular times so that the bond between you and the children can be developed and maintained. If the Mother raises ant safeguarding concerns, than you will have to address those safeguarding concerns.
You and your Ex share parental responsibility and the parent with present care should not have taken any steps to unilaterally suspend the time that the children spend with you. Your Ex has not provided you with a continued regular contact opportunity and it may not been seen positively by the courts if it goes to evidence.
What is a CAFCASS Safeguarding report?
Before any Child Arrangement Orders can be made, the Court needs to have received completed safeguarding checks from Cafcass (Child and Family Court Advisory Support Service). All applications are referred to Cafcass, who then contact the parties to ascertain
the issues in dispute and make enquiries of the police and social services to see whether the family is known to other agencies.
Cafcass will then file a safeguarding letter with the Court setting out the outcomes of those checks and highlighting the issues that will need to be determined by the Court (if you cannot agree) along with their guidance as to how the case should proceed.
The Court Process
How many court hearings take place on child custody matters?
There are typically three hearings in private Children Act proceedings:
(Note: each case has its own Case Management schedule based on complexity and needs for fact-finding hearing or not, and the below is just one of the main standard processes)
First Hearing Dispute Resolution Appointment (FHDRA).
This is a routine directions appointment where the Court considers the safeguarding information from Cafcass and how matters should proceed.
Once your application has been issued your case will be listed for FHDRA within four to six weeks. Your attendance at Court will be required.
Given the concerns that you set out I anticipate that Cafcass will want to complete a Section 7 report and the court may Order so.
Section 7 reports set out background information, key facts and evidence that the children’s needs have been considered in accordance with the welfare checklist. These section 7 reports are mostly done by CAFCASS.
The purpose of the Section 7 report is to provide an independent valuation and assessment of the issues the Court needs to determine and report the findings to the Court. It will also advise the Court as to the children’s wishes and feelings and what they consider to be in their best interests of them. Whilst not binding, the recommendations of Cafcass are extremely persuasive.
Dispute Resolution Appointment (DRA).
The purpose of the DRA is to allow you and your ex-partner the opportunity to consider the recommendations of Cafcass and explore whether there is a possibility of agreeing matters consensually.
In the event you are unable to agree, your case will be listed for final hearing.
Fact Finding Hearing
If the court is concerned about any allegations than the Court may decide to call for a Schedule of Allegations (also called Scott’s Schedule). The Court will consider these allegations and decide on conducting a Fact Finding Hearing or decide against conducting the Fact Finding Hearing.
At the final hearing the Court, upon hearing evidence from the parties, will determine the appropriate arrangements for the children and impose an Order. Most cases settle prior to a Final Hearing.
If you need to make a Child Arrangement Orders application you will need a C100 form, if you need help with how to fill a C100 form, please read this article. A step by step guide to fill a C100 form is available for your reference.
Further reading as to how to get Child Custody in England is available here.
If you are a Father trying to get Child Contact or Child Custody and need to know how to go about it, please read this article.
This Article is not legal advice and should not be treated as legal advice.
We have published short videos on how to get child custody which is available below: