A Types of Application
There are a variety of applications that can be made by a parent of a child. These can be summarised as follows.
(i) A Parental Responsibility Order - this application will only be necessary for an unmarried father. This is because, at present, a married father and the mother of the child automatically have Parental Responsibility. However, if both parents agree, it is possible for an unmarried father to obtain Parental Responsibility by agreement.
(ii) Residence Order - this determines where a child shall live.
(iii) Contact Order - this determines how much time the child will spend with the parent with whom they are not living and set out the appropriate arrangements for contact.
(iv) Specific Issue Order - this order enables the court to deal with a specific aspect of a child's overall welfare. This can include issues relating to medical requirements, educational requirements and the possibility of a child going to live abroad.
(v) Prohibited Steps Order - this enables the court to prevent one parent from taking specific action in respect of a child. For example, the court can make an order preventing one parent from taking a child out of the jurisdiction of England and Wales.
There are other orders that can be made to enforce the orders set out above and in particular circumstances. However, the above orders summarise the general orders required by a parent.
B Procedure
1. In order to issue an application for any of the orders set out above, it is of course necessary for an application form to be sent to the court. If there are existing proceedings then the application is fairly short. However, if the children application is a new matter for the court then a fairly detailed form needs to be completed. Once the appropriate application form has been completed, it will then be sent to the court for issue.
2. Once the application has been issued a copy of the application form will be sent to the other parent. In addition, the court will fix a date for both parents to attend court. These hearings are normally fixed within 2-4 weeks of an application being made although if the court is very busy it can take longer.
3. The first hearing at the court is generally used to try and enable both parents to reach an agreement about the issue in dispute. These hearings normally take place with a CAFCASS Officer (a person trained to deal with children matters once they are referred to the court) who will discuss the various issues with both parents and their solicitors (if appropriate) with a view to finalising the outstanding issue at the first court attendance. If an agreement can be reached then the court will generally be asked to make an order to bring the proceedings to a close.
4. If the parents cannot reach an agreement at the first hearing then it may be necessary for them to go before the District Judge. However, this does not always take place. In any event, in the absence of an agreement, the court will be asked to make directions as to how the matter should be dealt with. The usual directions are as follows:-
(a) A CAFCASS Officer will be asked to investigate the matter and prepare a report for the court. In order to compile the report the CAFCASS Officer (who is then known as a Family Reporter) will meet with both parents and the children before finalising the report and making recommendations to the court. It should be noted that the Family Reporter's role is essentially to report to the court in an independent manner and with their focus being primarily on a child's best interests.
(b) The court may also order both parents to prepare statements setting out their respective positions. Sometimes the court will ask for these statements to be sent to the court and to the other parent before the CAFCASS report is completed. However, in other cases, the court will wait until the CAFCASS report has been produced before asking the parents to do statements.
(c) The court will generally also fix a further hearing date to review the matter at which point further directions will be made.
5. The CAFCASS report should generally conclude with recommendations to the court as to how the particular issues should be dealt with. However, if the Family Reporter does not feel able to make a recommendation then this will be made clear in the report.
6. At the review hearing the court will then decide how to deal with the matter. Again, if an agreement can be reached then a court order will be made setting out the agreement. However, if no agreement can be reached then the court will require both parents to file statements (if they have not already done so) and then fix a final hearing so that the matter can be dealt with by the court.
7. If the matter goes to a final hearing then it will be necessary for both parents to attend court to give oral evidence. In addition, if they have asked any third parties to make statements on their behalf, these third parties will also have to attend court to give evidence. Sometimes the Family Reporter is also asked by the court to give evidence but this is not always appropriate.
8. Once the Judge (generally a District Judge) has heard the evidence from all the parties and the Family Reporter (if appropriate) a final judgement will be made. Thereafter a court order will be issued setting out the judgement of the District Judge.
Issues to be taken into account by the Family Reporter when they prepare their report and by the court in considering applications
There are a number of issues which a Family Reporter has to consider when they prepare a report for the court and which a Judge must also consider in dealing with Children applications. These matters are contained in the Children Act 1989 and are therefore statutory requirements. The issues (which are generally referred to as the "Welfare Check List") are as follows:-
(a) The ascertainable wishes and feelings of the child concerned (considered in the light of the child's age and understanding);
(b) The child's physical, emotional and educational needs;
(c) The likely affect on the child of any change in their circumstances;
(d) The child's age, sex, background and any characteristics which the court considers relevant;
(e) Any harm which the child has suffered or is at risk of suffering;
(f) How capable each of the child's parent, and any other person in relation to whom the court considers the question to be relevant, is of meeting the child's needs;
(g) The range of powers available to the court under the Children Act 1989 given the proceedings in question.
The other issue which the Family Reporter/Court have to consider is whether or not it is in the best interests of the child for an order to be made at all. As a result, the court shall not make the order or any of the orders applied for unless it considers that doing so would be better for the child than making no order at all.
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