A Child’s Wishes and Feelings in Children Act Proceedings

Posted on 26th May 2022 by McAlister Family Law

A Child’s Wishes and Feelings in Children Act Proceedings

When proceedings concerning a child need to be issued at Court it can not only feel like an arduous task, but also overwhelming in an already worrying time. Here, Jemma Wentworth looks at how the wishes and feelings of a child are taken into consideration when a court decides what is in their best interest, and how factors such as age and understanding play a role in the decision-making process.

Proceedings may be necessitated for various reasons, for example, the need to define the time that the child spends with both parents, to address a specific issue surrounding the child such as changing their name or deciding which school they should attend, or even to determining whether permission should be given for leaving the jurisdiction.

Within Children Act proceedings, and as part of the Court process, the child’s welfare is of paramount importance and various factors need to be taken into account. These factors form the ‘Welfare Checklist’ and one of these factors is the ascertainable wishes and feelings of the child concerned, considered in light of their age and understanding.

If there is a disagreement between parents or those with parental responsibility, the Court may be asked to make decisions. In doing so, the Courts overriding objective is what is in the child’s best interests? Often, the most effective way to ascertain this is to speak with the child. This is where the child’s age and understanding plays particular significance.

An organisation called CAFCASS, the Child and Family Court Advisory and Support Service, shall be appointed by the Court and the officer dealing with the case shall speak with the child as part of the assessment process. In so doing, consideration of the Welfare Checklist forms their role, and the officer shall give full consideration to each individual child’s ability to express their view in light of their age and understanding.

Children as young as four or five shall be spoken to by the CAFCASS officer, but it shall be fully appreciated that a child of such young age is clearly limited in terms of their ability to communicate or form a viewpoint on significant life matters. Generally speaking, the older a child becomes, the more their expressed views will have relevance to the decision-making process.

Generally speaking, by the time a child is approaching High School age their viewpoint will be competently and pragmatically considered by CAFCASS, who in turn will file a report to assist the Court. Each case is determined on its own merit, but the important factor is not only a child’s age, but also their level of maturity and understanding of what is being proposed and how such decisions will affect them. These are all considerations that will be considered by CAFCASS within their report for the Court.

However, it is important to remember that not every child is the same and every case will be different. These issues need to be discussed openly by the parents with an understanding that just because a child may express a certain view, does not automatically mean that the Court will make an Order on that basis. The voice of the child is critically important to the Court, and it is only right that the child should be able to say what they would wish the Court to order. However, it is a balance of factors that the Court must take into account, and the ascertainable wishes and feelings of a child is only one of those factors. The older the child, the more the Court will consider their wishes and feelings in their decision making.

It is also incredibly important for parents to be mindful that regardless of where their child is at, developmentally, intellectually and emotionally, it is the Court who ultimately makes the decisions and therefore providing a child with the burden of the decision making could have a negative impact upon them as for some children that burden of having to ‘choose’ between parents is ultimately too much for them to carry.

If parents, and those with parental responsibility, are unable to agree important decisions for a child’s future, the Family Court alongside the involvement of CAFCASS, may well be the last resort. Having the right support and the right legal advice is crucial. Here at McAlister Family Law we have an experienced and large Children Team who will be able to navigate you through what can be a difficult and emotionally charged process.

The call for fewer Fact-Finding Hearings

Posted on 23rd May 2022 by McAlister Family Law

The call for fewer Fact-Finding Hearings

In response to recent news, Associate Melissa Jones looks at the comments made by the President of the Family Division, Sir Andrew McFarlane at Resolution’s annual conference in Birmingham.

Sir Andrew McFarlane looked at the “default position” in cases where domestic abuse allegations are made and the need to have a fact-finding hearing. His comments were “There was an urban myth among some judges that the Court of Appeal in HN said there needed to be more fact-finding. That needed to be clarified.”

The court must at all stages of the proceedings, and specifically at the FHDRA, consider whether domestic violence is raised as an issue, either by the parties or Cafcass (Child and Family Court Advisory and Support Service) or otherwise. The Court will decide whether a fact-finding hearing is necessary by reference to the revised Practice Direction 12J Child Arrangements & Contact Order: Domestic Violence and Harm, which sets out what the Family Court should do in any case in which it is alleged or admitted, or there is other reason to believe, that the child or a party has experienced domestic violence or abuse perpetrated by another party or that there is a risk of such violence

or abuse.

If a Finding of Fact Hearing is required, then this is distinct and separate from other hearings. It can be a lengthy process and on average can last anywhere between 1-3 days. In some of the most serious cases of alleged domestic abuse it can last well over two weeks.

Such hearings, often seen as “mini-trials” can be financially taxing not to mention emotionally difficult for the parties involved. It is not an easy task, and a lot of time and preparation is needed coupled with the potential of such hearing causing further damage to the already fractious relationships of the parties.

There is a fine line to be drawn but care should be taken when pursuing the need for a Finding of Fact hearing and the underlying message it that it must be “necessary”. The court has a significant workload as it is, and it is only right that the court prioritises cases that Sir Andrew McFarlane refers to as those that “really do need to be heard”.

If you are affected by any of the issues raised here, please get in touch today. We are here to help you.

Court and contact with Children – What is the process?

Posted on 19th May 202219th May 2022 by McAlister Family Law

Court and contact with children – What is the process?

Are you feeling like you are on a constant contact rollercoaster, trying to agree arrangements with the other parent or carer, and knots of worry tangle you up each week? Here, Nicola Bradley breaks down the process of applying for a Child Arrangements Order and what a successful application can mean for those struggling with contact.

Does the following apply to you? Are you asking yourself if you will get to see your child? Perhaps your message is going to be left on “read” with no response. Are you always getting messages late so that last minute plans have to be made, or feeling like you are an on call babysitter and there is no structure in place. Maybe you have attended or proposed mediation, as well as other forms of Alternative Dispute Resolution (ADR) but this has not been successful.

What can you do in this situation? It might feel like whatever you have tried before has only been met with more complications when trying to organise contact. But when you have tried everything else and nothing has worked, there may only be one option left; Court.

Should I apply to the Court?

It is common for parents to start giving themselves a hard time when court feels like your only option. But it is important to remember that being a parent or carer, although a great privilege, is incredibly challenging, and court intervention can sometimes be required to allow for a firm arrangement to be put into place. Most people see court as a last resort, but it is a real option in resolving contact issues, putting the welfare of the child at the forefront and making sure that the right outcome is found.

So what happens next?

An application for a Child Arrangements Order (CAO) is made by completing the court’s C100 form. A CAO can define who the children live with; who the children spend time with, including how often and whether that contact is supervised or not; and any indirect contact such as letters or facetime calls, including their frequency.

You can also use the C100 to apply for a Specific Issue Order (SIO) if you would like the court to decide on a particular issue, such as where the child should go to school or what surname they should have. It is also used to apply for Prohibited Steps Orders (PSO) which prevent the other parent from performing a certain action, such as removing the child from the jurisdiction.

Again, the welfare of the child is paramount concern for the court and the court has to have regard to the Welfare Checklist contained in s1(3) Children Act 1989.

the Children and Family Court Advisory and Support Service (“Cafcass”) may also be involved in your case. Cafcass are an independent body appointed by the court to make recommendations based on what is safe and, in the best interest of the child(ren). After an application is issued, Cafcass will usually speak to the parties involved and prepare an initial safeguarding letter in advance of the First Hearing Dispute Resolution Appointment (FHDRA).

In some cases, particularly where the issues are narrow, it is possible that matters could be resolved at the FHDRA. More often, the court will use the FHDRA as an opportunity to listen to the parties’ positions and make directions for further evidence to be obtained, and/or for Cafcass to conduct a more detailed safeguarding analysis known as a Section 7 Report, in advance of a Dispute Resolution Appointment (DRA).

The court typically lists DRAs for 60-90 minutes to try to enable agreement/a final order, if possible. If not, the matter will be listed for a contested final hearing before the court can determine the final child arrangements.

Whether or not the matter proceeds through to a final hearing, the court process is not a short one and generally takes between 6-12 months to complete, sometimes longer depending on the complexity of the case.

If you are experiencing difficulties agreeing arrangements for your children, please contact us as soon as possible. Our experienced family law solicitors will help you in trying to achieve the best possible outcome.

Do children always live with mum after a divorce?

Posted on 5th May 202224th January 2023 by McAlister Family Law

Do children always live with mum after a divorce?

Do children always live with mum after a divorce? Here, McAlister Family Law Associate, Melissa Jones, discusses how the courts make their decisions when it comes to a Child Arrangements Order and how the best interest of the child is taken into consideration.

In today’s modern society it is quite an antiquated idea that the court will automatically make a Child Arrangements Order, for the child(ren) to live with the mother above and beyond the children’s father or any other care giver.

That might come as a surprise to you when you look at the statistics** below:

89% of Parents with Care were female and 87% were under the age of 50
88% of Non-Resident Parents were male and 79% were under the age of 50

The above** was taken from https://www.gov.uk/government/statistics/separated-families-statistics-april-2014-to-march-2021-experimental/separated-families-statistics-april-2014-to-march-2021-experimental

Of course, times have changed and 15-20 years ago, the answer to the above question would probably have been yes. Not that it was the right thing or that it was defined in law, but that was the experience and sign of parents’ roles at that time.

That is why it is sometimes a surprise to parents, who are either in court or contemplating a court application to hear that it not guaranteed that the court will make an order for the child(ren) to live with them.

Whilst a high proportion of family law cases today normally involve disputes between the children’s mother and father, it not uncommon for cases to involve other parents/care givers such as:

Civil partners/Same sex partners
Non-Civil Partners- second parents for example
Grandparents
Aunts
Uncles
Extended family members

How does the court decide who a child should live with?

If you find yourself in the situation where you cannot agree arrangements with the other parent, you can make an application to the court for one of the following orders:

Child Arrangements Order- for the child(ren) to live with you or
Child Arrangements Order- for the child(ren) to spend with you

The law currently presumes that it is in the children’s best interests for each parent, even when they have separated, to continue to be involved in the lives of any and all of their children, unless such involvement may subject them to a risk of harm.

The Best interests of the child

Associate, Melissa Jones, recalls one of the earliest cases in her career, in the year 2011 when the Family Court granted a “Residence Order” to the father in a family law dispute as to where the child should live. Whilst the terminology might have changed, with the application now being referred to as an application for a Child Arrangements Order, she makes the following point “it should not have come as a surprise, then or now; the court’s decision making has been and continues to be based on what is in the best interests of the child”.

The most important consideration of the Court, and one which you should keep in front of mind, is that it will always consider what is in the best interests of the child, as opposed to any perceived “rights” of any of the adults involved.

The Court will determine the facts and consider the Welfare Checklist to help it decide upon what is in the child’s best interests. This Welfare Checklist includes things like the below:

the child or children’s age and maturity
physical and emotional needs of the child(ren)
wishes and feelings of the child
any harm which the child has suffered, or is at risk of suffering
capabilities of the parents to meet the physical and emotional needs of the child(ren).

In law, it is never a “one-size-fits-all approach”. Every case will have its own set of circumstances and the court will also have regard to the individual needs of the child(ren).

Shared care

In the Family Court there is a presumption of continued parental involvement by both parents, often referred to as shared care. Some parents are now used to a “shared care arrangement” or this can be ordered by the court.

Whilst for some families this may mean an equal division of time, this may not work for other families and sometimes parents often mistake shared care as meaning an absolute and strict division of time (7 days with you, 7 days with me). The children’s needs are paramount and the best interests of the children will always be at the heart of any and all decisions made.

So, can you tell me, do children always live with the mother?

The short answer is no. There may of course be times when the court says this is in the best interest of the child(ren) but equally there may be times where the court says the children should live with the father. Another example is that the court orders “shared care” so that the children spend their time between two households.

At McAlister Family Law we have the experience, compassion, and energy to achieve the best possible outcome for you. Please get in touch today. We’re here to help you.