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The court process
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Contact factsheet. December 2007
For information about finding and using a solicitor and help with legal costs, ask for our factsheet Getting legal help.
Whoever is making the application to the court will complete a form stating why an application is being made to the court.
The court will fix a date for the application to be heard. In many courts the first appointment will be for in-court conciliation. This is a process where both of you, together with any legal advisers, meet with either an officer from the Children and Family Courts Advice and Support Service (CAFCASS) or in Wales a family proceedings officer and/or a district judge to discuss the particular problems and to try and reach a quick agreement. You are not obliged to reach an agreement during conciliation. If any agreement is reached, the court will decide on whether they will make an order confirming the agreed arrangements, although judges will only make an order if they think it is better for a child than making no order at all.
If your child or children have reached the age of nine, they will generally be expected to attend court on the day of the conciliation appointment so that the CAFCASS or family proceedings officer can talk to them outside the court room and try to find out what their wishes may be. It is the responsibility of the person with whom the child lives to ensure that the child or children attend court on the day in question.
If you cannot reach an agreement, the court will fix a date for the case to be heard in court, when a judge will have to decide on the issues that are still in dispute. If there is a serious issue the court will order a report from a CAFCASS officer (see below). Unfortunately the time lag for a CAFCASS report in many parts of the country is nearly four months so the court may have to fix a date for the judge to decide what should happen about contact in the mean time.
In making any decision about a child, the judge has to apply the following list of factors, known as the Welfare Checklist, before making an order: - The wishes and feelings of the children, taking into account their age and understanding.
- The children's physical, emotional and educational needs.
- The likely effect on a child of any change in their circumstances.
- The age, sex and any relevant characteristics of the child.
- Any harm which the child has suffered or is at risk of suffering.
- How capable you are as parents to meet the needs of the children.
- The range of powers available to the court in the proceedings in question.
The role of CAFCASS/ family proceedings officer and the judge's decision
The main function of the CAFCASS or family proceedings officer is to: - safeguard the welfare of the children involved in the court process;
- give advice to the court;
- convey the children's wishes and feelings; and
- provide information and advice to the family.
Where a case is not settled by agreement or at the conciliation appointment, the judge may ask a CAFCASS or a family proceedings officer to prepare a report and both parents to file written statements setting out their positions and arguments. It is important that you give as much information as possible about the reasons for any concerns you have. The officer will usually meet you and the other parent on separate occasions, your child alone and with you and the other parent (again on separate occasions). The officer can make more than one visit to see your children.
If a CAFCASS officer or a family proceedings officer is 'given cause to suspect that the child concerned is at risk of harm', they must make a risk assessment and provide the assessment to the court.
The officer must also apply the Welfare Checklist (see above) when setting out his or her recommendations as to what should happen. The report will be sent to the court and each of the parents and their advisers in advance.
The judge will give careful consideration to the contents of the officer's report. The judge is not obliged to follow the recommendations set out in the report, but must give good reasons as to why they haven't, if they choose not to.
Next page: When will a court refuse contact?
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