How Will the Family Court Make a Decision about My Children?

Posted on: 4 mins read
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Chris Fairhurst

Partner, Family Law and Divorce Solicitor

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In England and Wales, the Court makes decisions by considering what is in a child’s best interests, not the parents’ best interests.

This may be confusing and upsetting if you believe it’s your right to see your child but the Court is stopping you from doing so. In reality, the Court will prioritise the rights of the child, over the parents’ rights. So it’s always important to put your child’s needs first.

At Simpson Millar, we always handle each case with the sensitivity it deserves and will tailor our service to your unique circumstances to reach the best outcome for your child.

For initial advice get in touch with our Family and Child Law Solicitors.

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What is the Welfare Checklist?

When deciding what is in a child’s best interests, the Court will follow certain guidelines called the Welfare Checklist.

The Welfare Checklist contains the law the Court has to consider when making any decision about a child after a parent makes an application to Court.

The Welfare Checklist means that the Court have to think about a number of different things when making a decision about your child. Some of these include:

  • The wishes and feelings of the child (if they are old enough)
  • The child’s physical and emotional needs
  • If a child has suffered harm as a result of the care they have received from either parent
  • If each parent is able to care for the child
  • If the child is at risk from the care they are likely to receive

The Welfare Checklist allows the Court to decide where a child will live, for example with just one of the parents, or a shared arrangement with both of them. If the Court decides the child should live just with one parent, the Court might also decide how much time the child should spend with the other.

These sort of decisions are called Child Arrangement Orders. You can get a Child Arrangement Order by making an application to the Family Court.

Making a Decision without Going to Court

It’s important to try and come to an agreement with your child’s other parent before applying to Court. Your agreement can be in writing if needed, or you can get a Child Arrangement Order with consent from both of the parents.

Before applying to Court you will need to show that you have been to a Mediation Information and Assessment Meeting (MIAM). If mediation cannot be arranged or breaks down, then a form is provided so that you can still make an application to Court.

If you haven’t tried mediation the Court may reject the application or ask you to attend a MIAM, which might delay the process of making a decision about your children.

You won’t need to go to a MIAM in very urgent cases, such as child abduction or failure to return after a visit. You also won’t need to prove you have tried mediation in cases where there has been domestic abuse.

How Do You Apply to the Family Court?

You can apply to the Family Court by downloading a Form C100 from the website and completing it. In this form you will need to include:

  • Yours and the child’s other parent’s details
  • Proof you have been to a MIAM (except in certain circumstances)
  • The type of Court Order you are applying for
  • If needed, a Supplemental Information Form C1A which sets out any allegations if there has been domestic abuse

One of our Family and Child Law Solicitors can help you apply to Court by getting to know your case and filling in the application forms with you over the phone.

What Happens at the Family Court?

When you apply to the Family Court, the Court use the Child Arrangements Programme, which sets out various steps and the timetable for the Court to make a decision.

The first step of the case will be a First Hearing Dispute Resolution Appointment (FHDRA). This will usually happen between 4-6 weeks after you make an application to Court.

During the 4-6 weeks before you go to Court, the Child and Family Court Advisory and Support Service (Cafcass) will speak to the child’s parents, police and local Social Services. This allows them to consider if there are any reasons why the Court shouldn’t make the Order that you have applied for.

If you and the child’s other parent cannot come to an agreement at the FHDRA, then the Court may ask you to go to a Final Hearing immediately. If more information is needed for the Court to assess the parents’ different positions, you may need to make statements of evidence. Your Solicitor can advise you on how to do this.

If there has been domestic abuse, the Court may also hold a separate Finding of Fact Hearing. This Hearing will help determine the truth of the allegations.

In serious cases, the Court may ask Cafcass to submit a Section 7 Welfare Report. Sometimes a Local Authority Social Services could ask for a Section 7 Welfare Report, if they have already been involved with your family.

The Court might also ask for more information, such as medical reports, or drug and alcohol tests if they feel these are needed before they can make a decision about your child.

When the Court has all the information it needs, the Judge will make a decision at a Final Hearing. At a Final Hearing the Court will make whatever Order it believes is needed for your child.

We understand that you might feel very uneasy when your children are involved in Court proceedings. Our Family and Child Law Solicitors can guide you through the process of going to Court and will put your child’s best interests at the forefront of everything we do.

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