Step 3) Court Process
The first hearing is for the judge to decide if mediation will help, if the judge decided not the then the court will give ‘directions’ as to what should happen next (such as what evidence will be needed before the court can decide on the matter). This can involve any number of steps/enquires, but usually involves at least 2 –
1. Giving each party a time limit where they and any expert witnesses they wish to call must prepare written statements where they set out their case. These statements are filed with the court and copies are given to the other party and any CAFCASS officer appointed.
2. If appropriate, appointing a CAFCASS officer to investigate the case and prepare a written report for the court. If needed CAFCASS will also appoint a guardian to the children to help with the report, these are called 16.3 guardians.
Factors taken into account:
When deciding an application relating to children, the court will have regard to the following factors –
1.The wishes and feelings of the children (taking into consideration their age and understanding). There is no age specific ‘cut offs’, it is generally the maturity of the child more than their age. As each child develops at a different rate, there is a test called a ‘Gillick Competence Test’ which can be carried out by a doctor to define the ability of a child to make their own decisions, this test is not often offered to children under 16 but can be under the right circumstances. Often the test is not used, ad the guardian appointed to the child can discern wishes and feelings, and the maturity of the child.
2.Their physical, emotional and educational needs (such as any special needs of the child, such as due to a disability or a special educational need.)
3.The likely effect on the children of any change in their circumstances or home life. This is usually relevant where a change in the circumstances is being suggested, such as a move to a different home.
4.Their age, sex, background and any characteristics of theirs which the court considers relevant (note that the law does not favour the mother over the father, or the other way around, unless there is a good reason to do so.)
5.Any harm which they have suffered or are at risk of suffering. Obviously, if one parent alleges that the children have come to harm whilst in the other parent's care, then this is a matter that the court will take seriously and look further into.
6.How capable each of the parents, and any other person in relation to who the court considers to be relevant, is of meeting their needs. This often relates to practical considerations, such as fitting in work arrangements with caring for the children.
7.The range of powers available to the court in the proceedings in question. Once an application relating to children has been made, the court can make whatever order or orders it thinks would be in the best interests of the children.
Frequently Asked Questions
What investigations will the CAFCASS officer carry out?
What investigations are relevant is entirely up to the CAFCASS officer, unless the court has directed them to do something specific. The investigations will usually include interviewing the parties and children and making enquiries of the children's schools and, if appropriate, their GP.
The CAFCASS report is going to take several months. Can I apply for a temporary contact order until the court makes a final decision?
Yes. You can apply for an 'interim contact order', at any time after the original application is made. Interim contact is likely to be quite limited, as the court will not have all of the facts available to it when it makes the interim order.