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Step 3) Court Process

Once an application to the court has been made then, unless agreement is reached, a full investigation will take place. This usually involves each party (and any expert witnesses they intend to call) filing a written statement, and the court appointing a CAFCASS officer to investigate and prepare a report for the court.These reports are known as section 7 reports and cover all outstanding issues, the Judge hearing the matter will take great notice of the section 7 report and its recommendations.

 

Procedure

The first hearing is for the judge to assess if mediation will help, if not then the court will give 'directions' as to what should happen next, i.e. what evidence will be required before the court can decide the matter. This can involve any number of relevant steps/enquiries, but usually consists of at least two:

1. Giving each party a time limit within which they and any expert witnesses they intend to call must prepare written statements, setting out their case. The statements are filed with the court and copies served upon 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 a point a guardian to the child or children to help with the report, these are known as 16.3 guardians.

The report will usually containing a recommendation as to what orders, if any, the court should make. The court is not bound to follow any such recommendation, but usually does - it is therefore essential to make sure they are aware of your case, and to cooperate fully with them.


Factors taken into account:

When deciding an application relating to children, the court will have particular regard to the following factors:

(a) The ascertainable wishes and feelings of the children concerned (considered in the light of their age and understanding). There are no specific age 'cut-offs',it is actually the maturity of the child that matter more than age, each child develops at a different rate, there is a test that a doctor can carry out to define the ability of a child to make their own decisions called a Gillick competence test, this test can though not often be offered to children under 16 years of age, more often than not the test is not used as the guardian appointed, to the child or children can discern wishes and feelings and the maturity of the child.

(b) Their physical, emotional and educational needs - i.e. any special needs of the child, such as due to a disability or a special educational need.

(c) The likely effect on them of any change in their circumstances. This is usually relevant where a change in the circumstances is being proposed, such as a move to a different home.

(d) Their age, sex, background and any characteristics of theirs which the court considers relevant. This is fairly self-explanatory, but note that the law does not favour the mother over the father, or vice versa, unless there is a good reason to do so.

(e) 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 investigate.

(f) How capable each of the parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting their needs. This most often relates to practical considerations, such as fitting in work arrangements with caring for the children.

(g) 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.


Useful resources for this step

- Children Section of the Wikivorce Library

- Cafcass Website