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Family Proceedings – Questions and Answers and Common Terms

What happens when I get to Court?

Before the first hearing you can speak to a CAFCASS officer about matters that concern you and any issues relating to people who come into contact with your child/children. e.g. new partners, grandparents.

You will have the opportunity of negotiating for an amicable outcome.

If there is good reason why you need a separate waiting area please notify the court in advance, or speak to security or the usher on your arrival.

Am I allowed to bring someone with me by way of support?

Yes, a PSU helper or McKenzie Friend – but friends or relatives will probably have to wait outside the Court room. Do not bring any children as there are no facilities for them at court.

Will my case be heard at the appointed time?

Maybe not. It helps to come in good time for your appointment in order for the .discussions mentioned above to take place. Make sure you do not have any other commitments which mean you are under pressure to leave early e.g. have to pick up children from school or nursery.

What happens at the first hearing?

When an application for a contact/residence order has been made, many courts set up an informal appointment with the Judge/Legal Adviser. He/she can try to help parents reach agreement. In some cases; they may be accompanied by a GAFCASS reporting officer or in some courts, a mediator.

The court will wish to know at the first hearing whether mediation has been considered. (See later under mediation).

At this court hearing, a judge or legal adviser will assess the case. They will try to work out:

  • What you can agree
  • What you can’t agree
  • Whether your children are at risk in any way

They will also encourage you to reach an agreement at this hearing if it’s in the best interests of the children.

What if we can’t reach an agreement at the first Court Hearing?

If you don’t make an agreement at the first appointment, the court will set a timetable for what happens next. Sometimes, you will be asked to try again to reach an agreement. This may be with a mediator or with a Cafcass officer . You may be ordered to go to a ‘Separated Parents Information Programme’. These are a total of four hours with other parents (but your ex-partner will not be at the same sessions as you). The court can also ask for the case to be ‘adjourned’ (put on hold). This is to provide time for a Cafcass officer to write a report on the case. The judge or magistrate can also schedule a time and date for a final hearing to decide on the Orders . If you can reach an agreement at any stage, this will usually stop the process if the judge or magistrate agrees.

What do I call the Judge?

You can’t go wrong with Sir or Madam.

What alternatives to Court are there?

Mediation

What is mediation?

Family mediation is a process that can be used to resolve disputes that arise before, during or after the breakdown of a family relationship. It can also be used before, during and after Court proceedings. It enables parties to communicate their concerns and needs. The role of the mediator, who is an independent and impartial third party, is to facilitate discussions. Information can be found on www.familymediationhelpline.co.uk

How much will it cost?

Mediation is free if a client is eligible for public funding. If not, there is no standard fee for mediation. Different mediation practices charge different rates, usually by the hour. A person can find out if they are eligible by calling CLA direct on 0845 345 4345.

My partner will not do mediation?

The Family Mediation service will contact your partner and discuss the possibility of undertaking mediation . The mediation information assessment meeting provides you with the opportunity to discuss the problems with a mediator.

What if I don’t want to be physically near my partner again?

Mediators must make sure mediation discussions are fair, and that every participant feels safe. Mediators will check with each party to see whether there is a problem of violence or abuse. It is likely the mediation process can be altered to suit and the mediator will probably suggest a solicitor should be contacted especially if a court protection order is required.

Will it take long, this is an emergency?

Mediation services are usually able to see clients quickly and the mediation information assessment meeting does not take long. However, you may not need to have one if there is an exceptional circumstance.

I don’t have an exceptional circumstance; can I still issue an application?

If you decide not to comply with the protocol before commencing proceedings and if Court proceedings are taken, the Court will wish to know at the first hearing whether mediation has been considered.

In considering the conduct of any relevant family proceedings, the court will take into account any failure to comply with the protocol and may refer the parties to a meeting with a mediator before the proceedings continue further.

Therefore it may save you time and money to attend a mediation information assessment meeting.

Collaborative law

The collaborative family law process is a relatively new way of dealing with family disputes. Each person appoints their own lawyer but instead of conducting negotiations between you and your partner by letter or phone you meet together to work things out face to face.

Each of you will have your lawyer by your side throughout the entire process and therefore you will benefit from legal advice as you go. The aim of collaborative law is to resolve family disputes without going to court.

Arbitration

It provides an alternative to court, whereby the couple appoint an arbitrator, who will make a decision that will be final and binding between the parties, on any financial and property disputes arising from family relationships. The same arbitrator will deal with all stages of the case from start to finish.

Definitions of commonly used terms:

Applicant/Respondent – A person who starts legal proceedings or makes an application for separation or divorce. This person then becomes “a party” to the proceedings. Once papers are sent to the other parent and their lawyer, they are referred to as the “Respondent” [to the application].

CAFCASS – (Also known as Children and Family Court Advisory and Support Service) When the court requires additional information, this independent government organisation assigns a court welfare officer also known as a CAFCASS Reporting Officer to investigate and report on the children, their wishes and feelings and the ability of the various adults to provide for them. This report will go to the judge and will generally have a significant impact on the final order.

Contact Order – Formerly referred to as ‘access’, ‘contact’ means the time that the non-resident parent (the parent who does not have children living with them most of the time) will spend with children. Occasionally a contact order may apply to other significant adults in a child’s life such as grandparents. It can also include specific guidelines of how other forms of communicating (for example, letters, email, telephone calls etc.) will take place. In most cases, courts prefer not to define these arrangements too closely.

Legal Aid – Also known as ‘public funding’, this is state assistance with legal costs, available only in very limited circumstances in private cases and to those on benefits or a very low income.

McKenzie Friend – You can ask the Judge for an independent friend to help and support you in court, but they cannot speak for you or represent you, and must complete the “Request” available in the waiting areas and hand it in for the judges’ permission at the start of the hearing.

Parenting Plan – A framework agreement prepared by parents to deal with the day- to-day care and needs of children (for example who takes the children swimming, who buys the school uniform, who deals with pocket money and so on). More information can be found here: www.cafcass.gov.uk/PDF/FINAL%20web%20version%20251108.pdf.

Parental Responsibility – All the rights, duties, powers, responsibilities and authority that go with being a parent. It means that you have a duty to care for and protect a child and that you have a right to make decisions regarding that child’s future, such as choosing his or her school. It does not mean you have to pay maintenance – child support and parental responsibility are not connected in anyway. It is also not connected to any right you have about contact with the child, or to have him or her live with you. Mothers have parental responsibility automatically, as do married fathers (whether married to the child’s mother before or after the child’s birth). Unmarried fathers have parental responsibility if they have been named on the child’s birth certificate as the father since 1 December 20’03 (this has nothing to do with what surname the child has been given). If the child was born before 1 December 2003 an unmarried father will have to have a court order or permission from the mother to have parental responsibility.

Prohibited Steps Order – Restricts parents from taking certain actions in relation to their child/children, (for example removing a child or children from the UK or from the care of a certain person).

PSU – Manchester Civil Justice Centre has this Personal service available to all users please see the leaflet.

Residence order – Formerly referred to as ‘custody’, this outlines arrangements about where a child should live primarily. Shared residence, this type of order is used when a child has a home with each parent. It usually also provides guidelines for how that type of arrangement will work.

Specific issue order – When parents are unable to come to mutual agreement about certain parenting issues this type of order is used to provide direction and resolve matters (for example, where s/he should go to school. When appropriate the court may also assign certain responsibilities to one parent.

The welfare checklist

A list of factors that a court has to consider before making decisions related to a child. The court will always consider the best interests of the child first and foremost. If necessary the Court can initiate proceedings of its own volition and can make any order that it considers necessary to protect a child’s best interests.

The law says judges and magistrates must always put the welfare of children first. They will think about the:

  • Child’s wishes and feelings (bearing in mind their age)
  • Child’s physical, emotional and educational needs
  • Effect any changes may have on the child
  • Child’s age, gender , background and other relevant characteristics
  • Possible risk of harm to the child
  • Ability of parents to meet the child’s needs
  • Orders the court has the power to make

A judge or magistrate will only make an order if they think it is in the child’s best interests.

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