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2023 Managing Parties Expectations in Child Arrangements cases

Paralegal/McKenzie Friend – Andrew Weeden

Family and Children Law

Regulated Paralegal with the Professional Paralegal Register

Practicing Certificate in Family Law

Managing our client expectations in child arrangements
(Update: July 2023)

What to expect in Children Act Private Law court cases? Managing clients' expectations when going through the child arrangements order (CAO) process is key and perhaps the most important function we fulfil.

Unless a party has experience going through the family court, nothing can adequately prepare parties, even those legally represented, for what comes next.

To begin with, it is seldom over and done with in one hearing.

The gaps between multiple hearings are getting wider and run for many months, not weeks, with rare exceptions.

The most straightforward case journey, where this is a dispute over contact with low-level allegations, will likely require three to four hearings from start to completion. And that can, and often does, take more than one year.

It is not uncommon for one party to feel a sense of injustice at the benefit of the other party for the vast majority of the case journey.

To help make it clear, McKenzie Law Partners has broken down the court process like this:

During the first three phases, the typical decisions that a court will make are:

Issues agreed upon by consent of all parties
Directions necessary to progress the case
Case management decisions
Impose orders (such as protective or specific issue matters)

While the court can impose an order at any time within the #childarrangements process, it rarely does…especially where the issue is contact-related.

Any interim contact, direct and/or indirect, are matters for which the court requires the consent of all parties. The court will assist in achieving consent where possible. Even where there are no safeguarding reasons that should prevent any contact, it will rarely stray into imposing an interim order for contact because the court will require reports to assist them in understanding what long-term decisions must be made for the child's best interests.

If the case starts because contact has stopped, unless and until the live-with parent agrees (consents) to contact resuming, subject to any conditions attached such as supervised contact centre contact, the court will resist overruling them unless (but not always) contact has been recommended by Cafcass in the initial safeguarding advice to the court letter. If the recommendation is no contact, that will influence any court decisions accordingly. It is important to be aware of this when you get to the first hearing. Read our guide to dealing with Cafcass.

Checking the box ‘URGENT’ on the C100 does not have the dramatic effect you would expect. Nothing springs into action. No sirens wail. No Columbo appears on the doorstep. In fact, expect that you will hear nothing from the court for many days after issuing your application. Except, perhaps, the call to take card payment. Urgent can mean the difference between two to four weeks and three to four months to a first hearing and dispute resolution appointment #FHDRA.

We will say that with emergency, ex-parte (without notice) applications, where there are severe safeguarding concerns and protective orders are required in a hurry, the response is measured in days rather than weeks. Mostly! And if you want to blame anything for the desensitisation to applications marked urgent, these are the facts; it is because every litigant in person marked their application urgent upon the basis that their contact had just stopped, in the vain belief that the court would fix this in one brief hearing – like you see on the telly!

Our family court is so busy with applications that statutory timetables frequently slip their expected deadlines. Adjust your expectations to know this process will proceed very slowly!

If your case requires a fact-finding hearing, expect that this will add significant cost in preparation, mounting a response to allegations, appointing trial counsel to represent you and undertake the cross-examination, and a considerable delay of many months (6+ months for a trial of two days or more). If a trial is deemed necessary, it is because the court needs a factual matrix of information to assess ongoing and future risks competently; this also lessens the likelihood of interim contact.

Practice Direction 12 J states that the court must consider domestic abuse allegations as soon as they are made aware of them. Often a response at the application stage is for the respondent to file a C1A of allegations. Therefore, at the first hearing and throughout the safeguarding reporting process, the court can prioritise those allegations and determine if a fact-finding trial will be proportionate and necessary.

The reporting phase is where the child professionals weigh in with their advice. Cafcass is the court social worker and usually prepares the safeguarding letter at the beginning of the process and the section 7 report in the second half of the child arrangements process. (Other brands of social workers are available, such as ISWs or the local authority!). Be aware that a section 7 report is around a fifteen-week process at the moment across England and Wales, so expect that the reporting phase is going to last about twenty weeks before you are back in the court for a dispute resolution appointment to hear the party’s views over the section 7 report and decide if the parties agree with the recommendations or whether the case requires a contested final hearing.

If a guardian becomes involved in your case and if it is deemed necessary for a Part 25 Expert to make a global psychological assessment, for example, this often adds a further six months between the contested stage and before the section 7 report/guardian’s final analysis begins.
Contested means disputed or challenged. Where one or both parties do not agree with recommendations, the court hears evidence tested by cross-examination of the parties and Cafcass. That process is a contested hearing process.

More complex cases where findings have been made are likely to require a ground rules hearing (sometimes referred to as a pre-trial review) to ensure that all the participation directions are in place to support witnesses to give their best evidence and to ensure that the case is ready for the final hearing. This generally occurs in the last month before the final hearing and lasts about one hour. If you have a barrister booked for your final hearing, it would be sensible to take them to the ground rules/PTR hearing as well.

The more days needed for a final welfare hearing, the longer it will take to list in the calendar - sometimes as much as 9+ months away. You can understand why you should expect to be in court for at least one year.

We think it is vital that you know this now so that you can steady and ready yourself for the long road ahead.

The value of a family barrister for contested hearings is very beneficial, but legal representation is costly. Your Paralegal/McKenzie Friend can help you along the way and with the remainder of the hearings. Still, it is worth hiring a direct access barrister at the fact-finding hearing and for the contested final welfare hearing if the budget can afford it.

Make each hearing count because they do not occur very often, as you will find out. If you are not taking a solution into court, you are, in our definition, a part of the problem. Always be realistic and not fanciful. And if there are options, present a few choices for the court to consider. It will help establish that you are trying to be child-focused.

Remember that this case is not about you or your rights per se. The court is bound by the paramountcy principle, and children's welfare is the court’s paramount consideration. The presumption is that a child benefits best from both parents' inclusion. Sometimes, however, safeguarding advice differs, and the court must protect children before all else.

If you have previously been through #childarrangements, especially final orders made before the COVID pandemic, and are coming back to court because your final order broke down, the enforcement route is necessary to establish the breaches. However, the typical application of the court in enforcement proceedings is to track it as a C100 child arrangements case, and the process is very similar...and lengthy.