On April 6th 2011 a new family law pre-application protocol was issued by the Ministry of Justice directing all potential applicants for a Court Order in relevant family proceedings to have considered mediation as an option to resolve their dispute. This requires the parties to attend a Mediation Information and Assessment Meeting – known as a ‘MIAM’ appointment with a qualified mediator, before filing their application with the Court. There are exceptions. For more information, please refer to the mediation pages.
The purpose of such proceedings is to settle any disputes affecting the arrangements for the children. The Children Act 1989 states the most important factor in determining the arrangements for a child is, what will be in the child’s best interest?. The Court is directed not to make any orders unless it is considered that an order is beneficial to the child.
In family law, what used to be called “Custody” and “Access” or “Residence” and “Contact” are now known as ” Child Arrangement Order”. The Children Act states that a child’s welfare is of ‘paramount consideration’ when the Court considers any question to the upbringing of a child. The Court applies what is known as the ‘Welfare Checklist’ to help reach its decision.
The factors considered by the Court are as follows:
- Wishes and feelings, considered in light of the child’s age and understanding
- Physical, emotional and educational needs
- Age, sex, background and any characteristics which the court considers relevant
- The likely effect of any change in the child’s circumstances
- Any harm which the child has suffered or is at risk of suffering
- How capable each parent is in meeting the child’s needs
All private law proceedings relating to children are now governed by what is known as the ‘private law programme’. This encourages the Court to actively help the you and your ex-partner to explore ways of resolving your disputes.
At the first hearing dispute resolution appointment (FHDRA), at which the Judge, legal adviser or magistrates, accompanied by an officer from CAFCASS (The Children and Family Court Advisory and Support Service), will discuss with you both the nature of your disputes and whether it could be resolved by mediation or other alternative means and give you and your ex partner information about services that may be available to help you resolve your issues.
If no agreement can be reached, the CAFCASS officer may be directed to prepare a report on the issue of contact and/or residence. Directions may also be made for filing of evidence by you and your ex-partner to help the Court in making its decision at the final hearing.
It can take up to 10 weeks for the welfare report to be ready and the review may not be listed until about three to four months after the first appointment.
Usually, the separating couples are able to agree on the arrangements for the children upon considering the CAFCASS report avoiding the emotional strain and costs of a contested final hearing.
It will serve you, your ex-partner and especially the child(ren) well if you both are able to reach agreements out of Court via the Mediation route, keeping both the emotional and financial costs to a minimum.