It is a sad fact that many parents become involved in a seemingly never-ending series of court applications regarding arrangements for their children.

A typical scenario might go like this:

The parents are at loggerheads over who the children should live with. Unable to agree, they take the matter to court. The court finds in favour of one of the parents.

Unhappy at this, the other parent takes the matter back to the court, in an apparent attempt to get the court to change its mind. The court does not change its mind, so after a brief interval that parent tries again. And again.

This sort of situation can literally go on for years, with an aggrieved parent taking the case back to the court multiple times. Needless to say, such repeated applications can take an enormous toll on both the parents and the children, to say nothing of the effect upon court resources.

But the court has a way to put a stop to such a scenario: the barring order.

Normally, anyone is free to make whatever application to the court that they wish. However, a barring order restricts that freedom, by saying that a parent cannot make any further applications in relation to their children for a certain period of time, without first obtaining the court’s permission.

The court is unlikely to give permission unless there has been a change in circumstances since the last application.

Barring orders may be made upon the application of one party, or of the court’s own motion.

Until now, barring orders have usually been made in order to protect the children from the effects of repeated applications, by giving them a period of respite.

But new guidance for the courts is giving a different emphasis to barring orders.

The guidance recognises that sometimes the parent making repeated applications is only, or partly, doing so as a means of harassing or controlling the other parent. Unfortunately, all experienced family lawyers will have witnessed this behaviour.

The guidance therefore makes it clear that barring orders may be made not only to protect the child but also to protect the other parent from conduct amounting to harassment, or coercive/controlling behaviour.

The guidance also states that in proceedings in which domestic abuse is alleged or proven, or in which there are allegations or evidence of other harm to a child or other individual, the court should give early and ongoing consideration to whether it would be appropriate to make a barring order at the conclusion of the case, even if an application for such an order has not been made.

To emphasise this the guidance states that children applications “should not be used as a means of harassment or coercive control, or further abuse against a victim of domestic abuse or other person, and the court should therefore give due consideration to whether a future application would have such an impact.”

It is to be hoped that this new guidance will help protect parents from the stress of repeated meritless applications, made with the intention of harassing or controlling them.

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In most cases a parent with whom a dependent child is living can seek maintenance for the child from the other parent, either by agreement or through the Child Maintenance Service (‘CMS’).

But sometimes the CMS isn’t available (for example where the other parent lives abroad), and in any event, proper financial provision for a child can involve much more than just maintenance. In particular, the child will need to be provided with a suitable home, until they grow up.

If you have children to look after and were married to the other parent then you can obtain such financial provision for them from that parent within any divorce proceedings. But what if you weren’t married to the other parent? Can you still get financial provision from them?

The answer is that you can.

Irrespective of whether or not you were married to the parent from whom you are seeking it, you can apply to a court for an order for financial provision for a child. Such applications may be made by a parent, a guardian of a child, or by any person in whose favour a residence order is in force with respect to a child.

There are essentially three types of financial provision orders that the court can make:

1. A maintenance order – As mentioned above, such orders can be made where the CMS isn’t available. They can also be made in other circumstances, such as to ‘top-up’ a CMS payment, where the other parent is earning more than the upper limit dealt with by the CMS (currently £3,000 per week), to cover expenses related to any disability the child may have, or to cover school fees.

2. A lump sum order – Where a lump sum of money is required for the benefit of the child.

3.  A property settlement order – Whereby the other parent must provide a home for the child (the property will normally revert to the ownership of the other parent, once the child has grown up).

In considering whether to make a financial provision order the court will take into account: the income, property and financial resources of both parties; the financial needs of the parties and the child; the income, earning capacity (if any), property and other financial resources of the child; any physical or mental disability of the child; and the manner in which the child was being, or was expected to be, educated or trained.

If you would like to apply for financial provision for a child you should seek the advice of an expert family lawyer. We can find you an expert that works with you on our digital platform. For more information, call us on 020 3904 0506, or click here, and fill in the form.

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A pilot scheme has been launched at family courts in North Wales and Dorset to test a new approach to dealing with cases involving disputes between parents over arrangements for their children.

The two ‘Pathfinder’ court centres, as they have been dubbed by the President of the Family Division, will trial some of the ideas he set out in a speech he gave last October.

The purpose of the pilots is to assess the use of new practices and procedures to allow for applications by parents in relation to their children to follow a revised court process.

The revised process has a particular focus on improving the experience of the family court and outcomes for survivors of domestic abuse, including children.

The pilots will work by allowing judges to review gathered information and request more documentation before a case gets to court. This is intended to avoid the circumstances of the case being debated in the courtroom, which can often exacerbate conflict between parents.

The pilots will also encourage proceedings to be less adversarial, so that more emphasis can be put into investigating and addressing allegations of domestic abuse and other harmful behaviours, rather than allowing confrontation in the courtroom to take place.

In addition the pilots will boost the voice of children at every stage of the process, ensuring they are listened to and their views are taken into account when decisions are made about their futures. It will see children given more opportunity to explain how they feel and, following a court order, to say whether it is working for them.

A more holistic, multi-agency approach is also planned, with the court engaging and developing positive working relationships with key local partners, such as mediators and local authorities.

Lastly, between three months and a year after a ruling is made, in most cases the courts and the agencies involved will carry out a review to ensure decisions made are working well, including assessing whether court orders are being followed and whether additional support is needed.

Commenting upon the pilots Justice Minister Lord Wolfson QC said:

“This government is doing everything we can to protect victims, make them feel safer, and give them greater confidence in the justice system.

“These pilots will help ensure victims of domestic abuse aren’t further traumatised by the court process and that better decisions are made about their and their children’s lives.”

The pilots are due to run until February 2024. If successful, they could well be rolled out across England and Wales, revolutionising the way in which the courts deal with disputes between parents over arrangements for their children.

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When parents separate they will of course understand that they must sort out arrangements for their children, and very often those arrangements will entail the children spending most of their time living with one parent, and then having contact with the other parent.

But what many parents will not be aware of is that sometimes there will be costs associated with that contact, and if the costs are not paid, the contact will not take place. The costs can take various forms, but perhaps the most common is where the contact takes place at a contact centre. The contact centre will charge a fee for this service.

But who pays the costs? A recent case in the High Court has provided some answers.

The case is actually the same one we reported upon here back in December, although then dealing with a different point. As we mentioned in that previous post, the court found that the father had subjected the mother to serious domestic abuse, including rape and coercive control.

The father was having supervised contact with the parties’ child at a contact centre. This contact had been ordered by the court, which also ordered that the contact costs should be shared equally between the father and mother.

The mother appealed against this order, arguing that it was wrong for her, a victim of serious abuse, to have to pay for her abuser to have contact with their child.

In considering the appeal the High Court had to decide firstly whether the court had power to order a party to pay the costs of contact and secondly whether a victim of domestic abuse should be required to share the costs of contact with the perpetrator of that abuse.

The High Court held that there was power for the court to order a party to pay the costs of contact, to ensure that the contact it has ordered should take place.

As to the second question, the High Court held that there should be a very strong presumption against a victim of domestic abuse paying for the contact of their child with the abuser. An order for them to do so should only be made in wholly exceptional circumstances, taking into account all relevant factors, including whether the contact is in the child’s best interests, and whether it would take place without a sharing of the costs.

In this particular case the High Court set aside the order that the mother pay a proportion of the costs of contact.

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In an important judgment the Court of Appeal has authorised the identification of a father, a former Tory MP and Minister in Theresa May’s government, who was found to have subjected the mother to domestic abuse, including rape and coercive control.

The findings had been made by the Family Court at Derby in November 2020. The father had applied to the court for an order that he spend time with his child, who was born in 2018. The mother, who is now herself an MP, made various allegations of abuse against the father.

The judge made the findings at a fact-finding hearing, but decided that they should not be made public, in order to protect the child. The father did not seek to appeal against the findings.

Two journalists applied for the publication of the fact-finding judgment, including the names of the parties. Their application was supported by, amongst others, the mother and the child’s Guardian. The father accepted that the judgment could be published, but argued that the interests of the child made it necessary that he, the mother, and the child should all be anonymised.

The High Court found that the child was unlikely to be affected by the publication, in view of its young age, and the father’s behaviour itself would have a greater impact upon the child’s relationship with the father than the publication. Accordingly, the High Court ordered that the publication could go ahead.

The father appealed, to the Court of Appeal. The Court of Appeal held that the High Court was correct and dismissed the appeal, thereby authorising the publication of the judgment, including the names of the parties.

The decision has been generally welcomed, as very few such judgments are published, and it is hoped that the publication of this judgment will help to show the public how the Family Court deals with domestic abuse allegations, and thereby improve confidence in the system, which in turn might encourage victims of domestic abuse to come forward to the courts.

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Earlier this month we wrote about when the Form C1A was needed, and how it should be completed.

To recap, anyone applying to the court for a child arrangements order, a prohibited steps order or a specific issue order must, if they are alleging that the child/children concerned may have suffered, or are at risk of suffering, domestic abuse, complete a form C1A, setting out details of the alleged abuse.

The point is that when allegations of abuse are made the court is under an obligation to determine the truth of the allegations, and consider whether they should have a bearing upon whatever order the court makes.

Findings of abuse against a parent can result in that parent’s contact with their child/children being significantly limited, for example by the court only allowing them to have supervised contact, or even no direct contact at all.

It is therefore essential that false allegations of abuse are properly defended by the accused parent. Sadly, false allegations are often made by a parent, particularly as they may enable that parent to obtain legal aid.

So how do you defend false allegations of abuse?

Well, the first thing to do is to complete the ‘Response to allegations of harm’ section in the form C1A, and send it to the court, along with your response to the application (form C7). This gives you an opportunity to briefly comment upon the allegations made against you by the other parent.

But it is important to note that, as the form states, you will be given an opportunity to make a more detailed statement later in the proceedings. You do not therefore need to go into detail on the form C1A of why you deny the allegations or, indeed, of any allegations that you wish to make against the other parent (if you wish to make allegations of abuse yourself and the other parent has not, you can complete a form C1A yourself).

In most cases the court will fix a ‘fact-finding’ hearing, when you will be able to give evidence to the court. The court will then decide upon the truth of the allegations.

If you have had false allegations of abuse made against you then you should really seek the assistance of an expert family lawyer. We can find you an expert lawyer that works with you on our digital platform. For more information, call us on 020 3904 0506, or click here, and fill in the form.

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If you are involved in family court proceedings of any sort the chances are that at some point in the proceedings you will be required to prepare a written statement in support of your case.

Obviously, a statement is an important document. It sets out the evidence that you intend to rely on and, as such, will have a huge bearing upon the outcome of the case.

But there are right and wrong ways to prepare a statement, and it is essential that your statement is prepared the right way.

Last week the President of the Family Division published a memorandum setting out how such statements should be prepared. The memorandum was aimed at lawyers preparing statements for their clients, but much of what it contains could equally apply to the person actually making the statement.

The President began by explaining what a statement should and should not contain.

Amongst the things that a statement should not do is seek to argue the case, and set out opinions of the person making the statement. These are common errors in many statements.

The only things that a statement should contain are matters of fact, and matters of information and belief.

Matters of fact include past facts (i.e. events which have happened) and future facts (i.e. events which are expected to happen).

However, and this is another issue with many statements, a statement may state only those matters of fact of which the person making the statement has personal knowledge, and which are relevant to the case. All too often statements contain facts of which the person does not have knowledge, and facts that are simply irrelevant

Further, the statement must indicate the source of any matters of information and belief. Evidence about proposed child arrangements or, in a financial remedy case, about the financial needs of a party, will be matters of information and belief. Accordingly, where such evidence of such information and belief is given, the source or basis for that belief must be stated.

The other big lesson that everyone making a statement should take from the President’s memorandum is that a statement must be as concise as possible, whilst not omitting anything of significance.

It is easy to think that the longer the statement, the better it is for your case. This is not true – the judge will not want to read through a long statement, much of which is likely to be irrelevant. As a general standard, said the President, a witness statement should not exceed 15 pages in length (and very often it does not need to be nearly as long as that).

A statement is an important part of preparing a case. It therefore needs to be done properly, preferably with the help of an expert family lawyer. We can find you an expert lawyer that works with you on our digital platform. For more information, call us on 020 3904 0506, or click here, and fill in the form.

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As we explained here recently, if you wish to apply to the court for a child arrangements order, a prohibited steps order or a specific issue order then you will need to complete an application form known as ‘Form C100’.

But there is another form that you may also need to complete: the Form C1A.

So when do you need a Form C1A, and how do you complete it?

Sadly, domestic abuse is often a factor in applications for children orders, and when allegations of abuse are made the court is under an obligation to determine the truth of the allegations, and consider whether they should have a bearing upon whatever order the court makes.

Obviously, the court needs to be told about the abuse at an early stage in the proceedings, and this is where the Form C1A comes in. If the children have suffered from, or are at risk of suffering from, harm as a result of domestic abuse you should complete a Form C1A, setting out brief details of the abuse.

And it is important to note that the abuse does not have to have been directed at the child. Abuse of a parent can also be relevant, especially if it is witnessed by a child.

Turning to the form, one of the first things it requests from you is a contact telephone number. However, if you have suffered abuse from the other parent you may have changed your phone number and kept it secret from them, in order to protect yourself. In such a situation you should not give a number on the form, but rather complete a separate Form C8, which gives your contact details to the court, but keeps them private from the other party.

Perhaps the most important part of the form is section 2, in which you give details of the domestic abuse that you and the children have suffered. The form does not give you much space to do this, but don’t worry – you will be given an opportunity later in the proceedings to file a detailed statement and, if the case goes to a contested hearing, to give oral evidence in court.

So you should keep the details quite brief. But you should also keep them relevant. Minor incidents, or things that are unlikely to have a bearing upon the final order that the court makes should be omitted (although you can always refer to them later, if necessary).

A good rule of thumb when considering what incidents to mention is ‘first, last, and worst’. The court will want to know when the abuse began, whether it is continuing, and how bad it is. ‘First, last and worst’ will ensure that the court has this information, although it does not of course mean that other serious incidents should not also be mentioned.

Moving on, the other really important part of the form is section 5, in which you set out what you want the court to do about the abuse, and how you think it should affect any final order that the court makes.

So far as the latter is concerned, the most common effect of a finding of domestic abuse by the court is to restrict the amount of contact that the abusive parent has with the children. This can mean that the contact is supervised (for example at a contact centre), that it is restricted to indirect contact only (for example by telephone or email only), or that there is no contact at all – although this is quite unusual.

Lastly, if you are in fear of meeting the other party at court then you can request the court to take certain protective measures, in section 7 of the form. These include providing you with a separate entrance to the court, providing a protective screen for you in the courtroom so that the other party can’t see you, and even allowing you to give evidence via a video link.

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If you wish to apply to the court for a child arrangements order, a prohibited steps order or a specific issue order then you will need to complete an application form known as ‘Form C100’.

The form can be a little daunting for non-lawyers, so here are some tips to help you complete it.

The first thing you need to tell the court is what order or orders you want the court to make. There are three options:

A Child Arrangements Order – An order setting out with whom the child should live, and if with only one parent, what contact the child should have with the other parent. This is the most common type of order.

A Prohibited Steps Order – An order that no step which could be taken by a parent in meeting their parental responsibility for a child, and which is of a kind specified in the order, shall be taken by any person without the consent of the court. This may be used, for example, to prevent a parent changing the child’s name.

A Specific Issue Order – An order giving directions for the purpose of determining a specific question which has arisen, or which may arise, in connection with any aspect of parental responsibility for a child, such as which school the child should attend.

You need to tell the court whether you need its permission to make the application. Parents do not need permission but others, including grandparents, do.

Perhaps the most important section of the form is where you tell the court your reasons for making the application.

There may be many things that you would like to say about the other parent of your child, but before you say anything you should ask yourself: is this actually relevant to the issue between yourself and the other parent? The court will not want its precious time wasted on matters that are not relevant.

So what is relevant? Well to give you an idea, there is a list of factors that the court must take into account when deciding whether to make an order relating to a child. These include the ascertainable wishes of the child, the child’s needs, the effect on the child of any change in their circumstances, any harm that they have suffered or are at risk of suffering, and how capable the parents are of meeting the child’s needs.

If you have previously prepared a parenting plan (a written plan worked out between the parents after they separate, covering the practical issues of parenting), this should be sent to the court with the form.

Lastly, you need to tell the court whether the application is urgent, and if so, why. Urgent applications can be heard by the court at short notice and even without informing the other party, although any order made by the court will usually only be temporary.

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In a speech to the Jersey International Family Law Conference last week the President of the Family Division Sir Andrew McFarlane set out his plans for a new approach to the resolution of disputes between parents over arrangements for their children.

The President said that he is concerned in particular that parental disputes are mostly now dealt with by the court, and the current system can often only make the conflict between the parents worse.

The President therefore set out his plans for an improved system, which would aim to resolve parental disputes away from court wherever possible, and where that was not possible to have the courts adopt a less adversarial approach.

These ideas, he said, are to be piloted early next year, in courts in North Wales and Dorset.

Specifically, the pilots aim to develop a new, more investigative, approach which will (among other things) promote all forms of non-court dispute resolution (in particular mediation); test out different ‘pathways’ for cases to take depending upon their type and complexity; develop a ‘Child impact’ statement, so that parents can see from the child what impact or effect the proceedings are having upon them; and facilitate more court reviews after final orders, to reduce the number of returning cases.

Alongside this, the pilot areas will develop the concept of a ‘Family Hub’ which will operate separately from the court, and to which families will be directed as the first port of call, rather than issuing a court application. The Hub will in turn refer parents to local agencies that may be able to help with their problems, to mediation, to a parenting programme, to CAFCASS or, where appropriate, to the court.

The President said that these and other plans were aimed at helping to keep parents out of court when possible, and when not possible to improve the way in which the courts deal with cases.

The President expressed the hope that these and other improvements to the system will be in place across the country before he retires in three years’ time.

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When parents are unable to resolve a dispute over arrangements for their children then one of them may apply to the Family Court for the court to decide the matter.

The Family Court proceedings will follow a procedure laid down by the rules. The first step in the procedure, once the application has been issued, is called the First Hearing Dispute Resolution Appointment, or ‘FHDRA’ for short.

Both parents must attend the FHDRA, and a Cafcass (court welfare) officer will also attend.

So what exactly is a FHDRA?

As the name suggests, the aim of the FHDRA is to provide an opportunity for the parents to be helped to an understanding of the issues that divide them, and to reach agreement.

At the FHDRA the judge, working with the Cafcass Officer, will seek to assist the parents in conciliation, and in resolution of all or any of the issues between them. Any issues that cannot be resolved will be identified, and the Cafcass Officer will advise the court of any recommended means of resolving these issues.

If the parents are able to reach a full agreement then the court may make an order reflecting the terms of the agreement.

If the parents are not able to reach a full agreement then the court will give directions as to how the case should proceed.

Typically, the court will direct that Cafcass investigate the case and prepare a report for the court, usually containing a recommendation as to what final order the court should make.

The court may also direct that a ‘fact-finding’ hearing take place, for the court to decide the truth of any allegations made by either party, for example allegations of domestic abuse.

Lastly, the court will fix a date for the next hearing, assuming there is no fact-finding hearing. This will usually be a ‘Dispute Resolution Appointment’, the purpose of which is to see if the case can be settled by agreement, before a final hearing takes place.

The FHDRA plays a very important role in any children application. In fact, it is arguable that it is the most important hearing in the application – when the future progress of the application, and even its outcome, can be decided.

It is therefore essential that you take expert legal advice before attending a FHDRA. We can find you an expert that works with you on our digital platform. For more information, call us on 020 3904 0506, or click here, and fill in the form.

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Almost every unresolved dispute between parents over arrangements for children is referred to the Children and Family Court Advisory and Support Service (‘Cafcass’), which looks after the interests of children involved in family proceedings. Cafcass will investigate the case and report back to the court, usually with a recommendation as to what orders the court should make.

And sadly in many of those cases there are issues regarding alleged domestic abuse. For example, where a father is seeking contact with his children the mother may allege that the father has been abusive towards her. Such cases must, of course, be very carefully handled by all involved, including Cafcass.

Last year the Ministry of Justice set up an expert panel to look into how the family courts protect children and parents in private law children cases concerning domestic abuse and other serious offences. The panel made a number of serious findings in relation to both the processes and the outcomes for parties and children involved in such proceedings.

In response to those findings Cafcass has published an improvement plan which provides key priorities to strengthen its practice with children and families who have experienced domestic abuse, being clearer about how they explain their decisions to them, and improving the effectiveness of their management oversight.

Cafcass Chief Executive Jacky Tiotto said:

“We are committed, alongside other agencies in the family justice system, to improving all of our work with children and families who have experienced domestic abuse. It’s been so important to build on what we heard from the Ministry of Justice’s Expert Panel on Harm, and our own subsequent work to review and understand the quality of our practice and improvements that we need and want to make. We hope that the learning from our listening over the last year is explicit in our improvement plan and our wider learning and development programme. Children and families who experience our support and help deserve the very best from us and we want to offer advice to the family court that promotes the best interests of children and secures their safety.”

Hopefully, the plan will mean will mean a better service for all children and families who have experienced the scourge of domestic abuse.

Obviously, domestic abuse is a very serious issue in cases concerning children, and can have a significant bearing upon the outcome. Whether you are the victim or the alleged abuser you should therefore seek expert legal advice, at the earliest stage. We can find you an expert that works with you on our digital platform. For more information, call us on 020 3904 0506, or click here, and fill in the form.

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Family Law Café offers a modern, agile and compassionate approach to family law, giving you a helping hand when you need it and guiding you through the complexities of this difficult and stressful area. Family Law Cafe is your start-point for getting matters sorted with strategy, support and security.

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