The procedure is that one party makes the application and the court will fix an initial directions appointment to which both parties must attend. The directions appointment is usually in two parts. Firstly, the parties (usually without their lawyers) will have a meeting with a Children and Family Court Advisory and Support Service (Cafcass) officer, at which the officer will ascertain the issues involved and investigate the possibility of the
matter being resolved by agreement, possibly with the assistance of mediation. At the end of the meeting, the Cafcass officer will prepare a short note of the outcome, which will be passed to the district judge. The parties and their lawyers will then be called before the district judge. If an agreement has been reached, then the court may make a contact order in those terms if it thinks that an order is required, for example to ensure that the parties keep to the agreed arrangements. If there is a partial agreement for some limited contact to take place, the court may adjourn the case for, say, three months to see how that contact proceeds, and then fix another directions hearing to review the matter. If no agreement is reached but the parties agree to go to mediation, then the court may adjourn the case for a period to allow the mediation to take place. If no agreement at all is reached, then the court will give directions as to how the matter is to proceed. These directions may include the filing of written statements by the parties and any witnesses, the preparation of a welfare report if appropriate and the fixing of a final hearing date (although in practice the final hearing date is not usually fixed until later). These matters will be dealt with in further detail below.
An application for a residence order, contact order, prohibited steps order or specific issue order is made on form C100, which can be found in Appendix 1 under Example Children Application. As will be seen, most of the form is reasonably straightforward to complete and there is a very helpful guidance BLOGlet (CB1) available. However, the following sections need some explanation:
Summary of application: Tick the box ‘Permission not required’. The respondent is, of course, the other parent (who may, confusingly, be the petitioner in the divorce).
Section 1: You must give your address to the court but may not wish to give it to the respondent. As the respondent will be served with a copy of the form, you will need to complete a confidential address form C8, if you wish to omit your address from the C100 form. You will normally be the only applicant, so the ‘Applicant 2’ section can be ignored.
Section 3: Set out briefly what order you are seeking and why. You do not need to go into any great detail (you will have a opportunity to file a detailed written statement, if necessary – see below) and you should keep what you say relevant to the issue. For example, on a contact application a simple ‘My wife won’t let me see the children so I am seeking a contact order ’ will be sufficient.
Section 4: Parenting Plan is a BLOGlet prepared by the Department for Education and Skills giving information to separating parents. It can be obtained from the court office, Citizens Advice Bureau or, in PDF form, from the Cafcass website – see Appendix 2. You can use the advice in the BLOGlet to draw up an agreed plan for your children, although obviously if you are now making an application to the court this will be unlikely, unless the plan has broken down. If this is the case you should attach a copy of the plan to the form and explain why the plan has broken down. You will also need to state whether you have used mediation – see Chapter 6.
Section 5: As stated on the form, if you answer ‘Yes’ to this question, then you will also need to complete a supplemental information form C1A, giving further details of the alleged abuse, violence or harm. You can obtain this form from the court office. Note that if there are allegations of abuse, violence or harm, then the court will usually deal with these as a separate preliminary
issue at a fact-finding hearing, where it will decide upon the truth of the allegations.
Section 8: This relates to other interested parties, such as anyone else who is caring for the child, other than the parents. The section can therefore usually be left blank.
Once you have completed the form, you should send it to the court, together with a copy for the respondent, two copies of any form C1A and the court fee of £175. The court will then fix a date for the initial directions hearing and send you a notice of proceedings form (C6) with the hearing date on it, a sealed copy of the C100 form and an acknowledgement form (C7). You will have to send all of these to the respondent (keeping copies for yourself) and file a statement of service form (which the court should also have sent to you) with the court, confirming which documents you have sent to the respondent, and when, where and how you sent them.
The acknowledgement is a simple form, which the respondent should complete, stating whether or not they oppose the making of the order that the applicant is seeking. Copies of the acknowledgement should be filed with the court and served on the applicant within 14 days of the respondent receiving the application.
As mentioned above, if no agreement can be reached at the initial hearing, then the court will give directions as to what should be done next and how the matter should proceed. These can deal with any relevant issues but the most common directions are for the filing of written statements and the preparation of a welfare report.
If the filing of written statements is ordered, the court will direct that each party and their witnesses file them with the court and serve copies on the other party by a set date. There is no set form for a statement but I suggest that the parties’ own statements be set out in numbered paragraphs starting with a brief history of the matter, going through the six factors set out above under ‘Principles involved in deciding disputes’, and concluding with a paragraph setting out exactly what order or orders they are asking the court to make. All statements should:
1 be dated;
2 be signed by the person making the statement;
3 contain a declaration that the maker of the statement believes it to be true and understands that it may be placed before the court; and
4 show in the top right hand corner of the first page –
a) the initials and surname of the person making the statement,
b) the number of the statement in relation to the maker (i.e. that it is their first or second statement etc.),
c) the date on which the statement was made, and
d) the party on whose behalf it is filed.
You can also attach relevant documents, such as copies of school reports, to the statement.
something relevant to say and are not just repeating what you have already said. Also make sure that they are aware that they will have to attend any final hearing to give evidence in court and, possibly, be cross-examined by the other party’s lawyer.
Once the statements have been signed, they should be filed with the court and copies should be sent to the other party and to the Cafcass officer if a welfare report has been ordered.
The court will direct that a welfare report be prepared, normally by a Cafcass officer, if it considers this to be necessary, which it usually does in all but the most straightforward cases. Note that this could entail substantial delay – in some areas of the country it can take more than six months for the report to be prepared. This can cause considerable hardship, especially if you are seeking a contact order and the other party is denying contact – in this case you should consider asking the court to make an interim contact order, which would at least give you some limited contact, until the matter is finally determined. The Cafcass officer may also try to arrange some contact, as part of their work in preparing the report.
The Cafcass officer essentially has a free hand as to how he or she should conduct their enquiries prior to the preparation of their report, but these normally include interviewing the parties, seeing the children with the parties and making other relevant enquiries, for example with the child’s school. It is essential that you cooperate fully with the Cafcass officer, as their report will normally conclude with a recommendation as to what order or orders the court should make and it is highly likely that the court will follow that recommendation. In fact, if the matter has not already been settled with the assistance of the Cafcass officer, it often is settled once the report is prepared, as it is then usually
very clear what order the court is likely to make at a final, contested hearing.
If the recommendation of the Cafcass officer is substantially different from what you are seeking and you still wish to proceed to a contested hearing, then you will need to instruct a lawyer to represent you, if you have not done so already, as you will need to ask the court to direct that the Cafcass officer attend the hearing to be cross-examined, and this is a job for a lawyer. Even if the recommendation is in your favour and it is the other party who wishes to proceed with a contested hearing, I would still advise that you instruct a lawyer to represent you.