Child Contact and Court Proceedings
This page is only for private law proceedings (not involving the local authority)
You can choose how to make arrangements for looking after your children if you separate from your partner.
You and your ex-partner can usually avoid going to court hearings if you agree on:
- where the children will live?
- how much time they’ll spend with each parent?
- how you’ll financially support your children?
You should use a lawyer if you want to an agreement to be drafted which is legally binding.
You can agree on child maintenance at the same time or separately.
Get help agreeing
If you cannot agree
You can ask a court to decide anything you cannot agree after mediation.
You must show you’ve attended a meeting to see if mediation is right for you before applying to a court.
You will not have to agree to mediation in certain cases, e.g. if there’s been domestic abuse or social services are involved.
You will not usually get legal aid to help with court costs unless you’re separating from an abusive partner.
You may have to attend a court appointment and go to a number of court hearings.
Before the court makes a decision, it might ask you try mediation again or go on a course to help you resolve issues.
Types of court order
The type of court order you need depends on what you’ve been unable to agree on. You can apply for more than one court order.
Arrangements for your child
A ‘child arrangements order’ decides:
- where your child lives;
- when your child spends time with each parent;
- when and what other types of contact take place (e.g. phone calls).
Your child’s upbringing
A ‘specific issue order’ is used to look at a specific question about how the child is being brought up, for example:
- what school they go to
- if they should have a religious education
You can also apply for a ‘prohibited steps order’ to stop the other parent from making a decision about the child’s upbringing.
Who can apply?
The child’s mother, father or anyone with parental responsibility can apply for a court order.
Other people, like grandparents, can apply for these court orders, but they’ll need to get permission from the court first.
Apply for a court order
Follow these steps to apply for a court order.
- Read guidance CB001 on making an application.
- Fill in the C100 court form. You must show you’ve attended a meeting about mediation first – except in certain cases (there’s been domestic abuse, for example).
- Send the original form and 3 copies of it to the nearest court that deals with cases involving children.
It currently costs £215 to apply for a court order.
You may be able to get help with court fees if you’re on benefits or a low income.
After you apply for a court order
The court will arrange a ‘directions hearing’ with both parents if you apply for a court order.
There will usually be a family court adviser from the Children and Family Court Advisory and Support Service (Cafcass) at the hearing.
Cafcass will send you information before the hearing – they’ll usually ring you too.
At the hearing, the judge will try to work out:
- what you can agree;
- what you cannot agree;
- if your child is at risk in any way
They’ll encourage you to reach an agreement if it’s in the child’s best interests. If you can, and there are no concerns about the child’s welfare, the judge can end the process.
The court will then make a consent order which sets out what you’ve agreed.
If you cannot agree at the first court hearing?
The judge will set a timetable for what happens next.
They may ask you to try again to reach an agreement, for example by going to a meeting with a mediator.
You may have to go on a course if your case is about child arrangements. The course is called a ‘Separated Parents Information Programme’, and could help you find a way to make child arrangements work.
You usually have to go to one or 2 meetings, depending on the type of programme.
Your ex-partner will not be at the same meeting as you.
If you reach an agreement at any stage, the judge can stop the process.
The court can ask Cafcass to provide a report on your case to help decide what’s best for the child.
The Cafcass officer may ask your child about their feelings. You’ll get a copy of the report when it’s written.
What judges consider?
They’ll always put the welfare of children first. They will think about the:
- child’s wishes and feelings;
- child’s physical, emotional and educational needs;
- effect any changes may have on the child;
- child’s age, gender, characteristics and background;
- possible risk of harm to the child;
- ability of parents to meet the child’s needs; and
- orders the court has the power to make
A judge will only make an order if they think it’s in the child’s best interests.
If you want to change your application
Use form C2 to change an application that the court is still considering.
The fee depends on what you’re asking the court to do.
You will currently have to pay the court:
- £155 if you still want the court to decide your case through a court hearing
- £50 if you and your ex-partner have agreed and you want the court to approve your consent order without a court hearing
Enforcing an order
If your ex-partner is not following the order, you can ask the court to enforce it. Follow these steps.
- Fill in form C79to apply – read guidance CB5 if you need help.
- Use form C78to attach a ‘warning notice’ if your order was made before 8 December 2008. Orders made after this date will already include one.
- Send it to the court nearest to you that deals with cases involving children. It costs £215.
The court will look at the facts again to see if anything has changed.
If the court enforces the order
Depending on your situation and what you’ve asked the court to decide they might make:
- an ‘enforcement order’ – this means your ex-partner has to do between 40 and 200 hours of unpaid work
- an ‘order for compensation for financial loss’ – this means your ex-partner has to pay back any money you’ve lost because they did not follow the order (for example if you missed a holiday)
You can go back to the court if your ex-partner still does not do as the court ordered.
If the court does not enforce the order
The court might not enforce the existing order if they think that your ex-partner is not following it because:
- they have a good reason
- it’s better for your children to do something different
You can go back to the court if you do not agree with their decision or your situation changes.
End an order
Use form C100 to apply to end (‘discharge’) a court order that’s not working, or is not relevant to you and your children any more.
Hearings in the Family Court
We explain here the different types of hearing that you might have in private family law cases, including the First Hearing Dispute Resolution Appointment, fact finding hearings and final hearings.
Following a series of changes introduced on 22nd April 2014, the way in which family cases are dealt with by the courts has changed dramatically.
The County Courts and Magistrate Courts are now combined and are called the Family Courts.
You will be asked to attend your local Family Court which may be at your Local or Magistrate courts.
What do the Family Courts do?
The Family Courts in England make decisions primarily about children and finances. When a relationship breaks down and individuals are not able to agree how finances should be divided or children should be brought up very often, they will ask the courts to make a decision.
In the recent years it has become much more common to use alternative forms of dispute resolution instead of going to court. The method you will hear most commonly talked about is Mediation. There are other methods and these are commonly used in cases involving financial disputes following a divorce.
First Hearing Dispute Resolution Appointment
A First Hearing and Dispute Resolution Appointment (FHDRA) is the first court hearing after an application has been made to court in private family law. It is held to assist the court in identifying issues between the parties at an early stage and to see if it is possible for the parties to reach an agreement. A Cafcass Officer should also be present.
You can set out your case in a Position Statement. This is a useful document which is not obligatory (unless ordered by the court) but can give the court a brief outline of your position in advance of the hearing. A position statement may help bring a case to an early conclusion if the other party accepts your position. It can also be used to give you a brief plan of what you want to achieve at the hearing. You should provide a copy of this statement to the other side in order to help progress the situation.
The judge and the Cafcass Officer will attempt to assist the parties to reach agreement. Sometimes, there will be a mediator in the court building who might also assist the parties, and if the parties have not yet attempted mediation, the court may order that they do so before court proceedings commence.
Prior to the hearing starting, Cafcass should have prepared a ‘Schedule 2 Letter’ which should be shared with both parties (unless doing so would put either party or the children at risk and/or the document contains information which is sensitive of which the other party is unaware). The Schedule 2 Letter will include background checks on the parties, who the parents are and who the children live with.
If the parties can reach agreement at the FHDRA, a final order may be made setting out the details of the agreement, if the court deems it to be in the children’s best interests.
If the parties cannot reach agreement, the court will seek to determine the areas where they disagree and the reasons why.
The court will then consider what evidence and/or may be required to assist a judge at a future hearing to decide on what is in the children’s best interests.
If the case concerns contact and/or residence, and serious allegations are made, the judge may decide not to permit contact while matters are investigated. This does not mean that the court has made a final decision.
The judge and Cafcass may propose that contact be supervised and/or at a contact centre while matters are investigated. You too might suggest this in these circumstances.
If there are no serious concerns, the court may order that there be contact immediately pending a final order at a future hearing (after any investigations are carried out, and evidence is submitted and heard).
A Judge may order a review hearing during proceedings, or once a Final Order is made. This, exactly as the name suggests, is just to review the matter. If during proceedings it is usually so that the Court can keep control of the case, ensuring that evidence is on time and that any interim contact ordered is still going ahead.
Following the making of a Final Order the court may wish to leave a case open for a number of months, listing a review hearing which can be vacated if the parties agree.
This hearing is intended to ensure that the Final Order is being complied with and can act as a safety net when one of the parties is particularly hostile to contact taking place.
These hearings are not common; however, it can sometimes be sensible to ask a Judge to leave a case open and place a clause in the Order giving you Liberty to return within a certain number of months. This means that if anything happens within that timeframe you should be able to return to court, without having to pay a further fee and have any problems arising from the implementation of the Final Order dealt with.
Fact Finding Hearing
A Fact Finding Hearing is a type of court hearing that considers the evidence surrounding allegations, and the court will make a decision as to whether alleged incidents did or did not happen.
Evidence is given live, which will normally include parties being cross-examined. After having heard the evidence, the judge will decide whether the alleged incidents happened or not.
Most commonly, these allegations concern domestic abuse. Domestic abuse includes neglect, emotional and physical harm and violence.
When making a decision the judge has to consider the allegations made by each side. It is for the person making the allegations to prove that they are true. The Judge will consider on the balance of probabilities whether the allegations are true or not. This means that the judge will consider whether it is more likely than not that the allegations are true.
In preparation for a Fact Finding Hearing the person making the allegations will be asked to send a list of the allegations to the court. The list should be:
- signed and dated
- each incident should be numbered and set out in date order stating the date of the incident and details of what happened and where
- details of any witnesses to the incident and involvement of the police and/or medical services
- the list should contain a statement that it is true.
The person against whom the allegations are made will then be asked to respond to the allegations within a set timeframe. You should respond to each allegation in turn, setting out your account of the incident or stating that the allegation is denied.
You will both be asked to make written statements based on your evidence setting out what you wish to say to the court. You can also have witnesses give evidence with the court’s permission.
At a Final Hearing the Judge will consider all of the available evidence, this will include evidence provided by the parties, any relevant Cafcass reports and information that has been provided by the Local Authority.
If there has been a Fact Finding hearing the Judge will also take into account any findings made in the course of those proceedings.
Using all of this information the Judge will assess and come to a decision guided by the welfare of the child involved. Judges will then use the evidence before them in conjunction with the ‘welfare checklist’ in order to come to a decision which is in the best interests of the child.
The Judge may decide to make no order, or may consider that a Child Arrangements Order detailing residence and/or contact arrangements is necessary. There is an example of a Child Arrangements Order here.
Attendance of parties at court
Attendance at court hearings is not compulsory but it is strongly encouraged so that each party has a chance to put forward their argument.
The Family courts can proceed with a court hearing even if you are not in attendance at the court.