What Can the court do?

There are many different court orders that can relate to children. This guide seeks only to deal with the main orders that people in disputes over children are likely to come across in the course of court proceedings. Technically, they are known as section 8 orders, after the part of the Children Act that enables the court to make them.

Overriding principles

The law requires courts to make the child's welfare their paramount consideration, and all decisions will flow from the court having taken that into account. That said, the court will not make any orders in respect of children unless it is convinced of the need to do so. It is for the person seeking an order to justify it being made, by showing that having an order in place would be better than having none.

The law states that it is a child's right to know both its parents (i.e. not a parent's right to see his/her child) and presumes that it is in the child's best interests for that to happen, unless exceptional circumstances are proved to overturn that presumption. It follows that, almost no matter what has happened in the past, it is highly likely that the court will do whatever it can, in whatever way it thinks best, to ensure that some form of contact takes place.

The Children Act replaced the old custody and access regime with four new orders. These are :-

Residence Orders

This is quite simply an order stating where a child should live, done by reference to the parent with whom they live rather than to a specific address. If there is a dispute over which parent should have the child, this is the order the court will make. Similarly, it is often made in cases where there is a concern over potential abduction.

A residence order does not give the police any additional powers, but will alert them to the fact that a court has been concerned about the child's circumstances. The child's school should be given a copy of the order for their records.

Usually the child will live with one parent, but exceptionally the court can make a residence order in favour of more than one person. It would usually indicate how much time the child should spend with each. The concept of 'joint custody' is no more.

Contact Orders

A contact order is designed to set out the practicalities - dates, days and times - by which the child gets to see the absent parent. It will also deal with how the contact is to take place - e.g. in person, or by post or telephone; and whether the child will stay overnight or just visit for the day. The court can be as specific or general as it sees fit when establishing the schedule, usually depending on how easily the parents communicate.

There need not be a dispute over whether contact should actually take place at all - the court can be asked to make a defined contact order to do just that.

If there is some concern over whether the parent with whom the child normally lives will comply with the arrangements, a contact order can be worded so as to require that parent to allow the child to have contact. It is also possible, albeit very rare given the principles outlined above, to obtain a no contact order, which would prevent the absent parent from seeing their child.

Prohibited Steps Orders

This is the children equivalent of an injunction. If one parent objects to something that the other (or sometimes another adult) is doing, or seemingly proposes to do, concerning the child, then he or she can apply to the court for a prohibited steps order. This will forbid the named person from taking the action outlined in the order without getting the court's permission first. This is most commonly used when the court forbids one person to remove the child from another's care and control.

Specific Issue Orders

Important decisions in a child's upbringing - for example, which school the child should go to - are often the subject of dispute. If needs be, the court can be asked to settle the disagreement by way of a specific issue order.

Injunction Orders

During cases relating to children, the court can, if it feels it appropriate, make injunction orders protecting a party to the proceedings, or the children themselves, from violence, threats, intimidation, harassment and pestering. The court can do this whether asked to by a party to the proceedings or not. Again, if such an order is made, it is advisable to provide the school with a copy if relevant.

What happens at court?

We should point out straightaway that all proceedings relating to children are kept as relaxed and informal as possible. They are held behind closed doors, so that in any hearing the only people in the court room are the judge, the court staff, and the parties and their lawyers. Even if your opposite number brings along family members for moral support, they will not be allowed past the public waiting area. If you have concerns about coming into close proximity with your former partner, there are always places to meet and remain away from trouble whilst you wait for the hearing itself to start.

When the court receives an application relating to children, it will usually set a date for an initial directions hearing, sometimes known as a conciliation appointment. Both parties and their legal representatives are required to attend on this occasion, where they will first of all go before a District Judge who will explain to the parties how the court will deal with their case. If it appears to the District Judge that progress could be made if an independent third party were to mediate between the parties, they will be requested to meet with a Court Welfare Officer in another part of the building.

Court Welfare Officers are independent experts, a separate branch of the Probation Service, whose task is to speak to the parties and assist them, if possible, to reach agreement on how they will cooperate with each other regarding their children. If agreement can be reached on a way forward, then the court is likely to adjourn the hearing for perhaps two or three months to give the parties time to test the proposed plan. If there is no agreement possible, the court will then make orders, known as directions , as to how the case will proceed. These directions will relate to the filing of evidence - usually in the form of written statements made by the parties and any relevant witnesses - and to a Court Welfare Officer being ordered to prepare a full report into the case and, where possible, make recommendations.

A full Welfare Report will often require over three months to prepare, as it requires the allocated Officer to meet, often more than once, with the parties involved, and make enquiries of other relevant bodies, such as GPs, schools, police and Social Services, in case any of them have any information to contribute. During that time, any current arrangements are likely to continue.

Depending on his/her age and perceived maturity, the Officer may also speak directly to the child concerned. If the child has views to put forward, the law requires the court to take account of them, and it is through the Welfare Officer that those views will be communicated. It is for the Judge to decide how much notice to take of them. As a general guide only, once children reach the age of 9-10 years old, they will often be spoken to directly by the Welfare Officer. The older they are, the more likely the court is to accept what the children themselves want to happen.

The court is not bound to agree with the conclusion of the Welfare Officer, assuming one is reached, but the report is often very persuasive. The court will usually build in a short period of time, often around a fortnight, for the parties to digest the contents of the report before calling them back to see whether it has assisted them in agreeing a way forward. If there is still no agreement, the matter is likely to proceed to a full hearing at which the parties, their witnesses and sometimes the Welfare Officer will be required to attend, give evidence and be cross-examined. The Judge will then make his/her decision.

The above deals with cases proceeding through the County Court, which is the majority. If your case is to be dealt with by the Magistrates' Court, then much the same procedure applies, but much of the initial procedure is dealt with by the magistrates' clerks, who are legally trained. Magistrates themselves deal with the decision making.

Orders relating to children can rarely be regarded as final. Things change, and there will almost always be the option of returning the matter to court to ask the judge to reconsider the situation given the change of circumstances.

Attending at court is never easy, but the courts understand this and do what they can to make it as smooth and unthreatening an experience as possible. We, as your representatives, will naturally do likewise.

If you have any queries about the contents of this guide or how your particular situation is likely to be handled, you should not hesitate to contact whichever of us is acting on your behalf.