PRACTICE DIRECTION 12B – CHILD ARRANGEMENTS PROGRAMME
See also Part 12, Practice Direction 12A, Practice Direction 12C, Practice Direction 12D, Practice Direction 12E, Practice Direction 12F, Practice Direction 12G, Practice Direction 12H, Practice Direction 12I, Practice Direction 12J, Practice Direction 12K, Practice Direction 12L, Practice Direction 12M, Practice Direction 12N, Practice Direction 12O, Practice Direction 12P
When does the Child Arrangements Programme Apply?
The Child Arrangements Programme (the ‘CAP’) applies where a dispute arises between separated parents and/or families about arrangements concerning children.
The CAP is designed to assist families to reach safe and child-focused agreements for their child, where possible out of the court setting. If parents / families are unable to reach agreement, and a court application is made, the CAP encourages swift resolution of the dispute through the court.
It is well-recognised that negotiated agreements between adults generally enhance long-term co-operation, and are better for the child concerned. Therefore, separated parents and families are strongly encouraged to attempt to resolve their disputes concerning the child outside of the court system. This may also be quicker and cheaper.
Signposting Services, Parenting Plans, & Public Funding
Services: Where a dispute arises in relation to a child, or children, parents and families are encouraged to obtain advice and support as soon as possible.
There are many services available for such families, who seek advice about resolving disputes concerning their child.
The following services are recommended –
(1) For more information about family mediation and to find the nearest mediation service (including those providing a MIAM): www.familymediationcouncil.org.uk;
(2) For a Guide about children and the family courts for separating parents (including representing yourself in court): the form ‘CB7’: http://www.cafcass.gov.uk/media/168195/cb7-eng.pdf
(3) For Cafcass (England): www.cafcass.gov.uk;
(4) For CAFCASS Cymru (Wales): www.wales.gov.uk/cafcasscymru;
(5) To find a legal adviser or family mediator: http://find-legal-advice.justice.gov.uk;
(6) To check whether you can get financial help (legal aid) to pay for non-court dispute resolution, &/or advice and representation at court, and to find a legal aid solicitor or mediator: https://www.gov.uk/check-legal-aid
(7) For general advice about sorting out arrangements for children, the use of post-separation mediation, &/or going to court: http://www.advicenow.org.uk; http://www.advicenow.org.uk/advicenow-guides/family/sorting-out-arrangements-for-your-children/
(8) For general advice on separation services and options for resolving disputes: www.sortingoutseparation.org.uk;
(9) For general advice about sorting out arrangements for children: http://theparentconnection.org.uk/
(10) For advice about Contact Centres, which are neutral places where children of separated families can enjoy contact with their non-resident parents and sometimes other family members, in a comfortable and safe environment; and information about where they are: www.naccc.org.uk;
(11) For the form to apply for a child arrangements order: https://www.gov.uk/looking-after-children-divorce/apply-for-court-order;
(12) For help with taking a case to court without a lawyer, the Personal Support Unit: http://thepsu.org/;
(13) For guidance on representing yourself at court, including a list of commonly used terms that you may come across: http://www.barcouncil.org.uk/instructing-a-barrister/representing-yourself-in-court/;
(14) For advice about finding and using a family law solicitor see: Law Society http://www.lawsociety.org.uk, and Resolution (family law solicitors): http://www.resolution.org.uk;
(15) For advice about finding using a family law barrister: see http://www.barcouncil.org.uk/about-the-bar/find-a-barrister/, and for arrangements for using a barrister directly see http://www.barcouncil.org.uk/instructing-a-barrister/public-access/.
Parenting Plan: A Parenting Plan is widely recognised as being a useful tool for separated parents to identify, agree and set out in writing arrangements for their children; such a plan could appropriately be used as the basis for discussion about a dispute which has arisen. It is likely to be useful in any event for assisting arrangements between separated parents.
The Parenting Plan should cover all practical aspects of care for the child, and should reflect a shared commitment to the child and his/her future, with particular emphasis on parental communication (learning how to deal with differences), living arrangements, money, religion, education, health care and emotional well-being.
A Parenting Plan is designed to help separated parents (and their families) to work out the best possible arrangements for the child; the plan should be understood by everyone, including (where the child is of an appropriate age and understanding) the child concerned.
For help on preparing a Parenting Plan, see –
(1) Cafcass ‘Putting Your Children First: A Guide for Separated Parents’ (see also paragraph 4 below);
(2) A draft of a Parenting Plan for parents or families to complete: https://www.cafcass.gov.uk/download/4365
(3) A draft of a Parenting Plan prepared by CAFCASS Cymru for parents or families to complete: http://gov.wales/docs/cafcass/publications/071015ParentingPlanEn.pdf (this links to the draft plan in English) or http://gov.wales/docs/cafcass/publications/071015ParentingPlanCy.pdf (this links to the draft plan in Welsh).
Publicly funded mediation and/or legal advice: If parents need access to mediation, and legal advice in support of that mediation, they may be eligible for public funding. The Legal Aid Agency (LAA) will provide funding for Mediation Information and Assessment Meetings (MIAMs) and family mediation for all those who are eligible:
(1) Where at least one party is eligible, the LAA will cover the costs of both parties to attend a MIAM to encourage any non-eligible client to find out about the benefits and suitability of mediation without incurring any costs.
(2) The LAA will provide public funding for eligible parties to participate in family mediation and they may also receive some independent legal advice connected to the mediation process and where a settlement is reached can receive legal assistance to draft and issue proceedings to obtain a consent order.
(3) Parties may find out if they are likely to be eligible for legal aid at the following link: https://www.gov.uk/check-legal-aid
Public funding for legal advice and/or representation at court is available in limited circumstances. Further information can be found here: http://www.justice.gov.uk/legal-aid-for-private-family-matters
Explanation of terms
Some of the terms used in this document, and in the websites referred to above, may not be familiar to those who seek help and support.
A guide to some of the relevant terms is attached in the Annex at the end of this document.
The child in the dispute
In making any arrangements with respect to a child, the child's welfare must be the highest priority.
Children and young people should be at the centre of all decision-making. This accords with the Family Justice Young People's Board Charter (https://www.cafcass.gov.uk/media/179714/fjypb_national_charter_1013.pdf).
The child or young person should feel that their needs, wishes and feelings have been considered in the arrangements which are made for them.
Children should be involved, to the extent which is appropriate given their age and level of understanding, in making the arrangements which affect them. This is just as relevant where:
(1) the parties are making arrangements between themselves (which may be recorded in a Parenting Plan),
(2) arrangements are made in the context of dispute resolution outside away from the court,
(3) the court is required to make a decision about the arrangements for the child.
If an application for a court order has been issued, the judge may want to know the child's view. This may be communicated to the judge in one of a number of ways –
(1) By a Cafcass officer (in Wales, a Welsh Family Proceedings Officer (WFPO)) providing a report to the court which sets out the child's wishes and feelings;
(2) By the child being encouraged (by the Cafcass officer or WFPO, or a parent or relative) to write a letter to the court;
(3) In the limited circumstances described in paragraph 18 below, by the child being a party to the proceedings;
(4) By the judge meeting with the child, in accordance with approved Guidance (currently the FJC Guidelines for Judges Meeting Children subject to Family Proceedings (April 2010)). http://www.judiciary.gov.uk/JCO%2fDocuments%2fFJC%2fvoc%2fGuidelines_+Judges_seeing_+Children.pdf
Non-court resolution of disputed arrangements for children
Dispute resolution services, including mediation, are available to provide opportunities for parents and families to work in a positive and constructive way, and should be actively considered and attempted where it is safe and appropriate to do so. Information about mediation and other non-court dispute resolution is available widely (see 'Signposting Services for Families' - paragraph 2 above).
It is not expected that those who are the victims of domestic violence should attempt to mediate or otherwise participate in forms of non-court dispute resolution. It is also recognised that drug and/or alcohol misuse and/or mental illness are likely to prevent couples from making safe use of mediation or similar services; these risk factors (which can be discussed at a MIAM - see below, paragraph 5.3) are likely to have an impact on arrangements for the child. Court Orders, including those made by consent, must be scrutinised to ensure that they are safe and take account of any risk factors, in accordance with Practice Direction 12J FPR.
Attendance at Mediation Information and Assessment Meeting (‘MIAM’): Subject to paragraph 5.6 (below), before making a family application to the court (a 'relevant family application' as defined in paragraph 23 below), the person who is considering making such application must attend a family MIAM. A prospective respondent is expected to attend a MIAM - whether this is a separate MIAM or the same MIAM attended by the prospective applicant. At the MIAM, information will be provided about mediation of disputes of the kind to which the application relates, ways in which the dispute may be resolved otherwise than by the court, and the suitability of mediation (or any other way of resolving the dispute) for trying to resolve the dispute. The mediator will also assess whether there has been, or is a risk of,
(1) domestic violence, and/or
(2) harm by a prospective party to a child that would be the subject of the application.
It is the responsibility of the prospective applicant (or that person's legal representative) to contact a family mediator to arrange attendance at a MIAM.
Only an authorised family mediator can carry out a MIAM. An authorised family mediator is a person identified by the Family Mediation Council as qualified to conduct a MIAM.
A prospective applicant is not required to attend a MIAM where one of the circumstances set out in rule 3.8(1) or 3.8(2) FPR applies.
Information on how to find an authorised family mediator may be obtained from www.familymediationcouncil.org.uk website which hosts the ‘find a local family mediator’ database (see also ‘Signposting Services for Families’ – paragraph 2 above).
The prospective applicant (or the prospective applicant's legal representative) should provide the mediator with contact details for the other party or parties to the dispute ('the prospective respondent(s)'), so that the mediator can contact the prospective respondent(s) to discuss their willingness and availability to attend a MIAM.
The prospective applicant and, where they agree to do so, the prospective respondent(s), should then attend a MIAM arranged by the mediator. If the parties are willing to attend together and where it is assessed by the mediator to be safe, the meeting may be conducted jointly; otherwise, separate meetings will be held.
The Family Mediation Council sets the requirements for mediators who conduct MIAMs. In summary, a mediator who arranges a MIAM with one or more parties to a dispute should consider any risk factors present and how these should be managed, and should also consider with the party or parties concerned whether public funding may be available to meet the cost of the meeting and any subsequent mediation. Where neither of the parties is eligible for, or wishes to seek, public funding, any charge made by the mediator for the MIAM will be the responsibility of the party or parties attending, in accordance with any agreement made with the mediator.
Mediation is a confidential process; none of the parties to the mediation may provide information to the court as to the content of any discussions held in mediation and/or the reasons why agreement was not reached. Similarly, the mediator may not provide such information, unless the mediator considers that a safeguarding issue arises.
However, it is important that the parties, or either of them, introduce at the MIAM (or any subsequent court application) any other evidence of attempts to resolve a dispute and to focus on the needs of the child.
Resolution of disputed arrangements for children through the Court
The judge is obliged to consider, at every stage of court proceedings, whether non-court dispute resolution is appropriate.
The parties should also actively consider non-court dispute resolution even if proceedings are issued and are ongoing.
If the court considers that another form of dispute resolution is appropriate, the court may direct that the proceedings, or a hearing in the proceedings, be adjourned for such specified period as it considers appropriate:
(1) to enable the parties to obtain information and advice about non-court dispute resolution; and
(2) where the parties agree, to enable non-court dispute resolution to take place.
Where the court adjourns proceedings, it shall give directions about the timing and method by which the parties must tell the court if any of the issues in the proceedings have been resolved.
It is to be noted that some courts operate an at-court mediation scheme, and at-court MIAMs, with providers contracted to the Legal Aid Agency. Some mediators may prefer to conduct mediation outside of the court premises. A mediation assessment may be possible at court; alternatively, the court may help in making an appointment with a local mediator for a MIAM or for mediation. Information about mediation arrangements should be advertised in the local court.
Local Good Practice
The CAP is designed to provide a framework for a consistent approach to the resolution of the issues in private family law in England & Wales.
Local practices and initiatives can be operated in addition to, and within, the framework.
Application to court
Unless one of the MIAM exemptions applies (see rule 3.8 FPR), an application to court for determination of most issues concerning a child (see the definition of 'relevant family application' in rule 3.6 FPR and paragraphs 11 and 12 of PD3A) can be made only after a MIAM has taken place (at which meeting mediation and other forms of non-court dispute resolution will have been considered). One of the exemptions may be that the case is urgent, in which case see 'Urgent and Without Notice Applications' in paragraph 12 below. The grounds for urgency are defined in rule 3.8(c) FPR.
The application for a child arrangements order or other Children Act 1989 private law order shall be made on the relevant prescribed form.
For section 8 Children Act 1989 applications, the applicant will be required, on the form C100, to confirm attendance at a MIAM or specify that an exemption applies unless the application is for a consent order, or if the application concerns a child who is the subject of ongoing emergency proceedings, care proceedings or supervision proceedings, or if the child concerned is already the subject of an emergency protection order, care order or supervision order (see paragraphs 11 and 12 of PD3A).
The relevant part of the form C100 must be completed showing that either –
(1) the applicant has attended a MIAM; or
(2) the applicant has not attended a MIAM and claims one of the exemptions (rule 3.8(1) FPR) - exemptions include (but are not limited to) evidence of domestic violence, child protection concerns, urgency, previous MIAM attendance or exemption; or
(3) an authorised family mediator confirms in the form that he or she is satisfied that –
(a) mediation is not suitable because the respondents is (if more than one respondent, any one of them is) unwilling to attend a MIAM;
(b) mediation is not suitable as a means of resolving the dispute because the respondent (if more than one, any of them) failed without good reason to attend a MIAM; or
(c) mediation is otherwise not suitable as a means of resolving the dispute.
The C100 form may be obtained from the Family Court or from www.gov.uk.
If the parties have previously prepared a Parenting Plan, this shall be attached to the Form C100.
If possible at the time of issue, and in any event by no later than one working day after issue, or in courts where applications are first considered on paper by no later than two working days after issue, the court shall send or hand to the Applicant the following –
(i) A copy of the application form C100 (together with the Supplemental Information Form C1A),
(ii) The Notice of Hearing;
(iii) The Acknowledgment Form C7;
(iv) A blank Form C1A, (if required);
(v) Information leaflets for the parties (which must include the CB7 leaflet)
Unless the applicant requests to do so, or the court directs the applicant to do so, the Court will serve the respondent(s) with –
(i) A copy of the application form C100 (together with Supplemental Information Form C1A, if provided);
(ii) The Notice of Hearing;
(iii) The Acknowledgement Form C7;
(iv) A blank form C1A;
(v) Information leaflet for the parties (which must include the CB7 leaflet).
The court shall send to Cafcass / CAFCASS Cymru a copy of the Form C100 (and the form C1A, if supplied), and the C6 Notice of Hearing no later than 2 working days after the date of issue. This will be in electronic format where possible..
The court shall not send to Cafcass / CAFCASS Cymru any other application under the Children Act 1989, or any other private law application, unless the Court has made a specific direction requesting the assistance of Cafcass/CAFCASS Cymru. Therefore, any application which is not in Form C100 or which does not contain a direction to Cafcass/CAFCASS Cymru will be returned to the court at which the application has been issued.
The respondent(s) must send the Acknowledgement Form C7 and, where applicable, the Supplemental Information Form C1A, to the court within 14 days after receiving the application, unless the court has specified a shorter time.
On receipt of the Acknowledgement Form C7 and any Form C1A filed by the respondent(s), the court shall send a copy of each form to Cafcass / CAFCASS Cymru, in electronic format where possible, and shall send copies to the applicant.
Allocation and Gatekeeping
It is important that the form C100 is fully completed (including the provision of telephone numbers of the relevant parties), otherwise there may be a delay in processing the application; where the form is not fully completed, the court staff may request further information before the application form is accepted for issue. It is also important that the form C100, the Acknowledgement Form C7 and, where applicable, any Supplemental Information Form C1A are fully and accurately completed to enable the court to make appropriate decisions about allocation and case management.
The application shall be considered by a nominated Legal Adviser &/or nominated District Judge (‘the Gatekeeper(s)’) within one working day of the date of receipt in accordance with the appropriate Rules of Procedure.
An application for a relevant family order shall be allocated to a level of judge in the Family Court in accordance with the Guidance issued by the President on ‘Allocation and Gatekeeping for Proceedings under Part II of the Children Act 1989 (Private Law Proceedings) and the Family Court (Composition and Distribution of Business) Rules 2014, together with the Allocation Schedule.
Gatekeepers shall be able to issue Directions on Issue in the following circumstances –
(1) where, on the basis of information provided on the application form and any additional information provided on a C1A Supplemental Information Form, the Gatekeeper finds that the exemption from attending a MIAM has not been validly been claimed, the Gatekeeper will direct the applicant, or direct the parties to attend a MIAM before the FHDRA, unless the Gatekeeper considers that in all the circumstances of the case the MIAM requirement should not apply to the application in question; the Gatekeeper will have particular regard to the matters set out in rule 3.10(3) FPR when making this decision;
(2) where it appears that an urgent issue requires determination, the Gatekeeper may give directions for an accelerated hearing;
(3) exceptionally, where it appears that directions need to be given for the service and filing of evidence, he/she may give directions for the filing of evidence.
All private law cases will be allocated to a level of judge within the Family Court upon issue.
Continuity of Judicial involvement in the conduct of proceedings from the FHDRA to the making of a final order should be the objective in all cases
Where the case has been allocated to be heard before lay justices, the expectation of judicial continuity should apply where –
(1) There has been a hearing to determine findings of fact,
(2) A decision yet to be made in the interests of a child by a court depends upon rulings or judicial assessments already made in the proceedings,
in which case, wherever possible, the hearing shall be listed before the same lay justices; alternatively, it shall be listed before the same the legal adviser and at least one lay justice (preferably the chairman) to provide that continuity. Where a case is adjourned part-heard the court which resumes the hearing shall, wherever possible, be composed of the same lay justices as dealt with the previous part of the hearing (see rule 8 of the Family Court (Composition and Distribution of Business) Rules 2014).
Key welfare principles
Section 1 of the Children Act 1989 applies to all applications for orders concerning the upbringing of children. This means that –
(1) the child's welfare is the court's paramount consideration;
(2) delay is likely to be prejudicial to the welfare of the child, and
(3) a court order shall not be made unless the court considers that making an order would be better for the child than making no order at all.
Parties, and the court, must also have regard to the FPR in particular the following –
(1) FPR Rule 1. The 'overriding objective' will apply, so that the court will deal with a case justly, having regard to the welfare issues involved and specifically will –
(a) Ensure that the case is dealt with expeditiously and fairly;
(b) Deal with the case in ways which are proportionate to the nature, importance and complexity of the issues;
(c) Ensure that the parties are on an equal footing;
(d) Save expense;
(e) Allot to each case an appropriate share of the court's resources, while taking account of the need to allot resources to other cases.
(2) Rule 3, and Practice Direction 3A;
(3) FPR Part 4 ‘General Case Management Powers’;
(4) FPR Part 15 (Representation of Protected Parties) and Practice Direction 15B (Adults Who May Be Protected Parties and Children Who May Become Protected Parties in Family Proceedings);
(5) FPR Part 16 (Representation of Children) (and see also paragraph 18 below);
(6) FPR Part 18 (procedure for Other Applications in proceedings);
(7) FPR Part 22 (Evidence);
(9) FPR Part 25 (Experts) and the Experts Practice Directions;
(10) FPR 27.6 and Practice Direction 27A (Court Bundles).
Where a fact-finding hearing is required, this shall take place in accordance with revised Practice Direction 12J FPR.
The court shall exercise its powers flexibly. The flexible powers of the court include the ability for the court to cancel or repeat a particular hearing.
Urgent and Without Notice Applications
Urgent: Where an order is sought as a matter of urgency, an application may be made to the Court for an emergency order without the requirement for the Applicant to have attended at a MIAM. The categories of urgent application justifying such an exemption are set out in rule 3.8(c) FPR and include cases in which:
(1) There is a risk to the life, liberty, or the physical safety of the prospective applicant or his or her family, or his or her home;
(2) Any delay caused by attending a MIAM would cause:
(A) A risk of harm to the child;
(B) A risk of unlawful removal of a child from the United Kingdom or a risk of unlawful retention of a child who is currently outside England and Wales;
(C) A significant risk of a miscarriage of justice;
(4) Unreasonable hardship to the prospective applicant;
(5) Irretrievable problems in dealing with the dispute (including the irretrievable loss of significant evidence).
(3) There is a significant risk that in the period necessary to schedule and attend a MIAM, proceedings relating to the dispute will be brought in another state in which a valid claim to jurisdiction may exist, such that a court in that other State would be seised of the dispute before a court in England and Wales.
‘Without Notice’: Applications to court made 'Without Notice' to the respondent(s) shall be allocated in accordance with the Family Court (Composition and Distribution of Business) Rules 2014, and determined by reference to the provisions of Practice Direction 18A, paragraph 5.1, with further regard to the principles set out in Practice Direction 20A, paragraph 4.3-4.5 FPR (noting particularly paragraph 4.3(c)).
Without Notice Orders should be made only exceptionally, and where –
(1) If the applicant were to give notice to the respondent(s) this would enable the respondent(s) to take steps to defeat the purpose of the injunction; cases where the application is brought without notice in order to conceal the step from the respondent(s) are very rare indeed; or
(2) The case is one of exceptional urgency; that is to say, that there has been literally no time to give notice (either by telephone, text or e-mail or otherwise) before the injunction is required to prevent the threatened wrongful act; or
(3) If the applicant gives notice to the respondent(s), this would be likely to expose the applicant or relevant child to unnecessary risk of physical or emotional harm.
Any Order which follows an emergency 'without notice' hearing should specify:
(1) the reason(s) why the order has been made without notice to the respondent(s),
(2) the outline facts alleged which have been relied upon by the court in making the order, unless the facts are clearly contained in the statement in support; and
(3) the right of the respondent(s) to apply to vary or discharge the order.
Gatekeeping decisions: Following any urgent or ‘without notice’ hearing, unless all issues have been determined or the application has been dismissed without any further directions given, the judge may make gatekeeping decisions, including allocation and venue of future hearing, (and if so, shall notify the Gatekeeping team responsible for the area in which the child resides), or shall refer the application to the relevant Gatekeeping team for a decision on allocation and venue of future hearing; in either event, a copy of the C100 shall be sent to Cafcass for safeguarding checks, and (depending on the Gatekeeping decision) the file shall be sent to the court where future hearings will take place (if at a different court centre from the court where the urgent hearing occurred).
Where an application is made for a child arrangements order (but not necessarily for specific issue or prohibited steps orders), before the FHDRA (see paragraph 14 below) Cafcass / CAFCASS Cymru shall identify any safety issues by the steps outlined below.
Such steps shall be confined to matters of safety. The Cafcass Officer or (in Wales) the Welsh Family Proceedings Officer (WFPO) shall not discuss with either party before the FHDRA any matter other than one which relates to safety. The parties will not be invited to talk about other issues, for example relating to the substance of applications or replies or about issues concerning matters of welfare or the prospects of resolution. If such issues are raised by either party, they will be advised that such matters will be deferred to the FHDRA when there is equality between the parties and full discussion can take place which will be a time when any safety issues that have been identified can also be taken into account.
In order to inform the court of possible risks of harm to the child Cafcass / CAFCASS Cymru will carry out safeguarding enquiries. For all child arrangements orders this will include seeking information from local authorities, and carrying out police checks on the parties. For all other applications received from the court on the form C100, Cafcass / CAFCASS Cymru will carry out a screening process and will undertake those checks if in the professional judgment of the Cafcass officer, or the WFPO in Wales, such checks are necessary.
Cafcass / CAFCASS Cymru will, if possible, undertake telephone risk identification interviews with the parties and if risks of harm are identified, may invite parties to meet separately with the Cafcass Officer, or WFPO in Wales, before the FHDRA to clarify any safety issue.
Cafcass / CAFCASS Cymru shall record and outline any safety issues for the court, in the form of a Safeguarding letter (in Wales, this is called a ‘Safeguarding report’).
The Cafcass officer, or WFPO, will not initiate contact with the child prior to the FHDRA. If contacted by a child, discussions relating to the issues in the case will be postponed to the day of the hearing or after when the Cafcass officer or WFPO will have more knowledge of the issues.
Within 17 working days of receipt by Cafcass / CAFCASS Cymru of the application, and at least 3 working days before the hearing, the Cafcass Officer or WFPO shall report to the court, in a Safeguarding letter / report, the outcome of the risk identification work which has been undertaken. The letter / report should specify which court forms filed by the parties (C100, C7 and C1A) have been considered.
Further, Cafcass and CAFCASS Cymru are required, under section 16A Children Act 1989, to undertake (and to provide to the court) risk assessments where an officer of the Service ('Cafcass Officer' or WFPO) suspects that a child is at risk of harm.
13A Orders under section 91(14) of the Children Act 1989
13A.1 Under section 91(14) of the 1989 Act orders are available to prevent a person from making future applications under that Act without leave of the court. Section 91(14) leaves a discretion to the court to determine the circumstances in which an order should be made. These circumstances may be many and varied. They include circumstances where an application would put the child concerned, or another individual, at risk of harm (as provided in section 91A), such as psychological or emotional harm. The welfare of the child is paramount.
13A.2 These circumstances can also include where one party has made repeated and unreasonable applications; where a period of respite is needed following litigation; where a period of time is needed for certain actions to be taken for the protection of the child or other person; or where a person’s conduct overall is such that an order is merited to protect the welfare of the child directly, or indirectly due to damaging effects on a parent carer. Such conduct could include harassment, or other oppressive or distressing behaviour beyond or within the proceedings including via social media and e-mail, and via third parties. Such conduct might also constitute domestic abuse. A future application could also be part of a pattern of coercive or controlling behaviour or other domestic abuse toward the victim, such that a section 91(14) order is also merited due to the risk of harm to the child or other individual.
13A.4 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 section 91(14) order on disposal of the application, even if an application for such an order has not been made (since the court may make an order of its own motion – see section 91A(5)).
13A.5 Section 91(14) orders are a protective filter – not a bar on applications – and there is considerable scope for their use in appropriate cases. The court should refer to Practice Direction 12Q for guidance on section 91(14) applications and orders.
First Hearing Dispute Resolution Appointment (FHDRA)
The FHDRA may (where time for service on the respondent(s) has been abridged) take place within 4 weeks, but should ordinarily take place in week 5 following the issuing of the application; at the latest it will take place in week 6 following the issuing of the application.
The respondent(s) shall have at least 14 days’ notice of the hearing where practicable, but the court may specify a shorter time.
Unless the court otherwise directs, any party to proceedings, and any litigation friend of the parties must attend this (and any other) hearing. If a child is a party and represented by a children's guardian, the children's guardian need not attend directions hearings if represented.
A party may choose to be accompanied at this (or any) hearing by a McKenzie Friend to support them (a McKenzie Friend is someone who can provide moral support at court for the party; take notes; help with case papers; quietly give advice on any aspect of the conduct of the case.) If so, the McKenzie Friend must comply with the relevant Guidance (currently set out in the Practice Guidance: McKenzie Friends (Civil and Family Courts): July 2010: https://www.judiciary.gov.uk/wp-content/uploads/JCO/Documents/Guidance/mckenzie-friends-practice-guidance-july-2010.pdf).
(Practice Direction 27C makes provision for the attendance at hearings of Independent Domestic Violence Advisers and Independent Sexual Violence Advisers.)
A Cafcass Officer or WFPO shall attend this hearing. A mediator may attend where available.
The Cafcass Officer or WFPO shall, where practicable, speak separately to each party at court before the hearing in particular where it has not been possible to conduct a risk identification interview with either party.
The FHDRA provides an opportunity for the parties to be helped to an understanding of the issues which divide them, and to reach agreement. If agreement is reached –
(1) The Court will be able to make an order (which in many cases will be a final order) reflecting that agreement
(2) The Court will assist the parties (so far as it is able) in putting into effect the agreement/order in a co-operative way.
The FHDRA is not privileged. That is to say that what is said at the FHDRA may be referred to at later court hearings.
By the time of the hearing, the Court should have the following documents –
(a) C100 application, and C1A (if any);
(b) Notice of Hearing;
(c) C7 response and C1A (if any);
(d) Cafcass/CAFCASS Cymru safeguarding letter/report.
At the FHDRA the judge, working with the Cafcass Officer, or WFPO, will seek to assist the parties in conciliation and in resolution of all or any of the issues between them. Any remaining issues will be identified, the Cafcass Officer or WFPO will advise the court of any recommended means of resolving such issues, and directions will be given for the future resolution of such issues. At all times the decisions of the Court and the work of the Cafcass Officer or WFPO will take account of any risk or safeguarding issues that have been identified.
The court should have information obtained through safeguarding checks carried out by Cafcass / CAFCASS Cymru and, where applicable, Supplemental Information Forms C1A filed by the parties, to ensure that any agreement between the parties, or any dispute resolution process selected, is in the interests of the child and safe for all concerned.
The FHDRA will be conducted in the most appropriate way in the interests of the child. In particular the court shall consider the following matters –
Safeguarding, in this respect –
(a) The court shall inform the parties of the content of the safeguarding letter/report provided by Cafcass/CAFCASS Cymru, where it has not already been sent by Cafcass/CAFCASS Cymru to the parties, unless it considers that to do so would create a risk of harm to a party or the child. The court may need to consider whether, and if so how, any information contained in the checks should be disclosed to the parties if Cafcass/CAFCASS Cymru have not disclosed the letter/report.
The court will specifically consider, in the light of all the information before the court, including the contents of the safeguarding letter / report provided by Cafcass / CAFCASS Cymru and any Supplemental Information Form(s) C1A filed by the parties.
(b) The nature and extent of any factual issues and whether a fact-finding hearing is needed to determine allegations which are not accepted, and whose resolution is likely to affect the decision of the court.
(c) Risk identification followed by active case management including risk assessment, and compliance with the Practice Direction 12J.
(Specific provisions about directions for a fact-finding hearing are set out in Practice Direction 12J, paragraphs 16 to 20.)
(d) If the safeguarding information is (contrary to the arrangements set out in the CAP) not available at the FHDRA, the court should adjourn the application until the safeguarding checks are available. Interim orders (unless to protect the safety of a child) should not be made in the absence of safeguarding checks.
And further –
(e) Where the court so directs, a safeguarding letter/report ought to be attached to any referral to a supported or supervised child contact centre in the event the court directs supported or supervised contact.
(a) Whether, if a MIAM exemption has been claimed, the Applicant has validly claimed the exemption;
(b) Whether the Respondent has attended a MIAM;
(c) If the court finds that a MIAM exemption has not been validly claimed the court will direct the applicant or direct the parties to attend a MIAM and if necessary adjourn the proceedings to enable a MIAM to take place, unless the court considers that in all the circumstances of the case, the MIAM requirement should not apply to the application in question; when making the decision the court will have particular regard to the matters contained in rule 3.10(3) FPR.
Mediation, At-Court Mediation assessment, and other Dispute Resolution: allowing the parties the time and opportunity to engage in non-court dispute resolution.
(a) At the FHDRA, the judge will specifically consider whether, and the extent to which, the parties can safely resolve some or all of the issues with the assistance of the Cafcass Officer, WFPO, or a mediator.
(b) There will be, at every FHDRA, a period in which the Cafcass Officer, or WFPO, will seek to conciliate and explore with the parties the resolution of all or some of the issues between them if safe to do so. The procedure to be followed in this connection at the hearing will be determined by local arrangements between the Cafcass manager, or equivalent in Wales, and the Designated Family Judge or a justices’ legal adviser where appropriate.
The court will further consider –
(c) What is the result of any such meeting at Court?
(d) What other options there are for resolution e.g. may the case be suitable for further intervention by Cafcass/CAFCASS Cymru; Should a referral for mediation be made? Is collaborative law appropriate? Should the parties be advised to complete a Parenting Plan?
(e) Would the parties be assisted by attendance at an Activity Separated Parents Information Programme, (or in Wales, Working Together For Children (WT4C)) or other Activity or intervention, whether by formal statutory provision under section 11 Children Act 1989 or otherwise;
(f) An at-court assessment of the suitability of the parties for mediation.
Consent Orders –
(a) Where agreement is reached at any hearing or submitted in writing to the court, no order will be made without scrutiny by the court.
(b) Where safeguarding checks or risk assessment work remain outstanding, the making of a final order may be deferred for such work. In such circumstances the court shall adjourn the case for no longer than 28 days to a fixed date. A written notification of this work is to be provided by Cafcass/CAFCASS Cymru in the form of an updating Safeguarding letter/report, or if deemed relevant by Cafcass/CAFCASS Cymru, a section 16A risk assessment in accordance with the timescale specified by the court. If satisfactory information is then available, the order may be made at the adjourned hearing in the agreed terms without the need for attendance by the parties. If satisfactory information is not available, the order will not be made, and the case will be adjourned for further consideration with an opportunity for the parties to make further representations
(a) Reports may be ordered where there are welfare issues or other specific considerations which should be addressed in a report by Cafcass/CAFCASS Cymru or the Local Authority. Before a report is ordered, the court should consider alternative ways of working with the parties such as are referred to in paragraph 5 (‘non-court resolution of disputed arrangements’) above.
(b) If a report is ordered in accordance with section 7 of the Children Act 1989, the Court should direct which specific matters relating to the welfare of the child are to be addressed. Welfare reports will generally only be ordered in cases where there is a dispute as to with whom the child should live, spend time, or otherwise have contact with. A report can also be ordered
(i) If there is an issue concerning the child's wishes, and/or
(ii) If there is an alleged risk to the child, and/or
(iii) Where information and advice is needed which the court considers to be necessary before a decision can be reached in the case.
(c) General requests for a report on an application should be avoided; the Court should state on the face of the Order the specific factual and/or other issue which is to be addressed in the focused report.
(d) In determining whether a request for a report should be directed to the relevant local authority or to Cafcass/CAFCASS Cymru, the court should consider such information as Cafcass/CAFCASS Cymru has provided about the extent and nature of the local authority's current or recent involvement with the subject of the application and the parties, and any relevant protocol between Cafcass and the Association of Directors of Children's Services.
(e) The court may further consider whether there is a need for an investigation under section 37 Children Act 1989.
(f) A copy of the Order requesting the report and any relevant court documents are to be sent to Cafcass/CAFCASS Cymru or, in the case of the Local Authority to the Legal Adviser to the Director of the Local Authority Children's Services and, where known, to the allocated social worker by the court forthwith.
(g) Is any expert evidence required? If so, section 13 Children and Families Act 2014, and Part 25 of the FPR must be complied with. This is the latest point at which consideration should be given to the instruction of an expert in accordance with Rule 25.6(b) of the FPR; the court will need to consider carefully the future conduct of proceedings where the preparation of an expert report is necessary but where the parties are unrepresented and are unable to fund the preparation of such a report.
Wishes and feelings of the child –
(a) In line with the Family Justice Young People's Board Charter, children and young people should be at the centre of all proceedings.
(b) The child or young person should feel that their needs, wishes and feelings have been considered in the court process
(c) Each decision should be assessed on its impact on the child.
(d) The court must consider the wishes and feelings of the child, ascertainable so far as is possible in light of the child's age and understanding and circumstances. Specifically, the Court should ask –
(i) Is the child aware of the proceedings?
(ii) Are the wishes and feelings of the child available, and/or to be ascertained (if at all)?
(iii) How is the child to be involved in the proceedings, and if so, how; for example, should they meet the judge/lay justices? Should they be encouraged to write to the court, or have their views reported by Cafcass/CAFCASS Cymru or by a local authority?
(iv) Who will inform the child of the outcome of the case, where appropriate?
Case Management –
(a) What, if any, issues are agreed and what are the key issues to be determined?
(b) Should the matter be listed for a fact-finding hearing?
(c) Are there any interim orders which can usefully be made (e.g. indirect, supported or supervised contact) pending Dispute Resolution Appointment or final hearing?
(d) What directions are required to ensure the application is ready for a Dispute Resolution Appointment or final hearing - statements, reports etc?
(e) Should the application be listed for a Dispute Resolution Appointment (it is envisaged that most cases will be so listed)?
(f) Should the application be listed straightaway for a final hearing?
(g) Judicial continuity should be actively considered (especially if there has been or is to be a fact finding hearing or a contested interim hearing).
(a) The Allocation decision will be considered by the Court;
(b) If it is necessary to transfer the case to another court within the DFJ area or another area, or re-allocate it, the court shall state the reasons for transfer/re-allocation, and shall specifically make directions for the next hearing in the court.
Order (other than a final order) -
Where no final agreement is reached, and the court is required to give case management directions, the following shall be included on the order:
(a) the date, time and venue of the next hearing;
(b) whether the author of any section 7 report is required to attend the hearing, in order to give oral evidence. A direction for the Cafcass officer or WFPO to attend court will not be made without first considering the reason why attendance is necessary, and upon what issues the Cafcass officer or WFPO will be providing evidence;
(c) such other matters as may be included in President’s guidance from time to time.
Where both parties are Litigants in Person, the court may direct HMCTS to produce a Litigant in Person bundle.
The judge will, as far as possible, provide a copy of the order to both parties before they leave the courtroom, and will, if necessary, go through and explain the contents of the order to ensure they are clearly understood by both parties. The parties should know the date, time and venue of any further hearing before they leave the court.
Timetable for the child
Court proceedings should be timetabled so that the dispute can be resolved as soon as safe and possible in the interests of the child.
The judge shall, at all times during the proceedings, have regard to the impact which the court timetable will have on the welfare and development of the child to whom the application relates. The judge and the parties shall pay particular attention to the child's age, and important landmarks in the immediate life of the child, including –
(a) the child's birthday;
(b) the start of nursery/schooling;
(c) the start/end of a school term/year;
(d) any proposed change of school;
(e) any significant change in the child's family, or social, circumstances.
While it is acknowledged that an interim order may be appropriate at an early stage of court proceedings, cases should not be adjourned for a review (or reviews) of contact or other orders/arrangements, &/or for addendum section 7 report, unless such a hearing is necessary and for a clear purpose that is consistent with the timetable for the child and in the child's best interests.
When preparing a section 7 report, Cafcass / CAFCASS Cymru (or, where appropriate, the local authority) is encouraged to make recommendations for the stepped phasing-in of child arrangements (i.e. recommendations for the medium and longer term future for the child) insofar as they are able to do so safely in the interests of the child concerned;
Where active involvement or monitoring is needed, the court may consider making –
(1) An order under section 11H Children Act 1989 (Monitoring);
(2) A Family Assistance Order under section 16 Children Act 1989) (in accordance with the Practice Direction 12M FPR, and if all the named adults in the order agree to the making of such an order and if the order is directed to a local authority, the child lives (or will live) within that local authority area or the local authority consents to the making of the order.
Capacity of Litigants
In the event that the judge has concerns about the capacity of a litigant before the court, the judge shall consider –
(1) the Guidance issued by the Family Justice Council in relation to assessing the capacity of litigants,
(2) Practice Direction 15B (Adults Who May Be Protected Parties and Children Who May Become Protected Parties In Family Proceedings)
No evidence shall be filed in relation to an application until after the FHDRA unless –
(1) It has been filed in support of a without notice application
(2) It has been directed by the Court by the Directions on Issue;
(3) It has been directed by the Court for the purposes of determining an interim application.
Rule 16.4 children's guardians
The Court should be vigilant to identify the cases where a rule 16.4 children's guardian should be appointed. This should be considered initially at the FHDRA.
Where the court is considering the appointment of a children's guardian from Cafcass/CAFCASS Cymru, it should first ensure that enquiries have been made of the appropriate Cafcass/CAFCASS Cymru manager in accordance with paragraph 7.4, Part 4 of the Practice Direction 16A. This should either be in writing before the hearing or by way of case discussion with the relevant Cafcass service manager; for cases in Wales, the 'hotline' protocol agreed with CAFCASS Cymru will ensure that such a discussion can take place. The court should consult with Cafcass / CAFCASS Cymru, so as to consider any advice in connection with the prospective appointment, and the timescale involved.
When the court decides to appoint a children's guardian, consideration should first be given to appointing an Officer of the Service or WFPO. If Cafcass/CAFCASS Cymru is unable to provide a children's guardian without delay, or if there is some other reason why the appointment of a Cafcass officer is not appropriate, the court should (further to rule 16.24 of the FPR) appoint a person other than the Official Solicitor, unless the Official Solicitor expressly consents.
In considering whether to make such an appointment the Court shall take account of the demands on the resources of Cafcass/CAFCASS Cymru that such an appointment would make. The court should also make clear on the face of any order the purpose of the appointment and the timetable of any work to be undertaken.
Dispute Resolution Appointment (DRA)
The Court shall list the application for a Dispute Resolution Appointment (‘DRA’) to follow the preparation of section 7 or other expert report, or Separated Parenting Information Programme (SPIP) (or WT4C in Wales), if this is considered likely to be helpful in the interests of the child.
The author of the section 7 report will only attend this hearing if directed to do so by the Court.
At the DRA the Court will –
(1) Identify the key issue(s) (if any) to be determined and the extent to which those issues can be resolved or narrowed at the DRA;
(2) Consider whether the DRA can be used as a final hearing;
(3) Resolve or narrow the issues by hearing evidence;
(4) Identify the evidence to be heard on the issues which remain to be resolved at the final hearing;
(5) Give final case management directions including:
(a) Filing of further evidence;
(b) Filing of a statement of facts/issues remaining to be determined;
(c) Filing of a witness template and / or skeleton arguments;
(d) Ensuring Compliance with Practice Direction 27A (the Bundles Practice Direction);
(e) Listing the Final Hearing.
If the court considers that a fact-finding hearing is necessary it shall conduct that hearing in accordance with revised Practice Direction 12J
Where there is an application for a section 91(14) order, the court should consider whether any particular findings of fact will be needed in order to determine the section 91(14) application.
Enforcement of Child Arrangements
On any application for enforcement of a child arrangements order, the court shall –
The Gatekeepers shall list any application for enforcement of a child arrangements order for hearing, before the previously allocated judge if possible, within 20 working days of issue. Enforcement cases should be concluded without delay.
An application made within existing proceedings in the family court shall be allocated to the level of judge in accordance with rule 17 of the Family Court (Composition and Distribution of Business) Rules 2014.
The Gatekeepers shall, if considered necessary, direct that further safeguarding checks are required from Cafcass/CAFCASS Cymru. On any application for enforcement issued more than three months after the order which is the subject of the enforcement, safeguarding checks shall be ordered.
The court has a wide range of powers in the event of a breach of a child arrangements order without reasonable excuse.
This range of powers includes (but is not limited to):
(a) referral of the parents to a SPIP, or in Wales a WT4C, or mediation;
(b) variation of the child arrangements order (which could include a more defined order and/or reconsidering the contact provision or the living arrangements of the child);
(c) a contact enforcement order or suspended enforcement order under section 11J Children Act 1989 ('Enforcement order' for unpaid work), (see paragraph 21.7 below);
(d) an order for compensation for financial loss (under section 11O Children Act 1989);
(e) committal to prison or
(f) a fine.
In the event that the court is considering an enforcement order for alleged non-compliance with a court order (under section 11J Children Act 1989) or considering a Compensation order in respect of financial loss (under section 11O Children Act 1989), the court shall (in the absence of agreement between the parties about the relevant facts) determine the facts in order to establish the cause of the alleged failure to comply.
Section 11L Children Act 1989 provides that if the court finds that a breach has occurred without reasonable excuse it may order the non-compliant party to undertake unpaid work if that is necessary to secure compliance, and if the effect on the non-compliant party is proportionate to the seriousness of the breach. The court must also consider whether unpaid work is available in the locality and the likely effect on the non-compliant party. It is good practice to ask Cafcass/CAFCASS Cymru to report on the suitability of this order. Section 11L(7) also requires the court to take into account the welfare of the child who is the subject of the order for contact.
Working Day 1: Paperwork received. Court office checks whether the revised form C100 has been completed correctly. The application will not be issued unless the form has been completed correctly.
Working Day 3: Case considered by Gatekeeping team. Case allocated by Gatekeepers in accordance with the President's Guidance on allocation and the Family Court (Composition and Distribution) Rules 2014. The Gatekeeper(s) undertaking allocation to check whether form C100 has been completed. If there has been no MIAM, and there are reasons to believe that the applicant should have attended a MIAM, the Gatekeeping judge can direct that a MIAM should take place before the FHDRA.
By Working Day 3 (2 working days after the date of issue): The court shall send to Cafcass / CAFCASS Cymru a copy of the Form C100 (and the Form C1A, if supplied), and the C6 Notice of Hearing. This will be in electronic format where possible.
On receipt of the Acknowledgement Form C7 and any Form C1A filed by the respondent(s), the court shall send a copy of each form to Cafcass / CAFCASS Cymru, in electronic format where possible, and shall send copies to the applicant.
17 working days from the date of its receipt of the application Cafcass/CAFCASS Cymru will provide the safeguarding letter / report to the Court (20 working days in the area of CAFCASS Cymru).
Week 5 (or latest, week 6): Case listed for FHDRA (before week 5 if requirements of notice have been abridged).
Thereafter, case may be listed for fact-finding hearing, DRA &/or final hearing.
Relevant Family Application (definition)
A relevant family application for the purposes of the CAP is an application that –
(1) Is made to the court in, or to initiate, family proceedings, and
(2) Is of a description specified in the Family Procedure Rules.
Explanation of terms