What happens in private law proceedings

The following is intended to provide a very brief overview of the different stages of private law proceedings. The various stages may be extended or prolonged depending on the complexity of an individual case. 

After an application is made to the court you will be sent a date for first hearing often referred to as an FHDRA- First Hearing Dispute Resolution Appointment. At this hearing the court will usually decide whether to involve Cafcass, the Local Authority or in some cases another type of expert to provide information on the child(ren) and the family circumstances. 

If your case is not resolved at the First Hearing and the court decides it needs more information, it is likely to be adjourned for a number of weeks/months to allow for a report to be prepared by a Cafcass FCA or other expert depending on the issues in the case.  

Once a report has been prepared by an FCA or other professional the case is then listed for a Dispute Resolution Hearing (DRH) where you may be encouraged to try and resolve or at least narrow the issues in dispute, as appropriate. 

If matters are not resolved at the DRH then the case will usually be listed for a final hearing where the court will make the final decision on the disputed issues. 

If you are thinking about applying for a court order, it is worth remembering that judges will expect you to have tried to agree suitable arrangements for your child beforehand. You and your child’s other parent or carer have a shared responsibility for working out the best arrangements for your child. This duty continues when you separate or divorce, and even if you have never lived together. If you cannot talk to each other, you will be expected to seek the help of a family mediator or a family solicitor. 

The court expects each parent or carer to put forward their case. It is the court’s duty to put the child’s welfare first. It can be hard for parents, after all the effort they have made to put together their side of the story, and all the time and money they have spent, to accept that what they ask for may not be what the court decides is in the child’s best interests. 

Where there are no concerns about the child’s welfare or safety, what courts say is best for a child usually includes: 

• for both parents to encourage the child to have a good relationship with their other parent or carer; 
• for the child's parents to have a ‘good enough’ relationship, whereby they can set aside their feelings towards each other and focus on the needs and wellbeing of their child in the long-term; and 
• for the child to spend time with both parents, unless in exceptional circumstances (where it is not safe for the child or to do so could harm their welfare). 

The legal starting point is that it is the child’s right for both of their parents to be involved in their life unless there is a very good reason for them not to be. In the cases where the court does not order time with a parent/carer, the court will have been satisfied that the child’s welfare or safety is at risk. For the court not to order contact is unusual and it must be satisfied that contact with their other parent would be harmful to the child.   

The court will consider the child’s age, their wishes and feelings, and all the circumstances. For some families, time with a parent/carer will be arranged on an interim basis which will be subject to review until the court is satisfied that the amount and frequency of time with a parent or carer are right for the child. Things like non-payment of child support or other conflicts between the adults is not a reason for the court to prevent time with the child’s other parent or carer. 

If you want to change agreed child arrangements, the court will expect you to make sure the other parent agrees first or that you have used the help of a mediator or solicitor before going to court. Experience shows that court orders tend to work less well in the long run than agreements in the child’s best interests made between parents. 

Court proceedings are good for restoring contact when it is not happening and increasing it when it is insufficient to meet the child’s needs and wishes. However, going to court rarely improves the parenting relationship, which is so important to your child’s wellbeing. Family mediation offers parents a chance to improve their relationship following separation and divorce, so that they can focus on the needs of their child.