Guidance

Guide for separated parents: children and the family courts (CB7)

Updated 24 August 2022

Introduction

Deciding what should happen to your children when you and your partner have split up can be difficult. You might not be able to agree who your children should live with, or who they should see.

This guide could help you, whether you are thinking about coming to court or are already involved in a court case. It contains useful information about the court process and provides advice about how you should behave in court and what to expect while you are there.

Going to court should be a last resort. There are many other ways of reaching an agreement on what should happen with your children.

The parenting plan can help you and your partner agree how you will be involved in your children’s lives after separation.

If you are representing yourself, you should watch our range of online videos before you make your application. The videos explain more about the mediation process, making your application, what will happen in court and will help you prepare for the hearing:

• Understanding family mediation
• Making your application to court
• Attending the first hearing
• Attending a full hearing

Deciding what should happen with your children

Separation can be a difficult time for parents and children. However hard you try, it is very likely that your child will pick up any anxious, distressed or negative feelings that you experience. He or she may want to have a say in their future, especially if they are older, so take time to explain what is happening to their family and to listen to their views.

Listening to your child might be key to helping both them and you understand what is best for them. It is important to listen carefully but not to put any pressure on them to give their views, and not to ask them to choose between their parents. Listening to your child’s needs, wishes and feelings will help you and the other parent to make better decisions about your child’s future.

The Children and Family Court Advisory and Support Service (Cafcass) have produced a free booklet called ‘The Parenting Plan’ to help you and your ex-partner agree on what might work best for both of you and for your children, without going to court.

The Parenting Plan is a tool that helps you as a parent to think about what your children need, to help guide practical decisions about their future, and to work out how each parent will be involved. It includes some useful steps on managing emotions and listening to children’s views. There is also help with communicating as separated parents and listening well to your child.

The Parenting Plan and other information is available on the Cafcass website and on the Cafcass Cymru website. Copies of the plan are also available in courts, mediators’ offices, Cafcass and Cafcass Cymru offices.

Make your arrangements without going to court (mediation)

Family mediation is one way of settling differences during and after separation or divorce. A trained mediator will help you and your ex-partner to make arrangements for looking after your children and/or finances. A mediator is a qualified independent person who will not take sides or try to get you back together.

Mediation can help you and your ex-partner together to agree arrangements for your children by talking things through. A mediator is impartial and will not tell you what to do, but can help you and the other parent to reach agreements that are best for your children. It provides you with the opportunity to make your own arrangements, rather than be subject to an order of the court which one party – or neither party – may be happy with.

Family mediation

Family mediation can be quicker, cheaper and easier than going to court. Many separating parents are able to sort out their problems without asking a judge to decide for them. Get help on reaching an agreement about your children with the other parent and find out what options you have.

Even if you or the other parent still need to go to court, you must have attended a mediation information and assessment meeting (MIAM) first, unless you’re exempt. The court form C100 provides details of exemptions. If you are eligible you can receive legal aid for the MIAM and for any family mediation sessions you decide to take part in. If at least one parent is eligible for legal aid for mediation, the Legal Aid Agency will pay the cost of the MIAM and the first session of mediation for both parents. Find out more about making child arrangements.

If you apply for a court order, the court will require you to have attended a MIAM first to consider with the mediator and the other parent whether mediation might be a suitable way to settle the dispute. The court will also require your ex-partner to attend that meeting if the mediator has asked them to. You or the other parent can ask to see the mediator separately if you would prefer to do this.

What happens at mediation

A trained mediator helps you and the other person to talk about the things you cannot agree on. The mediator will help you both to see if there is any way that you could agree with each other or come to an arrangement.

Not all cases are suitable for mediation, especially where there has been violence in the relationship or there are other serious welfare concerns. The mediator will be able to help you decide if your circumstances are suitable for mediation and will not start mediation if they think it is not appropriate.

Anything you talk about during mediation will usually stay private and will not be reported to the court unless issues of child protection or alleged criminal offences are raised. There is a fee for mediation but you may be able to get legal aid to help pay for it.

If you decide that you still want to go to court, you will need to provide the court with evidence that you have either attended a MIAM or are exempt from attending a MIAM. If you have attended a MIAM the mediator who conducted the meeting must fill in the relevant section on form C100 to confirm your attendance and sign their name. If you qualify for a mediator’s exemption the mediator must state which exemption applies and sign their name. If you yourself wish to claim a MIAM exception then you must state which one applies. You do not need to ask a mediator to sign the form if you are claiming an exemption. Find your nearest family mediator.

Asking for a court order

Read leaflet CB1 which tells you about the different court orders you can ask for, who can apply, and how to fill in the forms. Depending on the kind of order you want, there could be different forms to fill in. You can get leaflet CB1 online or from any family court office.

To begin the court process you will normally need to fill in form C100 to ask for one or more of the 3 types of court order set out in section 8 of the Children Act 1989. The 3 types of court order are as follows.

Child arrangements order

A child arrangements order decides with whom a child is to live, spend time or otherwise have contact (which can include through letters or telephone calls), and when this should take place. For example, if your child lives with your ex-partner and you want to see your child at weekends, or you cannot agree which parent the child is to live with, you might want to apply for a child arrangements order.

Specific issue order

A specific issue order relates to something specific that either parent raises about the way the other parent is looking after the children. For example, you and your ex-partner may not be able to agree on where your children should go to school.

Prohibited steps order

A prohibited steps order stops a parent from doing certain things without the court’s permission. For example, you (or your ex-partner) might need to get the court’s permission before taking the children abroad.

You should fill in a C100 form if you want to apply for any of these orders. You can also get a C100 form from your court.

If you apply for a court order you must also pay a fee. You can read about the different types of application, and how much you will need to pay, in leaflet EX50. You can also get this from the court.

What the court will do

The court will try to help you and the other parent to agree a positive, joint approach to looking after your children. You are still jointly responsible for making decisions about your children and this does not stop just because you have split up with the other parent. It is usually best if you can reach your own agreements (with the help of the court if needs be) rather than the court having to decide for you. There are many different arrangements that a court can order for families.

What the court orders will depend on the details of each case, which can be different for each family and each child. When you are talking about your case in court, it is important to focus on what your children need. The court will always put your children’s best interests first and do what it considers to be best for them, and this might be different from what you want.

Representing yourself in court

Since April 2013, most people do not qualify for free legal help or representation at court in family disputes unless they can provide written evidence of domestic violence or child abuse concerns. If you do not have this type of evidence and you come to court, you will need to pay for a lawyer to represent you if you decide you want to be legally represented, or will need to represent yourself. There are other support services available – for example, you could contact Citizens Advice as they may also be able to offer some help with your dispute.

A law centre, advice agency or Citizens Advice will be able to tell you whether you qualify. Check whether you might be eligible for legal aid. The service is free to use and is available 24 hours a day and will give you details of how to contact Civil Legal Advice or where you can get face-to-face advice (if appropriate). If you are not eligible for legal aid, it will tell you where you can get more information or advice to help you.

If you do not have a lawyer, you will have to speak for yourself in court – you may hear or read yourself referred to as a ‘litigant in person’. You will need to decide yourself about how to put your case to the court. Court staff can tell you where to get court forms, leaflets and guidance on children and the family courts and can explain the court process, but they are not allowed to tell you what you should do about your case.

When you reach court, your case may be heard by a judge, a legal adviser or by a panel of magistrates. It may take more than one hearing to settle the dispute or for the court to make an order.

The court understands that many people cannot afford a lawyer and may therefore decide to represent themselves in court. The judge, legal adviser or magistrates hearing your case will not think this is unusual and the court will do all that is reasonable to make sure that you have a fair hearing. The court will not expect you to know family law, but you will need to prepare your case as carefully as possible so that the court is clear about what you want and why.

You can get more information about representing yourself in court.

Preparing for court

It is very important that you fill in your form C100 properly before sending it to the court, including your phone number and the other parent’s phone number, if you know it. If you do not do this, your case could be delayed because the court will need to ask you for more information.

The court will send to you and the respondent, a ‘notice of hearing’, which states the date and time of the hearing and the address of where the hearing will take place. The respondent will also receive a copy of your application.

The court will also send your information to Cafcass or Cafcass Cymru if you live in Wales. Cafcass will give the court an independent view of your children’s best interests. The job of Cafcass and Cafcass Cymru is to give advice to the court to protect and promote the welfare of children who are involved in family court cases. They will look carefully at what you and the other parent have said about violence or abuse and carry out safeguarding checks.

Cafcass may contact either parent (usually by phone) about what has been said on the court forms. They will only ask you to talk about things which are to do with your children’s safety. They will not ask you about the things you cannot agree on − you will be able to talk about these at the first hearing.

Cafcass will tell the court about the results of their checks, which will help the court to decide what will be best for your children. Cafcass will not speak to your children at this stage. This is because the court will decide at the first hearing how to involve your children.

To help you prepare for the first hearing, you may find it useful to make a note of what you would like to say at the court.

Children should not generally come to court unless they are part of the court process, for example if they are a witness, or if you have an appointment for you or your child to meet with the judge. If you have to bring your child for any other reason, please bring an adult friend or family member to look after them while you are in the hearing room, as court staff cannot look after your child.

Have a friend support you at court

You may want a friend or another person to help you prepare your case and be with you at court to support you, or you might want to bring someone who is not a lawyer but knows how the family court works. Anyone who comes to court to help you in any of these ways is called a ‘McKenzie friend’.

You can ask to use a McKenzie friend if you do not have a lawyer, but the court must agree to this. If the court lets you use a McKenzie friend they will be able to:

• give you moral support
• take notes
• help with the case papers
• give you advice in court on points of law or procedure, or issues you want to raise
• help you with questions you might want to ask any witnesses in court

A McKenzie friend is not allowed to act for you in the way that a lawyer would. They cannot speak to the court directly or ask witnesses questions. They are also not allowed to sign documents for you.

You must tell the court and the other parent about your McKenzie friend. This can be in writing before you go to court or at the hearing itself. If you are at the first hearing on your own, you can tell the court that you plan to use a McKenzie friend for all other hearings. You will need to give the court some information about your McKenzie friend, such as their previous experience and any organisations they are a member of. The court can refuse to let a person act as a McKenzie friend if they think that person could make it difficult for them to hold a fair hearing.

If you bring your McKenzie friend to court before you have told the court or the other parent about them, you should introduce them to the other parent’s lawyer or barrister before the hearing starts. When your hearing starts, you should first ask the court to let your McKenzie friend be there with you, as family cases are heard in private. If the court agrees you should then introduce them.

What happens at court

The first hearing will be quite informal and will normally be held in a small room called a ‘hearing room’ or ‘chambers’ which are probably different to the large court rooms you might have seen on television. Everyone at the court will treat you with dignity and respect and it is important that you do the same to everyone involved.

The purpose of the first hearing is to establish what the issues are in your case and look at what can be done to settle them.

At the first hearing

The court will have sent you a date for the first hearing on a ‘C6 notice’. The C6 notice will tell you the time of the hearing and how long it should last for. It will also tell you what time you should get there. You should aim to get there at least 30 minutes early so that you will be calm and not feel rushed. Please be patient if you are asked to wait for a while before the hearing begins.

When you get to the court, find a member of court staff and tell them you have arrived. They may be at a desk or in the reception area to the court. They will ask if you are the applicant (the person who has asked for the hearing) or the respondent (the other person). You should tell them if you have a lawyer or a McKenzie friend with you.

Remember that you can still decide with the other parent to see a mediator at any time, even once your case has started. The judge, legal adviser or magistrates can adjourn (postpone) the first hearing so that you and the other parent can try mediation.

Other people who will be there

The court will require, you and the other parent to come to the hearing. The judge, legal adviser or panel of magistrates, someone from Cafcass and a mediator (if one is available) will also be there, as well as the other parent’s lawyer, if they have one. You should call the judge, legal adviser or magistrates ‘sir’ or ‘madam’. The court and the Cafcass family court adviser will try to help both of you to reach an agreement. Sometimes, you might be able to agree about your case with the other parent at this stage, so it is very important that you talk to them.

A small number of courts have mediators available at court and if you attend one of these courts, you and the other parent might be offered the chance to discuss your case with a mediator. If you and the other parent agree to try to settle your dispute through mediation, the judge, legal adviser or magistrates can adjourn the case. If you are eligible for legal aid for mediation it will be free, otherwise you will have to pay the costs.

How to behave in the hearings

Try to keep calm and don’t interrupt the person who is speaking. Don’t forget, you will have a chance to say what you think. It may help you to have a pen and paper and any court papers with you. You can also bring your laptop, if you have one. If you disagree with anything that is said, make a note of it so that you remember to mention it when it is your turn to speak. If you have a McKenzie friend, they can help take notes of what is being said.

You will have a chance to give your side of the story but you must let the other person finish speaking to the court first.

Giving evidence is where you tell the story of your case. You may be questioned about the information that you have provided to the court. You will probably be asked to take an oath or affirm (make a formal declaration) to promise that what you say to the court is true. The court may also allow you to ask questions about what the other person has said to the court – this is known as ‘cross-examination’. If you give evidence first, talk about the history of your case clearly. When it is your turn, you can ask the other person questions about their case. If the other parent gives evidence first, make sure your questions are about what they have just said and not about your own case. You will have a chance to talk about the things you want to say later.

If you accuse the other parent of something serious, the court will probably want you to provide evidence that what you have said is true. You should not say anything about the other parent which is not true.

For further information about some of the words and expressions used in private children cases please refer to leaflet CB6. You can also get a copy of the CB6 leaflet from your court.

Reaching an agreement in court

If you can agree about your children, the court will decide whether you need a court order to help you make this work. The court will write an order based on what you have agreed. This is called a ‘consent order’. If you don’t agree but the court thinks there should be an order, it will write an order about the decisions it thinks are best for your children. Check the order carefully and make sure it says what the court has decided. It is much better that you take part in working out any agreement about your children, rather than have an order given to you that has been decided by the court on its own. An agreement made between the parents is much more likely to work than an order decided by the court.

If the court thinks that it would be helpful for both of you to talk for longer, it can take a break (called an adjournment) so that you, the other parent and Cafcass can talk about what are best for your children. The court may also direct that you both go to a mediation information and assessment meeting if you haven’t already done this and the court thinks that there is no reason why you should not go. You will normally see the judge, magistrates or legal adviser later that day, but sometimes you will have to return on another day.

It is not always possible for everyone to agree. When this happens, the court will decide if there should be another hearing and if so, when that should be. The court will make an order saying what the next hearing will be about and what reports or statements are needed to help them decide about your case. The court will tell you the dates when you should send your papers to them and to the other parent. If the case is fairly straightforward, the court might, at the first hearing, set the timetable for dealing with the whole case.

The court will also decide at the first hearing the best way to find out how your children feel about the situation and what they would like to happen. The court may order a Cafcass report (known as a ‘section 7 report’). This means an officer from Cafcass will interview you and the other parent separately. They are also very likely to need to meet with your children, alone if your children are old enough, or with either you or the other parent (or both of you). You will also need to send your statements to Cafcass if they are preparing a report. If your children are already receiving services from the local authority children’s services, the court may decide to ask the local authority to prepare the report.

The Cafcass officer may ask your child if they would like to meet with the judge to help your child understand what is happening. A meeting can also be requested by your child or by the judge. If a meeting is offered or requested, you will be asked to give your views on whether the meeting should take place but the judge will make the final decision. The court will explain the purpose of the meeting.

If the other parent has a lawyer, the court may ask them to draft any order made. If the other parent’s lawyer agrees to do this, you should check the order before it is returned to the judge or legal adviser in case anything has been left out or needs to be changed.

Writing down your case

If the court asks you to prepare and send in a statement, you should be clear about what you want and why, but try to keep it brief. A statement simply gives the court a short background to your case. You should say why you needed to apply for the court’s help, what you want the court to do and why you feel this would be the best thing for your children. It is a good idea to say what you and the other parent are agreed on and what you still disagree about. This will save the court and you wasting time. If you do send a statement to the court, you will also need to send a copy to the other parent (or their lawyer, if they have one). You should always keep copies of any documents you send.

The court will be able to understand your statement more clearly if you type it up on A4 paper. It is helpful to set out the events in date order and number each paragraph. Always write the court name and your case number on anything you send to the court. If you know the date of the next hearing, you should write it on your papers too as this will help the court staff to get them on the court file quickly. You should sign and date all your papers.

Your papers will normally need to arrive at the court two clear working days before the hearing, but sometimes you might be asked to send papers to the court or the other parent earlier than this. Take some spare copies of your statement with you to the court so that other people in the court can see it. Make sure you sign and date the copies and keep one for yourself.

Allegations of harm

If you have said that the other parent has been violent or abusive, this is known as making ‘allegations of harm’. Harm is not just about the way that the other parent has treated you, it is also about whether your children were there at the time and the effect that seeing or hearing violent or abusive behaviour may have had on them.

If you have made allegations of harm against the other parent and you do not feel safe facing them in the court building, you should let the court know as soon as possible before your hearing. The court can make arrangements to help make you feel safe, such as providing separate waiting areas for you and the other parent, or arranging for you to give evidence from another location using a video link. Please note that specific arrangements will be subject to local building constraints and a request would need to be made to the court giving as much notice as possible, but no less than 10 days before the hearing is due to take place (unless it is for a short notice urgent hearing) as permission of the judge may need to be obtained.

If the other parent denies the allegations of harm, the court will decide whether a ‘finding of fact hearing’ is needed. A finding of fact hearing is when the court decides whether the things that you have said the other parent has done are true. The court will then decide whether your children or any other person might be at risk if they agree to make the order you have asked for. It is important to remember that a finding of fact hearing will decide whether something is true, based on whether the evidence shows it is more likely to have happened than not.

The final hearing

The final hearing is quite different from the other hearings you will have been at and will probably take place in a larger court room to allow room for any witnesses or experts that need to attend. A final hearing can be stressful for everyone involved in the case. This is your opportunity to convince the court that you are doing your best to protect your children’s best interests.

If the other parent has been using a lawyer, you will probably have met them at the earlier hearings. For the final hearing they may have a barrister who you won’t have met before. If there is anything that you think it would be helpful to talk to the barrister about outside of the court room, you should feel free to speak to them. You may find that the barrister comes to speak to you for the same reasons. Anything that you can settle in this way can often help the court to reach a decision faster.

Even if you don’t want to talk about your case, it is worth introducing yourself to the other parent’s barrister. If you have papers to give them, you should do so before the hearing starts. Court staff can help you if you are unable to find them or don’t want to talk to them or the other parent direct. There is no need to feel put off by the other parent’s barrister. The court expects everyone to treat each other politely and with respect.

Preparing and using bundles in private law cases

Why a bundle of documents is important

It is very important at court hearings that everybody has a ‘bundle’ containing the documents that are needed to deal with the issues the court has to decide. It is also important that each bundle contains only the documents relevant at that hearing, in the same order and with the same page numbers. Otherwise time is wasted while parties and witnesses find documents that are being referred to.

Who prepares the bundle

Normally the applicant prepares the court bundle. If the applicant is not represented by lawyers but another party is, that party’s lawyers will prepare the bundle. If nobody is represented by lawyers, the court will decide who should prepare the bundle.

Contents of the bundle

Get together into a ring binder or lever arch file the documents that are relevant to the issues the court has to decide at that hearing. You should agree these with the other party. Send them a list of the documents you suggest should be included (an index). If you cannot agree, ask the court whether a document should go into the bundle or not.

Do not include correspondence, medical or financial records, notes of contact visits, social services files or police disclosure. If you think one of these types of document are relevant and should go in the bundle you should ask the court for permission to include it. You will need to explain why you think it is relevant. The bundle should be divided into sections A to E.

A - Preliminary documents

These are:

• An up-to-date summary of the background confined to the matters relevant for that hearing and the management of the case (called a case summary) – this should not be longer than 4 pages.
• A statement of the issues to be decided at this hearing and at the final hearing (you should agree this with the other party).
• A position statement by each party setting out what they say should happen and the orders they would like made at this hearing and at the final hearing.
• An up-to-date chronology (setting out relevant events in date order).
• Any written submissions to the court about the issues to be decided at the hearing. (All these documents should be cross-referenced to pages in the bundle. See the note below.)
• A list of the documents you and any other party think the judge really needs to read before this hearing.
• How long you think the hearing should last (the court probably will not expect this from you as a litigant in person).

B – Applications and orders

Any applications made to the court and orders made by the court that are relevant to the issues to be decided at the hearing.

C – Statements and affidavits

Only those that are relevant to the issues to be decided at the hearing.

D – Experts’ reports

If there are any.

E – Any other documents

That you agree are relevant for the hearing or the court directs should be included.

Each page in the bundle must be numbered in the bottom right hand corner. So the preliminary documents will start at A1, A2 and so on. The applications and orders section will start with B1, B2 and so on.

Try to cross-reference the preliminary documents with the pages in the bundle. For example, if the case summary mentions something dealt with in a statement at page C28, insert [C28] in the case summary at that point.

The bundle should not exceed 350 pages. Ask permission from the court before exceeding this limit. Print on one side of the page only.

Once you have completed the bundle make an index of each of the documents and their pages numbers. That goes at the start of the bundle, before everything else.

Make sure the outside of the bundle is clearly labelled with the name and number of the case, where it is to be heard, the hearing date and time (and the name of the judge if you know).

What you do with the bundle

First, send a copy of the index to any other party. They may ask for a copy of the complete bundle. If so, you should provide a copy, although they should pay any reasonable copying charges that you incur.

Next, make sure you deliver the bundle to arrive at the court no later than 2 working days before the hearing. If anybody is going to give evidence at the hearing, deliver 2 bundles – one for the judge and one for the witnesses.

If the hearing is before magistrates you will need to deliver four copies of the bundle (plus an extra one for any witnesses).

If the preliminary documents are not ready, deliver the bundle to the court anyway. Make sure any preliminary documents are delivered to the court by 11am on the working day before the hearing at the latest. Make sure you bring your bundle to the court for the hearing.