Child law broadly falls into two categories: public law and private law.
Public child law refers to cases brought by the state under section 31 of the Children Act 1989. These cases tend to involve serious concerns for a child's welfare, such as domestic abuse, that have come to the state's attention. Various agencies may have been involved in the family's life for some time before the state makes a Section 31 application.
Private child law refers to applications made under Section 8 of the Children Act, usually when two people with parental responsibility have parted ways and cannot agree on childcare arrangements. Direct concern for the child's welfare may or may not be present in these cases, and abuse between those with parental responsibility may or may not be present. Nevertheless, even if abuse is an issue between those with parental responsibility, this will not impact the Court's judgement unless it impacts the welfare of the child. The welfare of the child will be the paramount consideration when the court makes its final decision in private child law arrangement cases.
At DACLAS, we specialise in private child law cases where domestic abuse is alleged by one or both parties. This is, unfortunately, surprisingly common. Below, we intend to run you through the private child law process from start to finish, while also highlighting the changes to the process you should expect as a victim of domestic abuse and the evidential requirements you would have to meet.
The Child Arrangements Programme is the overarching framework behind private chid law cases. Details of the CAP can be found in Practice Direction 12B. For reference we have reproduced the summary of the CAP's purpose from the Practice direction below:
"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 in reaching safe and child-focused agreements for their children, where possible, outside of the court setting. If parents/families are unable to reach an 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."
As you can see, the main objective of the child arrangement programme is to resolve cases as quickly as possible and, if possible, avoid the need for court hearings. Should a case go to court, then the courts' objective is to resolve the dispute swiftly.
We will now start to examine the process of the child arrangements programme from start to finish, taking account of the difference in procedure when domestic abuse is an issue.
Essentially, the pre-action protocol refers to the key steps the court will expect parties to take before starting court proceedings. Should the case go to court the judge will expect parties to have tried everything they can to agree their child arrangements outside of court.
Usually, the first step in the preaction protocol will involve both parties attending a MIAM. At this meeting, a mediator will:- explain about mediation and other forms of non-court dispute resolution,- indicate what forms of non-court dispute resolution may be suitable,- provide information about those forms,- assess whether there has been, or is a risk of domestic abuse or harm to a child,- assess any eligibility for legal aid for mediation. A MIAM should be held within 15 working days of contacting the mediator. At the MIAM, an authorised mediator will assess whether the dispute might be suitable for non-court dispute resolution and discuss which option might work best for the parties.
Should the mediator at the MIAM consider the dispute suitable for Non-Court Dispute Resolution, the parties have several options available. These can be divided into three broad categories: support to make an agreement, neutral evaluation, and/or arbitration.
Support to make an agreement can work best when both parties want to make an agreement but need help from an unbiased, independent source. Examples of this option include mediation run by a professional mediator, a collaborative approach whereby each party has a legal representative who all meet to come to an agreement on child arrangement issues, and Lawyer negotiation whereby a party may have a lawyer to negotiate on their behalf without needing to attend themselves in person.
Neutral evaluation is when a neutral professional with experience in the dispute evaluates the parties’ circumstances and suggests ways forward. Solicitors or mediators can arrange a neutral evaluation.
The final option to satisfy the pre-action protocol is arbitration. In arbitration, the parties jointly choose a qualified, impartial professional to hear both of their viewpoints and reach an impartial decision. Parties can refer themselves to arbitration or be referred by a solicitor or a mediator.
If the case progresses to court, parties will be required to tell a judge about the non-court dispute resolution methods they explored and why they were unsuccessful. However, an applicant does not have to attend a MIAM in a few specific circumstances. These exemptions primarily relate to the safety of the family involved, for instance, if there is evidence of domestic abuse, risk of harm to a child or risk of the removal of a child from the United Kingdom.