Children Issues

The Act also deals with Parental Responsibility, disputes over schooling, religion, removal from the jurisdiction temporarily or in some cases, permanent removal (Specific Issue Orders) and also orders preventing certain types of behaviour (Prohibitive Steps Orders).

The above are often termed ‘Private Law’ Remedies.

The same Act also covers ‘Public Law’ Remedies in the form of Care and Supervision Orders and Local Authority Services for children in need, for safeguarding and the welfare of children.

The guiding principle under the Children Act 1989 is in section 1 (1) of the Act and the welfare of the child is the court’s paramount consideration.

Private law disputes are increasingly complex and present a number of challenges; with arguments about shared care, parental alienation, fact finds, children’s wishes and feelings, neurodiversity issues and gender issues all providing part of a rich tapestry of complex matters that couples have to navigate upon separation and divorce.

Helping clients to understand the process, the timings, establishing what is important and what is not of primary importance, is part of the key role of the Legal Adviser in such situations. Also offering information about Alternative Dispute Resolution including Mediation in such situations is vitally important. Since the pandemic the Family Court has devised certain lines of approach to streamline the court process and try and keep parties out of Court. It is now compulsory (save for very limited exceptions) to attend a Mediation Information Assessment Meeting (MIAM) before accessing the Court, to explore whether the case is capable of resolution within mediation or some other form of Non Court based Dispute Resolution first. If successful in mediation, parties can apply to the Court for their mediated solution to be converted into an Order of the Court. Enforcement provisions will still apply to an agreed order, and so any mediated solution provided it is converted into an order of the court, still has teeth.

As a result of changes to the Family Procedure Rules and Practice Direction 3A that came into force on 29 April 2024 all parties contemplating an application to the court must first attend a MIAM ( Mediation Information and Assessment Meeting). The exceptions to attending a MIAM are now few and far between and court applicants are required to complete a form FM 5 to show to the court, after issuing their application, setting out why mediation has in their opinion failed or failed to be pursued.

This form is an indication of just how far the court will go to promote Non Court Based Solutions in the interests of saving time, costs and freeing up valuable court time for the most complex matters. There is also now power for the court to consider making costs orders and sanctions against parties who fail to follow this.