A guide from your local family law solicitors serving Oxfordshire and area
The expert team of family law solicitors at SMQ Legal have put together this guide of common terms that are found when it comes to cases surrounding family law. We hope that you find it helpful and if you require any further information please don’t hesitate to give us a call or complete the enquiry form below.
We provide a personable service that not only gives you sound legal advice from our family law solicitors, but lends you the support to make informative decisions and get through the process and avoid any unnecessary distress for you and your family.
We offer legal aid for family law and advise on both public and private children law proceedings. Please see FAQ’s at the bottom of this page for more information to help answer your questions.
Here is a guide to some common family law terms:
INTERIM CARE ORDER (ICO)
At the beginning of care proceedings, the Council may seem fit to ask the Court to make a temporary care order or ‘Interim Care Order (ICO). This allows the Local Authority to share parental responsibility of the child/children the ICOs are made for. If the Court agrees an ICO should be issued the council can take the child into care on a temporary basis. This can be for up to 8 weeks to begin with. Parents will be invited to put forward alternative carers in the event the Court does not agree the child/children should be returned to parents’ care.
By not putting alternative carers, this does not mean the Courts will automatically return the child/children to parents’ care. If the Courts truly believe the child/children are at risk of harm whilst in parents care, the child/children will remain in foster care.
CHILD ARRANGEMENT ORDER
A Child Arrangement Order (CAO) will be granted by the Court if the parents are unable to decide the arrangements of a child. The order will decide:
- Where the child lives
- When the child spends time with each parent
- When and what other types of contact is to take place.
These orders can be made by either of the parties but can also be brought by third parties such as grandparents. This is applicable to any orders issued during Private Law Matters.
SPECIAL GUARDIANSHIP ORDER
A Special Guardianship Order (SGO) is applied to children who are unable to live with their biological parents. It provides children with a secure and legal placement. An SGO gives an individual Parental Responsibility where they previously were not entitled to it. It is important to note that the SGO does not extinguish the Parental Responsibility of those who already have it. The order will last until the child is 18 years old but can be revoked by the Court at any given time. The SGO means the Special Guardian will be the main point of contact and the decision maker of the child in all instances.
EMERGENCY PROTECTION ORDER
An Emergency Protection Order (EPO) allows children to be removed from their accommodation by the person who is making the order. The EPO can last up to 8 days and can continue to be extended for up to another 7 days. The EPO is usually granted by the Court if the Local Authority believes and can prove the child is in immediate need of protection from significant harm or risk of significant harm. The grounds for an EPO are found under Section 44 of the Children Act 1989.
PROHIBITED STEPS ORDER
A Prohibited Steps Order (PSO) prevents one of the parties from doing something specific action that relates to the child. And this order will specify the period in which the person is prevented from doing something. For instances, preventing a child from being removed from the country. Preventing a child from being removed from their school or ensuring the name is not changed. The PSO will last until the child is 16 years old, unless in exceptional circumstances. The order will end if the Courts decide to issue an Interim Care Order. As with any Order, if a PSO is breached, the party will be in contempt of Court.
SPECIFIC ISSUES ORDER
This order is also granted in the event parents are unable to amicably decide what happens to the child/children should a parents relationship breakdown. Whilst the CAO dictates the child’s living arrangement. A Specific Issues Order (SIO) is used to determine the specifics of how a child is being brought up, for example the include includes:
- What school the child should go to
- If the child is to have a religious education.
SUPERVISION ORDER
A Supervision Order is obtained by the Local Authority which allows a child to be supervised by social services, whilst still in the family home or placed with a relative, to ensure the child is well cared for. A supervision order can only be granted if the Local Authority believe:
- A child is suffering harm or at risk of suffering harm.
- The harm is being caused by the parents
- The parents are unable to protect the child from harm as they are unable to control the child.
ADOPTION ORDER
An adoption order permanently cuts the legal ties between a child and their birth parents (with the exception of a partner adopting a child) The biological parents will automatically be a party to the proceedings, unless they have given notice they do not wish to be informed of the proceedings. An adoption order gives full parental responsibility for a child/children to the adoptive parents.
PRE-PROCEEDINGS
These take place before court proceedings commence. They are a chance for individuals to agree to a plan to address the concerns raised by the Local Authority or Children Services. The aim of Pre-Proceedings is to avoid care proceedings.
Pre-Proceedings meetings address the concerns by children services. The meeting is designed to set out the expectations of the parents. The Local Authority will offer extra support for the family to give them the help they need to make the changes necessary. During the meeting the parties will explore what help and support can be provided by other family members and friends.
If parents are unable to meet the expectations of Children Services, the Local Authority will issue care proceedings.
CARE PROCEEDINGS
The Council will issue care proceedings if they are concerned about the welfare of a child. Usually, the Local Authority will apply for a ‘care orders’ which allows them to share parental responsibility of the child/children they are worried about. During care proceedings if they Court believe the child/children should not return to the parent’s care, they can apply for a ‘placement order’ which would allow the Court to consider the child being adopted.
FIRST HEARING DISPUTE RESOLUTION APPOINTMENT (FHDRA)
This is the first court hearing after an application to the court has been made, in a Private Family Law matter. The Court will consider the initial safeguarding checks on the family and make attempts to resolve the matter. A CAFCASS Officer may attempt to help reach an agreement, but no evidence is required at a FHDRA. The Court will make orders to consider agreements of contact. During this hearing, the Court will also consider whether any additional further directions are needed such as a report from CAFCASS.
CASE MANAGEMENT HEARING
A case management hearing is usually one of the first hearings to take place during care proceedings. During this hearing, the Court will review both the application being made and any proposed care plans for the child. The applicant will propose the main issues in the case, to which the other parties can submit their responses. The Court will also set a timetable for the case.
The Court will aim to complete care proceedings in 26 weeks however the courts do allow for extensions to ensure things are dealt with in a fair manner. Extensions can only be granted for 8 weeks, but the Courts can allow for more than one extension. If one or more of the parties believe the case needs to take longer than 26 weeks, they can make an application to the court.
ISSUES RESOLUTION HEARING
This hearing would take place during care proceedings once all the evidence has been circulated to see if the matters presented can be agreed. The Court will examine all the assessments that have been filed by the parties, and consider
the final evidence provided by Children’s Services. During an IRH, the Court will identify any issues that have not yet been resolved that will need to be determine at the final hearing. They will also consider how long these issues will take to resolve. During an IRH the Court will aim to reach an agreement about any issues that have not been resolved such as the child’s final placement and their contact.
DISPUTE RESOLUTION APPOINTMENT
A Dispute Resolution Appointment usually occurs after further information has been provided, such as a CAFCASS report. The Court will identify and analysis the issues to try and find a resolution. The Court will try and encourage parties to resolve the matter. If the matter cannot be resolved, the Judge will fix the case for a final hearing.
FACT-FINDING HEARING
This hearing is specific to assess the evidence surrounding an allegation made by a party in the proceedings. The purpose of the hearing is to allow the Judge to decide whether the allegations are true or false. The process will usually involve parties being cross-examine. Once all evidence has been presented by the parties, the Judge is encouraged to conclude whether they believe the alleged incident happened or not.
In most cases, a fact-finding hearing is suggested where there have been allegations of domestic abuse. Not just between parents because domestic abuse is inclusive of neglect, emotional and physical harm as well as violence. Each party will be invited to present their evidence. the Judge will decide on a balance of probabilities whether they believe the allegations to be true or false.
Prior to a Fact-Finding Hearing, the party making the allegation will be required to send a list of all allegations they are presenting to the Court. This includes each incident dated, with details of what happened and where. The list should include details of any witness to the incident and whether the police or medical services have any involvement. The list will also include a statement of the incident from the party. The party whom the allegations are against will be required to prepare a response to the allegations. This will include their perspective of the incident and whether they deny the allegation occurred.
HYBRID HEARING
Since COVID 19, a Hybrid Hearing is a mixture of remote and in person attendance at Court. During a Hybrid Hearing the Judge will be physically present in the Court room. Some parties may be granted access to attend in person, but the rest of the parties will attend remotely, via a CVP link.
FINAL HEARING
During a Final Hearing, the Judge will consider the submissions from the parties and the evidence presented by the parties or CAFCASS reports provided by the Local Authority. If the case has included a Fact-Finding Hearing, the Judge will also consider the evidence presented during that hearing.
The Judge will assess the information and evidence to conclude what happens to the child/children after proceedings. Depending on the outcome of the case, the Judge may be required to make an order such as a Child Arrangements Order which indicates contact arrangements and details of the residence in which the child is due to reside in. These orders are not always the same for all children in the proceedings however each order will be specific to that child.
FAMILY DRUG AND ALCOHOL COURT
The Family Drug and Alcohol Court is an alternative type of court used during care proceedings, designed to work with parents, who are struggle with drug and alcohol misuse. The aim of FDAC is provide the parents with support, not just with drug and alcohol misuse, but to also offer support with mental health illnesses and experiences of domestic abuse. During FDAC hearings, parties are also given the opportunity to attend non-lawyer meetings which allows the parents to speak with the drug directly.
Parents that join FDAC are given a ‘trial for change’, this is a period where personalised plans are created for the parents, family members and professionals, as part of their support network. This allows parents and professionals to work together, in a way that works for them to make the necessary changes. Towards the end of proceedings, the FDAC team will give a recommendation to the Local Authority and the Court on whether they believe they parents can safely care for their child/children.
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Family & Children Law FAQ’s
What does PR mean on a practical basis?
In practical terms Parental Responsibility means the power to make important decisions in relation to a child – for example, decisions about whether a child should receive medical treatment, changing a child’s surname, travelling abroad with a child and which school they should attend.
What are my rights as a parent?
Family law does not focus on the rights of a parent, but of ‘parental responsibility’ for a child. A mother always has parental responsibility for her child. A father has parental responsibility for his child in the following circumstances:
- he is married to the child’s mother when the child is born; or
- he marries the child’s mother; or
- his child was born after 1 December 2003 and he is named on the birth certificate when the child’s birth is registered
- his child’s birth was registered before 1 December 2003 and he was not named on the birth certificate but the birth is re-registered to include his name with the mother’s consent; or
- he has a parental responsibility agreement with the mother; or
- he has a parental responsibility order from the court; or
- he has a residence order from the court; or
- he becomes the child’s guardian.
What happens to the children if we split up?
The arrangements for your children if you separate will be dealt with in a similar way whether you were married or not. Initially you should try to agree on who the children will be with and when. If an agreement cannot be reached then you might want your Solicitor to set out your proposals in a letter. If an agreement cannot be reached via Solicitor’s correspondence then your Solicitor will discuss with you the possibility of making a referral to Mediation. If Mediation is not suitable or you fail to reach an agreement with the assistance of a Mediator then you will have to consider making an application to Court to have the matter determined by a Judge. The Court will make its decision based upon what it feels to be in the best interests of your particular children. The Court determines this by reference to a welfare checklist which includes but is not limited to the following:
- The ascertainable wishes and feelings of the children concerned considered in the light of their ages and understanding;
- The children’s physical, emotional and educational needs;
- The likely effect on the children of any change in their circumstances as a result of the Court’s decision;
- The children’s ages, sexes, backgrounds and any other characteristics of the children which the Court considers relevant;
- Any harm that the children have suffered or may be at risk of suffering;
- The capabilities of the children’s parents and any other person in relation to whom the Court considers the question relevant in terms of their abilities to meet the children’s needs;
- The powers available to the Court.
What if we can't agree on who the children live with?
Parents should try and decide together with whom the children should live and how often they should see the other parent. If you cannot decide then you should consider attending Mediation in the first instance. Before an application can be made to Court you must attend a Mediation Information and Assessment Meeting (MIAM). If Mediation is not an option, then the next stage would be to issue an application at the Court.
What is a MIAM?
If you are in dispute with your ex, or are having difficulties settling your separation, you may be thinking about court proceedings. But before an application can be made to court, you are now required to attend a Mediation Information Assessment Meeting (MIAM). The aim of the meeting is to see if mediation could be used to resolve your difficulties, rather than going straight to court. Courts are required to know that mediation has been considered before they are able to proceed with your application.
MIAM stands for Mediation Information and Assessment Meeting.
The MIAM is a meeting between you and a mediator to find out if there are alternative ways to find solutions to your problems.
The mediator will explain to you:
• what your options might be;
• what mediation is, and how it works;
• the benefits of mediation and other appropriate forms of resolving disputes;
• the likely costs of using mediation;
• if you are eligible for free mediation and Legal Aid.
The meeting can be between the mediator and just you, or with your ex-partner too.
The meeting usually lasts around 45 minutes.
You may be eligible for Legal Aid to cover the cost. But if not, your local service will be able to advise you of their charges.
If, after your MIAM, it’s considered that mediation is not suitable in your case, the mediator will supply you with a form. This form confirms that you have attended a MIAM. A Court will then allow you to issue proceedings.
My ex-partner won't let me see my children, what can I do?
In the first instance you should try and speak to your ex-partner to obtain an explanation of why they are not allowing you to see your children. If an agreement cannot be made for contact to restart, then you should consider attending Mediation to benefit from an independent third party acting as a facilitator for you. If this is not successful you should consider making an application to the Court for a Child Arrangements Order.
Whilst Court should be treated as a last resort, it is sometimes the only viable option because the only person who can legally force your ex partner to allow you to spend time with your children is a Judge.
How do we work out child maintenance?
If you want to agree child maintenance between yourselves you can, this is called a family-based arrangement. If you need help you can contact the Child Maintenance Options Service cmoptions.org. If you cannot agree payments then you will need to contact the Child Maintenance Service.
Can the children be moved away by a parent with shared custody?
If there is a Child Arrangements Order/Residence Order in force with respect to a child, no person can remove the child from the Court’s jurisdiction (England and Wales) without the consent of every person with parental responsibility, or without leave of the Court.
However, if there is a Child Arrangements Order/Residence Order in favour of one parent, this empowers them to remove the child from the country for no longer than a month, without the requirement to obtain consent (as long as it does not breach the other provisions contained within the Order). This enables parents to take their children on holiday.
The situation with shared residence is less clear, as the children live with both parents. Generally, if the Order says that the child resides with both parents then they will both be able to take the child out of England and Wales for up to one month (as long as it does not breach the other provisions contained in the Order).
In circumstances where one parent wishes to move with a child outside of England and Wales and no consent can be obtained from the other parent with parental responsibility then they would need to apply for Leave to Remove the child from the Country. Equally, the parent who would be left behind could apply for a Prohibited Steps Order.
What is a Prohibited Steps Order?
A Prohibited Steps Order ‘PSO’ is an Order that provides that no step that could be taken by a parent in meeting their parental responsibility for a child, and that is of a kind specified in the Order, shall be taken by any person without the consent of the Court.
A PSO is concerned with a single specific issue and imposes a restriction, for example, on changing a child’s surname, removing a child from the UK (where there is no child arrangements order in force) or in connection with the medical treatment of a child.
When considering an application for a PSO the child’s welfare will be the Court’s paramount consideration and it will have regard to the statutory checklist. The court will also have to be satisfied that it would be better for the child to make an Order than not.
The Court must also consider the rebuttable presumption that involvement of each parent (of some direct or indirect kind but not any particular division of a child’s time) in the child’s life will further the child’s welfare.
What is a Child Arrangements Order?
A ‘child arrangements order’ decides:
- Where your child lives;
- When your child spends time with each parent;
- When and what other types of contact, like phone calls, take place.
‘Child arrangements orders’ replace ‘residence orders’ and ‘contact orders’. Parents with these orders don’t need to re-apply unless variation is required.
‘Parenting Plans: Putting children first – a guide for separating parents’ is a free booklet designed to help parents reach agreement about arrangements for their children following separation or divorce. You can get a copy from your local family Court or you can download a copy from www.tsoshop.co.uk, search for ‘parenting plan’.
How do you enforce a Child Arrangements Order?
The timing of such applications needs to be considered carefully. Where it is alleged that the terms of an order have been breached the court will need to investigate the nature of any breaches and establish the reasons for them. In instances where the court takes the view that the breaches have occurred without good reason there are a number of enforcement orders that can be made.
A range of Enforcement orders can be made:
- A person in breach of the terms of an order can be ordered to carry out unpaid work.
- Where a person has caused financial loss as a result of breaching an order they can be ordered to pay compensation.
- In cases of significant and persistent breaches the court can order a change of residence for the child/children.
Even where there are clear breaches of a child arrangements order obtaining an enforcement order is not always straightforward. The court must always have primary regard to the welfare of the child/children involved. In some instances, imposing an enforcement order would negatively impact on the child.
The courts do appear to be taking a tougher stance in cases of non-compliance with Child arrangement orders and in recent years there have been a number of reported cases where the parent in breach has been committed to prison for a short term or where the main residence of the child has been switched to the parent seeking contact.
What is a Specific Issue Order?
A specific issue order may be made under section 8 of the Children Act 1989 (ChA 1989). It gives directions for determining a specific question that has arisen, or that may arise, in connection with any aspect of parental responsibility for a child.
It can be used to determine questions about a child’s upbringing, eg whether the child should go to a state school or be educated privately or in relation to medical treatment including immunisation. A specific issue order can be made on its own or with a child arrangements order (CAO).
What is a Fact-Finding Hearing?
A Fact-Finding Hearing is a type of Court hearing that considers the evidence surrounding allegations, and the Court will make a decision as to whether alleged incidents did or did not happen. Evidence is heard, which will normally include both parties being cross-examined. After having heard the evidence, the Judge will decide whether the alleged incidents happened or not.
Most commonly, these allegations concern domestic abuse. Domestic abuse includes neglect, emotional and physical harm and violence.
When making a decision the Judge has to consider the allegations made by each side. It is for the person making the allegations to prove that they are true. The Judge will consider on the balance of probabilities whether the allegations are true or not. This means that the Judge will consider whether it is more likely than not that the allegations are true
What is a Final Hearing?
At the Final Hearing the Judge will consider all of the available evidence, this will include evidence provided by the parties, any relevant Cafcass reports and information that has been provided by third parties such as police disclosure. If there has been a Fact Finding hearing the Judge will also take into account, any findings made in the course of those proceedings.
Using all of this information the Judge will assess and come to a decision guided by the welfare of the children involved. The Judge will use the evidence before them in conjunction with the ‘welfare checklist’ in order to come to a decision which is in the best interests of the children.
The Judge may decide to make no order or may consider that a Child Arrangements Order detailing residence and/or contact arrangements is necessary.
Who are CAFCASS?
The Children and Family Court Advisory Support Service (CAFCASS) represent children in family court cases in England and Wales and promote the welfare of children and families.
What is a Section 7 Report?
An independent social worker involved in cases where an application has been made to the Court in accordance with the Children Act 1989 writes a report in relation to the case and provides an evaluation and assessment of the circumstances of the case.
The Cafcass worker will spend time not only with you and ex-partner to observe and take note of any concerns but will spend time with your children alone. Alongside, speaking to family members and other people such as; teachers.
If you have concerns with regards to the contents of the section 7 report, this can be contested with the Court.
What is a Section 37 Report?
A Section 37 report is ordered by the Court in order for the Local Authority to assess whether a child or children are in significant harm. The outcome of this report will determine whether Care Proceedings will need to be initiated.
Why has the local authority issued care proceedings?
There are a number of reasons why the local authority may issue court proceedings; it could be one or a number of issues of concern including neglect, emotional harm or physical harm or parental issues with drug/alcohol misuse, mental health issues or low cognitive functioning.
There are steps the local authority may take prior to proceedings starting in which you will be involved, called pre-proceedings.
What can pre-proceedings involve?
- Your child may already be in the care of the Local Authority following an agreement by you known as a ‘Section 20’ agreement. If this is the case and you want your children returned to your care, you can withdraw your consent. If, however, the Local Authority does not think your children should be returned to your care then they may apply to the Court for an Order.
- The Local Authority may convene a Child Protection Case Conference to which various agencies will be invited, for example, Midwifery, Health Visitors, school representative, GP, Police. The social work team will also be in attendance as may additional family members. This can result in your child being made the subject of a child protection plan OR a child in need plan.
- The Local Authority may send you a letter (known as a ‘PLO’ (Public Law Outline) letter), giving you a last opportunity to cooperate prior to issuing proceedings.
- In the event you receive an ‘Immediate Issue Letter’ your matter will be heard by the Court. If you receive such a letter, please contact us immediately.
What if I can’t afford to instruct a solicitor privately?
If the local authority has issued care proceedings in relation to your children you are entitled to free legal advice. You may also be entitled to be represented under the legal help or legal aid scheme in respect of other matters relating to your children. Please do contact us to discuss your eligibility for legal aid.
What is a Care Order?
A Care Order is made under section 31 of the Children Act 1989. If a Court agrees there is evidence that it is more likely than not that a child is at risk of suffering significant harm, or has suffered significant harm, it may make a Care Order.
The consequence of a Care Order is that the Local Authority (LA) will now share Parental Responsibility with the parents and may impose limitations on how the parents choose to exercise their PR, for example by removing a child to live in foster care.
The LA must still consult with parents and keep them informed of decisions that they want to make. The LA is also under a duty to make sure that parents and children have ‘reasonable’ contact with one another while the Care Order is in force.
An ‘Interim Care Order’ is an Order the Court may make before the final hearing of any application by the LA for a final Care Order. Care proceedings are now supposed to conclude as quickly as possible or in any event within 26 weeks. While the Court is gathering information to enable a decision which protects a child’s best interests, the Judge may need to make an interim order to keep the child safe before considering all the evidence at final hearing.
What is a Supervision Order?
If the Court agrees that there is evidence that it is more likely than not that a child has suffered or is at risk of suffering significant harm, it may make a Supervision Order as opposed to a Care Order. Supervision Orders generally last between 6 months to a year and they mean that a family will have a named social worker who will continue to visit and monitor the family while the Supervision Order is in force.
A Local Authority does not share Parental Responsibility with parents under a Supervision Order.
What is an Emergency Protection Order?
If a Local Authority have serious concerns that a child is at risk of immediate harm, they can apply to the Court for an emergency protection order under section 44 of the Children Act 1989. These orders must only be used in situations of real urgency and can only last for a short period of time (8 days with a limited ability to extend).
What is the role of the children’s guardian?
In care proceedings, the Court will usually appoint a guardian for the child concerned. The guardian will be an independent professional and will advise the court on the child’s best interests.
What is an injunction?
An injunction is a court order that requires someone to do or not to do something.
There are two main types of injunctions available under Part IV of the Family Law Act 1996:
- A Non-Molestation Order;
- An Occupation Order.
A Non-Molestation Order is aimed at preventing your partner or ex-partner from using or threatening violence against you or your child, or intimidating, harassing or pestering you, in order to ensure the health, safety and well-being of yourself and your children.
An Occupation Order regulates who can live in the family home, and can also restrict your abuser from entering the surrounding area. If you do not feel safe continuing to live with your partner, or if you have left home because of violence, but want to return and exclude your abuser, you may want to apply for an occupation order.
Breach of a Non-Molestation Order is now a criminal offence; however, you should still be able to take your abuser back to the Civil Court for breaking the Order, if you prefer this.
If you already have an injunction, you may have a power of arrest attached, and you can also have powers of arrest attached to an Occupation Order. These powers come into effect if your abuser breaks the order.