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What happens at the final hearing of a children case?
As with the DRA, the parties and any representatives will be directed to attend the Court one hour before the hearing time to see if agreement can be reached through discussions. If it looks likely that agreement can be reached, if there is further time to negotiate then the Court will usually delay the start of the hearing to see if arrangements can be agreed or at least the issues narrowed down. The Court may also ask the representatives to attend the Courtroom at the listed hearing time to update the Court as to how discussions are progressing and will then determine whether agreement is likely or whether to start the evidence-in-chief/cross-examination as soon as possible, if it is clear the Court will have to determine the issues. Another option if the unresolved matters do not really require evidence, is for the case to be dealt with on submissions. This is where the representative sets down their client’s case, referring to the documents and to relevant case law. The Court can then make a decision after hearing those submissions.
If evidence is to be given, the hearing will run identical to the finding of fact as follows :-
The legal representative will take their client through the evidence and will anticipate what questions their client may be asked in cross-examination and will discuss them with their client in advance.
If both parties are represented, the hearing will run as follows :-
1. The case is opened by the legal representative for the Applicant in the main case
2. The Applicant will give their evidence-in-chief – ie be questioned by their own representative. Before any evidence is heard that person will have to swear on oath to tell the truth to the Court.
3. The Applicant is then cross-examined by the representative for the Respondent
4. The Judge will then allow the representative of the person giving evidence to ask further questions if needed; usually if a matter has come up in cross-examination that needs clarifying
5. The Respondent will then give evidence under oath and will be cross-examined
6. The officer from Cafcass or Social Worker will be cross-examined by both parties’ representatives
7. Any witnesses that the Applicant is relying on will give their evidence and will be cross-examined
8. The Respondent’s witnesses will give evidence and be cross-examined
9. Both representatives will present their closing submissions
10. Matter is then likely to be stood down for the Judge to consider his/her judgment
11. Judgment is delivered. The Judge will go through and comment on the evidence of both parties and will then set down the arrangements for the child explaining why the Court has made that decision
12. Final Order made
If one or both of the parties are unrepresented then the Judge will have asked any unrepresented party to write down and hand into Court a list of the questions that they want to ask the other. Due to the nature of the hearing the Judge should be prepared to ask questions of both the parties and any witnesses (if appropriate) rather than let the parties cross-examine each other which can be very intimidating and distressing.
One point to note is that if the Court breaks for lunch or has any other break mid-way through one person giving evidence or being cross-examined, including ending the proceedings for that day, then that person’s representative cannot discuss the case with them during that time.
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What does the Final Order contain?
The first part of the order will confirm the names of the parties and the child or children, the details of any representatives, the name of the Judge or the Magistrates who heard the case, the name of the Cafcass officer or Social Worker and, if applicable, the names of any witnesses who gave evidence.
The ‘recitals’ will then set out any agreements that need to be recorded but which do not need to form part of the Court Order. A standard one is that each parties must not unfairly criticise (‘denigrate’) the other in front of the children or within earshot of them. Another common one is for the parties to communicate by text/email only unless in an emergency.
The next section will set out any Undertakings. These are formal promises to the Court to either take a course of action or to not do something. Usual Undertakings are for the parent spending time with the child to not drink alcohol before or during contact, not to smoke during contact, not to bring the child into contact with a named person.
The main part of the order will set down the arrangements as to with whom the child is to live (sometimes the child is classed as living with each parent if time is divided fairly evenly) and the time that the child will spend with the other parent if direct contact is ordered, or the type and frequency of indirect contact.
In usual cases arrangements for direct contact set out what will happen in term-time, in all the school holidays and on each special occasion such as birthdays, and Mothers’/Fathers’ Day. A separate schedule of arrangements will be attached to the order. This will also include where the child is to be collected from / returned to and who will be there at handover.
Some orders need to be worded more tightly than others to ensure that there is no risk of the arrangements being misinterpreted. Everyone may understand the intention of the order when it is first made but if it is not worded correctly confusion may arise in later years and may result in the case being returned to Court for variation.
Once a final order has been made it is expected that this can last until the child turns 16, with any variations being agreed by the parents without the need to return to Court. Some flexibility is expected as the child/parent may be too ill to spend time with the other, the child will have their own social life and wish to attend friends’ parties, family members will have their own celebrations etc. If a parent has to miss spending time with a child due to a celebration on the other parent’s side then it is expected that this contact will be replaced on a different date.
The order will also set down any Specific Issue Orders, for example which school a child will attend and any Prohibited Steps order for example that the child cannot be removed from England and Wales by the parent with care without written permission from the other parent or without a Court order, or cannot leave the current address. The last one is useful where the parent with care has led a chaotic lifestyle and has moved address frequently, but any other concerns about that parent’s care of the child are not considered serious enough to recommend that the child lives with the other parent or if it would not be in the best interests of the child for such a change to take place.
Contact Activity Condition
These are similar to Contact Activity Directions but are intended to run alongside any contact, rather than be needed for the Court to consider contact, and therefore can be made at the final hearing.
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Contact Warning Notice
The Children and Adoption Act 2006 also introduced the Contact Warning Notice which is included on all final orders made since 8th December 2008. The Notice warns of the consequences of not complying with the order and is worded as follows:-
“Warning, where a contact order is in force, if you do not comply with this contact order you may be held in contempt of court and committed to prison or fined and/or the court may make an order requiring you to undertake unpaid work (an enforcement order) and/or an order you pay financial compensation.”
The Warning Notice will apply to all adults referred to in the Child Arrangements order and therefore the person spending time with the child can be brought back to Court on an application to enforce the order just as much as a person who is not making the child available for the child to spend time with that person.
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