Free Family Court Guide: The First Hearing Dispute Resolution Appointment

14.1

The FHDRA may (where time for service on the respondent(s) has been abridged) take place within 4 weeks, but should ordinarily take place in week 5 following the issuing of the application; at the latest it will take place in week 6 following the issuing of the application.

14.2

The respondent(s) shall have at least 14 days’ notice of the hearing where practicable, but the court may specify a shorter time.

14.3

Omitted

14.4

Unless the court otherwise directs, any party to proceedings, and any litigation friend of the parties must attend this (and any other) hearing. If a child is a party and represented by a children's guardian, the children's guardian need not attend directions hearings if represented.

14.5

A party may choose to be accompanied at this (or any) hearing by a McKenzie Friend to support them (a McKenzie Friend is someone who can provide moral support at court for the party; take notes; help with case papers; quietly give advice on any aspect of the conduct of the case.) If so, the McKenzie Friend must comply with the relevant Guidance (currently set out in the Practice Guidance: McKenzie Friends (Civil and Family Courts): July 2010.

(Practice Direction 27C makes provision for the attendance at hearings of Independent Domestic Violence Advisers and Independent Sexual Violence Advisers.)

14.6

A Cafcass Officer or WFPO shall attend this hearing. A mediator may attend where available.

14.7

The Cafcass Officer or WFPO shall, where practicable, speak separately to each party at court before the hearing in particular where it has not been possible to conduct a risk identification interview with either party.

14.8

The FHDRA provides an opportunity for the parties to be helped to an understanding of the issues which divide them, and to reach agreement. If agreement is reached –

(1) The Court will be able to make an order (which in many cases will be a final order) reflecting that agreement

(2) The Court will assist the parties (so far as it is able) in putting into effect the agreement/order in a co-operative way.

14.9

The FHDRA is not privileged. That is to say that what is said at the FHDRA may be referred to at later court hearings.

14.10

By the time of the hearing, the Court should have the following documents –

(a) C100 application, and C1A (if any);

(b) Notice of Hearing;

(d) Cafcass/CAFCASS Cymru safeguarding letter/report.

14.11

At the FHDRA the judge, working with the Cafcass Officer, or WFPO, will seek to assist the parties in conciliation and in resolution of all or any of the issues between them. Any remaining issues will be identified, the Cafcass Officer or WFPO will advise the court of any recommended means of resolving such issues, and directions will be given for the future resolution of such issues. At all times the decisions of the Court and the work of the Cafcass Officer or WFPO will take account of any risk or safeguarding issues that have been identified.

14.12

The court should have information obtained through safeguarding checks carried out by Cafcass / CAFCASS Cymru and, where applicable, Supplemental Information Forms C1A filed by the parties, to ensure that any agreement between the parties, or any dispute resolution process selected, is in the interests of the child and safe for all concerned.

14.13

The FHDRA will be conducted in the most appropriate way in the interests of the child. In particular the court shall consider the following matters –

Safeguarding, in this respect –

(a) The court shall inform the parties of the content of the safeguarding letter/report provided by Cafcass/CAFCASS Cymru, where it has not already been sent by Cafcass/CAFCASS Cymru to the parties, unless it considers that to do so would create a risk of harm to a party or the child. The court may need to consider whether, and if so how, any information contained in the checks should be disclosed to the parties if Cafcass/CAFCASS Cymru have not disclosed the letter/report.

The court will specifically consider, in the light of all the information before the court, including the contents of the safeguarding letter / report provided by Cafcass / CAFCASS Cymru and any Supplemental Information Form(s) C1A filed by the parties.

(b) The nature and extent of any factual issues and whether a fact-finding hearing is needed to determine allegations which are not accepted, and whose resolution is likely to affect the decision of the court.

(c) Risk identification followed by active case management including risk assessment, and compliance with the Practice Direction 12J.

(Specific provisions about directions for a fact-finding hearing are set out in Practice Direction 12J, paragraphs 16 to 20.)

Further –

(d) If the safeguarding information is (contrary to the arrangements set out in the CAP) not available at the FHDRA, the court should adjourn the application until the safeguarding checks are available. Interim orders (unless to protect the safety of a child) should not be made in the absence of safeguarding checks.

And further –

(e) Where the court so directs, a safeguarding letter/report ought to be attached to any referral to a supported or supervised child contact centre in the event the court directs supported or supervised contact.

MIAM, specifically:

(a) Whether, if a MIAM exemption has been claimed, the Applicant has validly claimed the exemption;

(b) Whether the Respondent has attended a MIAM;

(c) If the court finds that a MIAM exemption has not been validly claimed the court will direct the applicant or direct the parties to attend a MIAM and if necessary adjourn the proceedings to enable a MIAM to take place, unless the court considers that in all the circumstances of the case, the MIAM requirement should not apply to the application in question; when making the decision the court will have particular regard to the matters contained in rule 3.10(3) FPR.

Mediation, At-Court Mediation assessment, and other Dispute Resolution: allowing the parties the time and opportunity to engage in non-court dispute resolution.

(a) At the FHDRA, the judge will specifically consider whether, and the extent to which, the parties can safely resolve some or all of the issues with the assistance of the Cafcass Officer, WFPO, or a mediator.

(b) There will be, at every FHDRA, a period in which the Cafcass Officer, or WFPO, will seek to conciliate and explore with the parties the resolution of all or some of the issues between them if safe to do so. The procedure to be followed in this connection at the hearing will be determined by local arrangements between the Cafcass manager, or equivalent in Wales, and the Designated Family Judge or a justices’ legal adviser where appropriate.

The court will further consider –

(d) What other options there are for resolution e.g. may the case be suitable for further intervention by Cafcass/CAFCASS Cymru; Should a referral for mediation be made? Is collaborative law appropriate? Should the parties be advised to complete a Parenting Plan?

(e) Would the parties be assisted by attendance at an Activity Separated Parents Information Programme, (or in Wales, Working Together For Children (WT4C)) or other Activity or intervention, whether by formal statutory provision under section 11 Children Act 1989 or otherwise;

(f) An at-court assessment of the suitability of the parties for mediation.

Consent Orders–

(a) Where agreement is reached at any hearing or submitted in writing to the court, no order will be made without scrutiny by the court.

(b) Where safeguarding checks or risk assessment work remain outstanding, the making of a final order may be deferred for such work. In such circumstances the court shall adjourn the case for no longer than 28 days to a fixed date. A written notification of this work is to be provided by Cafcass/CAFCASS Cymru in the form of an updating Safeguarding letter/report, or if deemed relevant by Cafcass/CAFCASS Cymru, a section 16A risk assessment in accordance with the timescale specified by the court. If satisfactory information is then available, the order may be made at the adjourned hearing in the agreed terms without the need for attendance by the parties. If satisfactory information is not available, the order will not be made, and the case will be adjourned for further consideration with an opportunity for the parties to make further representations

Reports–

(a) Reports may be ordered where there are welfare issues or other specific considerations which should be addressed in a report by Cafcass/CAFCASS Cymru or the Local Authority. Before a report is ordered, the court should consider alternative ways of working with the parties such as are referred to in paragraph 5 (‘non-court resolution of disputed arrangements’) above.

(b) If a report is ordered in accordance with section 7 of the Children Act 1989, the Court should direct which specific matters relating to the welfare of the child are to be addressed. Welfare reports will generally only be ordered in cases where there is a dispute as to with whom the child should live, spend time, or otherwise have contact with. A report can also be ordered

(i) If there is an issue concerning the child's wishes, and/or

(ii) If there is an alleged risk to the child, and/or

(iii) Where information and advice is needed which the court considers to be necessary before a decision can be reached in the case.

(c) General requests for a report on an application should be avoided; the Court should state on the face of the Order the specific factual and/or other issue which is to be addressed in the focused report.

(d) In determining whether a request for a report should be directed to the relevant local authority or to Cafcass/CAFCASS Cymru, the court should consider such information as Cafcass/CAFCASS Cymru has provided about the extent and nature of the local authority's current or recent involvement with the subject of the application and the parties, and any relevant protocol between Cafcass and the Association of Directors of Children's Services.

(e) The court may further consider whether there is a need for an investigation under section 37 Children Act 1989.

(f) A copy of the Order requesting the report and any relevant court documents are to be sent to Cafcass/CAFCASS Cymru or, in the case of the Local Authority to the Legal Adviser to the Director of the Local Authority Children's Services and, where known, to the allocated social worker by the court forthwith.

(g) Is any expert evidence required? If so, section 13 Children and Families Act 2014, and Part 25 of the FPR must be complied with. This is the latest point at which consideration should be given to the instruction of an expert in accordance with Rule 25.6(b) of the FPR; the court will need to consider carefully the future conduct of proceedings where the preparation of an expert report is necessary but where the parties are unrepresented and are unable to fund the preparation of such a report.

Wishes and feelings of the child–

(a) In line with the Family Justice Young People's Board Charter, children and young people should be at the centre of all proceedings.

(b) The child or young person should feel that their needs, wishes and feelings have been considered in the court process

(d) The court must consider the wishes and feelings of the child, ascertainable so far as is possible in light of the child's age and understanding and circumstances. Specifically, the Court should ask –

(i) Is the child aware of the proceedings?

(ii) Are the wishes and feelings of the child available, and/or to be ascertained (if at all)?

(iii) How is the child to be involved in the proceedings, and if so, how; for example, should they meet the judge/lay justices? Should they be encouraged to write to the court, or have their views reported by Cafcass/CAFCASS Cymru or by a local authority?

(iv) Who will inform the child of the outcome of the case, where appropriate?

Case Management–

(a) What, if any, issues are agreed and what are the key issues to be determined?

(b) Should the matter be listed for a Fact-Finding hearing?

(c) Are there any interim orders which can usefully be made (e.g. indirect, supported or supervised contact) pending Dispute Resolution Appointment or Final Hearing?

(d) What directions are required to ensure the application is ready for a Dispute Resolution Appointment or final hearing - statements, reports etc?

(e) Should the application be listed for a Dispute Resolution Appointment (it is envisaged that most cases will be so listed)?

(f) Should the application be listed straightaway for a Final Hearing?

(g) Judicial continuity should be actively considered (especially if there has been or is to be a fact finding hearing or a contested interim hearing).

Allocation–

(a) The Allocation decision will be considered by the Court;

(b) If it is necessary to transfer the case to another court within the DFJ area or another area, or re-allocate it, the court shall state the reasons for transfer/re-allocation, and shall specifically make directions for the next hearing in the court.

Order (other than a final order) -

Where no final agreement is reached, and the court is required to give case management directions, the following shall be included on the order:

(a) the date, time and venue of the next hearing;

(b) whether the author of any section 7 report is required to attend the hearing, in order to give oral evidence. A direction for the Cafcass officer or WFPO to attend court will not be made without first considering the reason why attendance is necessary, and upon what issues the Cafcass officer or WFPO will be providing evidence;

Where both parties are Litigants in Person, the court may direct HMCTS to produce a Litigant in Person bundle.

The judge will, as far as possible, provide a copy of the order to both parties before they leave the courtroom, and will, if necessary, go through and explain the contents of the order to ensure they are clearly understood by both parties. The parties should know the date, time and venue of any further hearing before they leave the court.