Private Children Law Proceedings
Following their divorce, Helena and David Wilson are having some further difficulties. Their child, Richard, has remained with Helena, and David has been having regular contact. This system has worked very well for about the last nine months.
However, Helena seeks your advice. David has moved in with a new partner, Anna. Anna already has two children. Richard gets on very well with Anna and Helena has been quite happy to allow David to have generous time with Richard as she believes that it is in Richard’s best interests for everyone to get along.
Last week, Richard came home from David’s house and told Helena that his father had told him that it would be nicer if he could live with him and Anna as a ‘proper family’. Helena was very upset by this and telephoned David. David told her that he felt he could offer Richard a better home with him and Anna and that he wanted Richard to come and live with him. Helena was so upset that she has told David that he cannot have contact with Richard.
Yesterday, Helena received a letter from David’s solicitors stating that David wished Richard to come and live with him (see Document CA1). Helena is very upset and asks what the court will decide. Helena admits that David’s decision has probably arisen as she has started a new relationship with Sean and that David is simply being difficult. Sean does not live with Helena and Richard.
The child is the paramount consideration of the court. When the court is deciding whether to make an order, it will consider the welfare checklist under s1(3) CA 1989. Your supervisor asks you to consider the information and the documents online and apply the checklist to the case.
David has lived with Anna and her children for a while. Anna’s ex-partner, William, is the children’s natural father but as they were not married and the children were born before 2003, William’s name is not registered on their birth certificates. William does not approve of David and he has decided to apply for PR. Who has PR for Anna’s children and how could William gain PR? (Check your answer here)
David has made an application to the court for an order about Richard (see Chapter 28 in the book for details of forms and procedure). He wishes Richard to live with him and states that he is willing to allow contact with Helena. Helena then issues an application for an order as she wishes Richard to continue living with her.
Which orders should (a) Helena and (b) David apply for? (Check your answer here)
David and Helena have both applied for a Child Arrangements Order (see Document CA 2 and Document CA 3) at the local county court.
David’s instructions to his solicitor are that Richard should be brought up with a father in order for him to have a male role model. He and Anna have created a loving home with two parents to care for Richard. David is concerned that Richard attends nursery for three mornings a week and that he should not be out of the home as much. David has moved away from Longtown and he acknowledges that Richard would have to move away from his nursery and his friends. David is convinced that Helena’s new boyfriend is unsuitable company for Richard but gives no reasons why.
Helena’s instructions are that Richard is settled with her and has a routine which he enjoys. He attends an excellent nursery which he enjoys. Helena feels that Richard needs more stimulation as he is a bright child. Richard has made many friends and Helena believes that the disruption of a move would be very damaging, given that the divorce was fairly recent.
At the FHDRA, David and Helena both speak to the CAFCASS officer in an attempt to settle the case. Both parties are adamant that they wish Richard to live with them and that it would be in his best interests. Neither Helena nor David will attend mediation.
At the FHDRA, the court makes a set of directions including a report from CAFCASS (Document CA 6 gives the full set of directions) and after 16 weeks, the report if filed at court (see Document CA 7). The court makes a decision which can be found in the Final Order.
Public Children Law Proceedings
Helena has allowed her new partner to move into the house with her and Richard. Helena’s new partner is a 42-year-old bailiff called Sean, whom she met through an online dating website. Everything works very well for the first month or so, although David is not very happy that Richard has a stepfather.
Helena comes into the office unexpectedly. Your supervisor takes instructions and these can be found in the Attendance Note. Your supervisor asks you to consider what advice to give Helena on:
- (a) what investigations the local authority may undertake; and
- (b) what order(s) the local authority may apply for.
Richard is in hospital. Helena wishes to take him home. Look at the EPO attendance note . Does the local authority have sufficient grounds to apply for an emergency protection order?
Helena comes into the office and tells you that care proceedings have been issued with respect to Richard. Helena brings in a number of documents and asks you what will happen next. Write a short letter advising Helena what will happen in care proceedings. Check your letter against the example here.