Sponsored: Safeguarding issues in private children law proceedings

Private Children Law proceedings are proceedings in which a parent has the need to go to Court to resolve an issue relating to what should happen in terms of care for a child or where a child should live, and the parents cannot agree upon this.

Private Children Act proceedings do not necessarily involve a local authority however the Court may ask them to be involved particularly if there has been historic involvement from the relevant local authority.

A child’s best interests are the priority of the Court and when considering a child’s needs, a Court will need to be aware of any safeguarding issues.

These can include the presentation of a risk to a child of physical, mental, emotional, psychological or sexual abuse either from a parent or a person with whom that child comes into contact, or the risk of neglect or threat of abduction by either parent.

Any such safeguarding issues can be raised by a parent for the purposes of the Court determining what child arrangements should be made for the child.

Alternatively issues may arise upon the necessary police and local authority safeguarding checks, which are actioned whenever an application is made to the court for a child arrangements order.

Police and local authority checks are carried out by CAFCASS (Children and Family Court Advisory and Support Service) to find out whether there are any known or welfare risks regarding the child.

CAFCASS is an independent organization tasked with looking after the interests of children involved in family proceedings. It plays a central role in such proceedings by advising the court as to the arrangements that are most likely to be in the childrens best interests and which best promote their safety and well- being.

Prior to the first hearing, as well as carrying out safeguarding checks with the Police and local authority CAFCASS will in most cases also make an appointment to talk to the parents on the phone to find out if either have any concerns about the welfare or safety of their child.

At least 3 days before the first Court hearing, CAFCASS will provide the Court with a short report on the outcomes of the safeguarding checks and any child welfare issues raised by either parent, this being referred to as a Safeguarding Letter.

If a safeguarding issue is raised by the parent making the application to the court for a child arrangements order, against the other parent or if it is raised in response to an application for a Child Arrangements Order, that parent will have to complete a Form C1A, setting out their concerns about the other parent.

In some cases where the safeguarding issues are particularly concerning, the CAFCASS officer may recommend and the Judge direct that there needs to be a Fact Finding hearing to determine whether the allegations made are true.

This is on the basis that the Judge may find it impossible to make an order as to what child arrangements order to make, until these allegations can be tested and if necessary, substantiated.

As it will be decided by a Family/Civil Court, the burden of proof will be on a balance of probabilities and so the parent alleging the safeguarding issue will have to demonstrate that there is a 51% plus likelihood of this allegation being true.

It is only upon this thorough and robust approach being adopted, that a court can make a decision as to what is in the child’s short term and long term physical, emotional and educational needs, which parent is best placed to provide these to the child and how, and make that decision based on evidence that has been considered by the court.

This publication is a general summary of the law. It should not replace legal advice, tailored to your specific personal circumstances.

If you require advice on navigating your divorce we are here to help. We offer a 45-minute free consultation to discuss any aspect of family law, either during the week or on a Saturday, at your convenience.

The consultation can take place by telephone or by zoom.

Please contact Kathryn Coyle on kcoyle@kiddrapinet.co.uk, Zeneb Muneer on zmuneer@kiddrapinet.co.uk or Francesca Rowe on FRowe@kiddrapinet.co.uk or by telephone on 01628 659 411.