In a number of our previous articles, we have looked at what happens when issuing a court application in respect of children, and the referral of the matter to CAFCASS (the Children and Family Court Advisory and Support Service) for safeguarding investigation and the listing of the first hearing for a FHDRA (First Hearing Dispute Resolution Appointment). It is also possible, however, for the court to hear emergency applications in relation to children, for obvious reasons.
What are emergency applications?
In the event that a genuine emergency exists, the court can, upon receipt of the application, list it for an urgent hearing in advance of waiting for the standard referral to CAFCASS safeguarding team and awaiting the safeguarding letter.
In a true emergency, if attending the court directly to issue the application, the court may in some situations hear the application on the same day.
It is important to bear in mind that what somebody might consider an emergency is not the same as what the court will treat as an emergency, in these situations.
For example, having been advised by the other parent that their contact is going to be stopped, that would not, so far as the court is concerned, necessarily constitute an emergency. In fact, that is “the bread and butter” of applications before the court and would not be deemed an emergency that required urgent consideration.
Emergencies tend to relate to specific urgent matters which can typically include:
- That there is concern that the other parent is about to leave the country with the child without consent, either permanently or for the purposes of a holiday.
- That the other parent is imminently about to remove the child to a completely different part of the UK, e.g. from say Land’s End to Newcastle.
- That the other parent is threatening to attend the children’s school or nursery and remove the children without consent or agreement.
Consideration of the C100 form is very helpful at this stage as it sets out requirements within the form to identify what the alleged emergency is, why it is considered to be an emergency, and why an urgent hearing before the court is required.
In the event that these sections are completed, the court will consider the application quickly in terms of its issue and what steps are required. When the application is placed before the “allocation” judge, he or she may take a view that in fact the case is not as urgent as the Applicant would believes it to be and consequently, the case may be processed in the normal way with the first hearing listed for approximately 28 days and the referral to CAFCASS to undertake the safeguarding report.
In the event, of course, of a true emergency, there would be no requirement for there to have been pre-issue mediation to have been conducted as conducting such mediation may delay matters unduly and prevent the true urgent emergency matter being dealt with swiftly. Again, the C100 form provides for the ability to seek an exemption from mediation, but it is important that an Applicant can genuinely satisfy that exemption as otherwise the court may reject the application at the outset and insist that mediation is considered first.
In certain circumstances, the court might deal with the urgent application on a “without notice” basis. The court might consider the matter is so urgent that they deal with the case before the papers are even served on the other party. The court can then make the necessary orders to stabilise the position pending the next listed hearing of the case and before the other party is notified.
This might include, for example, an order that prohibits a parent from attending at a school and removing the children, or immediately requiring a parent who has retained the child to return the child to the other parent.
What often happens after emergency applications like these is that the proceedings will not end. The court will often:
- Set another urgent hearing at which the other party has the opportunity to present their position (in advance of the FHDRA); or
- Adjourn the matter for further consideration at the standardised FHDRA (First Hearing Dispute Resolution Appointment) with receipt of the CAFCASS safeguarding letter.
In the event that an emergency order was granted, it may be necessary and the court might direct that the Applicant make arrangements for the papers to be personally served on the other parent as any order which is made by the court on an emergency basis without notice to the other parent does not become effective until they are aware of the terms of that order – they cannot comply with an order if they do not know what it says. This may require the instruction of a “process server” to collect the papers and make arrangements to personally provide them to the other party. If you have asked any questions relating to emergency applications and would now like more information on the different types of proceedings relating to children, please get in touch and we would be happy to assist you. Please contact our Family Law team via email enquiries@stephens-scown.co.uk.
This article is part of a series on Private Family Law and Children Law proceedings. If you would like to learn more about the rules around parental responsibility, contact, holidays and arrangements for separated parents, please click here for the full series.