Private law proceedings and the child focused court

Private law proceedings

Private child law proceedings are family court cases, usually between parents or carers, where they cannot agree arrangements for a child. Families may enter proceedings following separation or divorce, for example where they disagree about where a child should live, who they spend time with, or a specific issue such as education, medical treatment, holidays or a name change. The court is asked to resolve the dispute, in the child’s best interests.

Private law differs from public law. Private law cases are normally started by an individual. Public law child proceedings are normally started by a Local Authority because it considers that a child is suffering, or is likely to suffer, significant harm and asks the court to consider statutory orders, such as a Care Order or Supervision Order.

Applications are commonly made under Section 8 of the Children Act 1989. The court must:

• treat the child's welfare as its paramount consideration
• consider the welfare checklist when determining applications
• avoid delay where possible, as delay may be harmful to the child
• only make an order where it is better for the child than making no order

The court can make the following orders:

• Child Arrangements Order (CAO): Determines where a child lives, who they spend time with, and other forms of contact
• Prohibited Steps Order (PSO): Prevents a person with parental responsibility from taking a specified action without the court's permission
• Specific Issue Order (SIO): to determine a specific dispute relating to a child's upbringing

The Child Focused Court model

West Yorkshire operates the Child Focused Court model (formerly known as the Pathfinder approach). The Child Focused Court model aims to:

• place the child at the centre of proceedings
• improve responses to domestic abuse and other harmful behaviours
• reduce unnecessary hearings
• improve information sharing between agencies
• support earlier and more informed decision-making
• reduce conflict and adversarial court processes

Cafcass (the Children and Family Court Advisory and Support Service) is independent of the Local Authority and advises family courts in England about arrangements that promote children’s welfare, safety and wellbeing. Cafcass works with a family only when directed by the court. A Family Court Adviser may undertake safeguarding checks, speak with the adults, help the child’s voice to be heard, advise the court and, where directed, prepare a report. In some cases, the court may direct the Local Authority to complete specified work instead.

How the Child Focused Court process works

After an application is made to the court, the court will decide whether to involve Cafcass, the Local Authority or other experts. If the court needs more information, the case is likely to be adjourned before a hearing takes place to allow for a Child Impact Report (CIR) report and/ or other assessments to be prepared by a Cafcass Family Court Advisor, local authority social worker, or other expert depending on the issues in the case.  

A CIR is a detailed, child-focused assessment, looking at the child's wishes, lived experiences, any safeguarding and domestic abuse information, multi-agency checks, observations of family relationships, assessment of risk and protective factors, and analysis of the child's welfare needs. The report makes recommendations to the court on what is in the child’s best interests.

If, during private proceedings, concerns arise that a child is suffering or likely to suffer significant harm, the court may direct a Section 37 investigation. This requires the Local Authority to assess the child's circumstances, to consider whether further statutory/ public law intervention or support is necessary to safeguard the child.

After considering the available information, the court may make orders, direct further work or assessments, review arrangements later or list the case for a Decision Hearing, where the court considers the evidence and recommendations, hears from the parties and decides the outstanding issues, where possible. Additional directions and further hearings can be arranged.

What to do if safeguarding concerns arise

Private child law court proceedings do not replace statutory safeguarding responsibilities. Where safeguarding concerns emerge during private proceedings, practitioners must continue to follow Leeds children’s safeguarding procedures and protect children from harm.  

Where a social worker feels a private law proceedings decision places a child at risk of harm, they must immediately discuss with their Team Manager, seek advice from the local authority’s Legal Services and escalate to senior management where required. The local authority is not a party to the proceedings, its ability to challenge the decision directly may be limited.  

Partner agencies with safeguarding concerns arising from a private law proceedings decision should follow their own organisation’s safeguarding and escalation procedures and share relevant information with Children’s Social Work Services where appropriate. The child’s safety and welfare must remain the paramount consideration.