Judge

Gap #593

The assumption

If the other parent reports a new allegation at a different police station, a magistrate can immediately overrule the family court's contact order.

The reality

Reporting an allegation to the police, at any station, does not change a child arrangements order. The order stays in force until the family court varies or discharges it on an application under the Children Act 1989. When contact stops after a new allegation, it is usually because one of these separate steps has been taken. Bail conditions. Where someone is arrested, bail can carry conditions, and those can restrict contact with a child. In Nottinghamshire County Council v The Mother (Police Bail) [2024] EWHC 666 (Fam), which was a care case, police bail conditions prevented unsupervised contact with any child and left no room for the family court to allow it. Mrs Justice Lieven said it is not for the family court to dictate bail conditions to the police, but that the family judge was much better placed than the police to assess the risk to the child, and that she hoped the police would consider the role of the family court when setting bail conditions. The judgment records that an application to vary police bail conditions can be made to the magistrates' court. A Domestic Abuse Protection Order. The police can apply for a DAPO by complaint to a magistrates' court (section 28 of the Domestic Abuse Act 2021). Practice Direction 36ZG notes that, under section 36(1), the requirements of a DAPO must so far as practicable avoid conflict with any other court order or injunction the person is subject to, as well as conflict with their religious beliefs and interference with their work or with their attendance at an educational establishment. An application to vary or discharge a DAPO goes to the court that made it. A new family court order. A parent can apply to the family court to vary the child arrangements order, or for a protective order such as a non-molestation order. The police do not pass a new allegation to the family court automatically. Under the Disclosure of Information between Family and Criminal Agencies and Jurisdictions: 2024 Protocol, which replaced the 2013 Protocol and the old Annex H order template, police material is requested using the protocol's own forms. In private law proceedings the request goes to the police on the Annex 1 form, accompanied by an order in the court's standard form at Annex 5. The protocol states that use of its annexed forms is mandatory, and Annex 2 is the guidance written for completing Annex 1 in private law proceedings. Requests are expected to be focused and proportionate rather than a blanket trawl, and the guidance contemplates a 20-day timescale for the police response. In practice the court usually directs this where a fact-finding hearing is contemplated; where no direction has been made, the litigant in person has to ask the court to make the order. The DAPO rules send information the other way: when a family court makes a DAPO, the court officer emails a copy to the police within one day (Practice Direction 36ZG, paragraph 20). This part of the law is in transition. DAPOs have run in pilot areas only since 27 November 2024. The pilot ends on 24 November 2026, and from 25 November 2026 DAPOs are due to be available across all court jurisdictions in England and Wales, with Practice Direction 36ZG amended rather than replaced. Check the current position before relying on this after that date. Each of these is changed in a different place, so it matters which one has actually been made. This is general information, not legal advice.

Gap #568

The assumption

There is a legal duty to negotiate, so if I do not agree to anything I will be punished.

The reality

There is no legal duty to negotiate or to agree. What the rules do is expect real engagement. The court must consider non-court dispute resolution, such as mediation, at every stage, and can pause a case so the parties can try it. The pressure comes through costs. If someone fails, without good reason, to attend a MIAM or non-court dispute resolution, the judge can take that into account when deciding whether to make a costs order. Attending and considering a proposal is not the same as having to accept it.

Gap #565

The assumption

If I refuse to go to the MIAM, he cannot take me to court.

The reality

Nobody can force you to attend a MIAM. But your refusal does not stop the other person. Before applying to court, the applicant has to attend a MIAM unless an exemption applies, and since April 2024 the other person not attending is no longer an exemption. So he can attend alone and go on to apply. In financial cases the court starts from each side paying their own costs, but it must look at any failure, without good reason, to attend a MIAM. That can be a reason to make a costs order against the person who did not attend. It is one factor the judge weighs, not an automatic penalty.

Gap #556

The assumption

Cafcass will speak to your child before making recommendations about them.

The reality

Many parents report that Cafcass officers formed recommendations without direct conversation with their child — particularly older children who could express views. The welfare checklist requires officers to consider the child's wishes and feelings (ascertained in light of their age and understanding), but how those are gathered varies widely between officers. Some parents report their child was never spoken to; others say the conversation was brief or filtered through the other parent. If your child's voice is not being directly heard, you can raise this with the court — the judge decides what weight to give the report, and can direct that the child's views be properly ascertained.