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Can I get a side of Fries with that Order?

7th Jan 2009 | in Legal, Justice & Court

The Family Justice System and its long awaited debut into democratic society will dominate the headlines in 2009, as everyone is buzzing with excitement at the new reporting proposals that will hopefully take effect in the late Spring of this year and which will see more judgments and court room journalism making it into cyberspace than ever before.

This is wonderful news but in order for this influx of information to pack a powerful punch, coming to terms with the terms is an essential part of the discovery process.

The Family Justice System is big and the jargon it uses as it goes about its daily routine seems to expand indefinitely but despite this, the most frequently used terms are the ones likely to be reported by the press and will also be the ones that many unfortunate souls who must wade their way through the system will come across, just as more and more cases and their outcomes become public knowledge.

Most hearings in the family courts revolve around issues relating to children, whether they are heard in the public or private sectors, with a relatively smaller percentage relating to divorcing spouses and so the terms used will vary; nevertheless as a starting point the following phrases are bound to make the headlines and move our hearts in 2009:

Contact
A great many cases that come to court are essentially about contact issues regarding children and as the word suggests relates to interaction, usually between a child and their divorcing parents. Legally, contact is the term used to define visiting rights for parents and can result in a Contact Order which prescribes the type and frequency of contact by a parent. A Contact Order, if unchanged, will last until the child is 16 years old.  In hearings of this type, there may also be a request for a Residence Order, which is used to work out where a child will live and with whom. The Residence Order also gives the adult who acquires it parental responsibility for the child in question, if they do not already have it and also usually lasts until the child is 16 years old.

Mediation
Sometimes the heartache of court hearings and enforced Orders can be avoided if parties can agree to sort out the difficulties between them and if that is the case, mediation is often suggested. As the family courts are heavily congested, the judiciary have an incentive to redirect people to mediation as it saves the court time and money. Family mediation is where divorcing couples are encouraged to find solutions to their problems through discussion and compromise. The problems addressed range from issues relating to children through to relatives and include the possibility of working out financial solutions as well as ones relating to homelessness caused by family arguments. In fact, you can use mediation to sort through just about any family-related dilemma.
A mediator is usually appointed to act as a go between for the couple, who in turn get to express their concerns in a neutral environment and with the third party mediator who is meant to remain impartial and there to offer possible solutions to problems. Although the mediator cannot usually give legal advice, they should be able to give basic legal information to help address any queries relating to law.

Cafcass
Cafcass is an acronym for Children and Family Court Advisory Support Service and was set up on the 1st April, 2001 to look after the interests of children who find themselves subject to court proceedings, like contact hearings for example. The Cafcass officers deal with a range of child-related matters like adoption and helping parents to decide what is best for their children. This organisation has had a chequered past and continues to cause controversy, but their ambit is wide and they have the power to recommend several types of court-enforceable contact orders:

- Direct Contact
Face to face contact as opposed to indirect contact such as letter writing and phone calling.

- Supervision Order
Rather than taking a child into care, a Supervision Order allows the child to remain with their parents but can be subject to monitoring by Social Services with a view to ensuring that the child is well cared for at home.

- Specific Issue Order
This is where the court may be asked to make an order on just one issue, where parents cannot agree on a course of action for their child.  An example of this is where a child may need an operation and the parents cannot agree whether or not the child should have the operation.

- Prohibited Steps Order
Here, a parent needs the court’s permission to do something, like take their child out of the country.

- Interim Care Order (ICO)
If the court need more time to assess what they feel is in the best interests of a child, an ICO can be made which will mean that the child will be placed in the care of a local authority for a limited period of time until a decision is reached.  The local authority is given parental responsibility for the duration of the ICO.

- Parental Responsibility Order
Parental Responsibility means the rights, duties, powers, authority and responsibility which by law the parent of a child has in relation to the child and his property and is automatically given to a parent unless an exception applies, such as where a father was not married to the mother or named on the birth certificate when the child’s birth was registered. If the father now wishes to be recognised legally as a parent, applying for a Parental Responsibility Order would allow the courts to consider the request.

Guardians
In some instances, like the death of a parent, parental responsibility can be transferred to a guardian, who will then be charged with making decisions for the child in question until they are eighteen. If the parents are still alive, the child is able to see their parents under guardianship and so keeps their ties with their birth family.

Welfare Checklist
The desire to give every child the chance to flourish in their family unit, whether a birth one or an adoptive one is perhaps the underlying ethos of all these terms and the Welfare Checklist is what is used by the court to work out questions relating to a child’s upbringing. The home of this checklist is Section 1 of the Children Act 1989 and there are a total of seven factors the court takes into account when trying to work out what is best for a child.  The child’s welfare is meant to be the underlying consideration in this assessment.

The Judiciary
Helping to make sure that such assessments are carried out competently and ethically, the judiciary are there to oversee hearings and to make sure that cases are heard fairly and without prejudice. The judiciary is just a term for the 43,000 judges, magistrates and tribunal members who deal with legal matters in England and Wales.

These are just a few of the phrases that are likely to embody the media’s mantras in the next few months and are the terms that are heard most frequently by people going through the family courts themselves. However there are some sites that offer a range of glossaries, like Ask the Family Lawyer, which is an excellent site dedicated towards making the courts more user friendly and explaining terms clearly.

Another useful site is Her Majesty’s Court Service (HMCS), which also has a glossary of legal terms as well as the Judiciary of England and Wales website’s own glossary.

There are also various forms available from the HMCS which provide more detailed information on the types of terms used in the family courts and these brochures can also be helpful in explaining the way terms are used and even offering access to more online resources to allow for a better understanding of the system and how it works.

If learning a language is the key to understanding another country’s culture then to learn at least some of the jargon in the family justice system is to start to get acquainted with a old-world eco-system that if cultivated could bring our courts back to life. Perhaps with a bit of luck and some Latin thrown in for good measure, the courts’ terminology will captivate us and keep us curious. 

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