Three weeks ago, my wife and I welcomed into the world our first child – Cecily Arabella Stowe. She has brought so much joy to us and our wider families. With that joy, I have had the usual sleepless nights and endless nappy changes. It comes with the territory. On Sunday, I had a few hours to myself and I very much needed some Netflix and relaxation.
I came across the 1979 classic Kramer vs Kramer starring a fresh-faced Meryl Streep and Dustin Hoffman. This film remains the quintessential cinematic account of marital breakdown, divorce and custody (what we today call child arrangements).
The film starts with the all too familiar (and yet increasingly outdated) scenario of the high flying hard working husband coming home late again to a frustrated and disillusioned housewife. An argument ensues, resulting in bags packed and Meryl looking lost and suicidal. She leaves and vows never to return. Dustin is left to hold the baby – literally. Little Billy wakes up the next morning late and needs breakfast. Dustin has no clue and has the added stress of a major presentation later that afternoon. French toast is burned and voices are raised. Dustin is truly at his wits end but carries on regardless.
The film progresses and Dustin’s relationship with his son flourishes as he manages to balance work and home life as a single parent. The film is so successful because of how it shows the subtleties of being a single parent and struggling through daily life.
Meryl then returns out of the blue 15 months after abandoning Dustin and Billy, having discovered herself in California. She wants a second chance and asks to take Billy with her. Dustin refuses to accept this, having become Billy’s primary carer and formed a very special bond with him. The two are unable to agree and fiery NY litigators are instructed. The film is very American and dramatised in parts but the wider context of two parents slinging mud to fight for ‘custody’ hits home to most who have been though the process and the film ends with the all too familiar contested final hearing to determine the arrangements for Billy’s care, with both parents put through the wringer of fierce cross examination.
Below I set out what to expect from making an application for a child arrangements order and progressing through to a contested hearing.
An application for a child arrangements order begins when the applicant requests the Designated Family Centre (family court) to issue proceedings. Once issued, a copy is served on (delivered to) the respondent. The latter must complete a form acknowledging that they have received the papers and then return it to the court.
Prior to making an application the intended applicant must attend a Mediation Information and Assessment Meeting (MIAM) with a mediator. This is to assess whether or not mediation might prove helpful to resolve the dispute. There are limited exceptions to this obligation. The Court application form must be signed by the mediator, to confirm that the MIAM has happened. If a MIAM has not taken place, the applicant will need to explain why on the court application form and qualify an appropriate exemption.
There are likely to be three stages in the court process regarding arrangements for the children, if an agreement is not reached:
- The First Hearing Dispute Resolution Appointment (FHDRA): The purpose of this is to help the parties resolve some or all of the issues in the dispute, and to take any unresolved matters through to a resolution. Before the FHDRA, an officer from the Children and Family Court Advisory and Support Service (Cafcass) will speak with and undertake checks on the parties. This is to ascertain the parties’ positions and whether anybody involved with the case has any criminal convictions or other history that might be relevant to the child’s safety and welfare. Cafcass will prepare a short document in advance of the hearing for the benefit of the Court, known as a Schedule 2 letter. This will highlight any concerns and some initial recommendations. At most FHDRAs, a Cafcass officer will be in attendance. He or she, together with the Judge, will help the parties identify solutions to the dispute between them, and if possible to reach an agreement. The exact process differs from court to court: some Cafcass officers will see parties prior to going into court, while others will sit with the Judge to discuss the case. If you are able to reach an agreement on some or all matters, that agreement can be recorded in writing and, if approved by the judge, then made into a court order (called a ‘consent order’). But if the parties are unable to reach an agreement at this stage then the court will consider whether any further evidence is required, for example a more detailed report from Cafcass – called a ‘Section 7’ report – and provide directions for a further hearing.
- The Dispute Resolution Appointment (DRA): this purpose of this hearing is to negotiate with the assistance of the Court and legal representatives. If an agreement can be reached then, as set out above, it can be made into a Court order. Many cases settle at this stage as a result of the stress of the proceedings and the uncertainty of progressing to a final hearing. Very often additional evidence can be of assistance in narrowing the issues, – in particular a Cafcass Section 7 report, which will be taken very seriously by the Court at any final hearing.
- The Final Hearing: In large and complex cases there may be a pre-trial review after all the evidence has been filed. If the parties have not been able to reach an agreement by the time of the final hearing, then it will of course proceed. All parties must attend the trial unless the court says otherwise. The Court will usually not proceed with a trial if a respondent is not present, unless it is satisfied he or she had reasonable notice of the hearing. Most hearings will be held in private, which means that only the parties and their legal representatives may be in court. Often, the Cafcass Officer (if present), will give evidence first. He or she may then be asked questions by the parties’ lawyers and/or by the Judge. Then, unless the court says otherwise, evidence will be given by the applicant (and any supporting witnesses) and the respondent (and any supporting witnesses). Each may be asked questions by the other parties’ lawyers (a process called ‘cross examination’) and/or by the Judge. After hearing all the evidence and any arguments about the law, the Judge will make his or her decision as soon as practicable. In many cases, this will be immediately after hearing the evidence and legal arguments, but in some situations, the Judge might take a little time to consider the case before announcing a decision. This is called ‘reserving judgment’.
The Court’s approach
It is important to bear in mind that the court will give the following three principles the utmost priority:
- That the child’s welfare is of the paramount importance;
- That any delay is likely to prejudice the welfare of the child;
- And that the court shall not make an order unless it considers that doing so would be better for the child than making no order at all.
In deciding whether an order should be made, the Court will have consider the following factors:
- the wishes and feelings of the child concerned (considered in the light of the child’s age and understanding);
- his/her physical, emotional and educational needs;
- the likely effect on the child of any change in his/her circumstances;
- the age, sex, background, and any characteristics of the child which the court considers relevant;
- any harm which the child has suffered or is at risk of suffering;
- how capable both parents are of meeting his/her needs, or the ability of any other person the court considers relevant to do the same;
- the range of powers available to the court under the Children Act in the proceedings in question.
It is this myriad of factors, set against the factual circumstances of each case, that will assist the Judge in making his or her determination.
The final outcome in Kramer v Kramer is very much in line with the typical Hollywood happy ending. The Judge rules in favour of Meryl and grants her full ‘custody’ despite her abandonment of Billy and the incredibly close and special relationship Billy has formed with his father and primary carer. Dustin is left with a $15,000 legal bill – and to put this 70s figure into context, Dustin’s yearly salary at a top ad agency in NY was $31,000 – along with ‘visitation’ every other weekend. The pain this upheaval will cause to both Dustin and Billy is clear to see, and eventually Meryl has an epiphany: Billy’s best interests must come first and his home is now with his father. She accepts that more sensible arrangements should be agreed between them. A truly happy ending then, but one that unfortunately is rare within the context of contested child arrangements hearings between two parents also going through a messy divorce. All too often fathers who have played an equal role in a child’s upbringing and care are left fighting the old presumption that a child needs its mother more than its father. Many fathers are left at a loss, with an order to spend time with their child one night per week and alternate weekends – an arrangement often described as a ‘good deal in the circumstances’.
As Dustin’s character so eloquently puts it:
“What means the most here is what’s best for the child. My wife always used to say to me why can’t a woman always have the same ambitions as a man…I think you are right…but by the same token I would like to know what law that says a woman is a better parent simply by virtue of her sex.”
A man has no less capacity for compassion for his child, or care, or love, or patience, and so where a home has been created for that child and both parents have played an equal role, why should a divorced or separated father be given less contact than a mother?