In private law cases the child is not a party to the proceedings unless there are particular circumstances that make the case complex. The court can request a welfare report under Section 7 Children Act 1989, either from the local authority or from a children and family reporter who is an officer appointed by Cafcass. The report will usually inform the court of the child's wishes and feelings, but the officer will make a recommendation based on what they think is in the child's best interests rather than just report on the child's wishes.
In some circumstances the court may order that the child is made a party to the proceedings. A children's guardian (who is a Cafcass Officer) is appointed to represent the child in the proceedings and the guardian will appoint a solicitor. If the child and guardian do not agree on what recommendations to make to the court and the child is of sufficient age and understanding, they will be able to instruct a solicitor directly to represent their views and the guardian will present their own values to the court.
Certain categories of people are entitled to make an application for a child arrangements order under Section 8 without having to seek permission from the court first and they are:
- the parent, guardian or special guardian of the child
- any person who has parental responsibility
- anyone who holds a residence order in respect of the child
- any party to a marriage or civil partnership where the child is a child of the family
- anyone with whom the child has lived with for at least three years
- anyone who has obtained the consent of the local authority if the child is in their care, or everyone who has parental responsibility for the child.
Other people can make an application to the court for permission to issue an application for a child arrangements order. It is usually via this route that wider family members such as grandparents are able to apply for an order in respect of their grandchildren. In deciding whether to give permission the court will take into account among other things:
- the nature of the application
- the applicant's connection with the child
- the risk there might be of the proposed application disputing the child's life to such an extent they would be harmed by it.
Read more about private law cases and Cafcass