In the last three articles, I looked at what happens when issuing a court application and the referral of the matter to CAFCASS for safeguarding investigation and the listing of the first hearing for a FHDRA (First Hearing Dispute Resolution Appointment). The C100 form however when completed and remitted to the court has a section which deals with emergency applications.
What are emergency applications?
In the event that a genuine emergency exists, the court can, upon receipt of the application, list it for an urgent hearing in advance of waiting the 28 days for the referral to CAFCASS safeguarding team and awaiting the safeguarding letter.
In a true emergency, if attending the court directly to issue the application, the court may hear the application on the same day.
The primary issue for lay parties particularly to get their heads around however is that an emergency application may not equate to their understand of what the court would consider to be an emergency.
For example, having been advised by the other parent that their contact is going to be stopped, that would not, so far as the court is concerned, necessarily constitute an emergency. In fact, that is "the bread and butter" of applications before the court and would not be deemed an emergency that required urgent consideration.
Emergencies tend to relate to specific genuinely urgent and emergency matters. For example:-
- that there is concern that the other parent is about to leave the country with the child without consent, either permanently or for holiday;
- that the other parent is imminently about to remove the child to a completely different part of the UK, ie, from say Dover to Newcastle;
- that the other parent is threatening to attend the children's school or nursery and remove the children therefrom without consent or agreement;
- that the other parent is threatening to refuse to return the child following a period of contact (or has done so).
Consideration of the C100 form is very helpful at this stage as it sets out requirements within the form to identify what the alleged emergency is, why it is considered to be an emergency, and why an urgent hearing before the court is required.
In the event that these sections are completed, the court will consider the application quickly in terms of its issue and what steps are required but, when placed before the "allocation" judge, he or she may take a view that in fact the case is not as urgent as the Applicant would believe it to be and consequently, the case may be processed in the normal way with the first hearing listed for approximately 28 days and the referral to CAFCASS to undertake the safeguarding report.
In the event of course of a true emergency, there would be no requirement for there to have been pre-issue mediation to have been conducted as conducting such mediation may delay matters unduly and prevent the true urgent emergency matter being dealt with with the speeds with which it deserves.
In certain circumstances, the court might deal with the urgent application on a "without notice" basis, ie, the court might consider it agrees with the Applicant the matter is so urgent that they deal with the case before the papers are even served on the other side (without notice). The court can then make the necessary orders to stabilise the position pending the next listed hearing of the case.
This might include, for example, an order that prohibits a parent from attending at a school and removing the children therefrom, or immediately requiring a parent who has retained the child to return to the other parent.
However, this will not bring the proceedings to a conclusion. The court will then either:-
- set another urgent hearing at which the other party has the opportunity to present their position (in advance of the FHDRA); or
- adjourn the matter for further consideration at the standardised FHDRA (First Hearing Dispute Resolution Appointment) with receipt of the CAFCASS safeguarding letter.
In the event that an emergency order was granted, it may then however be necessary and the court might direct that the Applicant make arrangements for the papers to be personally served on the other parent as any order which is made by the court on an emergency basis without notice to the other parent does not become effective until they are aware of the terms of that order, ie, they cannot comply with an order if they do not know what it says.
This may require the instruction of a "process server" to collect the papers and make arrangements to personally provide them to the other party.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.