Attending Your First Child Welfare Hearing

This client briefing has been drafted in order to answer commonly posed questions to Macleod and MacCallum’s award winning family law team, regarding Child Welfare Hearings.

If you have a case in the Sheriff Court involving your children, it is likely that you will be required to attend a Child Welfare Hearing on more than one occasion. It is perfectly natural for you to be apprehensive at the prospect of attending Court, but we hope that with the help of your solicitor at Macleod & MacCallum, the Hearings will be made easier to cope with.

Child Welfare Hearings were introduced in 1996 to enable the Court to deal with disputes involving children as quickly as possible. A Child Welfare Hearing is automatically fixed when one parent (the Pursuer) raises a Court action in respect of the arrangements for the child and the second parent (the Defender) notifies the Court that they wish to defend the action. Subsequent Child Welfare Hearings may also be fixed, throughout the case, usually so that the Sheriff can monitor progress between parties and if necessary, adjust arrangements for contact or care.The main thing to bear in mind before attending a Child Welfare Hearing is that the Sheriff is obliged to consider the best interests of your child before he or she makes any decision affecting them.

When will my first Child Welfare Hearing be?

Your solicitor will contact you with the date of your Child Welfare Hearing as soon as it has been fixed by the Sheriff Court. Unless your attendance has been expressly excused, you will be required to attend the Child Welfare Hearing.   Usually, your solicitor will ask you to meet them at Court fifteen minutes prior to the time of your Hearing so that you may discuss any new instructions or recent events. It is vital that you are not late for your Hearing, although it is not unusual for you to be kept waiting for your case to be called once you are at Court. You can rely on your solicitor to indicate to you when your Child Welfare Hearing is about to commence. If you are particularly anxious about your first Child Welfare Hearing, you may find it useful to take along a friend, family member or support worker for company whilst you wait. You should be aware that your solicitor may have other Hearings in Court that day and consequently he or she may not be able to wait with you.

Who will be present at the Child Welfare Hearing?

The Child Welfare Hearing will usually take place in the Sheriff’s Office/Chambers rather than in a Court Room. Your solicitor will not be required to wear his or her Court gown and the Sheriff will usually not be wearing his/her gown or wig. Present in the Sheriff’s Office will be the Sheriff and his/her Clerk, you and your solicitor, and your ex partner or spouse and his/her solicitor. No members of the public, friends or family will be allowed to attend at the Child Welfare Hearing.

Will I have to speak to the Sheriff?

Once the Child Welfare Hearing has commenced, you will rely on your solicitor to speak on your behalf. However, the Sheriff may direct a question to you. Although we understand that it is very difficult to remain silent when important matters are being discussed and emotions are running high, it is important that you do not address the Sheriff yourself or interrupt the Sheriff or solicitors. If you need to communicate something urgently to your solicitor, you may whisper to him or her discreetly when you get a chance.

What will be discussed in the Child Welfare Hearing?

The answer to this question is very case specific and your solicitor will have spoken to you prior to the Hearing about what to expect. However, you can generally expect that unless an agreement has been reached between you and the other party prior to the Hearing, the Pursuer’s solicitor will provide the Sheriff with a summary of the background of the case and thereafter set out their client’s argument. The solicitors will both be given the opportunity to address the Sheriff and put across their argument. The Sheriff may then ask both of the solicitors questions and will then make a decision based on what he or she has heard. For example, the Sheriff may increase or decrease contact, he or she may appoint a Curator for the child or order a Report from an independent solicitor.

If you are not pleased with what the Sheriff has ordered in the Child Welfare Hearing, let your solicitor know once you have left the Sheriff’s Office/Chambers. Do not voice your opinion in front of the Sheriff.

What if I do not wish to comply with an order made by the Sheriff?

It is very important that you comply with any order made by the Court. If you fail to do so, the Sheriff could hold you in contempt of Court and at the very least you will be on the back foot the next time your case calls. It is important to be able to show the Sheriff that you have made all possible attempts to facilitate his/her orders. As an officer of the Court your solicitor will have no alternative but to encourage you to obtemper/adhere to a Court order.

What does it mean if the Sheriff orders a Report?

Your solicitor will probably have discussed this with you prior to the Child Welfare Hearing. At the Child Welfare Hearing it is open to the Sheriff to order a Report from a third party such as an independent solicitor. The Report will be on your child’s background and circumstances. The independent solicitor will usually be an experienced solicitor from a different firm in the Highlands. They will have no connection with you or the other party. The solicitor will often meet with both parties, the child, school teachers, Social Workers, Health Visitors, friends or family. The solicitor will then report back to the Sheriff what they have found and will often make recommendations based on what is in the best interests of the child. Once the Report has been prepared, your solicitor will provide you with a copy to read and you will be given the opportunity to discuss the Report’s findings with your solicitor prior to attending Court again.

For expert family law advice, tailored to your specific circumstances, contact a member of Macleod & MacCallum’s award winning family law team.

September 17, 2014