3. Children’s Dispute Resolution
For all proceedings relating to children’s matters, parties should always have in mind that the child’s best interests are the most important consideration. The court will make orders and decisions with the best interests of the child in mind.
Children’s Dispute Resolution (CDR) is a process that happens before the actual trial for children matters. It aims to help parties in reaching an agreement quickly so that if negotiations are successful, there would be no need for parties to go through the hardships of a trial. The ultimate goal is to help the parties figure out how to effectively parent their children after the breakdown of the marriage. In doing this, it also helps the court and parties ensure that the children’s best interests are looked after and that it is the most important factor.
The entire CDR process goes through: (1) the Children’s Appointment, (2) the CDR hearing, and (3) Trial (if parties are unable to reach settlement).
Before the CDR hearing, the court usually sets a date for a ‘Children’s Appointment’. This is a hearing where parties will have to file and exchange various documents to prepare for the actual CDR hearing. The documents that are required include:
- The Children’s Form (also known as Form J);
- A concise statement of issues relating to the children;
- A brief chronology of events; and,
- A list of orders and directions sought from the court.
At the Children’s Appointment hearing, the judge may also give directions, for example (depending on each case) order a social welfare report to be made, allow parties to file affidavits / affirmations, ask parties to try mediation, appoint a person or guardian to separately represent the child etc.
Note that the Children’s Appointment may be heard at the same as the First Appointment (the first step in FDR) if parties also have financial disputes that need to be resolved.
Not less than 14 days before the CDR hearing, the parties are required to file and exchange detailed proposals for the future arrangements of the children.
The parties should also be prepared to personally attend the CDR hearing as they will have to actively take part in negotiations and discussions. Not only do the parties have to personally attend the CDR hearing, they must also try their best to reach an agreement on all the children matters. The setting of a CDR hearing is not as formal as a usual hearing or trial.
In a CDR hearing, the judge acts as a facilitator or ‘the middle person’. The judge’s role is to assist the parties in their discussions, negotiation, and settlement. Therefore, there may be occasions where the judge speaks directly to the parties and not through their legal representatives. This usually creates a more relaxed atmosphere so that it promotes free and spontaneous discussions between all parties.
The judge may also give indications on an issue in dispute. He or she may suggest what decision would be made on a particular point the case does go to trial. This gives the parties a reality check and allows them to reflect on whether there are things they can settle on without having to waste time and money by going to trial. The judge could also propose other options that the parties may have not considered before.
Children’s representation by an adult or legal representation is not automatic in family proceedings. Even if the court thinks that the child should also be represented in the proceedings between the parents, it must be a separate person or someone who is not already involved in the case. Separate representation would not usually be allowed if the child’s view is clear from the evidence, like the social investigation report, an expert report etc.
Whether the court will allow the child to be separately represented depends on the circumstances of each case. Some examples of when the child can be separately represented include: if the child may be suffering harm from severe dispute between the parties; if the child has complex medical or mental issues; if the family has more than one child and the welfare of one child is in conflict with the other; or if there are serious allegations of physical, sexual or other abuse against the child. Ultimately, if the child is being separately represented, the role of the guardian or appointed person is to represent and safeguard the child’s interests.
The things that have been discussed or exchanged by the parties in the CDR hearing will not be privileged and can be brought up at subsequent hearings or at trial.
Note that the CDR hearing may be conducted at the same time with the FDR hearing (if parties have financial matters that need to be resolved).
If the parties are only able to reach a partial settlement or cannot reach a settlement at all, the case will go to trial. The trial will be conducted in the traditional and formal way, it will not be set up like a CDR hearing where parties can openly discuss and negotiate with each other. At trial, the parties will have to present their case and argue why their proposals for the children’s arrangement is the one the court should adopt and make orders on. The trial will be conducted in front the same judge who conducted the CDR.
For a more technical guide on CDR procedures and separate representation for children, please see Practice Direction 15.13 and Practice Direction SL6.