Emergency applications

Waiting two or three weeks for a mediation meeting just isn’t an option in some situations. You do not have to attend a MIAM if your case is an urgent one, but you must be able to show one of the following.

There is a risk to:

• your life, freedom or physical safety
• the life, freedom or physical safety of a member of your family or your home
  
  Or any delay caused by going to a MIAM would mean:
• there is a risk to your life, freedom or physical safety or your family or home
• a risk of harm to a child
• a risk that a child would be unlawfully taken from the UK, or a risk that a child who is currently outside England and Wales will be unlawfully held
• a significant risk that there will be a miscarriage of justice
• you would suffer significant financial hardship
• irretrievable problems in dealing with the dispute – including the irretrievable loss of significant evidence
• that in the period needed to arrange and go to a MIAM, proceedings relating to the dispute will be brought in another country (or state), and a court in that other country would be able to hear the dispute and make decisions before a court in England and Wales could

Telling your ex-partner of your intentions may be the very last thing you want to do. Emergency applications are typically made in tense and highly emotional situations. Nevertheless, when you want an order urgently you should tell the other parent or person with whom the dispute has arisen (the respondent) that you’re making an application.

You can do this informally by:

• writing to them
• phoning them
• texting them
• emailing them

Only in exceptional cases will the court hear an urgent application without notice being given to the other person. Without notice means not telling them. Hearings without notice will generally only be held if you can show that giving notice to the other person would: 

• enable them to pre-empt by taking steps that would defeat the purpose of your application
• mean you or the child (or children) would be at risk of harm
• mean there is some other exceptional urgency and so no time for you to give notice

It is almost always possible to give at least informal notice in one of the ways mentioned.

If you want to make an urgent application without any notice to the other party, you must give the judge or magistrates as much information about the case as you can.

This means that you must tell the judge or magistrates about that concerns that have led to you to making this application. Also tell them about everything you think the other person would say in reply if they were at court.

The court will generally only make an order without notice if you have provided a full, signed account of the evidence on which you are relying and confirmed it to be true.

If you want to provide more information, you can do so in a written statement. This should also contain a declaration of truth which you must sign. Ideally any further statement should be typed, but this is not essential if not possible. In your written statement you must:

• set out a little of the background to the application
• explain why you need an order as an emergency
• describe the nature of the order you want

It is advised that you do not bring your children to court unless they are part of the legal proceedings. For example, they are a witness, or you have an appointment for you and your child to meet with the judge.

If you must bring your child for any other reason, please ask an adult friend or family member to attend with you to look after your child while you are in the hearing. You cannot rely on court to look after your child.

When a family court considers an emergency application, it will prioritise the safety and well-being of the child or children involved. Among the key factors the court will look at include:

Immediate risk of harm - First and foremost, the primary concern is whether your child faces an imminent risk of physical or emotional harm if the emergency order is not granted. Evidence for this could include:

• history of domestic violence or abuse
• threats of abduction or self-harm
• neglectful living conditions

Strength of the allegations - the credibility of the allegations presented in the emergency application will be assessed. Evidence such as witness statements, medical records or police reports can strengthen the application

Timescale and urgency - how quickly does your child need protection? Emergency applications are typically resolved much faster than standard family court proceedings

Balance of convenience - the court will weigh up the potential benefits of granting the emergency order against any potential inconvenience or disruption it may cause to the other party, which is usually a parent. This balance is crucial, as emergency orders can have a significant impact on living arrangements or contact schedules

Child's wishes and feelings (if applicable) - the court will look at the child's wishes and feelings, particularly for older children, but their age and maturity will be taken into account. As always, with any court order application in family and child law, the court will consider the welfare checklist the child's best interests remain the paramount concern

Other relevant factors - depending on the specific circumstances, the court might consider additional factors, such as:
 

• the child's relationship with each parent
• the child's current living arrangements and support network
• any potential risks associated with the proposed arrangements

Other important things to know about making an emergency application for a child 

• Emergency applications are typically made without notice to the other party, which means that they won't be present in court during the initial hearing
• However, the court will usually schedule a follow-up hearing within a short timeframe to allow the other party to respond and potentially challenge the order
• Seeking legal advice is crucial for navigating the emergency application process, especially if you are the respondent facing unexpected restrictions

Overall, the family court acts very quickly in emergency situations to make sure that a child's safety is not at risk. The specific factors considered will vary depending on the circumstances, but a child's well-being remains the top priority.