Family law is separated into two areas: private law and public law. But what are the differences between the two, and how do you know which one you need help with? This article takes a look at these things, identifies the key differences, and explains how solicitors can guide you through these proceedings.
Family law is separated into two areas: private law and public law. But what are the differences between the two, and how do you know which one you need help with? This article takes a look at these things, identifies the key differences, and explains how solicitors can guide you through these proceedings.
If you have a family law issue and you require legal advice to understand your options, contact specialist family law solicitor Liza Gatrell. Vicki is a trusted and highly capable family lawyer and divorce solicitor and a Partner at the specialist family law firm, Stowe Family Law.
What is private law?
Private family law concerns disputes and proceedings between individual parties, where an application to the court is made by one person against another. A common example is an application for a child arrangements order, which determines both where and with whom a child will live, as well as the level of contact they will maintain with the parent they do not reside with. Although there are many different types of private law applications that can arise within family law proceedings, the example mentioned above is by far the most frequent. Other types of private law applications that are regularly brought before the court include:
- Those dealing with specific issues about the child’s upbringing, such as the child’s surname, medical treatment, or where they will go to school
- Prohibited steps orders prevent a parent or guardian from taking specific actions such as removing a child from the UK or from an educational setting without permission.
- Parental responsibility orders establish who has the legal right to make decisions about a child’s care, education, and general welfare.
Private law disputes tend to be the result of the parents separating or divorcing where they cannot agree on the arrangements for their children. The court’s focus is always on what is in the child’s best interests rather than what the parents want to happen.
What is public law?
Public law family proceedings are when a local authority (social services) becomes involved. Generally, they make applications, commonly referred to as “care proceedings”, to the family court. Public children law cases are only begun if the local authority believe that a child is at significant risk of harm. Common public law applications include:
- Care/supervision orders which may include an application to remove a child from the care of their parents
- Emergency protection orders—used when a child is in immediate danger, allowing the local authority to take temporary custody of the child
- Discharge a care order in force
- Contact applications under the Children Act 1989 by the child’s parents for contact to the child in care
- Placement orders freeing the child in care for adoption. An adoption order terminates the parental responsibility of the biological parents and transfers it to the adoptive parents.
The differences between private and public children law
Key characteristics of public children law
- The local authority will be involved
- Aimed at protecting the child from harm
- Court proceedings are brought by the state
Key characteristics of private children law
- The dispute before the court is between the child’s parents or guardians
- It is about parenting arrangements, such as when the non-resident parent should see the child
- Court proceedings are brought by individuals, such as a parent, guardian, or grandparent
In what ways do public law and private law proceedings interrelate?
In both areas of law, the court is concerned with the welfare of the children. Sometimes these areas of law interlink, and there can be times when private law proceedings turn into public law proceedings and vice versa.
Private law proceedings may turn into care proceedings if the local authority considers that the s31 threshold has been crossed. Perhaps parents have resumed an abusive relationship or relapsed on substance misuse—no matter how the safety of the child has been jeopardised, the local authority will issue proceedings of their own. This results in private and public law proceedings being consolidated, with the care proceedings becoming the dominant application.
In addition, private law cases can often bear a resemblance to care proceedings in the following ways:
- There may be local authority involvement, and children may be made parties to the proceedings and be represented by a guardian
- There may have already been local authority assessments of the family
- Children may be classed as “children in need” under section 17 of the Children Act 1989 or be the subject of child protection plans.
- The local authority may have to provide a welfare report if there is current or recent involvement
- There may be referrals from CAFCASS following the safeguarding checks or other professionals with concerns.
Public law cases are very often finalised by private law disputes where children are cared for by one parent or an extended family member under a child arrangements order or a special guardianship order (SGO). Frequently, where care proceedings conclude with a supervision order or SGO, any proceedings brought by family members will be private. For example, where a mother seeks increased time with the children placed with a grandmother under an SGO.
In some senses, even adoption cases can be viewed as a private law matter. Step-parent adoptions, for example, will fall into this category. There is also scope for contested adoption applications to be finalised by private law orders where permission to oppose applications are often successful.
Can I get legal aid for private and public law cases?
There are different rules for legal aid which depend on the type of proceedings you are involved in. It is usually much harder to get legal aid for private law cases, although it is available in some limited circumstances such as where domestic abuse is involved, whereas in care proceedings, it is granted to parents upon completion of the necessary application. In many public law cases, there is no need for a means assessment to determine if you qualify for legal aid, as your right to representation is protected.
If your private law case doesn’t fall under the specific criteria for domestic abuse, but there are compelling reasons it needs legal aid, for example, it is essential for the protection of a child or you have a serious vulnerability, you may be able to apply for Exceptional Case Funding.
It is essential that you speak with a solicitor who will be able to advise you in relation to your case and whether legal aid funding is possible.
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