HOW CAN YOUR BARRISTER HELP YOU AS A LITIGANT IN PERSON
HEARINGS IN THE FAMILY COURT
RESPONSIBILITY OF A LITIGANT IN PERSON
Important Note: Please note that this information is not intended to be legal advice. You are advised to seek legal advice.
Your barrister is there to provide you with support and legal advice as a litigant in person on the need to be familiar with the different types of hearings, the importance of case preparation and legal argument in private family law cases.
ATTENDANCE AT COURT
Your barrister will always advise that you ensure you attend court in a timely manner. Although, attendance at court hearings is not compulsory, it has serious consequences of failure to attend without notifying the court of the reason for non-attendance.
The Family courts can proceed with a court hearing even if you are not in attendance at the court. Your barrister can provide legal advice and draft documents for you. If you are unable to attend court and want to change the court date (adjourn the hearing), you must send a copy of your reasons with evidence in support to the other party and the court, this effectively will put the court on notice and move the hearing to another date.
Your barrister will always advise you that you ought to seek the consent of other parties to the case in relation to the proposed adjournment. If the consent of other parties is obtained, this will support the application to adjourn the hearing. Next, we would advise you to contact the court at which the proceedings are held and informally request that the adjournment be made.
Your barrister will be happy to assist you with advice on preparation of your application (you will be signposted to the ‘support through court’ who do not provide legal advice but can help you fill the form), which is a formality for seeking an adjournment.
The decision to postpone a court hearing is solely at the discretion of the Judge. The courts are encouraged to deal with cases swiftly and efficiently as delay can have a detrimental impact on all parties and, in particular, any children that may be involved in the proceedings. If the other parties have not given consent to the adjournment, the court will ascertain their views so as to ensure that no one is disadvantaged by the court’s decision.
There are a number of factors that the court must consider before the Judge in deciding whether to postpone including the reasons provided seeking an adjournment, stage of proceedings and impact that the adjournment will have on all other parties, professionals, children and witnesses.
VENUE FOR THE HEARING
The usual practice is that the court hearing the children matter case will normally be the nearest court to where the child lives unless the court directs otherwise. Your barrister can provide legal advice on how you can make an application to move the hearing in some cases.
Some County Courts and Magistrate Courts are now combined and are called the Family Court, others are designated Family Courts and it is usual that parties will be asked to attend the allocated Family Court. It is imperative that you attend court; otherwise, the court may make decision about your case in your absence.
MIAMS – MEDIATION
At the start of an application to the family court, there is a requirement that parties required to are attend mediation, this is called a Mediation Information Meeting (MIAM) unless you are exempt and you must obtain a certificate of exemption and your barrister can provide advice on whether and how you can prepare for the mediation process or discuss whether you can be exempted from the process.
ROLE OF THE FAMILY COURT IN CHILDREN CASES
The Family Courts make decisions about the best interest and welfare of the child and that duty is paramount in all applications for a Child Arrangement Order.
When a relationship breaks down and parties are not able to agree where the child should live, how much time to spend with the child and how the child should be brought up and so forth, very often parties will ask the courts to make a decision. Your barrister can provide legal advice on your case preparation; draft documents, advice on evidence, the law and the court’s practice procedure to assist you put your best case forward.
Family court also deals with injunctions like non-molestation and occupation orders and can make specific issue orders, prohibited steps orders, and whether one parent can relocate with the child to somewhere else in the country. Your barrister can provide legal advice to help you prepare your case effectively.
FIRST HEARING DISPUTE RESOLUTION APPOINTMENT (FHDRA)
After the court has allocated your case, the First Hearing and Dispute Resolution Appointment (FHDRA) is usually the first court hearing after an application has been made to court in private family law. There may be some cases, which ought to be heard in a different court, which may be an advantage to your case and your barrister can provide you with legal advice on why you should be in a higher court due to the complexity of your case and how that can help you.
Your position statement is there to assist the court in identifying issues between the parties, the complexity of the case, disclosure, expert reports and so forth, at an early stage. It is very important at the early stage of the proceedings that you know what to ask the court to do and why, and your barrister can provide legal advice, provide a merits assessment of your case and advise you on the kind of applications you may need to make to get the information that supports your case.
There is also an opportunity for the parties to reach an agreement at the hearing on some of the issues, your barrister can advise you on how to narrow the issues, and provide you with advice on the case strategy such as seeking a specific interim application for contact and/or other orders which can be the subject of negotiation to progress your case and make the best use of that hearing.
A Cafcass Officer normally should be present to assist the court and parties in court. Your barrister can provide legal advice as to the remit of the Cafcass officer’s role and seek further disclosure.
Your barrister can help with legal advice on how you should set out your case in a position statement; a position statement not only gives the court a brief summary of your position but what other orders and/or disclosure you may request in advance of the hearing. A well prepared position statement also help the parties to identify the issues and attempt to reach an agreement on some of those issues and in some cases, this may allow the parties to bring a case to an early conclusion if the other party accepts your proposal.
A well prepared position statement with proper legal advice can also help you move your case to a higher judge, seek disclosure of police reports, medical and school report etc. It can also be used to give you an opportunity to seek disclosure from the other party such as telephone messages, emails etc. that may be important evidence in support of what you want to achieve at the hearing, your barrister can provide legal advice on how you can get disclosure and provide legal arguments in support of that order being made by the court.
You should provide a copy of this position statement to the court and the other party and Cafcass in order to help progress the situation.
The Judge and the Cafcass Officer will attempt to assist the parties to reach agreement and it is important for you to understand what it is that you are agreeing to and any potential consequences of that agreement and how it may impact on you in the future. Your barrister can provide legal advice to ensure that you are fully informed on the merits of such a decision to agree and any potential downside to such an agreement.
You barrister can provide legal advice on the role of Cafcass and challenge any reports they may prepare which are not favourable to your case. The usual process is that prior to the hearing starting, Cafcass should have prepared a ‘Schedule 2 Letter’; this is a safeguarding letter, which should be shared with both parties (unless doing so would put either party or the children at risk and/or the document contains information which is sensitive of which the other party is unaware).
The Schedule 2 Letter (safeguarding letter) will include background checks on the parties and make recommendations as to with whom the children should live and what time, if any, should the child spend time.
Your barrister can provide legal advice on the merits of reaching an agreement, the impact on you and your child of such an agreement, and should the parties reach agreement at the FHDRA, a final order by consent may be made setting out the details of the agreement, if the court deems it to be in the children’s best interests to do so.
If the parties cannot reach agreement, the court will seek to determine the areas where they disagree and the reasons why, here your barrister can provide legal advice as to your reasons, concerns and legal rights to ensure that you get permission from the court to seek disclosure and/or be allowed to bring further evidence forward.
As a litigant in person, you do need to understand the court’s powers, and your barrister is ideally placed to provide you with legal advice on what the court can and can’t do and this includes what consideration they must give to further evidence and/or what may be required to assist a judge at a hearing to decide on what is in the child’s best interests.
If your case concerns contact and/or residence, and serious allegations are made, the Judge may decide not to allow contact while matters are investigated. Your barrister can provide you with legal advice on how to challenge such a no-contact interim order sought.This does not mean that the court has made a final decision on your case, just what is to happen in the period before the final hearing.
The court, other party and Cafcass may propose that contact be supervised and/or at a contact centre while matters are investigated and your barrister can provide legal advice for you to ensure that you have your say on the particular contact centre, frequency of contact and any other types of contact such as indirect contact which may assist you, including further evidence at the final hearing e.g. seeking further disclosure.
If there are no serious concerns, your barrister can provide you with legal advice on your legal arguments to support the contact; frequency and quantum of contact, including handovers and why it should start sooner rather than later, or obtain permission for other family members such as siblings wanting contact as the court may order that there be some contact pending a final order at a future hearing (after any investigations are carried out, and evidence is submitted and heard).
Your barrister can provide you with legal advice as to the case preparation of any review hearing.
A Judge may order a review hearing during proceedings, or in some cases, once a Final Order is made. This, exactly as the name suggests, is to review the matter and if during proceedings it is usually so that the Court can keep control of the case, ensuring that evidence is on time and that any interim contact ordered is still going ahead and your barrister can provide legal advice to ensure that you are fully prepared for that hearing.
Following the making of a Final Order, the court may wish to leave a case open for a number of months, listing a review hearing, which can be vacated if all the parties agree. This hearing is intended to ensure that the Final Order is being complied with and can act as a safety net when one of the parties is particularly hostile to contact taking place. These hearings are not common, you may benefit from the legal advice your barrister can provide on the law and practice as it may involve a need to ask a Judge to leave a case open and place a clause in the Order giving you liberty to return within a certain number of months.
This means that if anything happens within that timeframe you should be able to return to court, without having to pay a further fee and have any problems arising from the implementation of the Final Order dealt with and here your barrister can assist you with your case to ensure that you get the most favourable outcome.
FACT FINDING HEARING
Where one or more parties raise any allegations of abuse; physical, emotional, financial or harassment, the court is under a statutory obligation to consider the matter and decide whether or not to list the matter for a Fact Finding Hearing which is a separate hearing which must be decided before the final hearing on a child arrangement order.
The standard of proof in a criminal court is a higher standard, the court must be sure, that is, beyond reasonable doubt. Some litigants in person argue that the police have not prosecuted them or even charged them, and whilst this may be an advantage, in most hearing of facts, it is of little weight to your case that the police have not arrested/charged/prosecuted the offence, as the family court can and must and does assess the situation, and the standard of proof in a family court, is much lower, in so far as its more likely than not (51% as opposed to being sure). These are very serious consequences, which may directly impact on your relationship now and in the future with your child.
It is always advised you seek legal advice whenever the court lists a hearing for a finding of fact case. Your barrister can provide you with legal advice and representation at court, because of the serious nature of the allegations and long-term consequences on your contact and/or residence with your child. Where there is/are a finding of fact (s) against you, you are deemed to pose a risk to the other party and your child, and that risk directly impacts on the welfare of a child.The question for the court at a final hearing is what risk you pose, the degree of risk and whether it is manageable, to allow you to have contact.
Your barrister is an experienced family court finding of fact specialist, and she is also a former criminal law barrister and therefore ideally placed to represent you at these hearings.
You barrister can provide legal advice on case preparation; evidence, witness statements and expert reports and make applications for a change in venue, senior judge and/or ask for disclosure of further evidence, witness evidence, and ensure you can bring forward key evidence such as recordings, text messages etc. for a finding of fact hearing.
A finding of fact hearing is a type of court hearing that considers the evidence surrounding allegations, and the court will make a decision as to whether alleged incidents did or did not happen. Evidence is heard, which will normally include parties being cross-examined. After having heard the evidence, the judge will decide whether the alleged incidents happened or not. Given the serious implication of a finding against you, the complexity of the case, these hearings are not of the kind of hearing to be taken lightly and without an experienced barrister at your side.
The most common of these allegations concern domestic abuse. Domestic abuse includes neglect, emotional and physical harm and violence; potential injunctions such as a non-molestation and/or an occupation order can be made, which not only may prevent contact with your child but there may be reasons for you having to move out the family home and/or face an injunction restricting your contact. All litigants in person are advised to seek legal advice from an experienced advocate.
When making a decision the judge has to consider the allegations made and any cross allegations by each side. It is for the applicant, the one making the allegations to prove that they are true. The Judge will consider on the balance of probabilities (more likely than not) whether the allegations are true or not. This means that the judge will consider whether it is more likely than not that the allegations are true.
Your barrister can provide valuable legal advice and support with your case preparation for a finding of fact hearing. Courts make detailed court directions in the order; covering how to present the allegations supported by witness statements and the response to those allegations by the other party and where there are cross allegations, the process may become complex and evidence becomes crucial to have the best advice to support you and your case.
The complexity of the case preparation and adherence to court directions is crucial, as litigants in person who represent themselves in a complex fact finding hearing are, in the main, positively disadvantaged.The court has strict rules about parties cross-examining the other party in fact finding hearing and having an experienced counsel supporting you is crucial to put forward your best case and persuade the court.
The Court will normally want to list the fact finding hearing without delay and parties must be trial ready. This ‘trial ready’ process is highly paper intensive with critical time frame and deadlines. Failure to comply with the court’s direction within the timeframe may have serious consequences, insofar as it may result in you in being prevented from putting forward your evidence, in most cases further application may need to be made in order to bring the matter back to court for court’s permission to be able to rely on that evidence at the hearing.
The party or parties making the allegations will be asked to send a schedule of the allegations to the other party and the court. The court will make detailed prescriptive measures, where the schedule must be drafted in a particular manner such as the schedule needs to be signed and dated, each incident should be numbered and set out in date order stating the date of the incident and details of what happened and where details of any witnesses to the incident and involvement of the police and/or medical services, the list should contain a statement that it is true.
The party against whom the allegations are made will then be asked to respond to the allegations within a set timeframe. You should respond to each allegation in turn, setting out your account of the incident or stating that the allegation is denied. Both parties will be directed to prepare, file and serve written statements based on the relevant evidence setting out your allegation, your evidence in support and what you want to say to the court in response to those allegations against you. You can also have witnesses give evidence with the court’s permission.
DISPUTE RESOLUTION APPOINTMENT (DRA)
Your barrister can provide you with legal advice and/or representation at this hearing.
The court may order a DRA hearing and it refers to a subsequent hearing in a children matter, usually after receipt of a further piece of information such as a further in depth report from CAFCASS or children’s services. The court will identify and hopefully narrow the issues and will try and encourage the parties to resolve the matter, not dissimilar to the process and objective of a FDHRA or review hearing before listing the matter for a final hearing as above.
It may be prudent to seek legal advice from your barrister on the preparation of the final hearing and/or representation where there are safeguarding issues and complexity of the issues, as the court’s decision is final.
At a Final Hearing the Judge will consider all of the available evidence, this will include evidence provided by the parties, any relevant Cafcass reports and information that has been provided by the Local Authority. If there has been a Fact Finding hearing the Judge will also take into account any findings made in the course of those proceedings.
Using all of this information provided to the court, the Judge will assess and come to a decision guided by the welfare of the child involved. Judges will then use the evidence before them in conjunction with the ‘welfare checklist’ in order to come to a decision which is in the best interests of the child.
In certain cases, the Judge may be invited to make no order, or the court may consider that a Child Arrangement Order detailing residence and/or contact arrangements is necessary and go on to make an order in favour of a child or some of the children and not others.
Chambers of Helen Alexander-Direct Public Access-Family Court Barrister