HOW CAN YOUR BARRISTER HELP YOU AS A LITIGANT IN PERSON
INFORMATION ON THE COURT PROCESS IN A CHILD ARRANGEMENT APPLICATION
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.
This information provides an overview of the process in child arrangement applications. You are advised to seek legal advice.
It is important that you as a litigant in person understand the process of an application for Child Arrangement, where the parties are seeking the residence and contact with the child and your barrister can provide you with guidance and advise on each stage to ensure that you fully understand and are prepared at each stage before the final hearing to ensure that you are in a position to get the most favourable outcome.
How to start proceedings
Parents or those who have been caring for a child are generally able to start proceedings without permission, unless there is an order from a previous hearing where you must seek permission from the court to start the proceedings again. Your barrister can advise you on the merits of seeking permission.
Family law proceedings require parties before progressing an application for child arrangements through the courts to attend mediation. Before progressing an application to the Court, all applicants must firstly attend a ‘MIAM’ unless they are exempt.
A MIAM is a Mediation Information and Assessment Meeting, the aim of which is to explore if the problem can be settled by Mediation. If the case is not suitable for mediation or it cannot progress the mediator will confirm this in writing.
Often, where there has been any form of abuse or the hostility between the parties is such that it is deemed a risk, the court may need to decide and mediation may not be suitable.
The applicant, at least 14 days before the first Court hearing (a date set by the Court), must send (serve) the application, together with any other document attached to the application, on the other party unless you have verified with the court that the Court may do this for you, if you are a litigant in person.
The Respondent (other party)
The respondent (person who is the other party and responding to the application) is required to ACKNOWLEDGE receipt of the documents and fill in their ANSWER form within 14 days of service. There is a specific form you ought to use.
You need to act promptly, should you fail to respond, your barrister can advise and guide you to ensure that you have not lost the opportunity to defend your position and put your case fully. If you do nothing, then the case may proceed in your absence.
CAFCASS (Children & Families Court Advisory & Support Service)
Once the application has been issued and the respondent has acknowledged by completing the relevant part of the form, then it is highly likely that the CAFCASS officer will start making some basic safeguarding enquiries with the Police and Social Services.
It is usual practice for the Cafcass officer to contact by telephone both parties so that the Cafcass officer can talk to the parties about the matters contained in the application and more importantly identify any safeguarding concerns for you or the child. The Cafcass officer makes an initial assessment of the relevant issues and safeguarding concerns and makes initial safeguarding recommendations to the court, in readiness for the first hearing.
You may ask for a copy of the safeguarding letter and your barrister can provide you with advice and guidance to help you prepare for the first hearing.
First Hearing Dispute Resolution Appointment (FHDRA)
The first hearing is called a First Hearing Dispute Resolution Appointment (FHDRA) and is the first appearance for the parties in court. The safeguarding checks will usually be not less than 4 weeks after issue of the application.
At the FHDRA the Court will consider the safeguarding information, if the parties can manage the safeguarding issues between themselves, the court will encourage the parties to resolve the matter by agreement and if the parties agree, an order can be made to bring the proceedings to an end and without the need for further hearings.
If the safeguarding information is not available, the Court might postpone the FHDRA, to allow the Cafcass officer to complete the safeguarding checks and make recommendations available for the court.
At this hearing, the Court will listen to both parties on their views regarding the progress of the matter but will not hear any evidence. It is important that you understand the process and know what you can and cannot ask the court to do at this stage. In some cases, you may want the matter to be heard by a different tier of Judge, or you may want disclosure etc. and here your barrister can advise you on the legal procedure and help you prepare for the hearing.
Having heard from the parties and Cafcass officer, the court will normally make DIRECTIONS to progress the case or get the case ready for a fuller hearing. The Court will not always make temporary orders about the children at this stage.
The Court can ask you both to go to a MIAM if you have not already done so.
The Court might order CAFCASS to prepare a report. Typically, this will take about 12 weeks to prepare and if ordered the Court will ask you to come back to Court a couple of weeks after the report is finished.
If there are factual disputes that are important to the decision the Court has to make about the children (for example domestic abuse allegations that are denied) the Court might decide to deal with those first and direct both parties to prepare written statements about the allegations in advance of a FACT FINDING HEARING. Your barrister can help you prepare these statements and your argument re any allegations.After a fact finding hearing the Court can consider if it needs a report from CAFCASS, based upon what the judge has decided did or did not happen.
Should a fact finding hearing be necessary and there are allegations of abuse, you ought to seek legal advice as the findings of the court may have serious consequences on your contact with the child.
Your barrister can provide you with legal advice and guidance on the preparation of the fact finding hearing to ensure that you make the most of the opportunity to put your case to the court.
Fact Finding Hearing
A fact finding hearing is a separate hearing which must be determined by the court and takes place before the final hearing. It is an important hearing and the consequences are far reaching. Parties are always advised to seek legal advice due to the seriousness of the matters to be determined.
Usually both of you will give evidence, so this hearing might take longer, perhaps a day or longer depending on the evidence to be heard including witness evidence.
A fact finding hearing will always be necessary where the allegations made relate to domestic abuse, financial abuse and/or welfare and safeguarding risks to the child and the parties.
You barrister can help you with case preparation, disclosure sought and advice on witness evidence including third party evidence such a medical, children service and police evidence etc.
Dispute Resolution Appointment (DRA) hearing
This is the hearing before the final hearing and your opportunity to ensure that you have the opportunity to obtain any other evidence you may need. This is an important hearing as it is the final opportunity for you to obtain key evidence and make the necessary applications to support your case at a final hearing and your barrister can help you by providing legal advice and guidance in readiness for this hearing.
Once the Court has decided on what happened in the past at any fact finding hearing and the court and parties have received any recommendations from CAFCASS e.g. s.7 report, parties have an opportunity to narrow the issues, identify the issues which are agreed/not agreed in readiness for the final hearing and in advance of a DRA your barrister can provide legal advice and guidance on seeking further information and preparation for the final hearing.
In some cases, the DRA may be used as an opportunity for the parties to reach agreement on the key issues and if parties can agree, an order by consent of the parties can be made and the court can make an order and the case will end.
In some cases, but not all, a final order may be made. If not, the case will probably be listed for a final hearing, court will make further directions for evidence and a time line for the parties to prepare for the final hearing and again parties will need to give evidence.Here the Court will direct that the parties put their case in writing in the form of a witness statement which your barrister can assist you with.
Prior to a final hearing, the DRA is an important hearing, as court will make a number of directions and an opportunity for the parties to make their submissions in respect of the court’s directions, and the court having regard to the parties submissions, will go on to make directions to ensure that the parties are trial ready for the final hearing.
Court will make directions including who is responsible for the preparation of the court bundle; it is usual for the applicant to prepare the court bundle for use by all sides and the Judge at Court in a prescribed manner e.g. bundle index, chronology, witness statements including key evidence which the parties may rely upon at the final hearing.Again, your barrister can help you with this.
The Final Hearing is a trial where the court having heard all of the facts, from parties and third parties, hearing legal submissions and examine the options open to the court, the court will make a decision and an order will follow. Your barrister can provide advice and guidance on the preparation of this hearing.
Here both parties and any third parties will be called to give evidence, taking the court through the evidence in the bundle and be subject to cross-examination and have the opportunity to cross-examine the other parties on the evidence.
In most cases, you and the other party will be able to challenge the parts of the other party’s evidence by asking them questions unless the court makes a direction for that to be done indirectly through the court e.g. written questions and answers.
The Judge will listen to all the evidence and legal submissions and come to a decision and make a number of orders to reflect the trial issues and following that, to inform the parties what they can and cannot do in accordance with the order of the court.
This should normally be the end of the matter, but you may have to return to court to seek enforcement of an Order if the other party is not abiding by it, or if the order needs to be changed and you cannot agree it.Your barrister can advise you should this be the case.
Chambers of Helen Alexander-Direct Public Access-Family Court Barrister