What is The Family Court?
The main work of the Family Court in England & Wales is to make decisions about arrangements for children and finances – often after a divorce. Since 2014, the Family Court is part of local magistrates’ courts or county courts. Going to court to resolve matters concerning finances or arrangements for children should always be seen as the very last resort, some of the main reasons being:
- Stress. Going to court is an extremely stressful experience for many people. It is a very formal-sounding process which many people find strange. Separation, divorce and the aftermath is a stressful enough time for anyone when they are arguing about finances or arrangements for the children without the added distress of a court battle.
- Confrontation. The court process is confrontational – solicitors for each party are duty-bound to get the maximum result they can for their client, which usually means the other party gets a less good result than they think they deserve.
- Time. It can take many months until the court has gone through all the steps and hearings it needs and is ready to make its decision. There are longer backlogs in the courts’ workloads since the COVID-19 pandemic.
- Cost. Although it is not strictly speaking necessary to use solicitors or barristers to represent your interests in court, the process is so unfamiliar to most people and there is so much at stake that many people would feel they were at a big disadvantage if the other party was represented by a solicitor and they weren’t. Legal Aid is usually not available for family court matters and solicitors’ or barristers’ fees are likely to mount up to several thousand pounds for each person.
- Decision-making. The decision about what arrangements will be made for your children and/or your finances is taken completely out of the individual parties’ hands. Although this is what some people want rather than having to take the decision themselves, they have to comply with the decision the judge makes, even if they do not agree with it or like it.
How can mediation help?
The court system now expects people to attempt alternative dispute resolution routes before resorting to court action in most cases. One of the most common of these is mediation – in fact, you will normally have to prove to the court that you have attempted mediation before they will let you start court proceedings. Mediation can often overcome the problems with the court process:
- Stress. Although mediation does not remove the stress of separation and divorce, it can make the process of agreeing what arrangements to make about your children and how to split your finances and assets a much calmer and fairer process. Former partners very often find it extremely hard to discuss these matters calmly and rationally with each other. Talking with a mediator present takes a lot of the heat out of these situations and most people find they can focus better on the real issues that need to be resolved.
- Confrontation. Mediation is a process that centres around coming to a consensus about the issues you disagree about. It is not about one person ‘winning’ and one person ‘losing’, but about coming to a sensible agreement about what is best and fairest for all concerned. The mediator is not on either person’s side, but helps them agree without fighting.
- Time. Because you don’t have to fit around a court’s busy timetable and discussions are much more focused, it usually takes much less time for the parties to reach an agreement. A successful outcome can often be reached in a matter of weeks rather than many months.
- Cost. Although mediation is not free, it costs much, much less than an extended court battle. Firstly, solicitors do not usually have to be involved until you have agreed, through mediation, all the points you are disputing. Secondly, Legal Aid is available for family mediation to people on low incomes or receiving certain benefits. This covers all family mediation costs for the person who is eligible for Legal Aid, as well as the initial Mediation Information and Assessment Meeting (MIAM) and the first hour’s mediation for the other party. Even if neither party qualifies for Legal Aid and has to pay the full amount of their mediation costs, it is likely to be a few hundred pounds each rather than many thousands each for taking a case through the courts.
- Decision-making. Crucially, you and your ex-partner make the decision through mediation yourselves. Although you will both usually have to make some compromises on what you would ideally like, it is much easier to accept compromises you have made knowing the other party has made compromises to you in return, rather than compromises being forced on you by a third party.
Contact our friendly team for more information about how mediation can help you resolve your conflict. However, if mediation (or other alternative conflict resolution processes) is not successful and court action is the final way left to resolve your differences, these are the main elements to the court process.
FIRST HEARING DISPUTE RESOLUTION APPOINTMENT (FHDRA)
The first hearing is a relatively short one. The objective is for the court to identify the points that you cannot agree upon and that are the cause of the dispute. The court will want to identify what seems to be the quickest and least time-consuming (and therefore least expensive) way. All parties to the case need to attend the FHDRA. If the things to be resolved include child arrangements, an officer from CAFCASS (Children and Family Court Advisory and Support Service) will have also been instructed by the court to attend. They must prepare a safeguarding report for the court:
- They will make enquiries with the police and social services
- They will speak to all parties prior to the court hearing to understand how they see the issues
- The CAFCASS officer will recommend to the court how much involvement they think they should have in the case as it moves forward. They will also detail any welfare concerns they have about either the parties to the dispute or the children
- If the CAFCASS officer has serious concerns about the child(ren)’s welfare, the court might ask them to prepare more in-depth reports.
All parties will be asked to arrive at court in good time for the hearing. Sometimes, when everyone sees the reports that have been prepared and what the other side is most concerned about, they might be able to negotiate and agree matters between themselves before they go into court. If so, and the court is satisfied that the agreement is in the best interests of all parties, particularly the chid(ren), the court can make a Final Order at this hearing. If not, then the court will identify the issues that are still being disputed. They will then decide what evidence a judge at a future hearing will need to decide the case, and give the parties directions about what they have to provide and when they have to do it by. For example, the court might ask CAFCASS to do more investigations about specific issues, they might need to see more detailed police, medical or social services records, or they might direct the parties to attend programmes to address their own problems, etc. If it is not possible to agree all issues at the FHDRA, the court will schedule the next hearing. This will often be either a Dispute Resolution Appointment (DRA) or a Final Hearing.
DISPUTE RESOLUTION APPOINTMENT (DRA)
This type of hearing is used where the judge considers that some of the issues being disputed need to be resolved before a Final Hearing can be scheduled. This is particularly likely to be the case if the court asked for more in-depth reports at the FHDRA.
The court will hear evidence from any information that has been requested and also from both parties. Again, if the parties can reach agreement on all outstanding issues as a result of the information that comes out of the DRA, the court will make an order reflecting what has been agreed and complete the case.
If not, the court will instruct both parties to file more evidence as needed and schedule a Final Hearing.
FINAL HEARING
The court will now have all the evidence, statement, reports, etc it has identified out of previous hearings that it needs to be able to make its decision. The court will hear spoken (oral) evidence from both parties and, occasionally, other witnesses. Anyone who gives evidence at this hearing may be questioned and cross-examined by the parties’ solicitors, and also possibly by the judge/magistrate or the court Legal Advisor.
After hearing all the evidence, the judge decides on the issues being disputed and makes an order that he/she deems appropriate. Where children are involved, this will be an order that the judge considers is in the best interests of the child(ren).
OTHER TERMS YOU MIGHT COME ACROSS
FACT FINDING HEARINGS
These happen when one party makes allegations against the other which are contested – for example, allegations of domestic abuse, drug or alcohol misuse – which would influence the court’s decision, particularly when child arrangements are concerned. It is like a mini-trial. Evidence is presented to the judge, the parties themselves will usually give evidence and can be challenged, or cross-examined, by the other party’s solicitor. The judge will consider all the evidence presented to him/her and then decide, based on the evidence presented, whether or not the alleged incident(s) are more likely than not to have happened.
It is up to the person making the allegation to prove to the judge’s satisfaction that their version is more likely to be true than not. The burden of proof is on the ‘balance of probabilities’ rather than ‘beyond reasonable doubt’ which has to be proved in criminal cases. Particularly in the case of allegations of domestic violence, it could be that the police have not been able to bring charges against the alleged perpetrator because there was not enough evidence to prove the case to the higher level of proof. However, the alleged victim might have enough evidence to be able to persuade a judge in the Family Courts on the lower level of proof.
It is often very difficult for people to present their argument in court without professional representation from a solicitor or barrister in a way that will convince the judge. You usually only have one attempt to do this. If you find yourself having to make these sorts of allegations in the Family Court, or having to defend allegations made against you, it is always best to get advice from a solicitor and pay for professional representation in court to give you the best possible chance of success.
ADJOURNMENT
The parties involved in Family Court cases are expected to attend all hearings. The court can proceed with your case on the due date even if you are not there or not represented in court. These days, particularly due to the COVID-19 pandemic, many Family Court hearings are held remotely by video or telephone conference, so there is less reason for someone not to be able to attend a hearing.
If you have a very good reason why you are not able to attend on the date given, you can apply to the court to adjourn, or postpone, the hearing. If you can get the other party to agree to the adjournment, this can help your application. But the decision about whether to adjourn the hearing or not is solely down to the judge. Even if the other party agrees, the judge will not automatically grant the adjournment. Courts recognise that family matters proceedings are stressful for everyone and want them resolved as speedily as possible; the judge has to be satisfied that an adjournment is in the interests of justice, that no parties (especially children) will be adversely affected by the delay and that nobody is disadvantaged by the delay in the case.
COURT BUNDLE
This is a bundle of documents, normally prepared by the person making the application (although the court can order a different party to prepare them), which contains copies of all the documents relevant to the case. The person preparing the bundle must provide identical bundles for themselves, for other parties to the case, and for the court. You have probably seen courtroom dramas or newsclips of trolley loads of boxes being wheeled into court. These are court bundles! Admittedly, a bundle for a Family Court case will not be quite as dramatic, but they can still run into hundreds of pages.
The document pages must all be numbered and indexed so they can be found quickly by all parties during the hearing: “Pages 137 to 140 in your bundle.” All relevant documents must be included in the bundle, even if they are not favourable to the case of the person preparing the bundle (e.g. a report which criticises one of the parties).
MCKENZIE FRIEND
A McKenzie Friend is someone, usually not a lawyer, who accompanies a party who is not represented by a solicitor or barrister and helps them during the hearing by taking notes, organising documents and discretely making suggestions – for example, questions to ask the other party or a witness. A McKenzie Friend is usually not allowed to address the court directly or take an active part in the proceedings.
I have been asked to write a position statement – what is this?
This is simply a short statement briefly outlining your position. You usually do not have to prepare a position statement, but it can be particularly helpful for someone who is not represented by a solicitor to give a concise summary of what the current situation is as you see it before you go into court. It reduces the risk of getting tongue-tied when asked to explain your position in court and accidentally forgetting something important. You do not go into any detail – the judge will ask you in court to explain a little more about any points if necessary. The judge needs to be able to read your position statement and understand the outline of your position quickly.
Sometimes, the court might direct both parties to produce a position statement before the hearing. It could be that when you see the other party’s position statement and they see yours, you might be able to find more areas you can agree on before you go into court. For example, if you have not attempted mediation yet, you could state in your position statement that you are willing to attempt to resolve your differences through mediation.
A position statement should start with details of the case and the specific hearing the position statement has been prepared for. This should include the case number, family court where the hearing is taking place, the Applicant’s name (the person making the claim), the Respondent’s name, the names and relationship of any other people involved in the matter (e.g. children’s names where it is an issue about contact) and the Judge’s name.
The position statement should then be no longer than 1 or 2 pages and each paragraph should be numbered. Keep to the facts and don’t try to make it sound ‘legal’. Use ordinary language. Don’t say “XYZ is lying” though – better to say “I do not agree that this allegation is true.”
EXAMPLE:
POSITION STATEMENT OF THE RESPONDENT, XXX, FOR THE HEARING ON AT BEFORE DISTRICT JUDGE JJJ
This matter is listed for a First Hearing Dispute Resolution Appointment in the Applicant, YYY’s, application to spend time with our daughter, ZZZ, aged . I, , am the Respondent and ZZZ’s mother. My position for the hearing is as follows:
1. I received the Applicant’s application for a child arrangements order at my work address on . I have provided my home address to the Court using a form C8. I wish to keep my address confidential from the Respondent. I have also filed a form C1A.
2. The Applicant has been physically and sexually violent towards me throughout our relationship, often in front of our daughter. I sought assistance from my GP several times and went to hospital for treatment as a result of the violence on two occasions. I sought assistance from the police following the last incident on . I decided not to take the matter further with the police, but I have not been in a relationship with the Applicant since this incident.
3. The Applicant is seeking regular, unsupervised contact with our daughter. I oppose this. The Applicant has not seen our daughter since and he has not sent her any letters, birthday or Christmas cards. Before our separation the Applicant had shown very little interest in her and had not spent any time alone with her. I am very concerned about the impact on my daughter from witnessing the violence, and the risk that she may witness or experience further violence or verbal abuse by the Applicant. Before the Court considers allowing any contact (including indirect contact) between the Applicant and our daughter, I would like the opportunity to file a statement setting out my concerns in detail and to provide police and medical records.
4. I would agree to a full risk assessment being carried out to consider the risk of harm the Applicant poses to me and our daughter if he were to have contact with her. If the Applicant disputes his behaviour towards me and our daughter, I ask for a fact finding hearing.
DO I NEED A SOLICITOR?
Technically, no – but representing yourself in these sorts of proceedings is a very daunting and stressful prospect for most people. Legal Aid is generally not available for Family Courts matters – the main exceptions being for victims of domestic violence or where children are at risk.
Solicitors’ or barristers’ fees can quickly mount up and typically will run to several thousands of pounds for a Family Court case. You might be able to save on some of these costs by asking them to just help with specific steps, issues or documentation rather than instructing them to do the whole case for you. This is sometimes known as ‘unbundled services’.
If someone has started a case in the Family Court against you, you should get some advice from an experienced family lawyer about what your options might be and how much it is likely to cost.
You can get support completing a Court application through other avenues, including a free voluntary service, Support Through Court and a private service (though far cheaper than solicitors!), the Family Court Application Service (FCAS). You can read more about FCAS here.
Conclusion
Court action should be the very last resort when it comes to resolving family issues following a separation or divorce. It is intimidating, stressful and daunting to many people and a very formal, complicated-sounding process which usually takes a long time and can get very costly.
Mediation is a much less confrontative, cheaper and quicker way to come to an agreement between you. Even when ex-partners find it very difficult to be in the same room together and talk through their issues calmly when it is just the two of them, talking through a mediator is nearly always a much more productive way to be able to reach agreement – even when at the start of the process it might feel as if you will never agree on anything. Direct Mediation Services has a very impressive track record of success in helping ex-partners come to a workable agreement in these situations.
If you are notified of court proceedings being started and you have not attempted mediation yet, contact us now to discuss how mediation can help you avoid the distress and expense of going to court.
Want to known more about family mediation?
You can
contact Direct Mediation Services on 0330 043 6799, via email info@directmediationservices.co.uk or by our contact form.
