@JordansFamLaw | #bristolfamilylaw
Why are we here tonight?
• To outline the law and practice of the Family Court
– The community that we serve must know what we do.
– Justice must be accessible. People need to understand how to
access it and what to expect when they attend court.
• To outline the help that is available for people coming to
court and giving evidence.
• To answer questions, insofar as we can, that you might
have about the way we operate.
– To encourage open debate and comment about the system.
– To improve how we operate.
• This is an open conference and is reportable.
– The panel only are being filmed.
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What we can and can’t do
• This is a taster – we can’t cover every aspect of Family
law.
• We can’t discuss what we think that the law ought to be or
make any political remarks.
– It is your view that matters.
– No-one can choose the law, their Judge or their court except
through the democratic process.
– A Judge must uphold the law as it is (and takes an oath to do so).
• We can’t discuss specific cases.
– That would be wrong and very unfair on others so please don’t ask
us questions about a specific case.
– And, although you may disagree with things being as they are,
please don’t heckle the speakers.
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@JordansFamLaw | #bristolfamilylaw
Why does the work of the
Family Court matter?
• Ideally, personal or family disagreements are
resolved without the need to go to court.
• Where it hasn’t been possible to resolve a matter
by agreement out of court, the parties can only
turn to the Family Court for a final resolution of
their disagreements.
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Increasing workload of the
Family Court
• “Private law children cases”
– 18% national increase between August 2014 and
August 2015.
– 17% more cases in last 5 months than in same period in
2014.
• “Public law children cases”
– 5% more care applications in the year to March 2015
compared with the year to March 2014.
– 4% more cases in August 2015 than in August 2014.
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More litigants in person
• Legal aid availability reduced in April 2013.
• Increasing numbers of people are coming to the Family
Court without lawyers
– Especially in relation to “private law children cases” and some “care
proceedings” (e.g. grandparents wanting to care for children).
• Between January–March 2014, at least one party was not
represented in 80% of all “private family law” cases
– National Audit Office statistics
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Issues commonly determined
by the Family Court
A suicidal 16 year old is caught
between her warring parents.
A father (Turkish) wants to see his
children. Speaks little English.
A wife and mother is left by a
financially and emotionally
dominating husband/ father. She has
no money.
A mother, aged 19, was sexually
abused as a child and in care. Her
first child was removed and adopted
when she was 16. She has just had
baby number two. Her problems
include neglect, drink, violent
relationship, housing, and money.
She needs parenting herself.
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The three main types of work
of the Family Court
• ‘Private children law cases’
– e.g. ‘custody and access’ cases (now called child arrangement
cases)
• ‘Public children law cases’
– e.g. care proceedings, where the State wishes to intervene in the
private and family lives of individuals
• Relationship breakdown and its consequences for adults
– e.g.
• divorce, civil partnership, cohabitation
• domestic violence injunctions
• children’s money cases (other than Child Support Agency cases)
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@JordansFamLaw | #bristolfamilylaw
What legal provisions apply?
• Child arrangements orders
– e.g. where a child will live, how much time the child should spend
with each parent.
– these orders have replaced ‘custody and access’ orders and
‘residence’ and ‘contact’ orders.
• Prohibited steps orders
– e.g. to stop a child from being taken out of the country.
• Specific issue orders
– e.g.
• which school should the child attend?
• change of a child’s last name.
• permission to take child abroad
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How are private law cases
decided?
• The welfare of the child is the paramount consideration.
• Welfare checklist:
– Child’s wishes and feelings.
– Child’s needs.
– The effect of any change in circumstances.
– The age, background and characteristics of the child.
– The harm that the child has suffered or is at risk of suffering.
– The capability of relevant adults (e.g. parents).
– The range of powers (i.e. orders) available to a court.
• The court should not intervene unless it is better for the child to
do so.
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Where should a child live?
• Does the law favour the mother?
– No, there is no legal presumption in favour of either parent.
• Should children have their time divided equally
between parents, all other things being equal?
– No, the law is that there is no presumption of equality of time.
• Who has parental responsibility (P.R.)?
– The mother.
– A father who is married to the mother.
– An unmarried father whose name is on the child’s birth certificate,
or has an agreement with the mother, or has a court order.
– Test that the court applies: welfare + commitment, attachment and
reasons for applying.
• Should all parents have P.R., whether married or not?
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Spending time with parents
• It is in the interests of children that they should have
an effective relationship with both parents, unless
there are exceptional circumstances supporting by
compelling reasoning.
• There are many forms of contact:
– Direct contact
• Staying contact (stays the night)
• Visiting contact (doesn’t stay the night)
– ‘Indirect’ contact
• By Skype, Facetime, email, text, letter etc
– Supervised contact.
• Supported / monitored contact
• Contact at contact centres.
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Avoiding contested hearings
• The importance of mediation and
(Mediation and Assessment Meeting).
the
‘MIAM’
• The Child Arrangements Programme and the first
hearing – ‘FHDRA’.
• The role of Cafcass (“Guardian”).
• Encouragement from the court to settle.
• The responsibility on both parents to behave
responsibly and the consequences for the child if they
do not.
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Avoiding chronic litigation
• Litigation breeds contention.
• ‘Cases should only be adjourned for review where
necessary and for a clear purpose that is
consistent with the timetable for the child and in
the child’s best interests’.
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What if an order is disobeyed?
• The court has a responsibility to implement its orders.
• Separated Parent Information Programme (‘SPIP’).
• Options:
– Mediation.
– Family Assistance Order.
• Making further orders
– e.g. change the arrangements for collection and delivery)
– e.g. change where the child lives (‘transfer residence’ either
immediately or by way of suspended order).
– Punish the defaulting parent.
• Prison. Fine. Unpaid work.
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The three main orders
• Supervision order. Requires a Local Authority (‘social
services’) to advise, assist and befriend the family. Lasts
for up to one year but may be extended for a further two
years.
• Care order. Places the child in the care of a Local
Authority. The Local Authority then decides where the child
lives and must afford the parents reasonable contact with
the child unless the court orders otherwise.
• Placement order – Permits a Local Authority to place a
child with prospective adopters. The court may dispense
with the consent of parents to a child being so placed but
has to fulfil statutory criteria.
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How difficult are these cases?
• Very.
• The court is assisted by professional
evidence from social workers, Cafcass
guardians and, where necessary, experts.
• But the court is the final arbiter and may
disagree with social workers and/ or the
guardian (but must give reasons).
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Article 8 of the European
Convention on Human Rights
• Intervention by the state (the court or a Local Authority) into the
private or family lives of others must be:
– a) necessary for the protection of the welfare of the child;
– b) the result of a legal process; and
– c) proportionate to the established facts.
• “Nature, law and common sense require that it be recognised
that the best place for a child to live is with a natural parent
unless proven and proportionate necessity otherwise demands.”
• What more invasive order is there than one that takes a child
from a parent and tells the parent that he/she will not have any
contact with the child and the child will be adopted?
– Permanent removal is a last resort where no other solution
consistent with the child’s welfare is available.
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Care orders - Stage 1
• Are the “threshold criteria” fulfilled? (If not, the case
ends.)
• What are the threshold criteria?
–
A court may only make a care order or
supervision order if it is satisfied that:
(a) the child concerned is suffering, or is likely to suffer, significant
harm; and
(b) the harm, or likelihood of harm, is attributable to:
(i) the care given to the child, or likely to be given to him if the order
were not made, not being what it would be reasonable to expect a
parent to give to him; or
(ii) the child’s being beyond parental control.
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The threshold criteria
• What standards does the court apply?
– The harm must be significant enough to
justify intervention by the state and disturb
the autonomy of parents to bring up their
children by themselves in the way that they
choose.
– Standards of parenting vary.
– The court is not one of social engineering.
– ‘Significant’ means what it says.
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Care orders - Stage 2
• What if the threshold criteria are fulfilled?
– The court has to decide whether an order should be made at all
and, if so, what order.
– Significant harm does not = a care order
• In deciding this second issue:
– The welfare of the child is paramount
– The court must consider the ‘welfare checklist’, weigh up the pros
and cons of each option, and avoid a linear analysis.
• Can a care order be avoided by services being
provided to the parent?
• The Local Authority must file a care plan – what will
they do with the child if a care order is made?
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The 26 week time-frame
• Care proceedings should be concluded within 26
weeks of when the application was first made to the
court, unless there are good, child focussed reasons
for extending that timetable.
– In the past, cases were taking far too long and
causing emotional harm to children.
– In Bristol, we are meeting the 26 week target.
• Major issues – children’s cases not being brought
before the court swiftly enough by some Local
Authorities
– ‘s 20 accommodation’ often lasts too long
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Emergency public law orders
• Police Protection powers
– A police constable may remove a child if he has
reasonable grounds to believe that the child would
otherwise be likely to suffer significant harm
• 72 hours maximum.
• Emergency Protection orders
– Where the court has reasonable cause to believe that a
child is likely to suffer significant harm if not removed
• 8 days initially + a further possible 7 days.
• Interim care orders can be made
– Where the threshold criteria are likely to be met.
• Recovery orders can be made
– To find a child.
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Placement orders 1
• These are orders under The Adoption and Children Act
2002.
• They permit a Local Authority to place a child for adoption
and are often linked to care proceedings.
• A parent’s consent may only be dispensed with if the
parent cannot be found or the welfare of the child so
requires.
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Placement orders 2
• The next step is adoption.
– If placement order made parents have limited rights to
oppose adoption thereafter (change of circumstances
and any case based on welfare that has ‘solidity’).
• How does our law compare with others?
– We are not unique. All other EU states have not
dissimilar provisions (in varying shades and definitions).
• Adoption and contact. Rarely ordered without consent.
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Examples of other orders
• Blood transfusions. Religious
What should dominate?
objections.
• Child about to be abducted / has
abducted.
been
• Secure accommodation.
• Wardship.
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Fact finding in the family court
• Court mustn’t speculate. It must listen to the evidence and
decide what happened.
• No jury.
• The party making the allegation (e.g. the Local Authority) must
prove its case.
• Cases are decided on the “balance of probabilities”.
• Cases might involve the death of a child or the sexual, physical
or emotional abuse of a child/ adult
• How difficult are these cases?
– Very. Think about a complaint made by four year old in
extremely hostile family split. Consequences for family and
child (both ways).
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Media
@JordansFamLaw | #bristolfamilylaw
Media and the family court
• You might see a journalist in a family court - though you
probably won’t.
• Accredited journalists have the right to be in family courts,
subject to strict and limited exceptions.
• But normally we can report nothing of what goes on.
• Hence our editors don’t send us.
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Your rights if a journalist is
in court
• Any party to the case can object to the media’s presence.
• You will need to explain your arguments to the judge.
• The judge then decides.
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What can the media report?
• The general gist of the dispute.
• Anonymised judgments which judge may choose to
publish on Bailii.
• And that’s it.
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However…
• The media can apply to the judge to relax reporting
restrictions.
• It doesn’t happen very often.
• The media may or may not succeed.
• Judges can decide to hear family cases in open court.
• It doesn’t happen very often.
• If it does, there is usually a specific reason. This might be
a question of whether someone should be committed to
prison for breaking an order.
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Can you expect anonymity?
• Usually yes: anonymity is guaranteed by law while private
family cases are going on, and only extremely limited
information - and nothing of what has gone on in court can be published.
• The same goes for public law care proceedings.
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After a case has concluded
• When a case is over, slightly more, but still very limited
information can be given. Anonymity is no longer
guaranteed.
• Details of what has gone on in court may still not be
reported.
• At the end of a case, a judge can be asked by any of the
parties to limit reporting rights. S/he then decides whether
extra reporting restrictions should be imposed.
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@JordansFamLaw | #bristolfamilylaw
Married couples
• Five grounds of divorce.
• Money and property divided according to what is
fair.
–
–
–
–
Statutory provisions and complex case law applies.
What resources do the parties have? Needs. Standard of living.
Duration of marriage. Age and disability. Contributions.
Conduct (rarely). Lost benefits (pensions).
• Most ‘money cases’ decided on basis of need.
• But “big money” cases are decided according to needs,
the sharing of matrimonial and, sometimes, non
matrimonial property, and “compensation”.
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Civil partners
• Can civil partners adopt children or acquire parental
responsibility for the children of the other partner?
– Yes.
• What is a parent? Is there such a thing as a
psychological parent and, if so, what does that mean
and what are its implications?
– e.g. G v G – two women in same sex relationship. Child
born to one. What role does the other play?
• Almost identical law applies to civil partners on
separation as applies to divorcing couples.
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Domestic abuse, harassment
and forced marriage
The Family Court can intervene where:
– The parties are “associated” with each other and
• the applicant or a child has been molested (a “nonmolestation order”); and/ or
• a question has arisen about who should live in the
family home (an “occupation order”)
– The parties are not associated but one party is being
harassed by the other
– Someone is about to be, or has been, forced into a
marriage.
– ‘Molest’ has a very broad meaning and includes pester
and also assault.
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@JordansFamLaw | #bristolfamilylaw
Why the Family Court is
normally the last resort
• Everyone is entitled to a fair hearing (with appropriate
independent input to ensure fairness overall).
• But going to court is not the only option.
– There are other options which may achieve a fair
outcome
• more quickly, more cheaply and more flexibly, and
• involve less stress and less intrusion.
– Everyone is encouraged to give serious consideration to
these other options. They include:
– Mediation
– Arbitration
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Where can you get free
information and advice in
domestic abuse and violence
cases?
• Legal aid?
– Legal aid may be available if you or your
children have suffered domestic abuse or
violence and you can’t afford to pay legal costs.
• You can talk to a solicitor
• He/she may be able to represent you at court
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Where can you get free information
and advice in all other cases?
Helplines and e-mail advice:
• Bristol CAB
• Coram Children’s Legal Centre
• Rights of Women
Websites, leaflets,
articles and blogs
• Our website
• Advice Now
• familylaw.co.uk
• Pink Tape
• See resources
handout
Family Law Session 1st October 2015
Legislation, rules of court
and case-law
• Legislation.gov
• Justice.gov
• BAILII
45
Our website
• www.familycourtinfo.org.uk
• For families in the Bristol, Bath, Weston &
Gloucester Family Court area.
• Not just for lawyers. Links to services that exist.
• Videos of what it is like to be a litigant in person.
• Lucy Reed (St Johns Chambers and others).
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Books
• The Family Court without a Lawyer: A Handbook for
Litigants in Person by Lucy Reed
• How to Represent Yourself in Family Court: A step-by-step
guide by Michael Watson
• Fathers Matter: The Essential Guide to Contact on
Separation and Divorce by Celia Conrad
• DIY Divorce and Separation: The expert guide to
representing yourself by Simon Sugar and a team from 1
Garden Court
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Where can I get help?
• ‘Local Citizens Advice Centre (CAB)
• Local Law Centre
• Local Court:
• The Court Office
• Local initiatives, such as:
• Bristol Civil and Family Justice Centre:
– The Personal Support Unit (PSU)
– UWE Bristol Law Court Clinic
– ‘Pro Bono scheme’ to be launched on 5th November.
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Where can I get personal/
emotional support?
• Samaritans.
• Parenting Support Groups (national parenting
initiative).
• The Personal Support Unit (PSU).
• Multi-faith Support Group.
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Links with community
voluntary agencies
• Support for young parents.
• Facilitating support for older adults (and providing it)
• What kind of support?
– Nuts and bolts of parenting.
– Coping (e.g. with litigation stress).
– An emotional refuge.
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@JordansFamLaw | #bristolfamilylaw
Some points to bear in mind if
your case goes to court
• Forms and statements
– What you say must be clear and accurate
• Time-limits
– Must be observed
• Directions
– Must be complied with
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Who will decide my case?
• Judges of the Family Court.
• Who are they?
– High Court Judges.
– Circuit Judges.
– District Judges and
– Magistrates.
• Appointed by Judicial Appointments Commission.
Drive to diversify.
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What is the Judge looking for?
• Burden and standard of proof
– It is for the party who alleges something to prove it on
the balance of probabilities.
• Judge’s role
– The judge will:
• assess the evidence that each party has put forward
• determine what probably happened, and
• make a decision in accordance with the law.
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What to do if you have to attend
court for a hearing [1]
• Arrive on time.
- If you have a disability – please contact the court first to
check arrangements.
- If you are afraid of the other person in the dispute:
o please contact the court and ask for special measures
to be put into effect;
o ask for help from the ‘usher’ or from the security staff
at the door.
•
Don’t bring anything that may be removed from you at
security (penknife etc) – like an airport.
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What to do if you have to attend
court for a hearing [2]
• Be prepared:
– Bring copies of all essential documents.
– Bring witnesses.
• Decide if you want a McKenzie Friend.
• Be prepared to discuss things outside the
courtroom if you can, but don’t row at court.
• Don’t record hearings.
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Will my case be heard in
public or in private?
• Most family cases are heard in private.
– It would be a contempt of court to publish details unless
permitted by the law (or provided by the transparency
provisions).
• The law is complex and it is developing.
– If in doubt, ask.
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What will happen at the final
hearing?
• At the final hearing, the Judge will hear the
evidence in stages:
– Evidence in chief.
– Cross examination.
– Re-examination.
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Giving evidence
• You must make a statement.
– Prepare your statement with care.
– It is your statement.
• Think through the evidence that you will give and what you
are likely to be asked.
–
–
–
–
–
Answer the question.
Keep it short.
Don’t guess.
Be truthful.
Take time to think about your replies.
• What to call the judge:
–
–
–
–
High Court: ‘My Lord’/ ‘My Lady’.
Circuit Judge: ‘Your Honour’.
Other Judges / magistrates: ‘Sir or madam’.
If in doubt, ‘sir’ or ‘madam’.
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What will happen at the final
hearing?
• What if you need a break?
• What happens
evidence?
after
everyone
has
given
– Judgment.
– Order.
– Appeals.
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Observations and questions?
Your chance to have a say!
• Should cases be heard in public?
– What is the effect on children?
– What is the effect on the adults involved?
– To what extent should society be able to see and hear
what is being done by a court in its name?
– Should someone who feels that they have suffered an
injustice be able to voice their grievance publicly?
• What happens after a case is finished?
– What do you think is needed?
– Can your organisation help?
• Would you like to be a magistrate?
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Feedback on the session
• Please would you take a moment or two to fill in
the questionnaire and tell us what you thought of
today’s session?
• All of today’s PowerPoint material and handouts
will be available to download from:
www.jordanpublishing.co.uk/l/bristol-family-lawsessions
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Thank you and close
• Thank you very much for giving up your time
today and for attending.
• We hope that you found the session useful and
feel that you have had a chance to say how we
can improve what we do.
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