Introduction
The purpose of this section on the website is to assist those members of the public who are attending at our court centre. Family cases involving children are split into two types of applications; public law applications (proceedings usually initiated by a local authority) and private law proceedings (proceedings usually initiated by a parent or other family member). Private law proceedings are usually applications made by a parent in respect of arrangements for a child; such as where they should live and how often they should see a parent with whom they do not live.
In public law proceedings a party will usually have access to state-funded legal representation. That means that lawyers will already be involved with a parent, representing their interests outside and inside the Court room. However, legal aid for private law proceedings is limited to certain types of cases. For the vast majority of private law cases a party will either be paying for their own legal representation, or attending at court in person and representing themselves. Children Law Accreditation, accredited through the Law Society, is a recognised quality standard for practitioners representing children in children law proceedings.
What follows below is intended to provide some assistance to those individuals who are attending in private law children cases representing themselves. It is not intended to be legal advice but rather as some guidance as to what is likely to be expected of you as a party to a case, and what you can expect to happen as a case progresses.
Making an application about a child (Private law)
If you want to make an application to Court then you will have to make an application on a form called a C100. You can click here to find that document and further assistance.
Once you have made an application it will be sent to CAFCASS for them to make some safeguarding checks. You can find out more about CAFCASS here.
Your application will also initially come before a legal advisor to ensure that your application goes to the right level of Magistrate or Judge. From the point of making your application there will be a gap of roughly 2-3 weeks before your case comes before the Court for the first hearing. That hearing is called a First Hearing Dispute Resolution Appointment ("FHDRA").
In Cleveland and South Durham we try to ensure that both private law and public law cases are heard within 26 weeks. We think it is important that children are not involved in proceedings for extended periods of time. You can therefore expect a private law case to be concluded in approximately 6 months. However, there will be some cases which are more complex and may take longer.
First Hearing Dispute Resolution Appointment (FHDRA)
At the first hearing the court will look at the documents sent in by the parties. The court will decide whether a finding of fact is needed and then make orders for the evidence needed for trial. The court may also decide when the finding of fact hearing will be heard. If the Court decided that the case requires a fact finding hearing, a pre trial review may be listed.
In Cleveland and South Durham, a final hearing will be listed as early as possible. That means it will usually be listed at the FHDRA. The Court lists the final hearing at this stage to try and avoid overall delay.
When the Court lists a final hearing, it will also direct the filing of final statements. Statements prepared for a fact finding or final hearing should all be set out in the same way. Guidance of the preparation of statements can be found here, with a template here.
The kinds of evidence which the court might consider is medical evidence, police disclosure, children's services records, evidence from other witnesses. The court controls which evidence it hears and you will be given a deadline to send evidence to the court and other parties. It is very important to meet these deadlines or the case might be delayed.
When reading the safeguarding letter produced by CAFCASS, the Court may decide that a welfare report is required. A welfare report is called a s.7 Report and can be prepared by CAFCASS or from a local authority if there is involvement with the family with them already. More detail can be found here in respect of what a s.7 welfare report is.
If you wish to have special measures organised (e.g. a separate waiting room, a video-link or screens so you are not seen by the other person), let the court know well in advance. If you are unsure about what you can ask for help from the court.
The court will set dates for the finding of fact and will list a pre-trial review. This is a short hearing to ensure that the case is ready to proceed. The pre-trial review will be a couple of weeks before the finding of fact trial. It is important to attend this hearing as the judge will consider the evidence and may make some ordersabout how the trial will be heard.
Pre-Trial Review (PTR)
The purpose of a pre-trial review is to ensure that any fact finding hearing is ready to proceed. It is in no one's interests, especially a child's, for proceedings to be delayed. As a result, the Court lists the pre-trial hearing to make sure everything that needs to be done, has been.
The Court will look at the following matters to ensure that the fact finding hearing can proceed:
- The court will make sure that all orders have been obeyed and that all of the evidence ordered has been sent to the court;
- Bundles - the judge will sort out who is responsible for getting them ready. You can click here to find out more about preparing bundles.
- The court will think about how everyone can participate safely and will consider any special measures. Special measures include a separate waiting area or the ability to give evidence via video-link.
- The court can also order an interpreter to attend if this is needed.
- The court might decide that there is enough evidence to make a finding of fact and may also try to narrow the issues and decide which of the allegations will be tried.
- The judge might decide that fewer of the allegations will be heard than are on the schedule.
- Ground rules - the court will look at whether any party has any needs that require the hearing to be conducted in a particular way. Examples of this might include taking regular breaks, have a person at the hearing to help with the questions (called an intermediary). There may be physical changes to the courtroom including screens so that one party cannot be seen by another or one party might give evidence by video link from a different room.
- The judge will explain the format of the hearing as well as the basics of evidence (who has to prove which allegations and how the court will reach a decision, who gives evidence and in what order etc) as this helps everyone to understand what is going on.
- If there are any specific reasonable adjustments for a party giving evidence they will be arranged.
- The court can also control how questions are asked by the parties. The judge may decide that one party may not directly question the other party. The Judge might decide that a Qualified Legal Representative might be required to assist one or both parties. Guidance and more information about Qualified Legal Representatives can be found here. The judge might decide that one party has to produce a list of questions which will be read by the judge.
Fact Finding Hearing (FofF)
What is a fact finding?
A fact finding is when a court listens to and reads evidence about allegations of domestic abuse made by either party to proceedings. In family law proceedings, where there are factual issues disputed between the parties which are relevant the Courts decision, then the Court will have to decide whether the allegation has been proved. For example, if one parent says that the other parent has been abusive, violent or controlling, the court may need to have a hearing in order to decide whether this is proved. It is the person making the allegation which must prove that the allegation is probably true (a "balance of probabilities").
Why does the court need a fact finding?
The court will hold a fact-finding hearing if the allegations are likely to make a difference to the decision the court will make about your children. The judge or Magistrates will decide if one is necessary and you will be given the opportunity to give your views.
What will I have to do to prepare for a fact-finding hearing?
The person making the allegations will have to produce a Schedule of Allegations. This is a list of individual allegations set out in a table. Please click here to find some guidance on how to prepare a schedule of allegations. The schedule is only intended to be a summary of the allegations. If the allegations are being made against you, then you will be asked to fill in a part of the schedule in response to what is being alleged.
Whether you are making the allegations or responding to them, you will also be asked to write a witness statement in which you will be able to provide more detail of what you say has happened. You can find guidance on drafting a statement here and a template for a witness statement here. The witness statement contains the evidence from you that you want to tell the court about in respect of the allegations. It is important that this witness statement is detailed as you may not be able to add evidence later in court.
You may also need to provide a witness statement from another person if you believe that person has relevant information to give in evidence to support your case. You will need permission from the judge or Magistrates to have supporting evidence and you should only use statements from other people who are willing to attend court as a witness. Statements are not secret. You should make sure that if you ask someone for a statement, they understand that it will be shared with all of the parties in the case.
You may also need to obtain some evidence from your GP including medical records. Please find here a template of a letter that you might want to send to your GP
You may need to get some evidence from the police and the court will explain how this is obtained.
The judge or Magistrates will explain to you what orders they are giving and dates things must be completed. It is very important that court orders are obeyed on time or the case will be delayed or you may not be allowed to use some evidence.
How does a fact finding hearing work?
The schedule of allegations and the statements you have prepared are your evidence in respect of the allegations. When a Court hears evidence at a fact finding hearing, the party or witness who made the statement is called to give their evidence from the witness box. That person can either swear on a holy book to tell the truth, or can give to the Court a solemn affirmation to tell the truth. Two religious oaths and an affirmation can be found here as an example.
The person making the allegations usually starts giving their evidence first. However, the Judge or Magistrates will decide who goes first.
The party or witness will confirm their statement/s and then answer questions that might be asked by, or on behalf of, other parties to the proceedings.
At the end of the evidence a party has an opportunity to tell the Judge why their version of events should be believed. This is not a chance to give evidence again. Instead, it is an opportunity to make points about why your case ought to be believed.
The Judge or Magistrate will then give a judgment. A judgment is the Court's decision about what it thinks the truth probably is. A judgment might be said orally in Court, or it may be a written judgment. Sometimes the Judge or Magistrate will need some time to think about their decision and may adjourn the case to a different day to give them some time to do so.
The decision of the fact-finding hearing is binding on the parties, even if you don't agree with it. If a Court finds that a fact is proved, then it is treated by the Court as being true. If a Court finds that an event is not proved, then the Court will disregard that allegation/event when making its final decision.
Dispute Resolution Hearing (DRA)
The Court will list a Dispute Resolution Hearing in advance of the final hearing. The purpose of the DRA is to try to resolve any outstanding disagreement so as to avoid the final hearing. If parties are able to agree between themselves, that is always better than having the Court make a decision. If the Court has to make the decision, it may be a result that neither party is happy with! Often, the very fact of a final hearing, involving evidence and cross-examination, simply adds to the heat of the original disagreement and may make working together in the future even harder.
It is always better for parents to agree, if able.
Even if the case needs to still be listed for a final hearing, the Court will attempt to limit the remaining issues that need to be argued.
The final hearing (FH)
A final hearing is always considered to be a last resort. It takes place because a parent/s is unable to come to an agreement in respect of their child. A final hearing is considered by many judges to be a failure because the parents require a Judge or Magistrate, who does not know your child, to make an important decision about your child. It is far better for the parents to decide between them as to what should happen. If they are unable to do so, then the magistrate or judge will do so.
In deciding what is the best thing for a child, it is the child's welfare which is the Court's paramount consideration. In order to determine what is in a particular child's best interests, the Court will consider the "welfare checklist" in section 1(3) of the Children Act 1989. The welfare checklist can be found here.
When you are preparing your final statement in advance of the final hearing, it is helpful to make reference to those matters contained within the welfare checklist.
The Court will have read the statements prepared by the parties, as well as any documentation produced by CAFCASS. That includes the original safeguarding letter, but also any welfare report that CAFCASS has been directed to produce. The documents produced by the parties and CAFCASS, are the evidence in the case. However, the Court will also hear oral evidence from each party and CAFCASS. That allows questions to be asked of each witness.
Usually it is the CAFCASS officer who will give evidence first, followed by the party who made the application and then the party who is responding to the application. However, ultimately the order of witnesses will be a decision for the Magistrates or Judge.
Once the Court has read all of the documents and heard all of the oral evidence, each party will be given an opportunity to make "submissions" to the Court. Submissions are a final opportunity for each party to tell the Court why it should find in favour of their case. It is NOT an opportunity to give more evidence. Rather, it is an opportunity for a party to bring all the threads of their evidence together as an argument as to why the Judge ought to agree with their case.
The Court will then give a judgment. The judgment at a final hearing may deal with any factual disputes that need to be resolved. But the judgment will set out what the Court thinks will best meet the needs of an individual child, and why.
Once the decision has been made by the Court an Order will be drafted setting out what the Court has decided. The parties will receive a copy of that Order so that there is clarity moving forward as to what the arrangements are for each child.
Some useful links
Please click the link to download the files/be taken to external website
Where to get help
There are many local organisations who may be able to assist you, depending upon your specific circumstances. Below are some suggestions but there are many other organisations available. Inclusion below does not mean they are endorsed by the Court.
REMEMBER: ALWAYS CALL 999 IF YOU ARE IN IMMEDIATE DANGER
Citizens Advice Bureau: www.citizensadvice.org.uk or www.mcab.org.uk (Middlesbrough) Telephone: 0808 2787983
Harbour: (Specialist Domestic abuse charity): www.myharbour.org.uk 24 hour helpline: 03000 202525
My Sister's Place (Domestic Abuse Service Middlesbrough): www.mysistersplace.org.uk Telephone: 01642 241864
ARCH Teesside (Sexual Violence Services in Teesside): www.archteesside.org Telephone: 01642 822331
MIND (Mental health support): www.mind.org.uk Support line: 0300 102 1234 and Infoline: 0300 1233393
National Domestic Abuse Helpline (run by Refuge): www.nationaldahelpline.org.uk Helpline: 0808 2000247