Emergency Hearing

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This is written from the perspective of child contact in a divorce situation.

You should carefully read and understand all of this page Experience has shown that many glance at it and so do the wrong thing.

Contents

Why ?

You may consider an emergency hearing under the following circumstances:

  • You need to prevent something happening that could impact badly on a child, eg: being removed from the country
  • Something that has happened, that needs to be reversed/stopped before it becomes a status quo, eg: court ordered or de-facto contact suddenly stopped
  • Enable something to happen in the near future that cannot be agreed, eg: failure to hand over passport for impending Summer holiday, or to agree an impending holiday

What Makes it an Emergency ?

If normal court procedures are followed: an application must be made to court; a date set by the court; the other party/parties given at least 14 days notice and then you get to court. It could easily be 2-3 months from the date of application.

In 2-3 months:

  • a new de-facto could be established (where perhaps: the child lives at a new address, or no longer sees one parent in the manner previously enjoyed)
  • an opportunity could be lost: eg a holiday not gone on.

By seeking an emergency hearing you hope to prevent the problems caused by normal court delays.

The courts will handle emergency applications if you can show that by not so doing the child will be disadvantaged.

Outline of an Emergency Application

What happens roughly follows this time table:

Submitting the Application

You need to do this in person.

Your purpose is to grab 5 minutes of a judge's time in a way not planned by the court. Judges have a few spare minutes:

  • before their first hearing of the day, say at 9.15 to 9.30
  • a lunchtime
  • after their hearings for the day have finished, maybe some time between 3.30 and 4.30.

You need to speak to the family clerk and hand him 3 copies of the Application for Emergency Hearing saying that this is an emergency application concerning the welfare of a child, please put this in front of a judge now, you want to present it to the judge, it will only take him a few minutes. If relevant: you may want to say that the case has recently been heard by Judge XXX and that some time could be saved by giving the papers to that judge. It is assumed here that there is only one other party, if there is more (eg CAFCASS legal) you will need an extra copy for each party.

You will need to pay a court fee (unless you are exempt), so have your cheque book to hand.

The clerk will probably cough and say that: that is impossible; this is not how things are done; that the judges are all busy.

Calmly say that:

  • it is possible, it has happened many times before
  • it concerns the welfare of a child, any delay could be detrimental to the child, quote section 1.2 of the 1989 Children Act (see Acts of Parliament). In any proceedings in which any question with respect to the upbringing of a child arises, the court shall have regard to the general principle that any delay in determining the question is likely to prejudice the welfare of the child..
  • it is up to a judge to make the decision if you should be seen today.
  • you have a good book to keep you occupied and you are prepared to wait all day to see a judge; show the clerk the nice fat novel that you are currently reading.

When the clerk takes the paper work, sit in the waiting room and politely check with the clerk, every 1/2 hour, if the papers have been in front of a judge yet, when you can expect this to happen, ...

Speaking to the Judge ex-parte

You only have 5 minutes for the entire hearing, so only talk about what is strictly relevant to the reason for the emergency. You need to be able to get your plea to the judge done in 30-45 seconds, much more than that and you will run out of time. If you need more than that it is probably because you are trying to tell too much detail. The judge will ask you questions.

Your purpose in court today is to convince the judge that there is an emergency and that he should make an order for an emergency hearing in a few days time. Do not argue the rights and wrongs of the case; just explain why it is an emergency. The judge today will not make a substantive order since it is not fair to do so unless the other parties are there to give their side of the story. (If there was a risk of the child being abducted to another country you may get a temporary specific issue order.)

The judge will have seen your application; but ask him if he understood it and if he would like to ask you any questions.

Answer the questions in a simple and frank manner.

If relevant: you may want to say that the case has recently been heard by Judge XXX and that some time could be saved by listing the hearing in front of that judge if he is available.

Since the inter-partes hearing is likely to be a few days later, ask the judge to get the order typed quickly.

Remember: you only have 5 minutes, so only talk about what is strictly relevant to the reason for the emergency.

What to do with the ex-parte order

You should be given back 2 copies of the papers that you submitted and two copies of the ex-parte order. One is for you to keep, the other to use for Serving on the other party. Note that the order will specify when you have to serve by, you must conform to this date and time.

What to do at the inter-partes hearing

This will be much like a normal hearing, but do remember:

  • You are here to discuss one specific, and narrow, topic - this is what the emergency hearing was granted for. Do not waffle onto matters that are not relevant to this. If the other party moves onto other topics then politely interrupt and say that that is not relevant to what you are here to talk about at the hearing.
  • You only have a limited time in front of the judge, probably 15-30 minutes. Keep focussed.
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