In Courts

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Different Levels of Courts

There are different levels of courts in the UK that handle family cases. You generally get better judges as you go up the levels. The ones that you are most likely to come across are:

  • Magistrates. Magistrates are not formally legally trained. There will be 3 on the bench with a clerk who is supposed to advise them what the law is
  • District judge (DJ). He/she will sit alone and will probably have been a solicitor before becoming a DJ. You address a DJ as 'Sir' or 'Madam'.
  • Circuit judge (CJ). Sits alone and will probably have been a barrister before becoming a CJ. You address a CJ as 'your honour'.
  • Principal Registry of the family division This is in London. Deals with the most complicated cases. There is a branch of the PSU at the PR that may be able to help you.

Where you apply for an case determines the judge that you get. You are best applying to the county court where you will be in front of a DJ. Cases in front of magistrates seem to move very slowly.

Appeals are heard at the next level above the one where the order that is being appealed was made, ie a CJ appeals a DJ order, a DJ appeals a Magistrate order.

In Court

You should aim to arrive 1 hour to 1/2 hour before the hearing. This allows you to compose yourself and maybe engage in some pre-hearing negotiation with the other side (generally the other parent or their legal representitive) and maybe CAFCASS.

When you get to court you must announce yourself to the court usher, also introduce your McKenzie Friends if you have one.

Arrive reasonably smartly dressed. A suit or formal attire is not needed, but being clean and tidy does show some respect to the judge.

The court lists are available on-line late the day before and will tell you which cases are being heard when and by which judges.

Do NOT bring children into court, unless ordered to by a judge (which is unlikely).

There is usually a tea & coffee machine in the building.

Court Process

Before going to court do try to come to an agreement informally, maybe using a Mediation service. The courts will generall ask if you have tried mediation. Beware, however: the process of mediation can sometimes be used as a way of stalling/delaying matters, there are times when you need to make an application for an Emergency Hearing.

Do read CB7, Guide for separated parents: children and the family courts, this gives an outline of the court process, do also look at CB6 that is referenced there.

How to Address Judges Both in Writing & in Person

Court Costs have their own page.

Normally a hearing is Inter partes but in an emergency can be Ex parte

Cross-Examination

  • LIP Study, DCA (2005) [1]

The courts and your actions are governed by the Family Procedure Rules, these are a statutory instrument The Family Proceedings Rules 1991. You may also want to read the Civil Procedure Rules which may cover questions not dealed with more specifically in the FPR. See also the Family Division Practice Directions and Practice Directions

  • Files sent to court for a hearing are collected in Bundles. These have to be organised and submitted to court following strict rules (otherwise they may get rejected). See rules as of April 2014, earlier versions: 27th July 2006

Paying for legal representation (solicitors and barristers) can be expensive, you may qualify for Legal Aid

Recording of conversations

It is a good idea to make a note of converations that you have with people, or of important events (eg pick up of children for contact) ie write them down in your diary. It can be useful to have a tape/... recorder to help you with this. If you produce your diary in court, it is open to challenge, ie someone else claiming that what is written is not what was said. A judge will make his mind up on the truth - maybe in line with his prejudices.

A common question is: can mechanical recordings be used in court ? Ie to backup a diary entry.

Strictly speaking: everyone important in the recording needs to have known that the recording was happening. So you saying at the start of an incident I am recording this would be enough. However: be aware that making such an announcement can increase the heat of the moment since it shows a certain amount of distrust; conversely it can also calm things as all those involved try to be on their best behaviour as they don't want a recording used against them.

If your diary is disputed you may produce a CD/... and say that the conversation was recorded without the other party knowing. The judge may say that this CD is inadmissible or may take the pragmatic view that it can settle an issue between the parties. Only ever do this as a last resort, you are unlikely to get away with it very often.

One reference that shows that the rules are not hard and fast

Beware searching the Internet for answers, many opinions offered are of people outside England.

UPDATE FOR FURTHER ATTENTION - The British Assoc of Social Workers has welcomed new guidance produced by The Transparency Project on recording conversations with social workers

The confirmation on the BASW website is here where the Deputy Chair stated “We welcome this guidance, which follows on from concern the Transparency Project had when it surveyed local authority practice in this area. It is going to be very helpful to our members, as it offers a straightforward explanation of why various pieces of legislation, often cited as barriers to transparency, are no such thing. It offers clarity that data protection legislation about recording, storing and sharing of personal information by social services and other agencies does not apply to parents and families in relation to their own personal information. There is a clear explanation of the difference between the right to make a recording, and what an individual can do with a recording they have made.

Court Forms

To find out what you need to give to the courts, see Court Forms

Court Orders

At the end of the process you are likely to come out with a Court Order

POWER OF THE COURTS TO MAKE ORDERS WITHOUT SPECIFIC APPLICATIONS HAVING BEEN MADE

It has been the experience of some LiPs that Courts will state that they CANNOT make a particular Order as that wasn't originally applied for - or that it requires a separate application. This is incorrect.

S8 Orders under Children Act 1989 / Children & Families Act 2014 These include Child Arrangements Orders / Specific Issues Orders / Prohibited Steps Orders. A Court can make any s8 Order it believes is appropriate whether or not an application for such has been made. The reference is s10.1(b) of the 1989 Act.

The Family Law Act 1996 already provides for a Court to make Non Molestation Orders under s42 (2) (b) without an application for that Order having been made.


In addition Rule 4.3(1) of the Family Proceedings Rules states that 'Except where an enactment provides otherwise, the court may exercise its powers on an application or of its own initiative.' which covers all of the above Orders BUT also captures Occupation Orders made under the Family Law Act 1996 where there is no specific authority to make an Order without an application having been made.

CAP Master Orders contain a set of templates that judges should use when writing orders. Published March 2016

What the Family Courts expect from Parents

In April 2009, judges and magistrates from the Midland region launched a one-page summary of advice and expectations for parents seeking a court order regarding their children. This has been saved here.

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