Going to Court?

Who can help me present my case to court?

Further advice from a Lay Advocate

Here Ian Julian, a Lay Advocate since 2003, describes the various options that are available to give you help in court. You may also be interested in this post – What if I don’t have a lawyer? 

• Solicitors and Barristers – These can cost a considerable sum of money but will be able to prepare your case and present it before the Court. Many Barristers offer a Direct Access service, which can provide you with an Advocate in the Courtroom but without the cost of Solicitors preparing, drafting and advising you along the way. This may suit someone of limited means who can handle their own paperwork confidently. More recently, some barristers are permitted (licensed) to Conduct Litigation, which allows them to act on your behalf, such as signing letters and holding client funds.

[Parents in care proceedings are entitled to non means, non merits tested legal aid. After the care proceedings, if you want to appeal or apply to discharge the care order for example, you may find it much more difficult to qualify for legal aid]

• Litigation Friends – These come in many guises and can be more or less helpful and / or experienced. Common Law provides that a person may have any person speak on his behalf in a Court of Law. Courts will want you to have every reasonable assistance and will recognise that the Courtroom is an alien environment for most people in stressful circumstances. While you may be confident and it can be helpful for the Judge to hear from you directly, it may also be useful to have some additional help to explain what you want and why.

You may need a Litigation Friend to assist you in understanding the proceedings if you have a disability such as a learning or speech or language impairment. This can be in addition to your lawyer (more often now that the Official Solicitor is less available).

• McKenzie Friend – in hearings held in private, the Guidance for Family Courts allows the assistance of a McKenzie Friend (to quietly advise you, take notes and to assist you with papers) It is at the Judge’s discretion to allow your assistance and the presumption is in favour of a McKenzie Friend unless there is good reason to refuse you (it should not be an antagonistic relative for example). Please be aware that the recent cuts in legal aid have encouraged numerous McKenzie Friends to offer a service at high prices, which may not always provide a quality or experienced assistance. Always check credentials such as observing media websites and checking for CV’s and experience. A novice wanting to help and gain experience, should not be seeking more than their expenses.

• If granted Rights of Audience, you may have a Lay Advocate or an accredited Advocate,who will present your case to the Court as a Barrister does. The Judge may permit you to have a Lay Advocate if he is of good reputation and can assist the Court in dealing with the proceedings effectively. This can save time and expense for everyone and an experienced assistant will help the Court by guiding you as to what is possible and what is unhelpful. Granting this right for your Advocate to address the court directly will be at the judge’s discretion and he will want to be assured that your advocate is accredited (for example: F Inst Pa, Q Inst Pa, etc) has insurance and completes his Continuing Professional Development.

You should write to the Judge in advance asking permission for the assistance you want to use and inform the other Parties. Your Friend should send a CV to the Judge, which will assist his decision.

Only Solicitors are permitted to “conduct litigation” (i.e. hold client monies or sign letters on your behalf). Direct Access Barristers cannot “conduct litigation” either, unless licensed as described above.

(Author: Ian Julian, F Inst Pa, Advocate since 2003)

What’s it like going to court? A parent’s perspective

We are grateful to our reader Sam who has been through care proceedings. She gives her view of what happens in court and some suggestions about how to make the experience less stressful.

 

What happens in court?

Its stressful – so be prepared.

For many people care proceedings are the first time they have been in court . They may have an idea from watching courtroom dramas on TV , after a couple of hearings they quickly realise that the programmes are nothing like the family court.

I can best describe the stress as similar but more severe than attending a very important job interview. In fact it is the same only that you are being assessed as being a suitable candidate to still parent your children, rather than an alternative candidate whether it’s the local authority or a family member taking over the care of them.

Just as you would for a job interview, work out the route to court and how long it will take you to get there. Dress smartly but comfortably. If you bring someone to support you make sure they are someone who will calm you down. If your hearing is early in the morning it may take another 15 minutes or so to get through security so factor this time in as well.

You should be able to find your solicitor,and barrister if you have one who after talking briefly to you and passing any paperwork to you will then be likely disappear to talk the other lawyers in an advocates meeting. Look at the paperwork and see if there is anything you disagree with. The court waiting area may be very busy and if your solicitor has found a private room it may be a good idea to stay in it. After the advocates meeting your lawyer will come back to talk to you and this is when you should point out anything wrong in the paperwork.

Rarely do you actually go into court at the appointed time, there is normally at least an hours wait quite often more and your stress level may rise at this time. It is useful to do something distracting or some relaxation exercises such as deep breathing or simply slowly counting to ten then counting back to one. It pays not to drink coffee as this as the same effect on the body as anxiety does. Keep well away from anyone who may upset you such as social workers or your ex mother in law for example.

When you are called into court ,it is in a rush so no time to pop to the loo or phone your Mum. Your phone must be switched off not put on silent.

 

Going into the court room

Normally when you go in the judge will not be there , but there will be between one or two members of court staff. You will be told where to sit . If you only have a solicitor you will sit directly behind them. If you have a barrister, sometimes called counsel, as well they will sit in front of your solicitor and the solicitor will sit next to you. After a couple of minutes one of the court staff will go and ask the judge to come in. As the judge comes in they will bow and everyone bows back. The judge will not be wearing a wig and normally does not wear robes but will occasionally. Judges are quite ofton middle aged men. They can be abrupt in their manner to both the lawyers and you. All hearings are recorded so be very careful what you say even as you leave the courtroom.

The local authority solicitor or if they have a barrister will stand up and will introduce everyone to the judge at least at the initial hearing.It all feels very formal and intimidating.

The judge is addressed differently according to what level of court you are in . Do not worry about this , you will soon catch on and you do not have to talk anyway at this stage. The local authority lawyer will make a speech to the judge , then the other lawyers will. The judge will ask some questions. It is a good idea to take a notepad to note down anything you disagree with. You communicate with your lawyer by tapping them, gently, on the back then pass them the note.

 

The First Hearing

The first hearing is about case management which is basically administration, setting dates, and talking about if experts are needed. There may be discussion on the threshold, which means whether the judge has decided that the legal test for your child being harmed has met. If it has an interim care order will be made which is likely to last to the final hearing.

You do not get to tell your story and you are likely to feel upset at being talked about like this in public. You are also going to be confused about what is happening.

After the judge has listened to the lawyers, for a second time he comes to decisions,  including the date of the next hearing. These decisions are called orders

After the hearing , your lawyer will go into a another meeting with the other lawyers to make sure the orders are written down in the way the judge said. Your lawyer will come and speak to you afterwards and explain simply what has actually happened in court.

You may be feeling emotional, once again try and contain these feelings whilst you are in the court building.

 

The Final Hearing

Care proceedings are now supposed to finish in twenty six weeks and it is not until towards the end and only if there is a final hearing that you will get to tell your story to the judge and even then it will not be what you expected.

You will be cross examined by each of the lawyers including your own. {Edit – when your own lawyer asks you questions this is called ‘examination in chief’ and they are not allowed to ask you leading questions – which is a question which suggests the answer! – but they can do when they cross examine someone}

You stand or sit in a witness box with the court bundles (lever arch files containing all the paperwork) in front of you and the lawyers will ask you to look at certain pages then ask you questions. The court staff will help you find the pages. They ask closed questions, that is basically statements which you can only say yes or no to. Such as your child did not fall off a swing you threw them down the stairs? If they think you are lying or its an important point they will ask the question again. This can go on for several hours. The judge may ask you questions directly or may make observations about you. It will feel as though you are on trial. All other witnesses such as the social worker will also be cross examined.

The lawyers make more speeches, and the judge may then tell of his decision /judgement in a speech there and then or he may decide to do so at a later date.

 

After the Hearing

Unless your children are kept at home you will be absolutely devastated. Try and get support whether from family or friends or from groups or organisations. You may have the same symptoms as person grieving.

What do court orders look like?

The Case Management Order

Here is the template for the new Case Management Order.

This is the order made at the Case Management Hearing which should happen in the first two weeks after the LA makes an application to the court for a care or supervision order.

You may be interested in this post about interim care orders which explains the different stages in care proceedings.

You can see it is quite complicated but not everything in this order will apply to every case; some are more complicated than others.  Your case may not require an expert for example, so paragraph 16 wouldn’t be relevant. If cases are very complex, you may need additional Case Management Hearings, but the court will be keen to limit this in order to try to get cases completed within 26 weeks.

 

Template for Order

In the Family Court sitting at [place]        [Case No          ]

[specify if Family Drug and Alcohol Court ]

 

The Children Act 1989

The Adoption and Children Act 2002

The Family Law Act 1996

[delete as appropriate]

 

THE CHILDREN

Please add a separate sheet if more than 4 children

Child [name]; gender [male/female]; d.o.b [DD/MM/YYYY]

 

 [DRAFT] Case Management Order no [sequential number in these proceedings][insert date]

1. THE PARTIES

The applicant local authority is [name]

The first respondent (mother) is [name]

The second respondent (father/father of ……………………………) is [name]

The third respondent(s) is/are (the children) by their children’s guardian [name]

[The first intervenor is[state relationship to child(ren) or other party] is [name]]

 

2 THE CHILD(REN) ARE LIVING WITH

[Name(s)       ][**Placement]

[use appropriate code for each placement]

[list children separately if different placements]

 

3. THE REPRESENTATIVES AT THIS HEARING

The parties are represented as follows

a) The applicant is represented by [name of counsel/solicitor/advocate], their contact details being [telephone and email address].

b) The 1st respondent is represented by [name of counsel/solicitor/advocate], their contact details being [telephone and email address].

c) The 2nd respondent is represented by [name of counsel/solicitor/advocate], their contact details being [telephone and email address].

d) The 3rd respondent is represented by [name of counsel/solicitor/advocate], their contact details being [telephone and email address].

e) Other [specify] is represented by [name of counsel/solicitor/advocate], their contact details being [telephone and email address].

And the following parties are in person

[name], their contact details being [contact details].

The identity of the children and those named in paragraphs 1 and 2 are not to be disclosed in public without the permission of the court.

 

4.  ALLOCATION

The proceedings are today/continue to be allocated to Mr(s) Justice [name]/HHJ [sitting as a s.9 judge][name]/District Judge [name] /AJC [name]

 

  1. THE APPLICATION(S)

a) The local authority has applied for a care order/supervision order/other Part 4 order [specify] today/on date]

b)[other applications]

c)The [state party] has applied for [                  ] [today/on date]

 

  1. JURISDICTION

The court is satisfied that it has jurisdiction in relation to the child/ren [give reasons, eg. based on habitual residence]

[or]

(a)   There is an issue as to jurisdiction in respect of the children and consideration needs to be given to this issue [and the application of Council Regulation (EC) No 2201/2003 (Brussels 2 Revised)] to these proceedings by the parties as a matter of urgency; and

(b)   The local authority shall liaise with the [identify country] consular authority in England and Wales or other competent authority in [name of foreign state] in relation to the proceedings or make a request to the Central Authority of [identify country] for such information as may be relevant to determine issues of jurisdiction.

 

  1. TODAY’S HEARING

a). Today’s case was listed for: [                   **]

b). Today’s hearing has been [tick one]

o         EFFECTIVE

o         CANCELLED-NOT TO BE RELISTED

o         RE-LISTED AND DELAYED The main reason why the hearing has been re-listed and delayed is: [                      **]

o         ADJOURNED The main reason why the hearing has been adjourned is: [    **]

 

  1. THE TIMETABLE FOR THE PROCEEDINGS

[see in the matter of Re S a Child 16th April 2014]

The timetable for the proceedings is 26 weeks

[or]

The proceedings cannot be completed within 26 weeks, but are to be completed within [    ] weeks or by [date] for the following reason [tick one]

o         (i) It is necessary to extend the timetable for the proceedings beyond 26 weeks in order to resolve the proceedings justly because: [specify reason, eg. very heavy cases involving the most complex medical evidence where a separate fact-finding hearing is directed, FDAC type case, cases with an international element where investigations or assessments have to be carried out abroad, cases where the parent’s disabilities require recourse to special assessments or measures.]

o       (ii) Despite robust and vigorous case management, the nature of the proceedings has changed and it is necessary to extend the timetable for the proceedings for one or more of the children in order to resolve the proceedings justly because: [specify reason, eg.

            cases proceeding on allegations of neglect or emotional harm where allegations of sexual abuse subsequently surface, cases which are unexpectedly ‘derailed’ because of the death, serious illness or imprisonment of the proposed carer, cases where a realistic alternative family carer emerges late in the day]

o         (iii)The progress of the case has been delayed because of the litigation failure on behalf of one or more of the parties and it is necessary to extend the timetable for the proceedings in order to resolve the proceedings justly because:[specify reason: ]

AND in each of the above cases, the impact on the welfare of the children of extending the proceedings is [state impact             ]

The next hearing is a [  **] on [date and time] at [ place                               ]

with a time estimate of [                     ]

 

  1.    TIMETABLE FOR THE CHILD(REN)

The key dates and events in the Timetable for the Child(ren) are:

Child [name]; Event/Permanent placement [specify]; Date [specify]

Child [name]; Event/Permanent placement [specify]; Date [specify]

Child [name]; Event/Permanent placement [specify]; Date [specify]

 

10. THRESHOLD See our post on threshold criteria

The s.31 threshold for the making of orders is agreed/in dispute/in dispute subject to concessions which have been made. [the threshold agreement/the threshold concessions is/are annexed to this order].

 

  1. THE KEY ISSUES IN THE CASE ARE:

a)[e.g. What significant harm has the child suffered or been at risk of suffering?]

b)[e.g. What are the identified welfare needs of the child?]

c)[e.g. Does either the mother or the father have the capability to meet the child’s needs?]

d)[       other                ]

 

 

12. THE PARTIES’ POSITIONS:

a) [e.g. The local authority has concluded ………….]

b) [e.g. The mother disputes…………..]

c) [e.g. The father has now…………]

d) [e.g. The children’s guardian supports the ……..]

 

13. IDENTIFICATION OF PERSON(S) TO BE ASSESSED AS POTENTIAL ALTERNATIVE CARER(S)

a) The parents have identified all family members they wish to be assessed and the court has explained to them that any persons identified by them in the future may not be assessed due to the delay not being consistent with the timetable for the child.

b)The person(s) identified by the mother are [name(s)]

c)The person(s) identified by the father are [name(s)]

d) [other]                                                         [name(s)]

 

14. EVIDENCE

After reading the materials filed, which are described in an index/record of hearing

 

THE COURT ORDERS

You will put in here any particular orders about people providing statements or other evidence.  

 

  1. In the interim, [Name of child/ren] is/are placed in the care of /under the supervision of [name of local authority] until the finalisation of the proceedings or further order.

 

16. EXPERTS

a) An application [was][was not] today made for the instruction of an expert. and the application [was][was not] granted.

b) The type of expert whose instruction was [allowed][refused] by the court [is** ]

c) The date by which the report is due is:

d) The report of an expert is necessary to assist the court to resolve the proceedings because [specify reason] and the impact on the welfare of the child is [describe impact]                                  ]

[Repeat if more than one expert]

 

  1. OTHER ORDERS

[for example:]

Reallocation

Joinder of additional party/ies

Assessment of others

Consideration of how the child(ren)’s views should be communicated to the court

Special measures/interpreters/intermediaries

Disclosure

Paternity/drug/alcohol testing

Timetable for evidence to be filed including the care plan

Further case analysis

Directions for proposed concurrent placement order proceedings

Disclosure to the Independent Reviewing Officer

Making Interim Care Orders and their duration

Contact

Advocates’ meetings and preparation for the next hearing

Bundles

[use standard clauses where available locally and put directions in chronological order]

 

18. COMPLIANCE

No document other than a document specified in this order or filed in accordance with the Rules or any Practice Direction shall be filed by any party without the court’s permission.

 

  1. Any application to vary this order or for any other order is to be made to the allocated judge on notice to all parties.

 

20. All parties must immediately inform the allocated judge and the court if any party or person fails to comply with any part of this order.

 

21. CASE OUTCOME [to be completed only if proceedings are finally disposed of at a Case Management/Issues Resolution Hearing]

A [set out type of order]was made today in respect of[name of child          ]

 

Court address: for filing/communication

 

 

1. Type of Placement [for paragraph 2]

Type of Placement for children
Not removed– At home
Not removed– In RPaCA placement (a residential assessment with parent)
Not removed– In community placement
Removed- To kinship placement
Removed- To foster care
Removed- To potential adoptive placement
Reunification- Assessment placement with parent
Reunification- Assessment placement with kinship placement
Complex needs- In a specialist placement including hospital

 

 

2. Type of Hearing [for paragraph 7 and paragraph 8]

PLO Stage
Urgent Case Management Hearing
Case Management Hearing (CMH) Other – Fact Finding
Further Case Management Hearing (FCMH) Other – Directions not part of PLO
Issues Resolution Hearing (IRH) Other – Contested Interim Care Hearing
Final Hearing (FH) Other – s38(6))

 

 

3. Reasons for Adjournment [for paragraph 7]

Please list the ONE reason which best explains why the hearing has been adjourned.

                                               Reason for Adjourned Hearing
Local Authority LA1 – No/poor pre-proceedings preparation by LA, other than social work assessment of the family

LA2 – No friends/family identified before the hearing by LA
LA3 – No/poor kinship assessments by LA
LA4 – No expert instructed by LA
LA5 – No/poor/late social work assessment of the family by LA
LA6 – New social work report/assessment required following a change in circumstances
LA7 – No timetable for the child
LA8 – No/poor/late/new/care plan
LA9 – Placement order proceedings delay
LA10 – No/poor placement evidence by LA
LA11 – No threshold set out in the application form

CAFCASS

.

CA1 – CAFCASS not allocated/present
CA2 – No/poor CAFCASS analysis
Other Parties LW1 – Lawyers not instructed, present or ready, party or witness fails to attend
LW2 – No key issue analysis
LW3 – No/poor parental evidence or parental non-compliance
HMCTS HM1 – No courtroom available
HM2 – No special measures
HM3 – Interpreter or intermediary not available
Judiciary JU1 – Lack of judicial continuity
JU2 – Insufficient time listed  to complete hearing
LAA LS1 – Prior authority from LAA not available
LS2 – Other legal aid
 problem
Official Solicitor OS1 – Official Solicitor not instructed/ready
Experts EX1 – Late expert report/assessment/ Poor expert report/assessment
EX2 – New expert report/assessment required following a change in circumstances
Health HE1 – No/poor medical records etc from other agency
Crime CR1 – Police/CPS disclosure/documents incomplete/not available
Other OT1 – Case reallocated or moved to a different  judge at a different location
OT2 – Need for an interim contested hearing
OT3 – Other non compliance with directions
OT4 – Consolidation with other family proceedings
OT5 – Parallel proceedings
OT6 – New baby/pregnancy
OT7 – New Party joined
OT8 – Immigration and international difficulties
OT9 – Severe weather
OT10 – Industrial action

 

 

  1. Instruction of Expert [for paragraph 16]

Please list all that apply.

 

Expert Code 
A – Paediatrician E – Multi-Disciplinary Assessment Psychological ReportJ1 – Clinical – Child(ren) onlyJ2 – Educational – Child(ren) onlyJ3 – Parent(s) only

J4 – Parent(s) and Child(ren)
B – Paediatric Radiologist F – Independent Social Worker
C – Other Medical Report G  – Paediatrician (now removed)
Family Centre Assessment (Parenting Skills):D1 – ResidentialD2 –Non-Residential Psychiatric Report:H1 – Parent(s) aloneH2 – Child(ren) and Parent(s) / carer(s)H3 – Psychiatric Report – Child(ren) alone
K – Other Expert Report