Below is a list of frequently asked questions (F.A.Q.s) and short answers, with links to further resources.
Will I have to pay a court fee?
You have to pay a fee to start most court cases but if you are on a low income you may qualify for “fee remission”. You can apply for help with court and tribunal fees online on the .gov.uk website here. If you are applying for a domestic violence injunction (non-molestation order or occupation order) there is no fee payable. For more information on fees see leaflet EX160A.
Do I have to go to mediation?
No. Mediation is voluntary. You can find out what mediation is on our Alternative Dispute Resolution page. However, before making an application to court parties are expected to consider whether mediation is suitable. In most cases you must attend a Mediation Information and Assessment Meeting (a MIAM) before you will be allowed to start a court case, although there are exceptions (for example because it is too urgent to wait or because a mediator has said that the case is not suitable, perhaps because there has been serious violence or the other person is not willing to attend). See Leaflet CB2 for details of what the court classes as “urgent”.
A MIAM is NOT mediation. It is just a meeting where you can find out more about mediation, and where a mediator can give some thought to whether it might be useful or appropriate for your family. You usually don’t attend a MIAM with the other person, so there really is nothing to worry about. If after going to the MIAM either of you or the mediator decide you do not want to mediate that is the end of it, although the court may still encourage you to give it some more thought.
My case is urgent – how long will it take?
Applications in the Family Court follow a standard procedure, although it can be adapted to suit the needs of the case you should not expect your case to be resolved immediately or even at the first hearing. In urgent cases the court may be able to skip certain parts of the procedure or make short term holding orders to protect your position even without the other person being at court. But you should read leaflet CB2 to see what the court considers as an urgent matter.
There is typically a gap of about four weeks between starting a court case about children and the first hearing, and court reports typically take about 12 weeks to prepare. From this you can see that a case about children is likely to take months to resolve, depending on whether or not you are able to resolve it by agreement with the help of the court or CAFCASS. We have prepared a flow chart of the process in cases about arrangements for children here.
There is typically a gap of about 12-16 weeks between starting a financial case and the first hearing (to allow you both to prepare your disclosure (see F.A.Q. about disclosure) and again if a case can’t be resolved by agreement it is likely to take months not weeks. We have prepared a flow chart of the process in cases about finances on divorce or dissolution of a civil partnership here. The court can sometimes make temporary maintenance orders whilst a case is ongoing if there is a pressing need that can’t wait. This is called Maintenance Pending Suit.
What’s the difference between a solicitor and a barrister?
Barristers, solicitors and legal executives are all lawyers but they have different training.
Solicitors and legal executives are usually employed by, or are partners in a firm, whereas barristers are self-employed and usually work alongside a number of other barristers in offices known as ‘chambers’. Because barristers are self-employed and independent of one another they can act against each other on the same case, but two lawyers from the same firm cannot.
Solicitors and legal executives can handle your case from start to finish, including sorting out legal aid and dealing with paperwork, and some may carry out the advocacy (speaking for you in court) themselves.
Barristers are primarily advocates. They are usually instructed by a solicitor on behalf of someone involved in a court case to deal with the hearings, and sometimes to advise on how strong your case is or what steps should be taken. Barristers can sometimes be instructed directly without you paying for a solicitor too, and this is called public access (see I need a lawyer for more information on public access).
Solicitors, legal executives and barristers are increasingly willing to represent or advise you for ‘one off’ occasions or for just part of proceedings and will agree to work at fixed or capped fees – so you can control how much you spend.
Barristers have greater ‘rights of audience’ than most solicitors, which means they are able to address Judges in any court right up to the Supreme Court. Therefore, as a general rule, barristers do more of the advocacy, which includes speaking directly to the Judge or cross examining (questioning) witnesses. Solicitors and legal executives tend to work more with the clients; for example, speaking with you on the telephone, writing letters to the court or other person in the case (or their lawyer) or preparing documents on your behalf.
Particular barristers may have developed a specialism in a certain area, so it makes sense for a solicitor to refer those types of cases to a specialist barrister who can provide advice in writing.
More solicitors and legal executives also act as advocates but if they are busy with another case or if it requires a particular expertise they may have to instruct barrister to deal with a particular hearing.
For further information see this post on the Pink Tape blog.
What is a Child Arrangements Order?
This is an order which is usually made in court disputes between parents (called private law disputes – see F.A.Q. What are private law proceedings?).
If parents split up and can’t agree on how to sort out contact or living arrangements for their children, they may need to apply to court for a Child Arrangements Order. This order will set out how a child spends his time with each of his parents. These orders used to be called ‘contact’ and ‘residence’ orders but were changed by the Children and Families Act 2014.
For further information see the CAFCASS website.
What is a Section 20 agreement?
Section 20 of the Children Act 1989 is usually relevant where a Local Authority (social services) are involved with a child and his family, including when social services are thinking of starting a court case about the child or have started one (this sort of case is called public law or care proceedings – see F.A.Q. What are public law proceedings?). Section 20 is about a Local Authority (LA) providing somewhere for a child to live if he needs it. Parents have to agree to their child living somewhere else under section 20; if they don’t agree, the only way a LA can take their child away is by starting care proceedings and getting a court order or asking the police to exercise their powers to remove a child for a maximum of 72 hours. The only way that a LA can remove a child against the wishes of his parents apart from this 72 hours is by asking the court to make an order, usually a “care order” which gives the LA Parental Responsibility (see F.A.Q. What is Parental Responsibility?) and the right to remove the child (if the risk of harm to the child is considered particularly serious). The LA does not share Parental Responsibility with the parents if a child is accommodated under section 20.
It is really important that parents understand what section 20 accommodation means and that cases using section 20 are not just left to ‘drift’ or as a way of getting a care order ‘by the back door’. If you are a parent who is being asked to consider section 20 accommodation for your child, make sure you understand what this means and what the plan is for your child’s future.
For further information see this post from the Child Protection Resource and this post on the Suesspicious Minds blog or this guide to section 20 prepared by The Transparency Project.
What are private law proceedings?
Proceedings means a court case. Private law means a court case that is just between family members, such as parents or other relatives – and which doesn’t involve a Local Authority or other State agency. Therefore, applications for Child Arrangements Orders, Specific Issue Orders or Prohibited Steps Orders under section 8 of the Children Act are all orders in private law proceedings.
The court can make a private law order in public law/care proceedings if this is considered to be in the child’s best interests. However, Local Authorities cannot apply for Child Arrangements Orders. Sometimes the court may ask social workers to provide the court with information about a child’s welfare or wishes and feelings in private law proceedings, if the LA already has some knowledge of or dealings with the family. Otherwise, that information is provided to the court by CAFCASS.
What are public law proceedings?
Public law proceedings are those court proceedings which involve the State – such as care proceedings or applications for judicial review of the decision of a public body. Only a Local Authority (Social Services) (or the NSPCC) can make an application to the court for a care order or supervision order (See F.A.Q. What is a care Order?).
What is Parental Responsibility?
If someone has ‘Parental Responsibility’ (PR) this means they are recognised in law as someone who has rights and responsibilities in relation to a child. Mothers automatically have PR. Fathers have PR if they were married to the child’s mother when the child was born, if they are registered on the child’s birth certificate after December 2003 or if there is a registered PR agreement or court order. Step and same sex parents may also hold PR for a child.
PR is defined at section 3 of the Children Act 1989 as ‘all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property’.
People who have PR for a child are expected to discuss with each other important issues relating to the child, such as education and medical treatment, and should not take decisions unilaterally. If the people with PR cannot agree what is the best thing for a child they should try to reach agreement via mediation or apply to court.
If you are a father who does not have PR for a child and you think you should, you can either try to reach an agreement with the child’s mother or apply to court for an order.
Sometimes when someone other than a parent holds PR they can override the parents wishes, for example a care order gives a LA PR and this means that they may be able to place a child in foster care, and a Special Guardianship Order gives the person named in it an overriding PR, and limits the rights of the parents of the child (see also F.A.Q. What is a care order?).
For further information, see the gov.uk website here.
What is a Care Order?
A care order is made under section 31 of the Children Act 1989. If a court agrees there is evidence that it is more likely than not that a child is at risk of suffering significant harm, or has suffered significant harm, it may make a care order.
The consequences of a care order is that the LA now shares Parental Responsibility (See F.A.Q. What is Parental Responsibility?) with the parents and may impose limitations on how the parents chose to exercise their PR, for example by removing a child to live in foster care. The LA must still consult with parents and keep them informed of decisions that they want to make. The LA is also under a duty to make sure that parents and children have ‘reasonable’ contact with one another while the care order is in force.
An ‘interim care order’ is an order the court may make before the final hearing of any application by the LA for a final care order. Care proceedings are now supposed to conclude as quickly as possible or in any event within 26 weeks. While the court is gathering information to enable a decision which protects a child’s best interests, the Judge may need to make an interim order to keep the child safe before considering all the evidence at final hearing.
For more information, see this post from the Child Protection Resource here.
What is a Supervision Order?
If the court agrees that there is evidence that it is more likely than not that a child has suffered or is at risk of suffering significant harm, it may make a Supervision Order as opposed to a Care Order. Supervision Orders generally last between 6 months to a year and they mean that a family will have a named social worker who will continue to visit and monitor the family while the Supervision Order is in force.
A local authority does not share Parental Responsibility with parents under a Supervision Order.
What is an Emergency Protection Order?
If a Local Authority have serious concerns that a child is at risk of immediate harm, they can apply to the court for an emergency protection order under section 44 of the Children Act 1989. These orders must only be used in situations of real urgency and can only last for a short period of time (8 days with a limited ability to extend).
For further information see this post from the Child Protection Resource here.
What is a directions/interim hearing?
If an application to a court involves a serious matter with a high degree of disagreement between people about what is the right outcome, it is likely that to make a fair decision the Judge will need to consider both written and oral (spoken) evidence from all those involved.
Therefore, ‘directions’ or ‘interim hearings’ will be held before the main or ‘final hearing’ so the Judge can be clear what the issues are and what evidence is needed to enable him or her to make the right decision. You are very unlikely to be asked to give evidence at such interim hearings as they are usually about deciding what evidence is needed and in what form.
However, some interim hearings may involve issues of substance, such as hearing oral evidence about what kind of contact a parent should be having with a child before the final hearing. The court should make it clear what is expected to happen at any interim hearing.
The court may give different names to such interim hearings, depending on what kind of proceedings you are involved with. For e.g., if you are in care proceedings, the hearings before the Final Hearing are known as ‘case management hearings’ or the ‘issues resolution hearing’.
For more information about what to expect at a ‘directions hearing’, see this post by Suesspicious Minds
What is a McKenzie friend?
A ‘McKenzie friend’ is someone who can come to court with you if you don’t have a lawyer. You will need to get permission from the Judge to allow your McKenzie friend into family proceedings. The main role of the McKenzie friend is to provide you with moral support, take notes, help you with case papers or quietly give you advice on points of law or procedures, issues that you may want to raise in court or questions that you may want to ask witnesses.
McKenzie friends do not have to have any qualifications or training, but some do. Some may volunteer their services, others may request payment. If you are going to pay your McKenzie friend to come to court with you, it is worth remembering that McKenzie Friends are currently not subject to any formal regulation and, unlike professional lawyers, are unlikely to have any insurance to safeguard you against negligent advice and/or representation.
For more information about McKenzie friends, read the McKenzie Friend guidance here.
What is a Litigant in Person?
A Litigant in Person (LiP) is someone who is conducting their own legal proceedings, either because they cannot afford to pay for lawyer or they do not want to instruct a lawyer. The numbers of LiPs has increased as various Governments have limited the type of legal proceedings that will qualify for public funding to pay for lawyers.
For further information about help that is available to you as a LiP see the justice.gov.uk site, or if you are in family proceedings you may find helpful Lucy Reed’s book ‘The Family Court Without a Lawyer – A Handbook for Litigants in Person’, or DIY Divorce & Separation.
What do I call the Judge?
Magistrates and District Judges are called ‘Sir’ or ‘Madam’. Some people call Magistrates ‘your worships’.
Circuit Judges and Recorders are called ‘Your Honour’
High Court Judges are called ‘My Lord’ or ‘My Lady’.
If you are a Litigant in Person, don’t worry if you forget or get it wrong. As long as you are polite to a Judge he or she should not worry about what title you use.
See the Judiciary.gov.uk website for more information about the different types of judges.
What should I wear to court?
Within reason, whatever you like. If it would make you feel more confident to dress formally, in a suit for example, then wear that. If however you would feel uncomfortable in formal clothes, just wear something clean and neutral that covers most of you up. You do not want to distract the Judge from listening to what you want to say if you are wearing something very colourful or revealing.
Who is a ‘party’ to proceedings?
A ‘party’ to court proceedings is a single person or legal entity which either makes an application to the court or is responding to an application. Parties to court proceedings may be called different names, depending on what kind of proceedings they are involved with. For example, in care proceedings, the LA will be the ‘applicant’ and the parents and any other parties will be known as ‘respondents’.
In family cases, only ‘parties’ to the proceedings have a right to go into court and hear the evidence.
If you are coming to court just to give evidence this makes you a ‘witness’ not a party and you will not be allowed into court unless you are giving your evidence or the judge agrees you can come in at any other time.
What is an ‘intervenor’ in court proceedings?
If you are an ‘intervenor’ in proceedings you are not a ‘party’ but you are given the right by the court to join ongoing proceedings even if the parties don’t agree that you should be involved. This allows people to have a say who are not parties but who might be effected by the outcome of the proceedings – for example, grandparents in care proceedings who wish to be considered as carers for the child.
For further information about the role of intervenors, see this article from Jordans Family Law.
What is CAFCASS?
‘CAFCASS’ is the Childrens And Families Court Advisory and Support Service. It was set up by the Criminal Justice and Court Services Act in 2000. The principal functions of the Service are set out in section 12(1) of the CJCSA 2000.
(1) In respect of family proceedings in which the welfare of children is or may be in question, it is a function of the Service to—
(a) safeguard and promote the welfare of the children,
(b) give advice to any court about any application made to it in such proceedings,
(c) make provision for the children to be represented in such proceedings,
(d) provide information, advice and other support for the children and their families.
The court may ask an officer of CAFCASS to write a report to help make decisions about where a child should live. CAFCASS also provide guardians to represent children in care proceedings or complicated private law proceedings.
For more information, visit the official CAFCASS website.
What is “Disclosure”?
When married couples divorce and the court is asked to deal with their finances they are required to give “full and frank disclosure” regarding their financial situation – to the court and to their ex. This is mainly done through completing Form E and attaching various documents to the form. Form E is also used where a parent is applying for a financial order for a child. It can seem intrusive but this is standard in every financial case and if one party doesn’t disclose their documents when required it can hold up matters and may lead the other party – and even the court – to be suspicious about what might be being hidden. The paperwork and information disclosed under the duty of full and frank disclosure can generally only be used for the purposes of the court case and should not be used by the other person for other purposes.
The duty of full and frank disclosure also means that if your financial circumstances significantly change after you complete your disclosure you should tell the court and the other party about the changes.