I am going to thank Ursula for this post straight away. Ursula is one of those family law solicitors who “gets it”. She has combined her insightful mind with a degree of straightforward pointers in this article. We hope very much that it will be of interest to Litigants in Person, McKenzie Friends, and indeed solicitors and others who, increasingly, will be coming up against more and more people representing themselves through divorce and separation and Children Act proceedings.
…I blame Twitter. I was minding my own business when @Only Dads started up a conversation about McKenzie Friends; naturally I couldn’t keep my nose out of it and before you say “Philosophy of law by SocialMediafication”” Bob had bagged me into writing it down properly for his blog. He said he would correct the spelling mistakes and grammar too.
Might be a case of the blind leading the blind!
Anyway… we agreed that helping people in court is not an easy task and I think we agreed that some people both qualified as lawyers or not, are sometimes part of the problem.
I have always thought that going to court is daunting! But there are a few starter bits of knowledge that I think I would want to know if I was putting myself forward to be a mate’s McKenzie friend.
Warning: This is a practical mini- guide to court. I am a Solicitor-Advocate and this article is about that arena, not other ways of solving disputes (and there are loads of other ways). Look away now if that is going to wind you up.
1. Not all Lawyers on the other side will be rotters, but it pays to make a cool assessment of them before opening up too much. They have a job to do and this is not their life. Professional detachment is cultivated by us because it protects us. It is hard to think well if you feel too much.
A decent solicitor should show a willingness to explore the options and want to narrow the issues. All solicitors or those employed by a firm of Solicitors have professional duties including being officers of the court and maintaining the integrity of the profession. That means they are not allowed to lie and should not engage in sharp practice.
If there is a lawyer for the other side then they will probably try to come and have a word with you before entering the court room. You can explore the issues then politely say “I don’t think I want to commit to anything until I’ve heard from the Judge”. This is sneaky (but clever) because now you probably know at least 50% of what they will say in court.
2. If your friend is facing a Non-Molestation order, consider how much you really want to oppose it. Do you really want it to go to trial? You can submit to a continuation of a Non-molestation order on the basis that “no admissions /adverse findings are made” and it can be written on the face of the order. That can be a useful way of preserving your friend’s character without wasting time and money defending an order.
3. Never ever wait until the third review hearing do decide to do the “big reveal” about your clients welfare concerns (she drinks too much/ her new boyfriend is junkie/ the new dog is a sabre tooth tiger in disguise). Welfare concerns should be dealt with and put in front of the court at the first opportunity. Putting those fears in late in the proceedings looks like a tactical strategy because you feel you are losing (which is a wasted emotion when it comes to your children let me assure you) rather than motivated by genuine concern.
4. Think about the name of the hearing and the time it has been listed for. A 30 minute “Directions Hearing” on a Children Act application will result in a To Do List – not be an opportunity to tell the Judge about the iniquities of the CSA/uselessness of CAFCASS/ emotional damage caused by the fact you had 30 minutes unilaterally knocked off your contact (again); using all those brilliant phrases you thought of in the bath…
…approach a case realistically. It may be 3 hearings and 12 months before your friend is able to tell the tale directly in evidence to the Judge. The order of doing things is often directions, CAFCASS report, review hearing, trial.
5. Now what is your mate going to say? If they are the Applicant they have the right to go first. But if you are in person the Judge may ask a represented party to go first so you need to be quick off the mark before people assume you are happy to let the other party start.
Practice and prepare the first 2 sentences off by heart and the rest will follow. “Good morning Sir this is my application for contact with my son. The reason I need an order is because the difficulty in contact seems to be….”
Ensure your friend’s less favourable aspects are out into the arena on his terms. “I know the court will be concerned that I was arrested last week/rude to the CAFCASS officer/lied about having a girlfriend. However I really understand that it was wrong/ stupid/bizarre; far better to deal with it and move on, than to let the other side pick it up and run with it.
They may feel their inner Rumpole struggling to get out but I reckon you won’t need to quote any law. Everyone in the room will know why we are here. You may want to try it on with the new legislation about a presumption of shared parenting but I suspect the conversation will go –
Litigant in Person (Kavanagh QC stylee) “ This court needs to consider the presumption of shared parenting and order contact immediately”
Judge (Voldemort stylee) ” So what; we did under the case law anyway, and now I am beginning to think there is something in the Mother’s allegations that you are an unbearable bossy boots…”
6. Self control is the way to speed up contact through the courts. It will take 6 to 12 months. And each time your mate loses his rag or has a strop about something he adds on another 6 -10 weeks. This is because bad behaviour by adults can cause the court to put the brakes on contact or go backwards in the quantity and the quality of contact.
Tell your mate texts are the worst way of communicating anything; use them for,” On our way “or, “We did the homework it’s in the bag”. There is also no place for Facebook and Twitter in disputes over children. Firstly proceedings about children are confidential which is what the internet isn’t. And secondly, the children deserve better, so sort it.
Critically examine his communication with the other party, verbal and written. If your mate needs a few home truths about his communication then now is the time to dish it out. Encourage coaching classes or other ways to learn coping strategies. Otherwise it will be interim application after interim application about why contact needs to go backwards, not forwards. Look for the trigger points and try to help them sort it out.
7. Evidence. A Judge is inclined to listen to your side more if you can bring evidence to support your story. But evidence has to be relevant and admissible. Most lawyers would say that generally all evidence is potentially admissible in disputes over children. Evidence is more likely to be included or excluded due to relevance. For example; mean texts your friend sent 18 months ago are probably irrelevant as being too old. Reams of email whining and point scoring are irrelevant due to proving nothing that the court doesn’t know already. Think, “what does this prove?” “Does it cut to the chase?”, “does it pass the so what test?”
If you have to deal with allegations you may be asked to become involved in a “Scott Schedule” this is just a table of allegations in tab form.
If you want to prove that police were called then you need to ask for disclosure. Drug and alcohol allegations can be dealt with using scientific testing. Evidence by way of a letter from schools can be requested. Ask the Judge if you can put in evidence. If you don’t ask (politely) you don’t get.
Do not forget that you are in the civil jurisdiction. That means all the evidence should be written down, so make sure that your friend has an opportunity to put down his story in a statement at some point. The statement can contain photos as evidence and in my experience pictures tell a thousand words.
8. Directions and review hearings: these hearings either start the case off by starting up contact or they deal with a To Do list so the case can be heard by a Judge. At a review hearing it is often helpful to have a position statement. Two A4 sides is plenty. It should update the court in general terms and it should say what you want the court to do today. Do yourself and the Judge a favour and make sure it is in readable font, 1.5 line spacing and the paragraphs should have sub headings, e.g.: “Contact since the last hearing”; “my view on the CAFCASS report”; ” Why contact overnight is suitable”.
You may not get what you want but your friend should take up whatever contact is offered. Remember this area of law is highly discretionary and a Judge can make any order at any time. However they tend to err on the side of caution and there is no point kicking off if things do not go your way. Courts remember the angry people. People who cannot control themselves in front of a Judge are unlikely to hold back when talking to the other party, thus undermining their “I don’t know what you mean when you say there has been domestic abuse in this relationship” story.
9. Mediation: If you can, try not to be in court without having done the initial mediation meeting. It is called a Mediation Information & Assessment meting (MIAMS) and there are very few cases where mediation will not narrow/iron out at least some of the issues. At least show willing to think about it. Often one hearing to show people the error of their ways (via a Judge giving a firm indication) plus mediation sessions can sort the whole thing out…I know I said I wasn’t going to talk about anything but Court but matters about children should really begin and end with mediation.
10. Always remember the test in Children act Proceedings –
a) Do these children need an order?
b) If yes, then we (will soon) presume that they need to share time with both parents.
c) The welfare of the child is paramount.
d) The flip side is that the happiness of the grownups is nothing. This is not about justice for adults. If it was, Parliament would have written that into the statute.
Well Bob, that’s it really. There are some great resources out there:
This article is meant to be a helpful steer about some practical aspects of Court. It is for information and interest and not my take on the family justice system as a whole. It is not a substitute for legal advice in any case. I used him/he throughout because I think this article is slanted towards a lot of issues Dad’s face and because I am beyond the grammatical gender wars.