Guide to applying to family court

[Esme]

Some tips and guidelines for family court applications.

Some of this is from personal experience, some from legal advice.

Tip:

Never ever say anything bad about the ex, or write anything bad about the ex. This process is not about proving how bad she is but about why it’s in the childrens best interests to have both parents in their lives. So everything needs to be child focused. It's a system that is bizarre and not fair. So it takes negotiating the system, jumping through hoops and a bit of strategy now and then.

Any negativity towards the BM and the whole process will go against you. The courts have more issues with a parent who is negative about the other parent - than they do about either parents' bad behaviour. Cafcass still have this view that Mums are the most important thing. They can be very supportive of good orders for Dads, if Dad is seen as someone who doesn’t say anything bad about BM, and is showing he is keen to co parent amicably. However, they can take against a Dad or Stepmum if you say anything critical of BM! Which is difficult to avoid sometimes, but essential if you want that court order. You can use evidence (emails, texts etc) to show her antics and behaviour, at a final hearing, without needing to directly criticize her. Cafcass assume both parents are safe, unless there are welfare issues. But it is better not to accuse the ex of anything and look ahead to the goal - the best court order possible. The court can't change the ex's personality or behaviour, and they don't punish people, but they can take some of her power away and make life better that way. So the goal is - to get a good child arrangements order that makes life better and easier for you, your partner and the kids, and ties the ex down to sticking to arrangements. Various recitals can be put into orders about not being derogatory about the other parent. While these are guidelines, going against them would look very bad for the ex if you had to return to court.

So try to put to one side all the stuff she has done and be fairly logical and businesslike about it and why the children need both parents.


Terminology:

What used to be Contact and Residence were replaced with "Spends time with" and "Lives with" in 2014. Some solicitors still like to use the word "Contact" - ask them not to use the word in anything to do with your case. it has derogatory connotations and diminishes the Dad's role. You can substitute "the childrens' time with me" when referring to "contact time". Soliciitors for ex's love to use this word a lot and refer to children "going to contact" as if Dad is an inanimate object. Their sole purpose is to get the best order for their client - the ex. It's a system. They represent their client's best interests, not the childrens.

What to apply for:


A Child Arrangements order to live with. Or a Child Arrangements order to spend time with. Or a Child Arrangements order to live with both parents (what used to be shared residence). So if you're applying for a 50/50 order, you would write in the box, or summary "Child Arrangements order for the Children to Live with both parents on an equal shared care basis 50/50".

The standard a court would normally order would be every other week-end, a midweek night and half the school holidays. That is usually a spends time with order, but you can still have "lives with both parents" if it's at least 4 nights a fortnight (usually needs to be at least 5 nights a fortnight). The Sunday night at week-ends makes it 5 nights a fortnight.

If you can get "lives with both parents", it can help with any future applications if they are needed. Because you're in a much stronger position to start with. And it means the ex can't make unilateral decisions without consulting you - it needs the consent of both parents). It is mainly a psychological shift that both parents are equal but it can help when dealing with schools and other authorities, to say the children live with you. Rather than the ex being the "parent with care" and calling all the shots. With shared care, both parents are “the parent with care”.

With shared care you are expected to try and have positive co-parenting, and proposing using a parenting app goes down well in court, to show you’re being proactive about co parenting. There are a few apps. Our Family Wizard and AppClose are two of them. These can have tone filters to filter out any hostility, and messages can be saved etc.

If it's an application after separation - apply for 50/50 shared care. You can always negotiate down, but it's not really possible to negotiate up once the application is in. Not only does this give full equal status, but it means there is less financial motivation to reduce time and no child support to pay for either party.

Until the pandemic, courts had been awarding 50/50 orders more and more and not just for people who agree it, but even if one person doesn't want it. A good pattern is 2-2-5-5. Which is 2 nights with each parent followed by 5 nights with each parent. This works out for example as - every Monday Tuesday night with one parent, every Wednesday Thursday night with the other parent, and every other week-end with each parent. So one week you would have Wed Thur night, the next week you would have Wed night through to Monday morning. For older children it could be week on, week off. This works well if there's not much distance between homes.

During the first year or two of the pandemic it was chaos – and many ex’s misused lockdowns etc to keep children away. There are still longer delays in court processes than there were before the pandemic, but apparently it’s improving. A lot of hearings are still virtual hearings, by video call but final hearings are usually face to face again now.



How to apply

1) Submitting an application. The form is quite straightforward if you do it yourself. There is an online application or a paper application. The "Summary" box 5b is the opportunity to say what you want and why you want it. Keep everything 100% child focused and don't say anything negative about the ex. Type it on a separate sheet if necessary, as long as you put your name and Application for Child Arrangements at the top and copy the "Statement of Truth" wording (under the summary box) to the bottom, sign and date it. And put "see separate sheet attached" in the box. At this stage you can't submit any evidence - that comes later when you submit a statement. You can only submit a statement when the court asks you to (usually for a final hearing). But you can submit a “position statement” before every hearing. This is a brief one or two page document in double line spacing, which is basically a note to the Judge. They need to be to the point and updating the court on anything that has happened since the last hearing, and an opportunity to ask for various things (eg what you want in an interim order). If using a solicitor, they don’t tend to use position statements but rely on verbal discussion on your behalf at court. If not using a solicitor, a well written position statement is very important.



A brief guide to writing the summary for 5b

Start with a paragraph about what you are asking for and what the situation leading to this is. You can state facts like - my former wife, Mary, refuses to let the children see me or come to my home, and has done so for the last six weeks". That isn't slagging her off, it's stating a fact. Another paragraph about the background leading up to current circumstances. Eg when they met, when they were married , when the children were born, when they separated, and what the child arrangements were previously, after separation. A brief paragraph about your history of care of the children, during and since the marriage - eg hands on Dad sharing care when ill, nappy changing, taking kids to activities every saturday, teaching them to swim, whatever. They also like you to put what you think the other person's point of view is and why you don't agree with that. Eg. Since I met my new partner Jane, Mary has decided that the children only need their Mother. I do not agree with this and feel that it's in the childrens best interests to continue to have happy loving relationships with both parents and both families.

And a final paragraph respectfully requesting the court to make an order (you set out specifically what you want in a final order. If it's vague and woolly you get a vague woolly order, so it takes some thinking about to know what to ask for). You also ask for an interim order to reinstate (or start) time with your children. Then say you wish to submit a full statement with evidence. It's important to ask for an interim order, or you might not get one.


What happens after submitting the Application

1) After submitting the application

You should have court papers back within 2 to 3 weeks. Depending on what region you’re in this could be quicker or take longer, and these days, there is a “gatekeeping hearing” before the first hearing sometimes. This is after the Cafcass interviews and Cafcass letter, when Cafcass has a meeting with the Judge to decide what happens next – eg a first hearing (FHDRA), or a fact find etc. Usually it will go straight to a first hearing. And then you receive court papers with a hearing date.

Once you receive court papers, the ex will have received them as well. Expect an explosion! Stay calm. When the ex receives them she will also receive a C7 response form, and can reply with her response to the application. The court should send you a copy of that when they receive it.

 

[Esme]

2) Cafcass phone call.

You should get an email from Cafcass via Egress asking you to confirm your details. You need to sign up for an Egress account to access the email. Reply with your confirmation of your details. At some point later you then receive a letter or further email with an appointment date and time for the phone call. Don't miss this appointment. It has been known for Cafcass to write their report just based on what the BM tells them, if the appointment with Dad is missed. They often don't issue another appointment. So prioritise it and your partner needs to make sure he can be somewhere quiet and relaxed to take the call.

Be natural during the phone call. Do not say anything negative about the ex. Focus on your child/children and positive things about them and their life with you. Answer any questions but avoid sounding negative about the ex, keep to facts and be diplomatic. If both parents say something negative about each other, Cafcass will tar you both with the same brush and label it as “conflict between parents”. This is when things can go wrong. If they decide it's "conflict between parents" (ie both accusing each other of something), then their view tends to be - give the kids to the Mother and minimal time for Dad, to keep the kids out of the conflict. Ironical if it's the ex that is the one causing the conflict, but this is why you never say anything negative about the ex. If you are child focused and don't say anything negative, and the ex does, it will look badly for her. However, if the ex makes false allegations or accuses you of some kind of abuse or violence, Cafcass may decide to do a Section 7 report.

Tip - if they decide to do a Section 7 report and tell you what the allegations are. Try to get some documentary evidence to counteract them and email it to Cafcass. eg if Ex says you have a mental illness and aren't fit to look after the children, get a Doctor's letter showing you are perfectly well and no issues and email it to them. It helps the end process.

3) Wishes and Feelings

Cafcass may decide to talk to the children - if they are under 10 they may not. Usually they talk to them in school, but there are cases of them talking to the children at the Mother's home, or in the Cafcass office with the Mother taking them there. If you have issues with what Cafcass recommend, you could have them cross examined at the final hearing to have their report undermined as flawed - if the saw the children with the BM and not with Dad as well.

If the ex coaches them they may say they don't want to see you. Try not to worry. A court makes a decision based on a number of things, not just the child's wishes and feelings and these need to be "ascertainable" wishes and feelings rather than “expressed” wishes and feelings. Sometimes Cafcass spot coaching. Sometimes they don't. Wishes and feelings are taken more seriously once the children are 10 or over.

4) Cafcass letter/report

After the phone interview and before the first hearing, you should receive the Cafcass letter/report. This sometimes has a "spin" on things that you have said. It doesn't mean it's wrong but it is how they have analysed or interpreted what you have said. Unless there is something blatantly wrong that you really object to - don't challenge it. If there is something you feel is very wrong, then politely email them to ask them to correct it, but don't be surprised if nothing happens. Do not start getting angry and irate with them. Because then your partner could be labelled as having violent tendencies! The letter summarises what both parents have said and should then say what they propose happens next. eg whether they recommend mediation or a SPIP course, or if they think there are any welfare issues and recommend doing a Section 7. Hopefully it will say no welfare issues (after they've done police checks etc). If allegations have been made, this is when they may recommend the court orders a Section 7 to investigate. This is a waiting game as if there is no evidence of what is alleged (which there won't be if the allegations are false) you will be cleared by the end of the process. You may be interviewed by Cafcass as part of this. Stay calm and don't be pushed into being upset or angry or saying anything negative about the ex. They are testing you. Focus on how you want stability for the children with both parents.

5) Gatekeeping Hearing

Neither parent attends this. It's a hearing between Cafcass and a Judge, after the Cafcass report. Even if Cafcass have recommended something, it doesn't mean the Jusge will order it. This is one reason your initial application wording is important as the Judge will see your sound arguments and reasonable approach and see the background, and will already have formed an opinion. At the gatekeeping hearing it will be decided what happens next and you will be sent court papers saying what that is. Whether it is to then go to a First hearing, or a fact find hearing for example. Hopefully it will go to a first hearing. If Cafcass have recommended a Section 7 report, this will usually not be ordered until the first hearing, if the Judge decides it's necessary.

6) First hearing - also known as FHDRA (First Hearing Dispute Resolution Appointment).

The dispute resolution bit, is that you are expected to have pre-hearing negotiations at court an hour before the hearing time, and the court hope you reach an agreement for a consent order. If both parties have solicitors, they will try and broker an agreement for a consent order. The Solicitors can do some "horsetrading" to try and achieve this. If no agreement is reached then you are likely to have a short time in front of the Judge who will decide what next. It may be a Section 7 or a fact find (if there have been serious allegations). Or it may just go to a final hearing. They often order both parents to do a SPIP course during the interim. This is also the point where you or your solicitor asks for an interim order. Sometimes they won’t do an interim order for normal staying time, if the ex won’t agree to it or if she is claiming the children are in danger, and then it can sometimes be just time in a contact centre during the interim.

If there is no Section 7 and it is going to go directly to a final hearing, you should then receive court papers telling you a final hearing date - this could be 3 or to 6 months away - and it will direct what else you need to produce by then (usually a witness statement) and when it has to be filed by. A “Witness Statement” is a full statement backed up by evidence.

If a Section 7 has been ordered, then this will happen next. After which Cafcass will sometimes recommend on what type of time should be ordered. There is then usually another hearing after the section 7 - a further opportunity to reach agreement and to see if the S7 report is agreed or not. This can lead to additional interim time being ordered. It then usually goes to a final hearing.

Fact find hearings are usually only ordered when there have been serious allegations - particularly if both parents make allegations against each other. This is another reason not to accuse the ex of anything. It may then go to a fact find which can make the case last over a year, with all the additional hearings. A fact find is also found on the "balance of probabilities" when there is no clear evidence - which can be - who the Judge believes or warms to.

A smooth process would be. a) Don't say anything negative about the ex. b) go straight to a final hearing after the first hearing.

 

[Esme]

7) Statements for a final hearing

The final statement or "Witness Statement" is the most important document. This is your case, and your evidence. Even though the Judge will have seen and read your application, the Statement is what forms your case on the day, so don't rely on information in the application being remembered. Even if you don’t use a solicitor, it can be good to use one for a “one off job” to help construct the final statement around your evidence, It could be between 5 and 8 pages long (double spaced), and evidence can be attached to back up your points as "exhibits". Types of evidence could be emails, printed out text messages, any documents from school or social services, or GP’s. Courts aren't really interested in photographs and videos tend not to be admissible generally. Paperwork is key. Mainly you want to focus on how you want your children to enjoy happy loving relationships with both families, but it is also a place to give information about the childrens established life and home with you, any pets and hobbies they have at your home and how they are part of an established family unit. In reasoning why you need your order, your statement could describe a series of events or facts (ie bad stuff done by the ex) backed up with evidence (eg an email where she insults you for two pages and refuses to allow the children to come). This is not exactly slagging her off, it is stating facts and revealing what has been happening. Accusing her of doing xyz with no evidence is "mud slinging" so if no evidence, don't say it. Hopefully your statement will be well worded, formal, factual and showing a positive attitude but highlighting issues -and hers will be full of mud slinging and no evidence - which would help your case. It needs to be 100% accurate. If in doubt, leave it out. Because your partner will be cross examined on his statement at the final hearing and the other side’s motivation is to try and prove he is lying about something (eg if something is incorrect or contradictory in the statement). Likewise, if your partner has a barrister they will be aiming to do the same. If they can show someone is lying, the rest of their statement is basically ignored and that can win the case. If you "win the case" then basically you get what you applied for.

8) Representation at a final hearing

If you can afford it, get a Solicitor and Barrister for a final hearing. A Barrister can persuade a Judge, using case law. You are much more likely to get what you want. If you’re mostly self repping, then try to at least get a direct access barrister for the final hearing – they get results. They are not cheap but it can work out cheaper than using a solicitor throughout and they are experts in court. It can also save years of stress and misery, so it's worth paying for to avoid that.

9) Tip: Attach a draft order to your statement

Before your hearing, and when doing your statement, at the end of it is what you ask for in an order (again, as you did in your application) ie what you are asking the court to order. Ideally you want this detailed word for word with everything you want included. However this can take up space in your statement if you have a limited number of pages. A tip is to attach a Draft order with everything you want in it, and at the end of the statement ask the court to make an order "as per the attached draft order". You could get a solicitor as a one off job, to draw it up in the correct way. If you can't just write it out yourself in a structured manner. It is a document that can be used for negotiations before the hearing, or if approved by the court, could be left for sealing on the day.

10) Exchange of Statements

When documents are ready to go to court by the date required, statements are exchanged for the bundle. This is a bit like exchange of contracts on a house - has to be done at exactly the same time, usually by email these days, so neither gets to see the other's evidence and produces counter evidence in their statement as a result of seeing it. Expect a massive reaction from the ex when they see your partner’s evidence and statement. Expect upset and shock on seeing what's in their statement - take a day to get over it. Expect the children to suddenly be a bit different or stressed out - stay calm - it's temporary.

There can be dirty tricks around exchanging statements, if you’re self repping. Like the other side’s solicitor refusing to agree a time and date to exchange statements or just ignoring you. Don’t send yours first. If the deadline for submission is 4pm on a particular Friday eg, and you haven’t had any communication from the other side or received their statement then there are a couple of options:

a) You just email the statement to the court, before the deadline, explaining that you have had no communication from the other side’s solicitors and so statements have not been exchanged yet.

b) One tip is to send your statement “password protected”. Then email the solicitor for the other side and tell them you will give them the password once you’ve received the ex’s statement. This counts as being sent because you can’t withdraw it once it’s sent, but they can’t see it till you give them the password.

11) Court bundle

This has to go in usually about 2 weeks before the final hearing. A date will be ordered for bundle submission. The Applicant’s (your) Solicitor does the bundle. However if you don’t have a solicitor, and the ex does, then the ex’s solicitor does the bundle (this can lead to dirty tricks again, but there are ways round that). If neither has a solicitor then the Applicant does the bundle.

The bundle includes your statement, your evidence, any other documents you want the court to see, plus any previous documents, Sectiion 7’s, Cafcass letters and any previous position statements, plus the other side's statement, evidence and documents, plus a typed schedule of everything that is in the bundle. Once the bundle has gone, you can't submit any further evidence. Technically - although you might be able to if the other side agree. It's to avoid dirty tricks and people producing things at the last minute.

12) Final hearing - also known as Contested Hearing

Again there may be negotiations and horsetrading pre going in before the Judge. Again this is where it can help to have a good Barrister. If they can get the other side to agree to most of what you want this can be done as a consent order. If most areas are agreed but only a couple not agreed, you can ask the Judge to decide the final issues. If no agreement reached you go in for the contested hearing. This will involve cross examination of both parties. One of the main purpose of this is to try and catch someone out to show they are lying. Which is why it's important to be 100% accurate and truthful in your statement as mentioned above. If the other person is shown to have lied about something, that immediately discredits their whole statement and evidence. The contested hearing in a way, is nothing to do with your life or your children or step children ! It is a legal process with rules and hoops to jump through. After hearing evidence and listening to what people say under cross examination, the Judge will have begun forming opinions of both of you. Always stay calm - if you lose it you can be judged as possibly aggressive. The ex's lawyer will also be trying to make your partner lose his cool so he looks bad. Be prepared for that and stay calm.

Although ultimately the Judge makes the final decisions, if you have a Barrister they can persuade the Judge with case law that the Judge is obliged to consider. It may depend on how complex your case is, as to whether you can self rep or need legal representation. There are people who self rep who come out with 50/50 shared care orders. However, an ex with a solicitor means you are on the back foot the whole way and it’s highly advised to have representation at the final hearing. It can save things going badly wrong.

If a fact find is ordered as part of your case, it really is essential to have representation.

 

[Esme]

Just to add - in cases of parental alienation it can be a bit more complex than all the above. But it's usually advised not to use the term "Parental Alienation", or to accuse it, but to explain the concerns and behaviours and refer to "manipulation" of the children. This is because alienators often falsely accuse the other parent of being the alienator. So by accusing it, you look suspect. It can be very hard to prove without psychologists reports, so sometimes it is more a case of trying to get the best order possible. And if things don't improve from there, you're in a stronger position to go back to court for further measures.

If you use a barrister, they can say things that a parent can't in court. They can say - the Mother is alienating the children. And it's acceptable. It's one of the issues of self repping - that it's hard to be both a parent, and someone presenting a legal case, without just sounding like a hostile parent.

The other reason is, courts like to decide whether or not it is parental alienation, and don't like parents "self diagnosing". Which is another reason to describe the behaviours and effects on the children and "paint a picture" of it rather than directly accuse it. So a Judge can read between the lines and determine what the issue is. That way also, you're not making allegations, but showing concern for the kids welfare. Horrific as it is for a Dad (and a Stepmum) to be the target of alienation, the court is only there for the welfare of the children. So it needs to be kept child focused.

Also making any accusations at all, without, say, back up from social services, means it is just classed as "he said she said" and labelled as "conflict between parents".

Karen and Nick Woodall (PA Specialists) wrote a book about Parental alienation. It's a bit theoretical in places and not an easy read. But chapter 8 (written by Nick Woodall) is a very good step by step guide about how to prepare for court in cases of alienation.

Understanding parental alientation - click here