In court

LiP Commandments (Part 1)

We are all but imperfect human beings. We all do things with the best of motives and upon searching our souls know the best and right thing to do even while we go off and do something entirely different, making achieving our goals and reaching the happiness we crave so much more difficult. Following a few simple commandments will make your life a lot easier.

Here at Family Law Assistance we’ve seen and heard a lot. We’ve seen a wide range of tactics used (and justified) – and we’ve seen the outcome for good and bad. We also see things more clearly very often, our clients paying us to provide a more clinical view of a case than they are able to. Because at the end of the day they’re your kids and not ours – it is hard to be impartial when it comes to your own children.

So it’s fair to say we have a good idea of what works and what doesn’t.

It’s common for people to say `I bet you’ve not anyone as bad as my ex’ or `I bet this is the worst case you have ever seen’. You’d be surprised – we won’t discuss details (a two year custodial sentence for contempt of court often offends) – but it is fair to say we’ve seen some challenging situations.

There is often a pattern however – certain immutable rules that are a sure fire way to help or hinder your case. If we were gamblers we’d have a fair guess when it comes to what will and won’t work in a court case.

So with no further ado…

LiP Commandments

1.) Thou Shalt Not Slag Thine Ex off on Social Media

Church - Ten Commandments?No excuses. Ever. Because there are none that will be accepted by a court in mitigation if you are asked to justify why you describe your ex as a ****', a `****’ or even a `****’. You won’t be thanked your honest or your insight even if you are demonstrably correct. Instead you are likely to be painted as someone who is more interested in sticking it to your ex than you are producing a child-focused solution.

Better still? Don’t mention the ex at all. Or your case. You don’t have to convince us, remember. Just the court…

Pro-tip: Slagging the ex off or what he/she is doing whilst not naming them won’t cut it.

2.) Though Shalt Remain Whiter than White at All times

Many people feel they are lied about during court hearings. Why give the other party the opportunity to say unpleasant and true things about you – even better for them if they can prove it?

Again…the court won’t be persuaded by the argument `Yes – I know I did that but he/she is just as bad or worse!’ Or anything else for that matter.

No matter unfair it may seem or indeed be.

3.) Thou Shalt Keep Thine Eye Upon The Ball

What are you going to court for? Proving the ex wrong? Having your say? Getting things on record? Or for ensuring your kids have a relationship with you?

The court will only take any notice of the last one of these. If your motivation for making an application is anything else…save yourself the cost, time, effort and heartache and don’t bother. Seriously. Go on a nice holiday or something instead.

And don’t waste your time trying to get the court to do stuff it doesn’t have the power to order – like communicating with you.

If you do go to court make sure your original motivation for going there stays the same throughout. Don’t get distracted by false allegations – refute them. Don’t get into arguments over anything other than your kids’ best interests. If the other side can change the subject and get you riled…they will. Be wise to it.

4.) Thou Shalt Not Take the whole Family Law System Head on

Maybe you’re a tough guy who never gives up. Show me the man/woman who will tell you `At least I had the guts to tell that judge and everyone else like it is’ and I will show you someone with no contact and non molestation and barring orders against him/her.

That’s because the court is geared to dealing with angry, aggressive and unreasonable people who will shout the odds and get aggressive when they don’t get their way. Do that and you’ll be chewed up, spat out and forgotten by the time you’re out of the court room door.

5.) Thou Shalt Listen to Those with Some Knowledge

So you’re in a difficult situation. It probably feels quite unique. It ain’t. No matter how hard it is I can guarantee you someone has gone through it years before you…and there will be others who will do some in the future too. Amongst them will be the ones who have done well and others who haven’t. Learn from the mistakes of those who have come before and listen to those who have hung around to help others. If you use a solicitor, the same applies – after all, at £260 an hour it’s quite reasonable to assume they will help in some capacity.

The same goes if you use your friendly local McKenzie Friend – namely, us. We’re pretty good at advising you if your chosen course of action is good or bad. We won’t hesitate to tell you if you’re shooting yourself in the foot. After all a good friend tells you what you need to hear and not what you want to hear.

So that’s it. There will be another 5 of these handy commandments coming up as time progresses. But it ain’t rocket science guys. We’re on your side and if you choose to let us help you we’ve got your back. And like the original commandments it’s fair to say these are set in stone.

You’re not alone. Contact us to find out how we can help.

Here endeth the lesson.

Enforcement apps don’t work

Enforcement applications don’t work.

I hate to be the bearer of bad news and all. Because it’s a pretty grim statement isn’t it? Enforcement applications quite simply don’t work.

The ex won’t talk to you. They won’t respond to emails, texts, letters or anything else. They didn’t turn up to mediation. Or maybe they have – and they have advised you that you’ll never see your kids again and if you don’t like it you’ll have to go to court.

Which makes it nice and simple. Hey ho! It’s off to court you go.

You’ve paid your £215. You’ve possibly paid a solicitor. Or your friendly McKenzie Friend. You’ve taken the day off work, possibly driven a long distance to a hearing. Where you have convinced a court to make an order for contact. Something. Anything.

And then after all that the ex decides to break the order.

But that’s OK. Sorta. OK, OK, it’s another £155 but hey…the ex will get a rocket when you put that enforcement application in won’t he/she? Eh? Eh? Contact will resume, order will be restored and it’ll be all good.

Nope.

Statistically you have around a 1.5% chance of your enforcement application succeeding. For the non mathematicians among you that’s around a 1 in 66 chance. Chances are you’re going to be on of the 65. So sorry…

You’re stuck with an order that cost you £215. For that price you’d get around 200 rolls of Andrex and they’d be more absorbent than the 2-3 pieces of A4 you have.

Enforcement doesn’t work.

What more typically happens is that your application morphs (or is hijacked if you want to be uncharitable) into a variation by your ex. It’s a truth universally acknowledged by court staff. Here’s a list of what happens:

  1. You get a court order.
  2. The ex breaks it.
  3. You apply for enforcement.
  4. The ex says he/she broke the order because it wasn’t working.
  5. The court varies the order (quite often with a reduction of contact).

If I were a horrible cynic as opposed to the optimistic, philanthropic soul that I clearly am I’d say something like `Well – if you are a resident parent who is hostile to contact and don’t want to pay the fee yourself all you need do is break the order and then get a variation to reduce the level of contact closer to what it is you want (i.e. none)’.

But I won’t. Because that’d be monstrous wouldn’t it now?

So are we clear?

Enforcement applications don’t work so isn’t worth making them is it?

Nope. You absolutely should go for enforcement.

Whaaaa?’ I hear you say. `What’s the point. You’ve said that it’ll cost me money for an application that almost certainly won’t work and I’ll likely end up with an order that provides less contact than I had before haven’t you??? Make your mind up!’

It’s a fair point.

Enforcement applications are still worth making.

There are very good reasons why you should make an application for enforcement if the order is materially broken.

  1. If you have no or reduced contact you likely have nothing to lose (apart from the application fee, time, effort and stress of course). Your options are to suck it up or do something.
  2. If you do nothing you’ll likely be told down the line that you were obviously A-OK with it. Because if you weren’t you would have made an application wouldn’t you? The ex will be able to argue that it was an agreed change of arrangements because you’ve come to an amicable agreement.
  3. If you do so you’re making it clear you don’t agree with what has happened and you are building a narrative that court orders are broken. And that the existing arrangement needs changing. Possibly a change in residence because the current resident parent can’t be trusted to support contact?

In short it’s absolutely worth making an applications for enforcement. But do it in the knowledge that you’re doing it as part of a long term strategy to get the order that is in the best interests of your child. In the short term you’ve got to be prepared to keep banging your head against a brick wall or just giving up.

What’s it to be punk?

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Documents don’t belong in carrier bags

You’re representing yourself. You’re going to see more documents than you’ll ever want to see. By the end of it you’re going to say a few words of prayer for the many trees that have died to make all the paper you’ve used. For the more environmentally responsible amongst you out there you may want to plant a few trees to reduce your carbon footprint.

Burning documentsYou may want to celebrate the end of your case by having a large bonfire at the end of it all and dance around it with the beverage of your choice a la `The Wicker Man’.

But until that day comes you better make sure you have all your paperwork in a logical, easy-to-get-to format that will make your life as easy as possible. Because it’s going to be hard enough as it is.

Here at Family Law Towers we specialise in bringing order to chaos. Present us with a carrier bag of dog-eared, random pieces of paper you have shoved in the post or brought to us and we’ll give you an organised and logically-presented set of documents that you can refer to at any point in your case.

You’re not going to need it for every hearing (OK, OK…you are technically going to need it for every hearing seeing as Practice Direction 27A now says that a bundle is required for every hearing but it’s overkill in a lot of cases). Practice Direction 27A also says that as a litigant in person your ex’s solicitor is going to have to do it (or it’ll be you if you’re the applicant and he/she doesn’t have a solicitor). And to complicate matters it’s often worth you doing your own bundle in any event but we won’t go into that here.

Don't put your legal documents in carrier bagsWe’ve assisted at any number of hearings where we’ve seen litigants fishing through their `carrier bag of life’ looking for a document the judge would rather like to see but it can’t be found.

You know…the documents that swing the entire trajectory of your case. That sort of stuff.

Preparation, preparation, preparation.

Further to what I say above you will need a bundle for a substantive hearing (although it’s common for the court to request just a witness statement from LiPs). That’ll be the time to present the evidence we’ve advised you don’t throw at the court in a directions or review hearing (because no one will want to see them there).

Ring binders

Even if you aren’t going to have a substantive hearing (and if it happens if you agree an order with the ex) it’s well worth organising your files as such:

  1. Get a ring binder. A big one. Get file dividers too.
  2. Single-sides please. Copies, not original documents. Keep them elsewhere.
  3. Group your documents. Applications & Orders. Statements.  Reports. Correspondence.
  4. Put each group of documents in chronological order (oldest at the front, newest at the back).
  5. Put dividers in the folder, with the group of documents. Applications & Orders in B, Statements in C, Reports in D, Correspondence in E. Section A is for other docs you’ll need to produce yourself (we’ll discuss these at some point in the future).

That’s it for the moment. Congratulations! You have a half-prepared trial bundle and your documents to hand at all hearings.

Hearings are complicated and stressful enough as it is. Don’t make it harder for yourself.

Help! What happens at the first hearing?

So the mediation didn’t work if you even got there. Your ex has refused to discuss things with you, has delayed and or refused mediation and you’ve had no option but to submit at an application to the court.

It’s something you’ve tried to avoid but you had no other option and you’re dreading it. The first hearing is looming. What the hell do you do???

OK. It’s easy for me to say this because it’s a) not my children and b) I’ve assisted in more cases than you’ve probably had hot dinners but…don’t panic. Scratch that…try not to panic. Like I say, it’s easy for me to say that. It’s not a comfortable place and if there is a coffee machine let’s just say it isn’t likely to impress any experts.

If you’ve got a solicitor (a barrister would be overkill for a first hearing and the only thing more extreme is to take both a barrister and a solicitor but it does happen from time to time) things can be easier in some ways. They’ll sort out everything on the day or at least they should. After all – that’s what you are paying them in excess of £260 an hour, right?

If you haven’t, you’re either on your lonesome or you have one of our talented, charismatic and good-looking team members by your side who’ll make sure that any surprises you’ll face are kept to bear minimum.

You’re first hearing will be a FHDRA (fer-hydra as they pronounce it – a First Heading Dispute Resolution Appointment).

Here are some basics to remember:

  1. Write a position statement beforehand (we can help). 2 pages maximum. No, really. Two. Pages. I don’t care how complicated your case is. No one will read your own take on `War and Peace’ in the ten minutes before the hearing. Your position statement will have a brief history of the situation. It’ll have the issues you are facing. Finally it’ll say what you want ordered. This last bit…if you are asking the court to order stuff it can’t you are wasting your time, printer ink and a good opportunity to make a good case. I don’t want to see stuff like `I want my ex to acknowledge what he/she has done‘ or `I want what he/she has done on public record‘. It dilutes you’re case while making you look petty. Take at least 4 copies on the day, handing one to the usher (the ones in black robes…if you can find one) before you go in.
  2. Get there an hour early. And take a book and/or music. There is usually a lot of sitting around.
  3. Find out what court room you’re in. They’re usually on the wall with your case number (make sure you have it before you go to court). Check in with an usher so they know you are there and where you are.
  4. Very often a CAFCASS officer will be there to see if any agreement can be made. Be child-focused at all times but clear about what it is you are seeking. Don’t agree to something unless you are really sure you do agree. This is important (and make sure the court is clear on this when you go into the courtroom too).
  5. If your ex has a solicitor be nice. Whether you feel they are being helpful or not behaving badly will likely come back to bite you one way or another. They’re doing a job and don’t have a personal dislike of you – they kind of have to believe what their client (who as I say is paying them £260 an hour) is telling them. If there are things you can agree…great (you don’t have to agree on everything but it’s all to the good if you can reduce the number of things you’re arguing about). If your ex doesn’t have a solicitor it’s often worth waiting until you get into court to avoid risking inflaming an already tense situation.
  6. You’ll either see one judge or (usually three) magistrates. Call them sir’ or `madam’ as appropriate. You won’t be criticised for using the wrong words if you are using common courtesy.
  7. Use your position statement as your basis for why you are there.
  8. Don’t get sidetracked.
  9. Make sure you take notes (although I’d say you should never go into court alone unless you can speak, listen and take notes at the same time). Note what is said, who said it, times and what is agreed.
  10. Make sure you get an electronic/paper copy of the order before you leave. The order will list what contact, etc. is ordered, when the next hearing is and anything else the court has decided to happen.

That’s it. Don’t be surprised if any of the above doesn’t happen, is done differently, etc. Different courts have different ways of doing things and the real secret is to be able to keep abreast of what is going on as it happens. Most of the action takes place outside the courtroom – with our assistance many of our clients have been able to negotiate an order by `consent’ (agreement) which is the best outcome by the time you are actually in the court system. A consent order is also often seen as stronger because the parties have agreed on it.

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