Eleven hundred reasons to avoid the Family Court

Eleven hundred reasons not to use the Family Court

The Family Court should be the last resort

We spend as much time telling people not to get involved in the Family Court as much as we do actually helping them by the time they are in it.

They’ll come to us looking for the best solution. Which may be getting back with your ex. Or talking to him or her. Maybe it is attempting mediation. Or biting the bullet.

Only you’ll know if any of these are possible and/or you can live with any of these potential outcomes.

But going to the Family Court. If you can avoid it…do so.

That’s because making an application to change a situation is effectively pressing the nuclear button and is (in the short term at least) liable to make things worse than they already are; although to be fair – you have little to lose if things couldn’t get worse (such as being told in a child contact dispute that you’ll never see your kids again).

Speak to us and we’ll tell you if things could get worse – and believe us here…there is always someone worse off than yourself. Chances are we’ve assisted them too.

Eleven hundred reasons to avoid the Family CourtThe Family Court can be difficult to deal with

A little context. A client we recently assisted has a long-standing contact dispute with considerable hostility but no welfare concerns. Contact stops. And starts. And stops again. So for a recent final hearing we assisted our client with a trial bundle to be used before magistrates.

That means 6 copies. Of 350 pages each – the limit according to Practice Direction 27A (although we were involved in another case recently where the bundle was 900 pages before the bemused judge suggested that the other party’s solicitor trimmed down the behemoth they had created).

So for a simple contact dispute there is a bundle (not the first one either) that you wouldn’t want to drop on your foot. Another final hearing (again…not the first one). Lost time for client from work. The fees they have paid. The heartache. All the incidental costs of dealing with a hostile ex partner.

In this case – it’s not avoidable. If only it were!

If you are in the Family Court it’s hard work

Of course, despite our protestations that you should avoid the Family Court if you are don’t leave any stone unturned. Don’t expect things to all blow over. Don’t skimp on preparation. As always…it’s about focus (we know, we know…).

But the real focus is not about going to court if that’s a possibility. It’s about working out what your goal is and working backwards from there. Court is seldom the easy answer and even less seldom the way to achieve an outcome you’re happy with.

Avoid it if you can whether you are the resident or non resident parent unless there is no other option.

The lychgate of St Woolos' Cathedral, Newport

Newport Court – a visitor’s guide!

Sunrise over the Usk, the river bisecting Newport.Newport – so good they named it twice!

Newport, or to give it it’s Welsh name, Casnewydd is easy to get to via water (the Romans did this, using the River Usk to get to the fortress at Caerleon) and more recently along the M4 – a 30 minute drive from Cardiff and 170 from London on a clear run.

 

It’s a historic place too. As well as the Caerleon thing (its worth a visit – complete with a gladiatorial arena) which is the alleged site of Camelot according to Geoffrey of Monmouth it’s the site of the `Newport Uprising’ in 1839 – the last large rebellion in the Chartist Riots demanding the right to vote. The museum houses some impressive artefacts too.

It’s also the home of St Woolos’ Cathedral named after a local saint, Gwynllyw.

On the cultural front it’s the home of Goldie Lookin’ Chain, a band that has been known to extol the virtues of the city – including the nightlife, the shopping facilities and the impressive parking at the neighbouring town of Cwmbran

Newport Family Court guide

The lychgate of St Woolos' Cathedral, NewportLocated in Clarence House, opposite the remains of Newport Castle and next to the Newport Bridge (that Harry Houdini jumped off in an escape attempt in 1913 no less leading him to be arrested by some of Newport’s finest) the Newport Family Court is one of the more modern ones. Should you be visiting it there is a shop that sells food and drink – a contrast to those that have at most a machine that dispense brown water that is allegedly coffee. CAFCASS offices are located in the same building handily enough.

For parking we’d recommend you use the Clarence House car park (postcode NP19 7AB) although it’s a quick walk from the train or bus train station if you’re using public transport. If you are parking take plenty of change or make sure you have the Just Park app to use because it’s a pay and display deal.

Hope this helps – do your research before you go to a court hearing. The last thing you want to do is worry about parking just as your hearing is scheduled to start…

 

Thestatusquo:Stickingyourheadinthesand orthepubisn'talwaysthebestoption

The Status Quo: Going to the Winchester and waiting for it to all blow over

The status quo builds an argument to not make an order or a change in circumstancesIf you want something to change, waiting for a status quo to build is absolutely the worst thing you can do.

No mincing of words here guys and gals. The clock is ticking. And every day you wait the better and stronger the argument is that a court should do nothing to change things (it’s called `the no order’ principle).

Hoping your ex will calm down/act reasonably/see sense/get told that he/she is being unreasonable and will agree to what you want is a big risk.

Have your kids not seen you for six months? Imagine the scene in court once you finally realise you have no option but to make an application:

`Sir, my client is a little confused why the applicant has only just chosen to bring this matter before you. The current arrangement has clearly worked well and I am surprised the applicant hasn’t raised this matter sooner if he/she felt it wasn’t in the best interests of the children sooner. I therefore ask that the court dismiss this application’.

Pro-tip: Saying you didn’t know what to do or you were hoping things would get better won’t hold much weight.

The previous President of the Family Division, Baroness Butler-Sloss (and many other judges) have said over the years that the status quo is a significant factor when deciding to make an order that changes the current arrangements (whether you have agreed to them or not too…because doing nothing counts as agreement).

The status quo: Sticking your head in the sand - or the pub isn't always the best option

When is a status quo not a status quo?

This doesn’t mean you should hop, skip and jump into court either: For example if contact is denied or an order is breached in a way that doesn’t disrupt the status quo hold fire.  One (or even two) lost contact sessions doesn’t automatically mean it’s time to send the enforcement application in and/or go for an emergency one.

As always, look at the big picture.

Sometimes the status quo is a good thing

With the above in mind there are times when the status quo can actually benefit you. Do you have regular contact and it’s then stopped? Or overnights? Or regularly take the children abroad without incident only to be told you are not permitted to?

Document it. Record it. Cultivate it. Especially if it’s not in a court order.

If you can build this sort of thing up without a court case…brilliant! And if things do end up in front of the man behind the big desk you can use the status quo argument in your favour. Of course, like anything else in the family courts there are no silver bullets, no guarantees – but remember…it’s a marathon and not a sprint.

Hit the Road Jack! Do I need to leave my home?

Hit the Road Jack: When your ex wants to throw you out

Hit the Road Jack! Do I have to leave my home.Being the music lovers we are here at Family Law Assistance Towers we hear many lyrics that resonate with us because of recent conversations we’ve had with people in relation to their situation.

Just recently it was the hoary old chestnut of `The ex is trying make me leave my home – what do I do?’. Often the speaker is already out – living with parents, sofa surfing or in a worst-case-scenario living on the streets. We’ve known all of these to happen.

For whatever reason it tends to be the male partner who is facing this situation; speculation on why this is the case is something for another day.

Typically he’ll have left under the pressure of persuasion of an ex partner, her parents, the police, her solicitor or a combination thereof.

It’s not black and white…

Do I have to leave my home? The legal position.

As always…it depends. If one of the below is true the answer is `No – you do not have to move out’:

  1. You are married to your ex partner.
  2. You are unmarried but your name is on the tenancy/mortgage.

If neither of the above is true you have a legal right to remain in a property.

Why do people leave if this is the case? It’s because of the pressure they are under. The ignorance. Because of a sense of old-fashioned duty to do `the right thing’ in terms of an ex wife/female partner and/or children. Sometimes it is…sometimes it isn’t. The devil is in the detail.

Do I have to leave my home?

When you do have to move out from a legal perspective it is because:

  1. There is a court order telling you to (including an occupation order).
  2. You aren’t married and aren’t on the tenancy agreement/mortgage and you ex partner asks you to.

Of course – that’s not say that it is quite possible to be legally entitled to stay but are in a situation where there are good and pragmatic reasons to leave but again…that’s a discussion for another day.

What is the impact of leaving your home on divorce and/or children?

In short: You have just handed a MAJOR tactical advantage to your ex partner without a metaphorical shot being fired.

You’ve abandoned the family home. Your ex partner. Your children. Voluntarily. It will quite possibly be used against you. If child contact issues, etc. are unresolved you have ensured that the children have remained in the family home giving them the stability they need. You will also be seen by any council, housing association, etc. as voluntarily making yourself homeless.

Don’t think this will make any difference in what you may consider an eventual `fair’ outcome. Trust me. It won’t. Think carefully before you leave your home. Don’t do it. Get advice before doing so.

A good McKenzie Friend will have more ideas than just `Go to court'.

Questions to ask yourself before using a McKenzie Friend.

It won’t be a surprise to many reading this post that we recommend a Family Law Assistance McKenzie Friend to help you with your legal situation. Our work takes us up and down the country with people seeking our help in child contact disputes, big money finance disputes, dog custody battles and even once to visit a mortuary as part of a dispute in a will.

That last one in case you’re interested it didn’t happen – but our top McKenzie Friend Michaela Wade was game.

It's not all about the money money money when deciding whether to us a McKenzie FriendThe wrong first question is how much do you charge?

Our fees are considerably less than the alternative but we’d urge anyone who is using a McKenzie Friend solely or firstly with this question in mind to seriously consider if we’re the right people to help you. We’ll give you an estimate of what we charge for a hearing, for a piece of work, etc. but we aren’t fortune tellers – we can’t and won’t guarantee what will happen in your situation. We’ll tell you what we think is likely but there are no certainties.

If anyone does guarantee you anything in a case…run a mile from them.

Jerry Maguire was a McKenzie Friend: Help me, help you.

To be honest this applies to a McKenzie Friend, solicitor, or barrister. They can do a lot. But not everything. They can’t stop you sending that ill-advised email. Or not mention the criminal conviction that will be a big part of the case or the 17 Social Services interventions to us.

We’ve seen many a £400 pound an hour solicitor sit with their heads trying not to explode with frustration that all the work they have done (and all the money they’ve been paid – honestly!) is wasted because their own client is causing more problems than the opposition.

If this is you…go it alone. Seriously. Save your money.

A good McKenzie Friend will have more ideas than just `Go to court'.

Should you go to court?

Court should always be the last resort. Anyone who chooses to go to court when there is another option risks being painted as vexatious and/or ending up on the wrong end of a 91/14 barring order. And if you ask our advice we’ll consider this and tell you when it’s not a good idea and alternative potential solutions. It’ll save you a lot of time and money – for the sake of a half hour meeting with us we’ll be honest with you if a court case is likely to be the best way to achieve the result you seek.

Is a McKenzie Friend right for you?

Nine times out of ten we’d say `Yes’. Mostly because no one knows your case like you and likewise no one is motivated as much either.

If you’re one of ten we’ll tell you – recommending great solicitors and barristers we’ve worked with in the past and think will be a positive influence on your situation.

In our experience people are able to represent themselves, get a great result and best of all get a great night’s sleep for the first time too long because they now feel in charge of their own destiny.

The Jerry Springer-style wrap up…

It’s down to you. We can help but what you are responsible for your words and actions if you use us, a solicitor, a barrister or go alone. You’ll also be the one who lives with the consequences often for years afterwards. Think about what your goals are, think carefully about what will best help you achieve them and stick to the plan.

FindingofFact areyouthemonsteryouarepaintedtobe?

A litigant in person’s guide to a Finding of Fact (part 1)

Finding of Fact - a chance to deal with allegationsA Finding of Fact is the chance to deal with allegations you face

It’s a reasonable question we’re asked on a regular basis:

When do I get to tell my side of the story?

It’s not just a reasonable question either. It’s a normal response too! But as a litigant in person you need to understand the rules the court works to – which differ massively from the real world.

When I say `rules’ I don’t mean Practice Direction, CPR or the Children Act itself either.

What I mean is the fundamental way the court works. Attend a hearing and the judge/magistrates/someone else will hear from you and decide what to do. In child contact cases, etc. allegations are very, very common (I can count on one hand the cases I have helped out with out of the many hundreds where there haven’t been any).

The court will have seen thousands. Tens of thousands. Hundreds of thousands. And it doesn’t have the time to investigate every single allegation made in every case. Seriously.

So when you attend a hearing and are accused of something the court has a few different options:

  1. Ignore them entirely.
  2. Ask you about them.
  3. Call a Finding of Fact.

Finding of Fact - are you the monster you are painted to be?In my experience options 1 and 2 by far the most common. If it’s number 1 you may well be left feeling short changed – you’ve had no chance to call your accuser out. But remember…in a child contact case the hearing isn’t about that. It’s about `the best interests of the child’. From your point of view it is by far the best option however. Which it means in effect is this:

  • The court has decided the accusations are stupid/false/irrelevant and not even worth responding to.

A `win’ surely?

Which incidentally should by and large be your response. Remember the mantra? `I refute all allegations‘.

Of course, if option 2 comes up you get the chance to say your piece.

So what happens at a Finding of Fact hearing?

If it’s option 3 and a Finding of Fact is called, that’ll be when you get a chance to respond. With the advent of the amendment of Practice Direction 12J it looks like Finding of Facts are becoming more common. How common remains to be seen but it depends on the allegation and view of the court before.

We’ll be covering the nuts and bolts of the actual hearing itself very soon…

Making people understand what Parental Responsibility can feel like shouting into the wind

Parental Responsibility and medical matters

If you have Parental Responsibility you are able to be involved in your child’s health

Dealing with Parental Responsibility can feel like bashing your head against a brick wall.

Simple, eh? Nice and black and white.

Unless you have a court order that says you aren’t allowed to contact your child’s doctor, etc. if you have Parental Responsibility you can discuss your child’s medical health without the permission of other holders of PR.

This is backed up in court if you say something like `The other parent won’t tell me about my child’s medical condition’ – you’ll be told you have PR and to go away and sort it out.

So off you trot…and hit a brick wall.

If you know the surgery you’re child is registered at the following phrases may be used:

  • `You need a court order’.
  • `I will check with the doctor and he/she will decide’.
  • `You need the written permission of the `main parent’.
  • `We can’t talk to you’.
  • `You need to speak to your solicitor’.

What do these phrases tell you? The honest answer…that whoever is saying them doesn’t know about PR or the Children Act. Or they’re acting without legal basis.

Parental Responsibility is meaningless to most people

It’s something you know about for obvious reasons…but the practice manager or receptionist sure as hell won’t. If you are in a particularly hostile situation they may well know about your `abusive and controlling nature‘ which means the children and your ex partner would be endangered if you’re given any information…

If you don’t know what surgery your children are in you have an extra hurdle: Namely, finding it.

In this case contact the Community Health NHS Trust and speak to the Caldicott Guardian who, knowing all about PR, Gillick Competency, court orders and the like will be able to furnish you with the information you desire.

Right?

Dealing with Parental Responsibility can feel like going round in circlesThe maze that is Parental Responsibility

Not as easy as that, sorry. Call the Community Health NHS Trust and as well as the `reasons’ you can’t be given the information you seek you may be met with incomprehension. And/or referred to the Clinical Commissioning Group for the area (CCGs are organisations that took over some of the responsibilities of the now-defunct Primary Care Trusts – in England…in Wales we have Local Health Boards). Chances are when you speak to the CCG you’ll be referred…to the Community Health NHS Trust you’ve just spoken to.

So round and round you go.

Unfair? Yes. Frustrating? Definitely.

Making people understand what Parental Responsibility can feel like shouting into the windHow do you solve a problem like Parental Responsibility?

Easy answer. Don’t give up. Don’t expect anyone to know the law – even if they should. Give up and the problem is solved – namely you go away and stop bothering them.

Speak to the bloke down the pub and he’ll tell  you this is why Parental Responsibility isn’t worth anything. It’s because he’s got annoyed and give up.

Will you?

Litigant in person. Court coffee isn't great.

4 more things that will never happen in court

In court some thing never happen…if you’re a litigant in person this guide may help

…and in the second post of it’s type we have another 4 things that’ll never happen in court. It’s important to be focused when you are in court. Important to know what the court can and can and can’t do. You need to understand too whether what you are asking is going to help in the scheme of things more make them worse.

So without further ado here are…

Another 4 things that (may) happen in your dreams but almost certainly won’t happen in court

As a litigant in person you are unlikely to see a unicorn in court.The court orders your ex to communicate with you.

Your ex has been ignoring you.  Refused mediation. Won’t respond to emails. Texts. Phone calls. Voicemails. You and your child are disadvantaged by the complete and utter lack of communication you’re facing. You’ve missed handovers, not known about medical issues or even the name of the new partner your child spends the bulk of their time with.

Why won’t it happen? Because the court cannot order communication. It can only suggest. Advise. Say it is in the best interests of the child. But it cannot force it to happen.

 

Being a litigant in person ain't LA LawYou feel utterly vindicated when walking out of a hearing.

We all love courtroom dramas. We’ve seen LA Law, Judge John Deed and Suits. It’s your day in court. It’s glamorous, it’s exciting and you’ll walk down the large steps of a large neoclassical court house to punch the air and know that in this world there is justice out there.

Except you won’t. It’s not a time for victory. Chances are that even if you get everything you set out to achieve it’ll be a Pyrrhic victory and you’ll ask us `Why couldn’t we have done this without the fight?’

 

Everything goes to plan.

You arrive for your first hearing. The Schedule 2 letter is there. The court orders statements to be exchanged by a certain date. A bundle is ordered. Practice Direction is adhered to strictly and to the timetable is too. You go into court the right time.

Don’t be surprised when this doesn’t happen. The more cynical would say timetables, deadlines and Practice Directions are as Captain Jack Sparrow would say…`the code is more what you’d call “guidelines” than actual rules’. Don’t sweat the small stuff and don’t expect there to be any consequences for things not going to plan.

 

Litigant in person. Court coffee isn't great.You’ll get a great cup of coffee.

OK, you got us. It does happen. Sometimes. The Royal Courts of Justice has a Costa (if you like that sort of thing). But if you’re lucky expect a machine that looks like a prop from `Life on Mars’. With brown fluid that comes out when you press the coffee button. It’s as good as it gets though…

 

Litigant in person: Focus is your greatest tool.

As always this is all about focus. I know. You’re bored of hearing it and we’re bored of saying it. But choose your battles. Know your target. Don’t die on that hill. Be clear about what you want and what can be done.

How do I represent myself? Confidence is a good start!

How do I represent myself in court? How to do it in 2018

“Insanity is doing the same thing over and over again and expecting different results”

How do I represent myself? Confidence is a good start!

2018 – New Year, new you? Or the same old issues you feel chained to for many years to come?

It’s easy to feel powerless when you are involved in the family or other civil courts. Easy to feel a hostile ex partner pulls your strings, casts a shadow and dominates your day-to-day life.

It doesn’t have to be like that.

Ask yourself `If I represent myself in court how would that help?’

Some good answers here:

  • Because you can.
  • You’ll empower yourself.
  • You will be stronger and more confident after doing so.
  • No one knows the case quite like you.
  • Or cares.

Oh…and you’ll save a lot of cash too. If that sort of thing interests you.

It’s normal to think your situation is unique. That your ex is doing new and inventive ways to break court orders and that he/she will continue to do so until Doomsday without any consequence.

But the truth is that nothing is new under the sun. Whatever your position someone has gone through it before and learned whether their response to it has worked or not.

You can learn too: Is what you’re doing working? Has it made things better? Worse? Or made no difference?

Represent myself? Some basics.

Represent myself? You can do it - but it's a marathon not a sprint.Put aside your feelings. Yes, I know it’s a bit Zen…in many cases we’re talking about your children here aren’t we? But if you are the sort of person who would do anything for your kids would that include keeping your mouth shut at the optimal time, focusing about your goals, being realistic about what you can achieve or not lashing out at anyone who is nearby and being patient?

You have way more power than you could ever imagine. And you are defeated only when you give up.

So make 2018 a year things change. Take control of your life. Take control of your own actions and know you cannot change anyone else. The information is out there.

It’s yours to lose. What you going to do different this year?

Commonlawmarriage likegoingtoseawithoutalifejacket

Common law marriage and partners in the UK.

Common law wife. Common law husband. Common law marriage.

Talk to enough people and one of these phrases is sure to come up. You’ll hear about how a common law marriage is identical in law to one where you’ve done it `officially’.

But it’s important to realise one very simple fact.

There is no such thing as common law marriage.

Common law marriage - like going to sea without a life jacket

Or a common law husband. Or common law wife.

If you consider yourself to have such a marriage…it doesn’t exist legally. Of course, while things are good and you are happy together it doesn’t make much difference so long as you’re both happy with it.

But when you aren’t happy – it does.

The piece of law relating to marriage is the Matrimonial Causes Act 1973 (or the MCA as it is often shortened to). As it says right at the top of it is

An Act to consolidate certain enactments relating to matrimonial proceedings, maintenance agreements, and declarations of legitimacy, validity of marriage and British nationality, with amendments to give effect to recommendations of the Law Commission

Among other things it sets out are how assets and liabilities are divided should worst come to the worst and you part from your beloved. Section 25 details the criteria and (should) provide for you to deal with things in an equitable manner. Factors the court will consider include length of the marriage, income, earning capacity, provision for children, needs, previous standard of living and many more.

Common law marriages are different

Namely because the MCA doesn’t apply. None of the factors are relevant because there is no marriage from a legal stance.

So what legal remedy would you have here?

Erm…none.

A common law marriage is a gamble when it comes to separation.That’s not exactly true because there are a couple of things you can do. But compared to the relative protections of the MCA but it is not as expansive.

It’s possible to make a claim under TOLATA for example – such as you proving you have an `interest’ in a property. Or if you’re a parent of children and you’re making a claim under Schedule 1 of the Children Act 1973.

But it’s not black and white.

Common law marriage?

So be aware of the situation you are in. There is no such thing as a common law marriage. Or a common law wife. Or common law husband.

If this is something that alarms you, it’s a good time for a surprise marriage proposal…good luck!