Steven Wade is a family law advisor (McKenzie Friend) with nearly 20 years of experience helping people represent themselves in court. Having been through the system personally and supported thousands of others since, he knows what it’s like to face the stress, confusion, and pressure of doing it alone. This blog shares practical insights that empower you to take control of your case — without the legal jargon or the hefty solicitor’s bill.
How do I prepare for a final hearing?
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How do I prepare for a final hearing?
- Introduction
- What is a final hearing for?
- What is a final hearing NOT for?
- `On submissions’…
- …or trial?
- What is cross examination?
- What is a trial bundle?
- Should I go for a trial or submissons?
- My hearing is tomorrow – it’s too late. What do I do?
Introduction
It’s important to say at the very start that if your final hearing is tomorrow the correct – if not most helpful – answer is something along the lines of `The best time to prepare for your final hearing was a few weeks back’.
In the life of your case a final hearing is often the `main event’ when it comes to your appearances in court. What happens at this one will be `set in stone’ (unless one of you makes a new application down the line) – so it’s the last chance you’re going to have to get the best result for your children or for a favourable financial arrangement.
So it means that you should make sure you do everything you can to make sure you do everything you can to achieve the best possible result.
Preparation for a final hearing has many `moving parts’ and can greatly affect the outcome and can take time to prepare, especially if you’re representing yourself and you’re not familiar with how it works. I’ll explain some of the things you really need to know if that’s what you’re doing.
What is a final hearing for?
As I say in the introduction – it’s the last opportunity to get the best result for your children or your finances. There won’t be any other hearings unless one of you brings the matter back to court (in a new application, for enforcement or applying for a variation).
Any existing orders before a final order is an `interim’ order – it’s a temporary one that will have no bearing on what happens next.
You may have thought in previous hearings that the real `nuts and bolts’ of the case – the stuff you wanted to say and get across in court had been ignored.
This is your big chance to `have your say’ and set out what you think should happen.
What is a final hearing NOT for?
Final hearings are NOT the place to gather information.
If you’re planning to use it to find out things or to get information from your ex or anyone else…you’re too late. Getting information should have occurred a long time ago – by doing your research or by attending a Fact Finding hearing (that has taken place because you asked one or the court decided one was necessary). And everything you wish to be part of this hearing should be available to the court in a bundle or something similar.
Try to get information in a final hearing and you may be told the above – at which point you’re wasting your time in a court that will tell you only the available facts and further delay is not in the best interests of your child (or if in a finance case that another hearing will only further rack up legal costs).
`On submissions’…
Assuming you’re a Litigant in Person (or LiP for short) you’ve almost certainly been told the final hearing will be dealt with `on submissions’.
The court will, reasonably enough, assume that you’re not an expert in law and don’t know as much about court proceedure as a solicitor or barrister and will try to make it as easy as possible for all concerned. Which means working on the principle you’re not an expert in Practice Guidance 27A or what court procedure is.
Final hearings can otherwise be unnecessarily messy, lengthy, disorganised and unsatisfactory for all concerned.
So to help, a judge will often ask LiPs to submit a witness statement to the court ahead of the hearing. He/she will read it, ask you, your ex and anyone else they feel is appropriate, questions to enable them to make the right decision. This often won’t be explained to you for the simple reason that they’re trying to make things as easy and relaxed as possible instead of you worrying about the sort of thing I’m discussing in this very blog post (sorry!)
Of course, if you’ve got a solicitor or barrister it’s a very different situation and it’s quite possible things will be dealt with in a trial…
…or trial
A trial is probably the part of a case that most people would recognise.
It can involve huge amounts of paperwork, people being cross examined and `gotcha’ moments while being on the stand. But remember – it’s not a Hollywood courtroom drama – there will be no one shouting `objection’, asking to `approach the bench’ or asking for a `continuance’.
There’s a format trials follow (although don’t be surprised if you hear of different things happening – the court is probably less consistent than you’d think). But typically what happens is something like this:
- `Housekeeping’ issues are addressed. This doesn’t deal with the subject in hand but rather things like checking all the paperwork for the trial is available to everyone, approving the presence of McKenzie Friends if they are there or anything else that needs to happen to make sure it is going to turn out to be a huge waste of time. Basically – admin.
- Opening submissions. A chance for both sides to speak broadly about how they see things. If both sides are represented or both unrepresented it’ll be applicant’s turn first (although if only one party is represented they’ll often go first regardless of whether they are applicant or respondent).
- The court hears evidence – cross examination of witnesses.
- Professionals such as CAFCASS officers, social workers, psychologists (so they can excused immediately after).
- Other witness – such as friends and family members who have submitted statements.
- The parents – you and your ex partner!
- Closing submissions – a last chance to tell the court what you think it needs to here before making a decision.
After this, the court will retire and make a decision. You’ll leave the court room and be asked to come back later. The court will then:
- Outline the details of the case.
- Quote relevant law.
- Read out the order being made and how the law applies to it.
It needs to be said that before any of this happens the real `action’ can take place. In that both parties (and/or their representatives) should speak and see if a trial can be avoided in the first place by agreeing what should happen without the court having to impose an order no one is happy with. Or failing that, `narrowing the issues’ by seeing what can – and can’t be agreed upon. In our experience, trials can be avoided about 40% of the time by negotiating (and it’s by far the best option, being quicker, nicer and far less stressful).
What is `cross examination’?
Witnesses can be cross examined in trials (not when it’s being dealt with `on submissions’).
If someone has submitted statements, etc. to the court and want their words taken into consideration they need to be available to be available to clarify what they meant. If they aren’t, their views will be given far less – if any – weight when the court makes a decision. (So if you have someone who is happy to provide a statement to the court to support you it may be worth asking if they’re prepared to go to court to answer questions asked by your ex’s barrister, a judge or your ex – it’s amazing how many people suddenly change their minds…)
The purpose of cross examination is to test the evidence offered by a witness and to expose weaknesses in it (or to highlight the strength of it to the court if you agree with it).
It is not an opportunity to get information. Nor is it an opportunity to verbally attack or personally discredit the witness.
Cross examination is conducted by a solicitor (or a barrister – who specialise in this very role). If you’re representing yourself, your Family Law Specialist or McKenzie Friend will often help you draft these questions way before the final hearing takes place).
The questions themselves are often `closed’ – typically needing a `yes’ or `no’ answer that avoid ambiguity, confusion and an opportunity by a witness supporting the other side using it as an opportunity to weaken your case and strengthen the other party’s. They are often used in conjunction with a paginated trial bundle (see below) which will allow you to lead the witness and everyone else in the room through documents to support the points you are making.
Good cross examination questions can have a huge impact on the outcome of a case so if you’re going to trial this is something to put a lot of work into. They’re a bit of an art and one of the trickiest part of representing yourself if you’re writing your own.
What is a trial bundle?
A trial bundle is a ring binder that includes everything needed for your trial/final hearing. If it isn’t in the bundle on the day – you can’t use it. So it’s key to make sure all documents you wish to rely upon are in it and with the court.
It’s the job of the applicant to put together the bundle. Or the one with a solicitor if the other one doesn’t have one. Contents need to be agreed `where possible’ (although unfortunately it’s far too common for the party putting the bundle together’ to exclude documents it doesn’t want the court to see) or to ignore the other party entirely – leaving them to turn up to a final hearing with no documents at all – something you should avoid at all costs.
As I mention before – a trial bundle is instrumental when it comes to effective cross examination too (see above!)
Should I go for a trial or submissions?
I hate to say this – it depends!
Factors that need to be considered include:
- The complexity of your case.
- The hostility of the parties.
- Your confidence levels (although with a good Family Law Specialist or McKenzie Friend it’ll be fine!)
- What you would like to happen.
On balance I’d say a trial is often better, but it’s a very personal matter (and if you speak to your friendly neighbourhood solicitor they’ll likely say if you’re a LiP you should probably go for submissions).
Remember though – if you are a litigant in person (and your ex is) the mostly likely scenario is that a judge will assume it’s going to be done `on submissions’ only, won’t mention a bundle, won’t mention a trial and order that witness statements are provided by a set date before the final hearing. You do have a right to ask for things to be done as a trial – bundles, cross examination questions, etc. – but it won’t be offered to you and you may even be advised that it’s not a good idea (because the court will assume you don’t know the process – which is a reasonable enough belief).
My hearing is tomorrow – it’s too late. What do I do?
Ok. Some last minute advice. if it’s tomorrow we have to work with what we’ve got.
Get to the hearing an hour before the hearing takes place. Make sure you have a copy of all the paperwork (witness statements if it’s `on submissions’ and a copy of the trial bundle if the other party has provided one – a paper copy is far easier than scanning through a pdf file). Take 4 or 5 spare copies of your witness statement if you have done one because it’s amazing how many courts and people will say they haven’t seen your paperwork even if you have sent them in in good time.
Speak to the other party or their representative. Be polite, calm and focus on the matter in hand – the best interests of your child or a reasonable financial arrangement. If you have someone attending with you consider if they’re liable to calm you or make things worse (if the latter – you’re better off going alone).
Don’t be bullied. If the other party suggests you’ve got zero chance, threatens you with their costs or hints the court agrees with them entirely so you may as well give up, thank them and say they should say this once you’re in court.
If you feel intimidated, ask them to leave you alone.
Good luck and remember…if you don’t get the righ result, it’s almost always possible to put another application in down the line if it’s the right time to do that.
This post is for informational purposes only and does not constitute legal advice.
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