Care proceedings are an extremely daunting prospect for any parent to face. It is therefore important that they understand the court process involved.
Care proceedings will be commenced when the local authority is concerned that a child in its area has suffered, or is at risk of suffering, significant harm attributable to either the care given to the child, or likely to be given to them, not being what it would be reasonable to expect a parent to give them, or to the child being beyond parental control.
Care proceedings are a last resort, pursued only after exhausting efforts to keep the child with their birth family.
A pre-proceedings meeting will usually take place as a final attempt to prevent the matter going to court. Parents will receive a letter from the council before the meeting, outlining concerns and inviting attendance. The council will clearly communicate parental expectations regarding their child. Failure to meet these may lead to care proceedings
Once the proceedings have been issued the exact procedure will vary from case to case, depending upon the circumstances. However, the basic procedure takes place in three stages: the Case Management Hearing, the Issues Resolution Hearing, and the Final Hearing.
The Case Management Hearing is usually the first hearing that takes place, fixed when the proceedings are issued. The hearing is typically brief, with the court providing directions for the next steps.
In order to decide what should happen next the court will review the council’s application and its plans for the child (set out in a ‘care plan’), identify the main issues in the case, and what evidence will be required to enable the court to resolve those issues.
Evidence will comprise written statements from parents expressing their views and any necessary expert reports filed. The court may also want other family members to be assessed as potential carers for the child.
A timetable for that evidence, and for next stages in the case, will then be set by the court. The court will usually want the case to be completed within 26 weeks, although this deadline can be extended.
The purpose of the Issues Resolution Hearing is to see whether everyone involved is able to agree upon long-term plans for the child, including where the child should live and what contact anyone should have with them.
If agreement is reached, then this might be the final hearing.
If no agreement can be reached, the hearing identifies and narrows issues for the Final Hearing. The court will also fix a date for the Final Hearing.
At the final hearing, which will usually take place over several days, the court will hear (or read) all of the evidence, and make its final decisions.
The decisions that the court will make will be about the long-term care arrangements for the child, what contact the child should have with anyone, such as parents or other family members, and what orders, if any, are needed to put those arrangements in place.
The orders that the court can make include: a care order placing the child in the care of the local authority; a supervision order placing the child under the supervision of the local authority (the child will usually remain with the family); a special guardianship order placing the child with someone other than their parents; and a placement order authorising the local authority to place the child for adoption.
Please contact us if you require any further information.
For more information about care proceedings and how we can help, see this page.
Last year, Walker Family Law was involved in an important Court of Appeal case about the representation of children in abduction proceedings under the Hague Convention 1980. Two cases were heard together and the full judgements can be read at the links below:
Re D (A Child) (Abduction: Child’s Objections: Representation of Child Party), in which we represented the mother.
C v M (A Child) (Abduction: Representation of Child Party)
In any family court case, children can be caught up in very bitter disputes between their parents. In abduction cases, conflicts arise when a child opposes returning “home,” especially when it conflicts with the applicant parent’s wishes. It is really important that a child’s voice is heard in these circumstances, as one of the five limited defences to a Hague Convention application is a child’s objection to a return.
There are various methods supporting children’s voices in family courts, sometimes involving separate representation for the child, ensuring effective participation.
In abduction proceedings, this can either be by:
A ‘Cafcass guardian’, a court social worker, who will then instruct a solicitor.
A ‘solicitor-Guardian’, where a child instructs the solicitor directly, rather than via a Cafcass officer.
A solicitor-guardian was appointed for the child, ‘D’, at the first hearing. Through the solicitor-guardian, D expressed his wish to remain in England. At the final hearing, the judge concluded that although D objected to returning to Singapore, he had been “heavily and unduly influenced” by his father in England. The judge also expressed concerns about the solicitor guardian providing opinion evidence regarding D’s objections.. D appealed.
The court had ordered the return of the child, ‘X’, to Mauritius, but X then applied to be joined as a party and to set aside the return order. A solicitor-guardian was appointed for X. At a final hearing, the judge refused to make a return order and accepted evidence that it was likely X’s views were her own and there would be ‘significant emotional consequences’ if she was ordered to return to Mauritius against her wishes. The father appealed.
A key issue for the Court of Appeal was the role of a solicitor-guardian and the scope of the evidence they should give, particularly considering they do not have the same expertise and training as a Cafcass officer.
Due to the significance, the Court permitted Reunite International and the Association of Lawyers for Children to intervene.
In Re D, The Court of Appeal allowed D’s appeal and ‘regrettably’ sent the case back to the High Court for a new hearing. The Court agreed with much of the analysis of the judge regarding the solicitor-guardian’s evidence but concluded that the judge had effectively treated his evidence as inadmissible, which was not correct and affected the fairness of the proceedings.
In C v M, the father’s appeal was dismissed.
With regard to the overall guidance regarding solicitor-guardians, the Court of Appeal has asked that this be addressed by the Family Procedure Rules Committee. In the meantime, the guidance can be summarised as follows:
It should be rare that a child is separately represented. The child’s voice will normally be sufficiently heard through Cafcass report.
If suggesting separate representation for a child, they must meet the Cafcass High Court Team first, except for compelling reasons.
Non-expert opinion evidence is admissible .
Pending further guidance, certain matters, like assessing the authenticity and strength of a child’s views, remain within Cafcass officers’ purview.
Currently, solicitor-guardians should refrain from providing opinion evidence beyond what’s essential to justify the child’s competence to instruct them.
For information on how we can help, please see our Child Abduction page.
Walker Family Law is an award-winning family law practice, recognised as one of the leading family law firms in the South West of England with services covering family law & mediation, divorce law, child-law and arbitration.
So you have decided that you want a divorce. But how do you go about getting one? This guide should provide you with the basic information that you need to know.
Divorce essentially involves three steps: making the application, receiving the conditional order (where the court confirms your entitlement to the divorce), and getting the final order.
We will now go through each of these steps in a little more detail.
Completing an application and sending it to the court initiates the process. Please note that one cannot make the application until one year has elapsed from the date of the marriage.
One party can make the application, or both parties can make the application jointly.
The application contains, amongst other things, details of both parties, details of the marriage, and a statement by one or both parties that the marriage has broken down irretrievably. The court must accept that statement as proof that the marriage has broken down irretrievably, which is the ground for divorce.
The application must include your original or certified marriage certificate and the current court fee of £593.
The court will issue the application and check it. If there are no problems, they will send notice to the applicant(s) that it has been issued.
If one party made the application, the court will send a copy to the other party along with a form. The other party should complete the form, acknowledging receipt of the application and stating whether they agree with the divorce.
The other party cannot oppose the divorce because they do not believe that the marriage has irretrievably broken down. They can only oppose the divorce if they do not believe that the court has jurisdiction to deal with the divorce, if they can prove that the marriage was never valid, or if the marriage has already legally ended.
After issuance, the applicant(s) must wait twenty weeks from the application date before progressing the divorce. This is often referred to as the ‘period for reflection’, during which the applicant(s) can consider whether they do, indeed, wish to have their marriage dissolved.
If they wish to proceed, after 20 weeks, they can apply for the divorce to move forward.
The court will then check that the divorce can proceed and, if so, fix a date for the conditional divorce order to be made. By making the conditional order the court is stating that there is no reason why a divorce cannot take place.
After six weeks have elapsed from the conditional order the party or parties in whose favour the conditional order was made may give notice to the court that they wish the conditional order to be made final. (Please note that it is usually not advisable to finalise until financial arrangements have been sorted out.)
If the court receives the notice and finds no reason not to, it will finalise the conditional order.
If given over 12 months later, the notice must include an explanation stating why the application wasn’t made earlier.
Lastly, if one party has received a conditional order but hasn’t applied to finalize it, the other party can apply to make the conditional order final anytime after three months from the first available application date.
Please note that the above only covers the process of getting the divorce itself. It notably excludes sorting financial and child arrangements, which can be more complex.
For further information on how we can help, please see our Divorce & Separation page.
Hardly a week seems to pass without a judge criticising parties to financial remedy proceedings (i.e. proceedings sorting out finances on divorce) for wasting huge sums of money on legal costs, rather than settling the case by agreement.
Just last week a judge commented that only the lawyers were the winners in what he described as “nihilistic litigation” between a couple, that had cost them a staggering £2.3 million in legal fees.
Anyone involved in financial remedy proceedings should make every reasonable attempt to resolve the matter by agreement, rather than via expensive contested court proceedings.
Thankfully, most cases are settled by agreement. But reaching agreement does not mean that it is the end of the matter.
A divorce settlement can be agreed in various ways: directly between the spouses, through correspondence between their solicitors, or with the assistance of a mediator.
Whatever method you have used, if you’ve just thrashed out a financial settlement with your spouse you may quite rightly be congratulating yourself, especially if there was considerable animosity between you and your spouse. After all, you have done the hard part.
But you haven’t completed the job.
The agreement you have reached may well be in writing (obviously it will be if it was reached in correspondence between solicitors, and if it was reached in mediation then the mediator will provide a written note of the agreement), and you may think that that is enough to be able to compel both parties to keep to the agreement. After all, a written agreement is binding, isn’t it?
Not necessarily, in the case of a divorce settlement. To ensure that a divorce settlement is both final and enforceable you need to have it incorporated into a court order. Such an order, because it is agreed between the parties, is known as a ‘consent order’.
With a consent order you can be certain both that your spouse can’t ask for more at a later date (save where the agreement allows this, for example where there is a maintenance order that can later be increased), and that you can ask the court to enforce the agreement if your spouse fails to keep to it. The consent order can specifically state that neither party can make any further financial claim against the other; and enforcing a court order is a lot easier than trying to enforce a written agreement.
So how do you go about getting a consent order?
It is normally possible to get a consent order without having to attend court. The procedure involves drafting the order and sending it to the court.
One of the parties will need to draft the order. Unfortunately, a financial remedies court order is a technical document that really has to be drafted by an expert family lawyer. There are many possible complexities, and to attempt to draft it without a lawyer would be extremely risky.
The draft is then sent to the other party, or their solicitor, for them to check. Once both parties have agreed the terms of the order it can be sent to the court.
The court will also need another document: a statement of information, setting out brief details of the circumstances of the case, and each party’s means. The purpose of this document is that the court requires this information to ensure that the order it is being asked to make is broadly reasonable.
This is an important point, which is often misunderstood. Many people think that because both parties agree, the court is obliged to make the order. This is not so. The court is under no obligation to make the order. It will only make the order if it is satisfied that the terms of the settlement are broadly reasonable.
If the court is not satisfied then it may request further information from the parties, or an explanation as to why the order it is being asked to make is reasonable. The court may even ask the parties to attend a hearing for this purpose.
And if the court is still not satisfied, then it may refuse to make the order. If that happens then it may be necessary to renegotiate the settlement.
That, however, is quite rare. Normally the court will be satisfied, and it will draw up the consent order, and send it to the parties.
Misuse of illegal drugs is sadly an issue that is commonly raised in disputes between parents over arrangements for their children. But what can you do if you suspect that the other parent of your child is taking drugs?
Obviously, a parent’s misuse of drugs may put the child in danger. The court will therefore want to know if a parent is taking drugs, and if it finds that they are then that will have a major bearing upon the final order that the court makes.
But the court will not be aware of the issue unless it is informed of it. And the court will not usually just take the word of one party – it will want better evidence than that.
What the court will ideally want is expert scientific evidence as to whether or not the parent is taking illegal drugs. There are several ways that this can be obtained.
It could, for example, be by way of a simple saliva test. But this will only detect recent drug usage.
A more useful type of test is a hair strand test. This involves a trained sample collector taking a small sample of hair from the subject. The sample is then cut into short lengths, each representing a months-worth of hair growth, with the ‘older’ hair at the tip and the ‘younger’ hair nearer the root. Each length of hair is then tested, and the results can give an indication of the subject’s drug usage over a period of time, up to about six months.
A hair strand test can therefore be a very useful piece of evidence for the court. For example, the parent may have been found to have been using drugs, but then promises to stop. A hair strand test will show whether they have kept their promise.
So how do you go about getting a test?
Drug testing should take place in accordance with a court order. The first thing you must do therefore is inform the court of your suspicion that the other parent is taking drugs, and ask the court to order a test.
Of course the other parent may not agree to submit to a test. It is important to understand that the court cannot force anyone to submit to a test. However, a person who the court would like to take a test would be well advised to agree to the test, even if they have not taken drugs. If they do not do so then it will look like they have something to hide, and the court could draw an adverse inference.
When the court orders the test it will give detailed directions as to how the test will be carried out, and by who. The directions are designed to ensure in particular that the right person is tested. They will also state who is to pay for the testing to be carried out.
As mentioned above, if there is evidence that indicates that one parent is taking drugs then that will have a serious bearing upon what kind of final order the court makes.
The court is likely to take the view that the child is not safe in the sole care of that parent. It may therefore order that any contact the parent has with the child should be supervised, or it may even order that there should be no direct contact between the parent and the child, at least until the drug taking has stopped.
Drug taking is a very serious issue in any court proceedings relating to children. If you believe that it is an issue in your case then you should seek expert legal advice.
It is a common complaint in family proceedings, especially financial remedy cases sorting out finances on divorce, that the other party has ‘got away’ with lying to the court. It is true that the family court will not always take action in response to lies told to it, but it would be quite wrong for anyone to believe that they can get away with any lies they may tell.
We have explained here previously that if someone lies to the court about their financial circumstances then the court can draw ‘adverse inferences’ – i.e. infer that something highly material, and highly adverse, to them is being obscured, for example that they have significant assets that they are refusing to disclose.
But the consequences of lying to the court can be far more serious, as was amply illustrated by a recent case in the Worcester Crown Court.
The case arose from proceedings in the Family Court, in which the husband was seeking to stop the maintenance payments he was making to his former wife.
In 2015, when he was earning £750,000 a year working in the oil and gas industry, the husband was ordered to pay maintenance to the wife at the rate of £3,500 per month. However, the husband stopped the payments in 2016, when he was made redundant.
The husband applied to the court for the maintenance order to be discharged. He had obtained new employment, but claimed that he was only then earning between £35,000 and £40,000 a year.
As is normal, the court required the husband to produce documentary evidence of his means, including his bank statements.
Suspicion was raised when it was noticed that one of the statements contained a date of ‘September 31’, which obviously does not exist. The husband initially denied under oath that he had created the statements, but after being told to clarify the matter with his bank he admitted that he had.
The husband was charged with the offence of perverting the course of justice.
Hearing the case in the Worcester Crown Court His Honour Judge Cartwright said that what the husband had done struck “at the heart of the justice system”, and described it as “a planned and sophisticated attempt to deceive the court and the litigant on other side”, aimed at gaining a financial advantage for himself.
The judge explained that a deterrent sentence was required, and he therefore imposed upon the husband a prison sentence of nine months.
The report of the case does not say what the Family Court did after finding out about the husband’s deceit, but clearly there could have been other consequences for him.
For one thing the court would almost certainly not have discharged the maintenance order, although how much maintenance the husband was thereafter required to pay would of course depend upon his income (which in turn may have been affected by his imprisonment).
But there would also have been arrears under the original maintenance order, at least part of which the husband would quite likely have been required to pay, irrespective of his incarceration.
And lastly, the court may well have ordered the husband to pay all or part of the wife’s legal costs in relation to the application to discharge the maintenance order.
In short, there can be consequences for lying to the court, and those consequences can be very serious. The court expects the parties to tell the truth, and anyone contemplating lying or falsifying evidence to improve their case should think very carefully before doing so.
As everyone knows, anyone involved in court proceedings should tell the court “nothing but the truth”. This applies not just to giving oral evidence at court hearings, but to every dealing with the court, including in written statements filed with the court, and complying with court orders.
But sadly many people who have been involved in family court proceedings will tell of a different experience: of their former spouse or partner blatantly lying to the court. This occurs in all types of family court proceedings, but perhaps most often in financial remedy proceedings on divorce.
So why do people lie, and what are the consequences of lying to the court? These questions were addressed in a remarkable Family Court judgment published last week.
The judgment was handed down by Mr Justice Mostyn in a case concerning a wife’s application for financial provision from the husband. We do not need to go into the details of the application here, but a little background to the history of the case is relevant.
The parties separated in 2012 and the wife commenced divorce proceedings in the following year. Since then, the parties have been engaged in almost continuous litigation, both in England, where the wife lives, and in Scotland, where the husband lives.
The litigation has been fuelled by “exceptionally strong mutual antipathy” and extremely hard-fought on both sides – at one point a dispute in the case went all the way to the Supreme Court.
As Mostyn J described: “This has been a case where love has to hatred turned to an extraordinary degree.” The husband, he said, “has accused the wife of being a fraudster, a fantasist and generally useless.” Meanwhile: “The wife, with some justification, has accused the husband of being dishonest, manipulative, vindictive and bullying. But she is not beyond criticism herself. She has conducted her pursuit of the husband in this litigation in a completely disproportionate manner”.
In 2016 a maintenance order was made, requiring the husband to pay maintenance to the wife. The husband not paid a penny under the order.
Mostyn J summed up the history with this: “The result of this terrible litigation … is that both parties are now financially ruined, and, I suspect, psychologically damaged.”
Another illustration, if one were needed, of the consequences of failing to resolve family disputes by agreement.
So to the issue of lying.
The husband was ordered by the court to produce his recent bank statements at the hearing, but he did not produce even one. His explanation, said Mostyn J, was “absurd”: “He claimed that he was acting in the public benefit in the context of the pandemic by not going to his bank in person. He had no answer to my question why he did not at any point apply to the court to be relieved from the disclosure obligation on the ground that it was impossible to comply with.”
This incident, said Mostyn J, was “illustrative of a general syndrome on the part of the husband of defiance, offensiveness, non-cooperation and truculence.”
The husband’s refusal to provide bank statements was, said Mostyn J, “analogous to telling lies to the court.” He went on with this important explanation:
“Well-established authority teaches us that lies to the court can lead to a number of conclusions. First, and obviously, lies to the court may lead to the inference that something highly material, and highly adverse, to the witness is being obscured. But other conclusions may be drawn. Sometimes witnesses unwisely lie in order to bolster a true case. This is hardly a surprising phenomenon. Sometimes witnesses lie in order to conceal shameful, but irrelevant, behaviour. Sometimes witnesses lie simply in order to be difficult. The forensic process is so exacting, and often (as in this case) so prolonged, that it drives people, perhaps already so disposed, to behave unreasonably, combatively, and truculently. This is an especially common phenomenon in divorce litigation where personal relations will have already plunged to new depths.”
In this instance Mostyn J concluded that the husband’s motive for his “deplorable conduct” was not to hide the existence of funds in his bank, but “simply in order to needle his wife and those advising her.”
Whilst it may appear that the husband “got away” with his conduct (although antagonising a judge in this way is certainly not to be recommended), the case is a warning that, amongst other possible consequences (including costs consequences or even perjury) lying to the court can mean that the court believes that you have something to hide, in which case the court may (for example) infer you have certain assets, even when you do not.
The message is very simple: do not lie to the court – doing so risks serious consequences.
