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Financial Remedy

A General Overview

S.25 of the Matrimonial Causes Act 1973 is the law set down by parliament that Judges must use to decide all cases.  Every case is different and so s.25 should always be the touchstone.  No one factor in the list set out in s.25 is more important than another although the court must first consider the welfare of any child of the family less than 18 years of age (see link http://www.legislation.gov.uk/ukpga/1973/18/section/25). How and when a court can apportion assets in favour of one party over the other is beyond the scope of this synopsis. What can be said though is that the court must be fair i.e. no bias in favour of the “husband as the breadwinner over the wife as the house keeper” or vice versa. The Judge has to check himself against the “yardstick of equality” i.e. equality between the parties in all the circumstances of the case and should only depart from equality with good reason.

 

What also needs to be borne in mind by all parties to financial remedy cases is that you are under a duty to provide full and frank disclosure of all relevant information. It is not enough to wait to be asked for the information by your former partner, their lawyer or the Judge. The information must be given voluntarily and completely. Failure to do so may result in a costs order being made against you or the court finding your behaviour is so bad that it is reflected in the division of assets at the end of the case.

Initiating Proceedings

Proceedings commence with one party providing a notice of application for a financial order by issuing form A:                  justice.gov.uk/downloads/forms/fjr/Form_A_web_0414_3.pdf

 

 

Please note the requirements in the pre-application protocol for an applicant prior to commencing proceedings to seek out mediation: www.justice.gov.uk/courts/procedure-rules/family/practice_directions/pd_part_09a

 

The court will then send out to the parties Form C telling the parties when the first appointment (“FA”) will be and the requirements as to filing evidence. This should be done by the court within 4 days of the Form A being issued. The FA hearing should be between 12 and 16 weeks after the date of issue. The court will then serve the respondent within 4 days.

Action required before the First Appointment ("FA")

Before the FA the parties must file with the court and simultaneous exchange evidence by completing Form E: formfinder.hmctsformfinder.justice.gov.uk/form-e-eng-20160121.pdf
Form E (notes): formfinder.hmctsformfinder.justice.gov.uk/form-e-notes-eng.pdf


This must be done not less than 35 days before the FA. The form E is a crucial document. In straightforward cases, when full and frank disclosure has taken place, the case could be resolved at the FA by the court treating it as a Financial Dispute Resolution Hearing (“FDR”). Many cases fail to settle early, and thus incur further costs for the parties, because one or both parties have failed to provide full disclosure.

 

At least 14 days before the FA each party must file at court and serve on the other party:

If you are required to “file and serve” a document or documents by either the rules or by the court this has a specific meaning. To “file” a document essentially means that you must send it to the court in question. This will usually mean by post to the court address but may be by email depending on the court in question. To “serve” a document means to provide the document(s) to the other parties in the case, again this is usually by post but maybe by email and you may need to check with the parties what their preferred option is for service.

The FA

So, this is the first hearing before a judge. All the documents above should have been filed and the judge has read all of it in advance. The objective of the court (assisted by the parties) is to identify the issues and save costs. In order to do so the court will also want to know the costs of the parties to date. The following form is required to be completed by the parties: formfinder.hmctsformfinder.justice.gov.uk/form-h1-eng.pdf

 

The judge has wide powers and will endeavour to move the case towards to a fair and swift outcome for the parties. What questions should be answered? What evidence is needed? Can the case be dealt with today as an FDR? The court may decide to list the case on another date for an FDR once the missing evidence is available or list a final hearing or both depending on the facts of the case. If questionnaires are exchanged a date will be set by the court for the parties to reply by. See the examle reply to questionnaire: PDF (writable).

Action required before the Financial Dispute Resolution Hearing ("FDR")

No later than 7 days before the FDR appointment, the applicant must file at court the details of all offers, proposals and responses. The court will also want at the hearing the parties up-to-date costs estimates.

The FDR

The purpose of this hearing is to give the parties an opportunity to put their case to the judge and for the judge to give such indications as the circumstances permit. He is not a mediator between the parties however; but the aim is to try and facilitate a settlement. Non-discloser of the content of such meetings is the key to FDR’s working. In other words anything said or admissions made in the course of an FDR appointment cannot be used against you in the future except in exceptional circumstances.

 

Hearings can take an hour or all day. Parties and lawyers should be at court 1 hour before the stated time to give the process the best chance of working. The rules say that parties attending the appointment must use their best endeavours to reach agreement. The court will thus expect both parties to make and receive offers and to give proper consideration to them. Practice between courts and geographical locations differ widely but the essential purpose is clear.

 

If the parties are unable to reach agreement then the court has a wide discretion as to what to do next i.e. list another FDR or list a final hearing. The same judge who hears the FDR cannot hear the final hearing. Genuine disputes over the value of significant assets and a perceived failure by one party that the other is not being full and frank often leads to cases not settling at the FDR.

Action required before the Final Hearing

The applicant must not less than 14 days before the hearing file with the court and serve on the other side a concise statement setting out what order he (or she) seeks. The respondent is obligated to reply within 7 days. These are treated by the court as open offers and will inform the Judge as to what the issues are and what direction the hearing will take. The rules for the preparation of court bundles also must be followed: http://www.justice.gov.uk/courts/procedure-rules/family/practice_directions/pd_part_27a

Final Hearing

The judge will usually hear evidence from the parties and make what are called ‘findings of fact’ on the disputed issues in the case. In other words decide the truth of disputes after hearing the parties give evidence and after considering all the evidence filed. From that the judge will apply the s.25 criteria, and any other relevant law, to the facts and decide on the outcome of the case once each side has had the opportunity to address him in closing submissions. The lawyers will then, usually, draft up the order for the judge to approve whilst still at court. The case has then concluded.

 

You will not usually get your costs if you are successful at any stage during Financial Remedy cases. The general rules is that each party will bear their own costs. However their are circumstances in which costs can be recovered i.e. a party’s conduct during the proceedings leading to unnecessary costs being incurred by the other party.

Child Law

A General Overview

State funding for most cases has all but disappeared. Only those people that are at risk of their children being permanently removed or who meet the financial criteria and have been the victim of domestic violence are eligible. To check your eligibility go to:  www.justice.gov.uk/legal-aid/assess-your-clients-eligibility/civil-eligibility/civil-eligibility-calculator

 

Disputes about children are some of the hardest cases for the court to determine. The 'touchstone' in this area of law is the Children Act 1989 which plays a key role in the court's decision making. The child's welfare is the courts' “paramount consideration”. In other words the court must justify any decision it makes by reference to the 'child's welfare' and the criteria as set out in s.1 of the Children Act 1989. Plainly this is case specific and the discretion of the court is inevitably wide as a result. Whether you are a parent seeking an order that a child lives or spends time with you; a grandparent or relative seeking the same; maybe you want parental responsabilty for a child in your care and the law does not grant you this autmotically' or  maybe you require to court to decide a specific issue regarding a child i.e how the child should be known? Perhaps you need a prohibited steps order preventing someone from doing something which is not in the childs interests i.e. a father seeking to prevent a mother moving away with a child - whatever it might be - I can help.

 

It is also a fundemental principle of that the court will not make an order if it is not necessary, this is called the 'no order principle'. In other words, will it be better for the child to make the order than not make no order at all? It should also be bourne in mind that it is an expectation of the court that all parties to Children Act proceedings will provide 'full and frank disclosure'. This means you’re upfront about everything that is relevant to the application.

Private Law Proceedings

Practice Direction 12B – Child Arrangement Programme (‘CAP’)

 

As of 22nd April 2014 there was a “cultural revolution” in the law regarding disputes over children between parents and families.

 

So what has changed? The system now seeks to:

  1. Encourage parents to take more responsibility for decision making regarding the child,
  2. The court should have a limited role by resolving disputes only when necessary and then ‘bowing out’,
  3. Encourage parties to mediate or engage in other forms of non-court dispute resolution.

The emphasis is ALSO to try and move away from disputes regarding residence and contact and so the terminology is now Child Arrangement Orders (‘CAO’) i.e. ‘the child shall spend time with the father or shall live with the father’ rather than ‘reside with the father’ and ‘be made available for contact with the father’.

 

In practice then what does this all mean? Any applicant for a CAO must attend a mediation session called a MIAM unless an exemption applies. For information about this go to: www.familymediationcouncil.org.uk. To check whether you can get financial help (legal aid) to pay for non-court disputes resolution, and/or advice and representation at court, and to find a legal aid solicitor or mediator go to: www.gov.uk/check-legal-aid.

 

The Procedure

 

The Application

On issuing the application the court will allocate the case to an appropriate level of Judge/Magistrates and may issue directions i.e. MIAM’s should take place before the application is processed or evidence is required from the parties etc. Equally the application may be urgent and be placed before a Judge swiftly.

 

Cafcass (‘The Children and Family Court Support Service’) will provide the parties and court with a Safeguarding letter within 17 days of receipt of the application. This will identify any risks associated with the application by contacting the parties, Police and Social Services etc. as required. For more information on Cafcass see: www.cafcass.gov.uk/about-cafcass.

 

The First Hearing (‘FHDRA’)

This should ordinarily take place within 5 weeks of the application being issued. All parties to the application are required to attend the hearing.  A Cafcass officer is required to attend the hearing. The hearing is an attempt to help the parties understand the issues that divide them and to reach agreement. Depending on whether agreement is reached and what issues are left he resolve the court will either make an order by consent or issues directions with a view to resolving the disputed issues as swiftly, safely and in the child’s best interests as possible. A report from Cafcass may be require and/or a hearing to decide the truth of allegations of domestic violence before the case can progress or be resolved.  

 

The Dispute Resolution Hearing (‘DRA’)

If the court directs a report from Cafcass/social services/some other expert report or that the parties attend a SPIP (‘Separated Parenting Information Programme’) then it may list the case fro a DRA. At this hearing the court will:

 

  1. Identify the key (if any) to be determined and the extent to which those issues can be resolved or narrowed ad the DRA,
  2. Consider if the DRA could be used as a final hearing,
  3. Resolve or narrow the issues by hearing evidence,
  4. Identify the evidence to be heard on the issues at a final hearing,
  5. Give case managing directions i.e. filing of evidence.

 

If a fact-finding hearing is needed then will be dealt with in accordance with Practice Direction 12J.

 

The Final Hearing (‘FH’)

If the parties are unable to reach agreement then the court will decided the case on the evidence by hearing evidence and making such findings as are necessary.

 

Enforcement of Child Arrangements

On the separate application to the court for the enforcement of a child arrangement order the court is required to consider the following:

  1. are the facts relevant to the alleged non-compliance agreed or is a hearing necessary to establish the facts?
  2. What are the reasons for the noncompliance?
  3. How are the views of the child to be ascertained?
  4. Is advice required from Cafcass?
  5. Assess and manage the risk (if any) of making further or other child arrangements order,
  6. Consider if SPIP or referral to dispute resolution is appropriate,
  7. Consider whether an enforcement order may be appropriate and
  8. Consider the Welfare Checklist.

If you want to make an application for a Child Arrangements Order (what was residence, contact, prohibited steps or specific issue order) pursuant to section 8 of the Children Act 1989 (or to vary or discharge the same) fill out this form:


C100                      formfinder.hmctsformfinder.justice.gov.uk/c100-eng.pdf


If you want to make an application for order other than those above under the children act 1989 fill out this form:


C1                           formfinder.hmctsformfinder.justice.gov.uk/c1-eng.pdf


If your application for an order involves allegation of domestic violence under the Children Act 1989 fill out this form:


C1A                        formfinder.hmctsformfinder.justice.gov.uk/c001a-eng.pdf


If you want an order or direction to be made in proceedings that are on-going or need permission to start proceedings fill out this form:


C2                           formfinder.hmctsformfinder.justice.gov.uk/c2-eng.pdf


If you want to enforce a child arrangements order previously made by the court under the children act 1989 fill out this form:


C79                         formfinder.hmctsformfinder.justice.gov.uk/c79-eng.pdf


If you want an injunction to prevent your partner or former partner from harassing you, being violent to you and/or your children or be ‘ousted’ from your home fill out this form:


F401                       formfinder.hmctsformfinder.justice.gov.uk/fl401-eng-20160213.pdf


You will have to pay the courts issue fee for the above applications and they vary.

Public Law Proceedings

This is now governed by the Public Law outline known as the “PLO”. If you are a parent or guardian of a child subject to an application for a care or supervision order you will be automatically eligible for public funding. However for concerned extend family or friends you may be without funding and wondering what your options are. Have you been ruled out by social services as a potential carer for a child of the family? Are you someone that has received notice that Social services are seeking findings against you within care proceedings of a serious nature and need advice or representation? I can help.

To speak direct to a barrister:

Call 07967 152344

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