1 Garden Court's Blog
Perhaps more than anyone, lawyers’ know that the financial cost of divorce and separation can be inordinately expensive. We also know that many separating couples are deciding to represent themselves and cut down on their legal costs. In recognition of the increasing numbers of litigants in person, 1 Garden Court and Family Law decided to write and publish DIY Divorce and Separation: The Expert Guide to Representing Yourself. At the heart of the book is the message that you can both represent yourself effectively (sometimes with the intermittent use of lawyers) and save money.
Children Act 1989 (Child Arrangement Orders and more) - How can you try to persuade the court / other party that your proposal is in the child's best interests?
by Nasstassia Hylton, 1 Garden Court
Last month in February 2015, the National Audit Office reported a 22% increase in cases involving contact with children and a 30% increase across all family court cases, in which neither party had legal representation.
Therefore when you attend the family court to represent yourself in Children Act case, you need to be prepared to justify your case to the court when are against a variety of different opponents (including barristers, solicitors, legal executives, your ex partner, or a family member).
There is likely to be emotion involved because of the significance of the issues concerned, however the important thing to remember regardless of who your opponent is, is that the court will want to hear your presented case in a clear and practical manner that has the welfare of the child at the heart of it.
That is easy to say but how do you go about presenting this to the court?
This first thing to remember is that the child's welfare is the court's paramount consideration (Section 1, Children Act 1989). Therefore when you are explaining your case to the court, you ought to present your points with the focus being on why your argument is better for the child (rather than being better for you).
In addition, you will often here mention of the phrase "the welfare checklist" when you are dealing with a Children Act 1989 case in court. This refers to list of important factors that the court ought to have particular regard to when making decisions for a child. These factors are (Section 1(3), Children Act 1989):
(a) The ascertainable wishes and feelings of the child concerned (considered in light of their age and understanding);
(b) The child's physical, emotional and educational needs;
(c) The likely effect on the child of the change in circumstances;
(d) The child's age, sex, background and any characteristics which the court considers relevant;
(e) Any harm which the child has suffered or is at risk of suffering;
(f) How capable end of his parents, and any other person in relation to whom the court considers the question to be relevant is of meeting his needs;
(g) The range of owners open to the court under the Children Act 1989.
These factors represent very important considerations when you are presenting your case to the court. They are also very crucial factors in terms of guiding you about what supporting evidence / documents you should try to present to the court in order to help your case.
On a practical level, it is useful to frame your case around a consideration of these factors, in order to assure the court that you have taken all relevant matters into account.
Presenting Your Case
The court will generally want to know 3 main things:
(1) What outcome / court order you seek?
(2) Why is your preferred outcome in the best interests of the child? and
(3) Why is your opponent's outcome not in the best interest of the child?
Therefore using the factors in the welfare checklist (and informing the court that you have considered these) is likely to assist you in being persuasive in court.
Not all of the factors will be relevant in your case,therefore it is helpful to focus on the most relevant factors.
For example, if the application before the court is for the child to move from the primary care of one parent to the other, you can frame either the application or your opposition to it with reference to the welfare checklist.
In support of the application to change the child's care arrangements you could argue that with reference to: (f) How capable end of his parents, and any other person in relation to whom the court considers the question to be relevant is of meeting his needs; (section 1(3)(f), Children Act 1989) you are the more capable parent. Under this heading it would then be prudent to set out your evidence in support of this contention.
Conversely, if you oppose a change in the child's care arrangements, with reference to: (b) The child's physical, emotional and educational needs; (section 1(3)(f), Children Act 1989) you could argue that the other parent is not able to meet the child's physical, emotional or educational needs. Under this heading you ought to then provide evidence and documents to the court in order to justify your position.
In summary, whilst the phrases such as "in the best interests of the child's welfare" and "in the best interest of the child" are often used in court, it is important for you to carefully present your arguments clearly with reference to the matters in the welfare checklist, and use the checklist to guide you about what evidence in support will be useful to the court to support your position. Thus ensuring that in spite of the likely emotion of the situation, you can demonstrate that you have thought clearly about the position with reference to the same matters that the court will be focused on.
Wyatt v Vince
Despite the headlines, I think that the case is of very limited legal significance. At the heart of the judgment was the decision that a claim for financial remedies brought 22 years after divorce could not be struck out. A claim would only be struck out if an application were not legally recognisable, for example a claim brought after re-marriage - because statute expressly prevents such claims being brought. The fact that a claim was weak was insufficient to allow the court to strike out a claim. No decision was made as to what the wife would be entitled to; which was left to be determined on another day by a more junior court. The Supreme Court did however provide a hint as to a potential future outcome; namely that the wife should receive a somewhat more comfortable mortgage free home. Bearing in mind the wife lives in an ex local authority property purchased for £60,000 in 2010 and the husband worth probably in excess of £57 million; the provision of ‘a somewhat more comfortable mortgage free home’ suggests the wife’s likely award will be very modest; both in terms of amount and as a percentage of the husband’s wealth. The legal basis for such an award appears to be that of compensation for the wife’s role in bringing up the children.
Does Wyatt v Vince mean that a pension sharing order could be obtained many years after divorce in circumstances where the pension was built up post separation? The answer to that question is clearly that such an outcome is possible, although the pension share would be likely to be modest. However much will depend on the facts of the case and whether the party who built up the pension had an excess of resources once his or her needs were met. The risk of a claim being brought against a pension generated years after divorce can however be easily avoided. Just do what most people do; formally resolve financial claims at the time of divorce.
Simon Sugar, 1 Garden Court
(Almost) Everything you wanted to know about mediation but were afraid to ask
Lots of my friends are advising me to consider mediation as a way of resolving my dispute. How do I know whether my case is suitable for mediation?
In broad terms you can mediate about all or any of the matters that you are unable to reach agreement upon and in any type of dispute. So mediation can assist with the divorce process itself (who is to be the petitioner and on what grounds), the immediate arrangements that need to be made following the breakdown of the relationship and the ultimate decisions that need to be made about maintenance, housing and the children. Mediation can also assist with disputes between unmarried couples. However if there are issues or concerns about domestic violence mediation is unlikely to be appropriate. You may also consider mediation to be inappropriate when dealing with a financial dispute if your former partner is financially sophisticated and you are less at home dealing with those matters.
Okay, so we can mediate about almost anything. But tell me about the cost? And how long will the process take?
That is quite a difficult question to answer because mediators charge different rates and each mediation is different in terms of the number of issues that need to be resolved. On average I would say that prices can range from between £100-£200 per person per hour of mediation. A very experienced mediator told me that he would expect an agreement after 6 to 8 sessions on all the issues that could arise on separation including the divorce process, the children and the finances.
So what does a mediator do?
A mediator is trained to help you and your partner reach an agreement. The mediator will start with assisting you in identifying the issues that need to be resolved and the information that needs to be obtained in order to resolve those issues. The mediator will then explore your potential solutions to the issues that divide you and your partner before seeing if they can encourage agreement.
What if I don’t like the mediator’s suggested solution?
Actually, the mediator will not provide you with a suggested solution. Nor will the mediator adjudicate between the parties to the mediation. The mediator will assist you and your ex-partner in reaching an agreement based on your own suggested solutions.
What happens if we can’t reach an agreement?
Of course, not every mediation can be successful. If you cannot reach an agreement you will have to think about other ways of resolving your dispute; most probably the issue of court proceedings.
What happens if we do reach an agreement?
If you reach an agreement in mediation, the agreement reached is usually not immediately binding. At this point in time the agreement is without prejudice. In other words, it cannot be referred to in the court process. After the mediation you will take the agreement to a lawyer who will give you advice as to whether the agreement is appropriate. If you and your ex-partner are happy with the agreement after the receipt of legal advice then you can accept its terms on an open basis and then you will be held to the agreement
Wait a minute, are you saying that I can reach an agreement in mediation and I can still back out of it?
Absolutely. Although a skilled mediator will seek to encourage agreement within the range of likely outcomes were you to take your case to court. So, the chances are that you wouldn’t want to back out of an agreement reached in mediation.
What to call a Judge – Part 2
This blog post follows on from Part 1 below
In my last post, I was exploring the ways in which we address Judges. Be relieved that unlike in the Chancery and Queen's Bench Divisions, there are no Masters of the Family Division. They are addressed as ‘Master’. It is a curious term. It carries with it contrary notions of aggrandisement (as in the old-fashioned but still legally current master-servant relationship) and diminution: monarchs have been known to address their subjects thus. The term is also still properly used as a prefix to address a letter to a (male) child: I still recall the excitement of receiving such letters.
But what happens when, as has happened in recent years, a woman has been appointed to the position? Master Fontaine has just been elevated to Senior Master but I appeared before her when she was newly appointed. Knowing I had to open the case, I asked my much more senior opponent how I should address her. He didn't appear to know: ‘Master, Madam?’, he mused. So when we went into court I simply raised it as a preliminary issue.
‘I wonder how I should be addressing the court’, I said at the outset.
I felt a little as must have the MP speaking in the House of Commons when he suddenly realised that Betty Boothroyd had taken the Chair for the first time as Deputy Speaker. She was, of course, the first woman to fill that role. Her tart response to his fumbling enquiry was: ‘Call me Madam’.
Master Fontaine, on the other hand, addressed my rather gauche enquiry with reassuring pragmatism: ‘Just call me whatever you feel comfortable calling me’. I decided that ‘Mistress’ would be impertinent.... So I simply continued the practice I was used to in that particular room and called her ‘Master’. What will happen, I wonder, when the first female Master of the Rolls is appointed?
More on this topic later.
Julien Foster - Foster@1gc.com
1 Garden Court
10 November 2014
What to call a Judge – Part 1
Our constitution is a patchwork of law and custom: and that is reflected in the way we address our Judges. If a justice system were being set up from scratch, the powers that be might have tried to be consistent.
So if you are in front of a bench of magistrates, you address the magistrate chairing the bench as ‘Sir’ or ‘Madam’. Some lawyers address them as ‘Your Worships’ although a magistrate is not strictly entitled to be so-called unless that magistrate happens also to be a Mayor.
District Judges, likewise, are addressed as ‘Sir’ or ‘Madam’. I once read somewhere that ‘Madam’ could be shortened to ‘Ma'am’ (to rhyme with ham) on the basis that what is good enough for the Queen is good enough for one of her judicial representatives.
I have never discovered a satisfactory way of referring to District Judges in the accusative. ‘Has Sir read the papers?’ sounds awful. But custom says that one is not supposed to address the court as ‘you’. Nor, incidentally, should one ask a direct question of the court. ‘I wonder whether Sir has read the papers’ sounds equally bad, not least because its directness has not entirely been lost. it might embarrass the Judge who has NOT had such an opportunity. I tend to cheat on such occasions by saying something like ‘I wonder whether the court has had an opportunity to consider the contents of the mother's statement dated x’. A little long-winded but better form.
And how often should we use the form of address, whatever it may be? A question I am often asked by clients. In the first criminal trial I ever saw, a police officer (no doubt very used to giving evidence) answered with ‘Your Honour’ at the end of every answer. ‘Yes, Your Honour’, ‘No, Your Honour’. It sounded rehearsed. My advice to clients tends to be: use the form of address as often as an intelligent sixth former would use it in addressing the Headmaster.
I will consider the way we address other kinds of Judge in the next post.
Julien Foster - Foster@1gc.com
First Day in Court
Going to court for the first time is a major event. Ask any barrister, however old, if they remember their first day in court and they will all say yes, even when it was more than thirty years ago. It is likely to be just as memorable for you as a litigant in person, probably more so. The challenge you may face is that you find the experience so new and unexpected that you forget to present your case properly. You may have a strong urge to ‘get it over with’ as quickly as possible, but that could lead to you rushing and making a mistake. One solution is to put in writing what you want to say. I’ll come back to this.
The person you really need to focus on is the judge. All judges are trained, experienced and unbiased. But all judges are also human and most courts are very busy, and judges usually have a large number of cases to get through each day. So bear in mind that your judge too will also have his or her feelings and they are being pulled in two opposite directions – I know this because, like some other barristers, I am also a part-time judge. On the one hand a judge wants to fully understand your case and make sure they make a fair and just decision but on the other hand they want to make sure they have sufficient time to treat all of the other cases in that day’s list with equal fairness and justice – so they want to decide quickly. It is therefore a very good discipline to put down on one side of typed paper all of your key points, in bullet points is fine. Ask the court usher (who should be organising the waiting cases) to give your written summary to the judge before you go in to court and make sure you give a copy to your former partner, whether they are represented by a lawyer or not.
Be prepared to see your ex. If you have real reason to be afraid of your ex then speak to the court in the days before your hearing about being offered a separate room, because otherwise you will be in the waiting room with everyone else, including your ex. It might help you to visit the court on a day before your hearing to familiarise yourself with the lay out. It might help on the day to bring a friend – many people do. Your friend is unlikely to be allowed in to court with you but, if you would like them with you in the court room, don’t be afraid to ask the usher who will ask the judge. If your ex has a lawyer and you don’t, a judge will often try to ensure you feel supported and may well permit your friend to sit in (but not to speak on your behalf). If you do want a friend or other person to assist you in court then you need to ask permission from the judge for a ‘McKenzie Friend’. The rules on McKenzie Friends are available generally but are technical – begin with https://www.gov.uk/represent-yourself-in-court/overview and be prepared.
In court itself, the usher or the judge will tell you where to sit, usually in the same row as your ex, sometimes side by side looking at the judge, sometimes facing each other across a table. Try not to let your feelings get in the way of your arguments as judges strongly dislike bickering between exes in court. It sounds obvious but really listen to the judge and really listen to your ex-partner. Try not to interrupt either but, if you want to comment on anything they say, make that clear – you can always raise your hand as you might have done at school. The judge will like the fact that you have not interrupted. Have a pen and paper with you to note down any points you want to make as they crop up – don’t rely on your memory because it is easy to lose your train of thought, even for barristers.
David Burles, 1 Garden Court, Temple, EC4
1 Garden Court
One of the foremost family law barristers’ chambers in London, specialising in Child Law, Family Finance, Child Abduction & Court of Protection cases