A Fair Trial and DIY Law

Government statistics for the period from April to June 2016 show that more than a third of cases in the Family Court have no legal representative for either party. That proportion of unrepresented parties in the Family Court is the highest since the introduction of the Legal Aid, Sentencing & Punishment of Offenders Act 2013 which restricted Legal Aid for family cases. At the time of the introduction of the Legal Aid, Sentencing & Punishment of Offenders Act 2013, approximately 17% of Family Court cases had no representation for either party. That figure has grown to 34%. Cases where both parties are represented have fallen from 40% in 2013 to approximately 27% in the second quarter of this year.

Legal Aid is now only available for Private Family Law cases, such as, contact or divorce, if there is evidence of domestic violence or in child abduction cases. This situation has been compounded by an increase in the time it takes to resolve cases in the Family Courts. The average time for the disposal of a divorce case with financial remedy has steadily increased from 20.5 weeks at the start of 2015 to 24.9 weeks at the second quarter of 2016. Additionally, the workload for Family Courts appears to have increased significantly. Government figures show that 66,328 cases started in the Family Courts in England and Wales in April to June 2016, representing a 10% increase in the same period in 2015.

Against this background, on 30 September 2016, Mr Justice Peter Jackson gave Judgment in the case of Re B (Litigants in Person: Timely Service of Documents) (2016) EWHC 2365 (fam) in which Counsel was criticised and adjournment allowed, for the service of documentation on a litigant in person on the day of the hearing.

In short, this was a final hearing in a child abduction case in which legal documents – Counsel’s Position Statement (14 pages) and 4 Law Reports (100 pages) were given at the door of the Court to a non-English speaking litigant in person (LIP). Mr Justice Peter Jackson commented that “this is unfortunately not an unusual occurrence, and it calls for a remedy”.

In this case, the mother, who wrongly removed the teenager from a convention country to England in February 2016, was the subject of father’s application under the Hague Convention for the return of the child. The proceedings were defended by the mother on the basis that the child objected to the return. The proceedings continued through the Courts in a non-eventful manner and mother appeared as a litigant in person whilst father was represented by Counsel. No specific direction was given by the Court for the timely service of documents on the mother, who was acting without an interpreter.

Mr Justice Peter Jackson, in his Judgment, commented as follows:
“Where one party is represented and the other is a LIP, the Court should normally direct as a matter of course that the Practice Direction documents under PD 27A are to be served on the LIP at least three days before the final hearing, especially where the LIP is not fluent in English. The method of service, usually email, should be specified. Where time permits, the Court should consider directing that the key documents are served with the translation. In cases where late service on an LIP may cause genuine unfairness, the Court should consider whether an adjournment of the hearing should be allowed until the position has been corrected”.

PD 27A is concerned with the preparation of Court Bundles in the Family Division and the Family Court. It governs (in summary) the timetable for preparing and lodging the Court Bundle of papers and states:

“The party preparing the bundle shall provide a paginated index to all other parties not less than four working days before the hearing.

Where Counsel is to be instructed at any hearing, a paginated bundle shall be delivered to Counsel not less than three working days before the hearing.

“The bundle” shall be lodged with the Court not less than two working days before the hearing.

The preliminary documents (including a Position Statement) shall be lodged with the Court no later than 11.00 am on the day before the hearing.

As a practising Solicitor, I can say with some certainty that Solicitors already struggle with the workload and often unrealistic timetables imposed by Court Rules and the Courts themselves. Compliance with PD 27A is difficult.

This situation is further compounded by the amount of LIP’s that are currently attempting to represent themselves in the Family Court in situations where they are unable to afford or secure legal representation.

Conclusion

As a Solicitor, the message is clear. The drafting of a Position Statement prior to any hearing, although helpful to the Court in pointing out the practicalities of a particular case and its history may now not be drafted. If a Position Statement is drafted and is served late, the risks of an adjournment are very real given this recent Judgment. Adverse Costs Orders could follow for the legally represented party. Further, in the case of foreign speakers, who pays for any translation?

This Judgment discourages the preparation of Position Statements which are helpful to the Court.

This Judgment also has implications for timetables given by the Courts themselves. If the Court orders a tight Court deadline for the service and filing of documentation and documents are served or filed late for some other reason, does this in itself not represent unfairness?

What is the position where one party has Legal Aid and the other does not? Is that not unfairness?

I leave you with the case of Re NL (a Child) (Appeal: Interim Care Order: Facts and Reasons) (2014) EWHC 270 (fam) at paragraph 40 where Mr Justice Pauffley expressed the point as follows: “Justice must never be sacrificed upon the altar of speed”.

Paul Summerbell 13.11.16
Warren’s Law & Advocacy

Disclaimer: While we do all that is possible in terms of ensuring its accuracy, this blog contains general information only. Nothing in these pages constitutes legal advice. You need to consult a suitably qualified lawyer from the firm on any specific legal problem or matter.

Violent crimes against women in England and Wales reach record high

October 2016

The number of prosecutions relating to violence against women and girls in England and Wales reached a record level in 2015. The DPP have reported that the number of offences against women including domestic abuse, rape and sexual assaults, rose by almost 10% to 117,568 in 2015-16.

The Director of Public Prosecutions, Alison Saunders, has said that the ease with which such crimes could be committed online was contributing to the increase in prosecutions.

Other areas where online abuse is being used as a tool of harassment and intimidation are within the record numbers of stalking cases being taken to Court. In 2015-16 the CPS prosecuted more cases of stalking and harassment (12,986) than ever before. Of those almost 70% involved ongoing domestic abuse, and many perpetrators use the internet or other technology to carry out the offending.

Because of the scale of the offending, special guidance is now being issued to prosecutors about the growth of cyber stalking to improve prosecutions.

However, the DPP accept that historical under-reporting of offences, such as stalking, domestic violence, rape and sexual assaults, means that the number of cases being charged was only a proportion of the offending taking place.

Contact us at Warren’s Family Law where we have a specialist team to help and protect you.

Debbie Smith, Senior Solicitor and Mediator
Warren’s Law & Advocacy

Disclaimer: While we do all that is possible in terms of ensuring its accuracy, this blog contains general information only. Nothing in these pages constitutes legal advice. You need to consult a suitably qualified lawyer from the firm on any specific legal problem or matter.

What is domestic abuse?

September 2016

Domestic Abuse is not just physical abuse. It is also about emotional and psychological abuse and can also include coercive behaviour and isolating people as well as financial abuse.

Men as well as women are victims of domestic abuse

Controlling behaviour includes any act designed to make a person subordinate and/or dependent by isolating then from their sources of support (i.e. family and friends); depriving them of the means of needed for independence and regulating their everyday behaviour.

Coercive behaviour is a pattern of acts, including assaults, threats, humiliation and intimidation that is used to frighten, harm or punish the victim.

Physical Abuse can include being kicked, punched, slapped, chocked, bitten, being hit or threatened with any ‘weapon’ or implement.

Verbal Abuse can include yelling or shouting; being humiliated (in private or public); being made fun of; being laughed at, being teased.

Threatening behaviour
can include threats to harm you, family members, pets, telling the police that you are the abuser, threats to remove the children, threats to use weapons to harm you, threats that other people will harm you.

Emotional and psychological abuse can include intimidation, withholding affection, turning people against you , being put down, stalking, using social media to intimidate you ; withholding money from you, sexual harassment, forcing sex on you (including rape), making false allegations about you to others.

Domestic Abuse is often subjective but we can advise you about this and help you to gain protection.

Contact us at Warren’s Family Law where we have a specialist team to help and protect you from your abuser.

Debbie Smith, Senior Solicitor and Mediator
Warren’s Law & Advocacy

Disclaimer: While we do all that is possible in terms of ensuring its accuracy, this blog contains general information only. Nothing in these pages constitutes legal advice. You need to consult a suitably qualified lawyer from the firm on any specific legal problem or matter.

Must I report my abuser to the police before I can get a protective injunction?

August 2016

In short, no. You do not need to report an incident of domestic violence to the police. However, you must be able to explain to the court (and the Legal Aid Agency) why you have not done so before applying to the Family Court for protection. It could be that you are simply too scared to do this, or do not know how to do this. If you have not reported an incident of domestic abuse, then we can advise you as to how to proceed.

Can I get public funding for this?

Public funding is available for ALL victims of domestic abuse if they are seeking a protective order (which is also called an ‘injunction’) from the family courts. Public funding may not be free however as financial caps are imposed by the Legal Aid Agency. We can advise you as to this and whether you will receive free public funding or if you will be required to make a financial contribution to your legal costs.

Do I need evidence to go to court?

Not necessarily. Courts are aware that some victims of domestic abuse do not seek help in the early stages, or report the matter to the authorities. Some victims even deny abuse has taken place, or they try to hide it. Evidence can help your position though and you may have sources of evidence that you had not considered before, this can include for example GP notes, Social Services assessments. We will be able to advise you.

Debbie Smith, Senior Solicitor and Mediator
Warren’s Law & Advocacy

Disclaimer: While we do all that is possible in terms of ensuring its accuracy, this blog contains general information only. Nothing in these pages constitutes legal advice. You need to consult a suitably qualified lawyer from the firm on any specific legal problem or matter.

Can I get Legal Aid?

May 2016

Legal Aid is a payment from public funds available to help meet the cost of legal advice and representation in Court.

Prior to April 2013 most individuals on a low income were eligible for Legal Aid
 to cover most cases of family law, including Divorce, finances, children disputes, cohabitation and separation, care proceedings and domestic violence. You would need to show that you cannot afford to pay for legal advice and representation. The Legal Aid Agency takes into account capital assets, all sources of income, housing costs, dependent children and child care costs. However, representation in care proceedings is non-means tested.

Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO)

In April 2013 major changes to Legal Aid were introduced by the Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO). Following LASPO, the majority of legal aid for private law services has been stopped, save in limited circumstances, only where there is evidence of domestic violence. (Private law services include Children Act applications in respect of contact and living arrangements for the children, resolving financial issues after divorce or in cases of cohabitation and separation).

Legal Aid is now available for the following cases:-

  • Family law cases involving domestic violence or when the child is at risk of abuse from partner;
  • Forced marriage;
  • Child abduction;
  • Care proceedings – Court Proceedings issued by the Social Services Department of the Local Authority where an application is made for a “Care Order” or “Supervision Order” in respect of a child;
  • Mental Health and Asylum cases;
  • Debt/housing matters when someone’s house is at immediate risk

In family law cases involving domestic violence, it will be necessary to provide evidence of the abuse. The LASPO definition of domestic violence is any incident, or pattern of incidents, of controlling, coercive or threatening behaviour, violence or abuse (whether psychological, physical, sexual, financial or emotional) between individuals who are associated with each other.

The evidence of domestic violence required is either by way of caution/conviction, Injunction/Undertaking, evidence from a health care professional (ie.GP/Counsellor/Psychiatrist), from the refuge or MARAC (Multi Agency Risk Assessment Conference).

“MARAC is a meeting where information is shared on the highest risk domestic abuse cases between representatives of local police, health, child protection, housing practitioners, Independent Domestic Violence Advisors (IDVAs) and other specialists from the statutory and voluntary sectors. A victim/survivor should be referred to the relevant MARAC if they are an adult (16+) who resides in the borough and are at high risk of domestic violence from their adult (16+) partner, ex-partner or family member, regardless of gender or sexuality. The representatives discuss options for increasing the safety of the victim/survivor and turn these into an action plan. The main focus of the MARAC is to manage the risk and managing the behaviour of the perpetrator. Information shared at the MARAC is confidential and is only used for the purpose of reducing the risk of harm to those at risk.”

No evidence is required if you wish to make an application to the Court for an Injunction or if the Local Authority issue Care Proceedings.

Changes to Evidence Requirements

Last month (April 2016) the evidence requirements for domestic violence changed. The Court of Appeal upheld a challenge to the Government’s changes to legal aid for victims of domestic violence, namely that the evidence required had to be no more than 2 years old. The Ministry of Justice have now announced that they are more than doubling the original time limit for evidence, to 5 years. This will assist a much larger proportion of those victims of domestic violence requiring legal aid. The ministry is also introducing a provision for the assessment of evidence concerning financial abuse.

Emma Macdonald
Warren’s Law & Advocacy

Disclaimer: While we do all that is possible in terms of ensuring its accuracy, this blog contains general information only. Nothing in these pages constitutes legal advice. You need to consult a suitably qualified lawyer from the firm on any specific legal problem or matter.

Protection from domestic violence and harassment

by Emma Macdonald, 

What Steps Can I take to protect myself from domestic violence and harassment?

The cross Government definition of domestic violence and abuse is:
“any incident or pattern of incidents of controlling, coercive, threatening behaviour, violence or abuse between those aged 16 or over who are, or have been, intimate partners or family members regardless of gender or sexuality. The abuse can encompass, but is not limited to:
• psychological
• physical
• sexual
• financial
• emotional
Part IV Family Law Act 1996
Under Part IV of the Family Law Act 1996, you can apply to the Court for Orders (“injunctions”) protecting you from harm/the risk of harm. Under that Act, the Court has power to make, amongst other things, the following Orders:

A Non-Molestation Order
This Order would prevent a named person from using or threatening violence against you or intimidating, harassing or pestering you. This would be either through the named person or by encouraging or instructing any other person to do so.

An Occupation Order
This Order can suspend the right of a certain person to occupy a property. It may also prevent a named person from entering a certain property.

Under new legislation, a breach of a Non-Molestation Order is now a criminal offence. However you are still able to take the perpetrator back to the Civil Court for breaching the Order. If you already have an injunction, you may have a Power of Arrest attached, and you can also have powers of arrest attached to an Occupation Order.

Who is able to apply for an Order under the Family Law Act 1996

To be able to apply for one of the above Orders, you must be an “Associated Person”. This means you and your partner or ex-partner must be related or associated with each other in one of the following ways:
– You are or have been married to each other
– You are or have been in a civil partnership with each other
– You are cohabitants or former cohabitants (including same sex couples)
– You live or have lived in the same household
– You are relatives
– You have formally agreed to marry each other (even if that agreement has now ended)
– You have a child together (this can include those who are parents of the same child, and those who have parental responsibility for the same child)
– Although not living together, you are in an “intimate relationship of significant duration”
– You are both involved in the same family proceedings (e.g. divorce or child contact)

Any application under the Family Law Act 1996 is classed to be “family proceedings” under S.8 (3) of the Children Act 1989. This enables the court to consider other issues, such as
child welfare issues, without the need to issue separate proceedings.

If you are not an “Associated Person” under the terms of the Family Law Act, but are being harassed, threatened, pestered or stalked, civil injunctions are available to you under the Protection from Harassment Act 1997.

Protection from Harassment Act 1997
Harassment is when someone behaves in such a way to make you feel threatened or distressed. It could be someone known to you, i.e a neighbour, or it could be a stranger.

Harassment is both a criminal offence and a civil action (under the Protection from Harassment Act 1997).

Under the Act, you must have experienced at least 2 incidents by the same person/group of people for it to be harassment. The Court will consider whether a reasonable person would think the behaviour amounts to harassment.

A person who pursues a course of conduct which amounts to harassment is guilty of an offence, the penalty of which up to 6 months’ imprisonment or a fine, or both.

The Court can also grant a Restraining Order when someone is convicted of the offence of harassment prohibiting the perpetrator from conduct amounting to harassment. A breach of such an Order would be a further offence.

In a civil action, the Court can grant Injunctions restraining the defendant from pursuing the course of conduct. Any breach of an injunction can be enforced by the issue of a warrant for arrest in proceedings brought by the victim. Breach of an Injunction amounts to an offence but also contempt of Court.

Disclaimer: Whilst we do all that is possible in terms of its accuracy, this blog contains general information only. Nothing in these papers constitutes legal advice. You need to consult a suitably qualified lawyer from the firm on any specific legal problem or matter.

Emma Macdonald
16th April 2015

Warren’s Law & Advocacy

Disclaimer: While we do all that is possible in terms of ensuring its accuracy, this blog contains general information only. Nothing in these pages constitutes legal advice. You need to consult a suitably qualified lawyer from the firm on any specific legal problem or matter.

Is my case Urgent or an Emergency?

by Emma Macdonald, 

Urgent Applications
If you wish to issue an urgent application, for example for a Child Arrangements Order (residence/contact), exclusive occupation of a home or protection from abuse, you need to seek advice as to whether your application may be considered urgent or an emergency.

An “urgent” situation may not be an “emergency”, but it may be time sensitive, requiring an early hearing date.

Listing the Hearing
The Court will decide whether the case should be treated on an urgent basis. An early Court date could be offered but this is not guaranteed. It will depend on your particular situation and the Court’s availability.

When submitting your application, it must be supported by written evidence (your “statement”) setting out the following:
– The factual story and the events leading up to you making your application;
– Details of the Order you are asking the Court to make;
– The nature of the urgency;
– Any risk of violence of harm to you or any children of the family

Notice to the other party
The other party (“Respondent”) should be given notice of the application and the Hearing date. The usual set period of time is 10 clear working days. In an urgent situation the Court still needs to hear both sides so it may decide to reduce the time to give notice to the other party so the matter comes to Court quicker for a hearing.

Emergency Applications
A case could be considered an “emergency” if there is a likelihood of harm to those involved, a risk of violence or a risk of child abduction. In these situations, it is possible to make an application without notice to the other party.

Applications made without notice to the other party
A Solicitor would need to consider whether the application without notice (“ex parte”) to the other party is justifiable based on:
– Seriousness;
– Frequency and currency of misconduct;
– The circumstances of the alleged perpetrator

The objective of the Court is to promote the interests of justice. The impact of a without notice application on the other party must therefore be considered.

Ex parte applications can be made in limited circumstances which can only be avoided by a Court Order being granted immediately, for example in cases of:
– Violence;
– serious threat of violence;
– serious reason to believe a child could be removed from the country

If a Court is to make an Order against a party who has no notice of the application, the Order required should contain the least restrictive provisions necessary to keep the peace pending the next hearing date, “the return date”.

Once an ex parte Order is made the Respondent must be served with the Order and notice of the return Hearing. This Hearing will be arranged to give the other party the opportunity to be heard.

Emma Macdonald
9th April 2015

Warren’s Law & Advocacy

Disclaimer: While we do all that is possible in terms of ensuring its accuracy, this blog contains general information only. Nothing in these pages constitutes legal advice. You need to consult a suitably qualified lawyer from the firm on any specific legal problem or matter.