Family law guides

Shared Parenting Research

Why are shared care arrangements good for children? Why must the courts address parental alienation? Why is leave to remove invariably not in a child’s best interests? Why are overnights not harmful for very young children? Why is the traditional model of alternate weekend contact arrangements insufficient as a post separation child arrangements model? Why does the UK have the unhappiest children in the developed world? Why didn’t the Government go for a presumption of shared parenting when reforming the Children Act (see Professor Parkinson’s speech on this latter question)?

The answers are in a wide body of research which should (but does not) form the basis of policy on post-separation child arrangements. If it did, shared parenting arrangements would be the norm.

For too long UK family law policy has been informed by outdated and discredited research put forward by vested interest lobbying groups. It really is time for change… but don’t take our word for it… read the research!

If you need information on shared living arrangements and applying to court, visit the following links:

Our Guide to Shared Living Arrangements
Our Shared Living Arrangements Case Law Library
Our Blog Category – Shared Living Arrangements
Try our Shared Residence Family Law Quiz

In 2009 we started and headed the campaign to reform the law surrounding parental relocation of children following separation and divorce. Prior to our campaign, 90% of applications by a child’s primary carer to emigrate with the children would see the child removed abroad. Child welfare was not the court’s paramount consideration, nor the importance of the child’s other relationships, beyond that of the primary carer. Scant regard was paid to the bond between the child and their other parent, or the harm caused by severing or diminishing that bond. Trumping those considerations was the view that the primary carer’s distress (at the court saying “no” to relocation) would leave them psychologically incapable of caring adequately for their children. These principles had been set out in the case Poel v Poel, and confirmed in the case Payne v Payne [2001] EWCA Civ 166.

In 2007, in a case which today would have seen leave to remove refused, counsel told me outside the court that there was no prospect of the judge refusing the mother’s application, as the judge had had her last case overturned on appeal and if he even mentioned appealing the decision, she’d “kick him around the court”. There was a culture that such cases were doomed to failure. The principle being that the court would not unreasonably interfere with where the primary carer wished to live, even if it was 13,000 miles away. The impact of relocation on the child, a change in schools, removal often from both sets of grandparents and the wider family, removal from their other parent and the significant disruption to contact, and the welfare checklist were secondary considerations. If a judge went against the trend and the relocating parent appealed, the appeal court would overturn the decision.

Situations were made harder in that (the curiously named Access to Justice Act 1999) included provision (at section 54.4) that when the Court of Appeal refused permission to appeal (as routinely happened), you could not take matters to the Supreme Court.

Critical of what was happening in the courts, we produced a Parliamentary Briefing Report, explaining how the court was routinely ignoring child welfare in such cases and we providing social and psychological research to underpin our arguments that the decisions of the court were harming child welfare. This was presented at Westminster in 2010 (reported in Family Law Week). We were joined in the campaign by a number of charities and individuals, notably Families Need Fathers, JUMP, Grandparents As Parents, and the Find Savanah-Jade Campaign Group.

Sir Bob Geldof kindly supported us, and provided the foreword to our report. His words caused a media sensation:

“I can hardly read the literature on Family Law without simultaneous feelings of an awful sadness and profound rage. Sadness at what has been done to our children and their families and deep rage for our Family Courts and the inadequate practitioners that work within it.

In the near future the Family Law under which we endure will be seen as barbaric, criminally damaging, abusive, neglectful, harmful to society, the family, the parents and the children in whose name it purports to act. It is beyond scrutiny or criticism and like a secret society its members – the judges, lawyers, social and child “care” agencies behave like any closed vested interest and protect each others’ backs.

The court is entirely informed by outdated social engineering models and contemporary attitudes rather than fact, precedent rather than common sense and modish unproven nostrums rather than present day realities. It is a disgraceful mess. A farrago of cod professionalism and faux concern largely predicated on nonsensical social guff, mumbo-jumbo and psycho-babble. Dangling at the other end of this are the lives of thousands of British children and their families.

Here is one more report that empirically nails the obvious fact that to remove a child from their father (in the hugely vast majority of cases), their grandparents and other family, their school and friends, is wholly destructive to a child and its family.

How much longer must we put up with the state sanctioned kidnap of our most vulnerable? Because in effect that’s what “Leave to Remove” amounts to. How much longer do we tolerate the vested interest intransigence of the appalling U.K. Family Justice system? How long before just one of them admit they have got it ALL wrong and apologise to their myriad victims?

This report is important, timely and vital. To accept its findings, which could have and should have, been conducted at any time in the past 30 years, is to accept the awful conclusion that rather than Solomon like resolving our tragically human disputes with understanding, compassion and logical pragmatism the courts have consistently acted against society’s interest through the application of prejudice, gender bias and awful impartial cruelty.

This report proves it. May God forgive them. I won’t.

Many in the legal profession shared our concerns and courageously voiced their criticism. Ann Thomas, of the International Family Law Group summed up the situation well and didn’t pull her punch:

“How can we, in the English legal profession, have gone so wrong, have failed so many children, have inadvertently engaged in gender discrimination almost 2 generations, have fallen so out of step with many other countries and, most of all, failed to acknowledge trends in parenting patterns, especially in international families, over the past 40 years? The time has passed for tinkering around the edges of our law, of political deferences to legal precedents, awaiting for the Supreme Court to find a suitable test case and hoping international conventions will come to our aid. As Prof Marilyn Freeman has shown in her studies, as confirmed by those of Professors Patrick Parkinson and Judy Cashmore from the University of Sydney, the size of the problem is large and will only grow. The costs of the relocation litigation, costs of travel for contact in the cost to the lives of children demand a cost-effective solution.”

As stated in the Solicitors Journal, Miles Geffin, legal director at Mishcon de Reya, said it was time the Court of Appeal ruled that “slavish adherence to the guidance in Payne was inappropriate.”

In a case we helped with, Sir Nicholas Wall accepted the arguments for a reform of the law as ‘compelling’, yet still allowed yet another leave to remove case to go ahead (D (Children) [2010] EWCA Civ 50)).

A newly appointed High Court Judge, Mostyn J, spoke out and contradicted the Lord Justices of Appeal, saying there was an urgent need to reform the law (in AR (A Child: Relocation) [2010] EWHC 1346 (Fam)). Yet still senior judiciary resisted, and a review was stalled.

Sir Nicholas Wall (the then President of the Family Court) had stated to me publicly at a charity conference in Birmingham that Payne v Payne would not be reviewed. He stated it could not, as only a more senior court could review the decision. The review could only happen in the Supreme Court, but refusal of appeals blocked this approach. Lord Justice Thorpe shared that view, albeit later went on Radio 4 to say that there was an argument for a review to happen.

Finally, the review came in the case K (Children) [2011] EWCA Civ 793. The review which we’d been told could not happen in the Court of Appeal, did! It was headed by Lord Justice Moore-Bick, the second most senior judge in the Civil Court. He concluded that the only principle of law in the current guidance was that a child’s best interests were the court’s paramount consideration. Payne v Payne was no longer binding precedent, and in his opinion, never had been. In our and the legal profession’s opinion and experience (see above), it most certainly had. Regardless, finally, after 40 years of protest by others, the lower courts were no longer forced to follow archaic guidance.

Have things changed subsequently for parents involved in relocation cases? Yes, absolutely. Prior to the Re K ruling, another leave to remove case presided over by Sir Nicholas Wall had made headlines… “Let them use Skype!“. In 2015, a more enlightened and modern judiciary take a more modern and child focused view… in the case R (A Child: Relocation) [2015] EWHC 456 (Fam), came the ruling “You can’t hug Skype!” How things have changed! Through the ruling in Re K, the lower courts have been liberated to exercise their discretion. Since late 2011, we’ve seen continued improvement, and particularly in the past two years with some spectacular decisions in the High Court and Court of Appeal, as a new generation of judiciary step forward, and as the old guard retired.

For parents seeking to defend against a leave to remove application, we have guides and detailed case law libraries (both for permanent and temporary removal from the jurisdiction). Things have changed, and defending against these applications is no longer the hopeless task it was.

The Importance of ABC

A is for attitude. B is for behaviour. C is for child focused.

If you are separating or separated and arrangements for the children are in dispute, it´s natural to be anxious, stressed and sometimes angry. Unrestrained emotions cause people to have poor judgment, and sadly, that can be devastating to their case.

If you only pick up one thing from our guides, let it be that a reasonable attitude, good behaviour and remaining child focused are the most important components to a successful outcome. It´s common sense, yes, but due to the raw emotions that exist at the time of separation, something which easily gets forgotten (including by legal advisors).

ABCclick to expand contents

Remember your ABCs.

In each decision you make there are a further three simple letters to remember... LBW. Nothing to do with cricket, but Language, Body language and Words. What you say, how you say it, how you appear and the words you use all form a part of evidence which the judge will consider. Remember it!

Whether a judge, social worker, CAFCASS officer or court expert, their only opportunity to form an impression of you comes from the other party´s evidence and often more importantly, your own (which is formed from what you say, how you say it and your body language.

LBWclick to expand contents

While these matters are undeniably tactical and strategic, they´re also child focused and sensible. They´re not a strategy just for court, but post-separation dealings with your ex-partner thereafter.

Remaining polite lessens the chance of return to court. It lessens the risk of future disputes. Your ex-partner may not immediately engage in similar behaviour, and for both of you, it may seem very unnatural for some time, and yes, you may have to do some acting. It will however make your children´s lives happier, cause them less harm than if you argue or are abusive to your ex-partner, and the fewer negative emotions you carry, the happier you yourself will be.

There´s a wise old Chinese proverb... "If you want revenge, dig two graves." In respect of disputes over children and revenge, don´t forget to dig ones for the children, as they´ll be damaged too.

We have detailed guides to help you with everything from mediation, to Resolving Disputes, to addressing Crisis Situations. Life does improve, but if you take onboard the advice on this page, your chances of a good outcome will be greater, you´ll have an easier life, and your kids will be happier and better adjusted too.

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Mediation

What is Mediation?click to collapse contents

Mediation is where an independent third party helps parents come to a voluntary agreement about arrangements for their children and finances at separation and after.

From 22nd April 2014 all potential applicants to court in relevant family proceedings will be expected to have attended a Mediation Information and Assessment Meeting before applying to court unless their case meets one of the exemption criteria. The court may refer the parties back to mediation at any stage of proceedings.

What are the exemption criteria?click to collapse contents

You will be expected to attempt mediation unless:

Domestic Violence: There is evidence of domestic violence (see our guide on Domestic Violence).
Child Protection: There are child protection concerns (the child is subject to enquiries by the local authority or the subject of a child protection plan).
Urgency: The application is urgent e.g. there is risk to life, liberty or freedom of the applicant and/or his/her family. An exemption may also be appropriate if delays would put a child at risk (e.g. in the case of unlawful removal abroad), cause the parties undue financial hardship or risk a significant miscarriage of justice. Where a case may be legitimately heard in a foreign country as well as in England and Wales, and the delay caused by attending mediation would make an application in a foreign court, an exemption to attend mediation may also apply.
Previous attempts at Mediation: Where the parties have attended a mediation session or an exemption has been granted in the past four months related to the the same or similar matters.
Disability and Access: Where one of the parties is disabled and the mediator lacks suitable facilities.
Without Notice Applications: Where applications are made without notice (e.g. where the party applies to court asking for an urgent hearing that day). Examples of circumstances might include one parent refusing to hand over the child´s passport immediately prior to a foreign holiday or where there were immediate child protection concerns.
Contact Details Not Known: Where the applicant does not know the respondent´s address or contact details.
Prison, License or Injunction: Where one of the parties is in prison or subject to bail conditions which prohibit contact with the other party or subject to an injunction which prohibits contact with the other party.
A Child is a Party to Proceedings: Where the child is the applicant or a respondent (as opposed to being the subject of proceedings).
Distance and Availability: Where there are no mediators within 15 miles of the applicant´s home address or those mediators within this distance cannot offer mediation within 15 days.

The mediator may decide that mediation is no appropriate where:

None of the respondents were willing to attend mediation.
The respondents failed to attend the mediation session(s) without good reason.
The mediator decides that mediation is unsuitable in relation to the issues in dispute.

What is the MIAM?click to collapse contents

MIAM stands for the Mediation Assessment and Information Meeting. When you contact a mediator, they will arrange a meeting with you and the other party to discuss the issues in dispute and whether mediation may assist you.

If the Mediator believes mediation will not assist, or if mediation fails, and you later apply to the court for a Child Arrangements Order, Specific Issue Order or Prohibited Steps Order, the Mediator must complete and sign section 14 of the Court�s C100 Application Form to confirm why mediation was unsuccessful.

If you are applying for a parental responsibility order (or an order terminating parental responsibility), an order appointing or terminating the appointment of a Guardian, an order to change your child's surname, an order asking the court´s permission to remove the child abroad, a special guardianship order (or an order terminating the appointment), you or your solicitor must complete Form FM1 and (unless you are exempt from Mediation) the Mediator must also complete the Form FM1 to confirm that mediation is not possible. Such applications to the court would use Form C1 (rather than the C100 Application Form).

If the Mediator believes that mediation may assist you, they will explain the next steps. The MIAM usually lasts for 45 minutes.

What does Mediation cost?click to collapse contents

There is no standard fee. Mediators are independent and will have their own charging structure. Shop around! The service may be free if you are on a low income. If you are using a solicitor, they should calculate whether you qualify for legal aid. A mediator can also help you find out if you are eligible to have legal aid cover this cost. You may also wish to visit the Community Legal Advice website or call 0845 345 4 345 to check whether you qualify for public funding.

How do I find a mediator?click to collapse contents

Information on how to find a family mediator may be obtained from local family courts, from the Community Legal Advice Helpline - CLA Direct (0845 345 4345) or at www.direct.gov.uk.

You might also wish to use the National Mediation Council web site.

What should I do?click to collapse contents

Before going to court, you (or your solicitor if you are legally represented) will normally be expected to contact a family mediator to arrange a ´Mediation Information and Assessment Meeting´ unless there are exceptional circumstances (see Must I attempt Mediation?).
If you are the applicant, you or your solicitor should provide the mediator with contact details for the other parties to the dispute. The mediator will the contact them to discuss that party´s willingness and availability to attend a Mediation Information and Assessment Meeting.
Mediation Information and Assessment Meeting should be organised within 15 days. If the mediator cannot meet this timescale, contact another firm. If you have tried three firms of mediators and none can arrange a mediation session within 15 days, you can choose to apply to the court if you wish to.
You should then attend the Mediation Information and Assessment Meeting. Where parties are willing, both can attend the same meeting, although separate meetings can be arranged.
If, after the Mediation Information and Assessment Meeting, you (as the applicant) still wish to apply to the court, the Mediator must complete and sign section 14 of the C100 Court Application Form (if applying for a Child Arrangements Order, Prohibited Steps Order or Specific Issue Order).
If you qualify for one of the mediation exemption criteria and you are applying to court for a parental responsibility order (or an order terminating parental responsibility), an order appointing or terminating the appointment of a Guardian, an order to change your child's surname, an order asking the court´s leave to remove (the child abroad), a special guardianship order (or an order terminating the appointment), you or your solicitor must complete Form FM1 which should accompany your C1 form if applying to court for one of these orders. If you do not qualify for an exemption, and attend a Mediation Appointment and Information Assessment meeting and the mediator decides mediation will not help you, the Mediator must also complete the Form FM1.

Download Family Mediation and Assessment Form .

Why consider mediation?click to collapse contents

If successful, mediation will be cheaper than going to Court. Mediation stands the greatest chance of an agreement being reached where both parents are happy, and therefore causes less stress for all.

Mediation requires both parents to be able and willing to reach compromise, although a trained and skilled mediator might be able to assist that process.

Can I refuse Mediation?click to collapse contents

Unless you have good reason (e.g. those listed in the Must I attempt Mediation? section) we recommend you do attempt mediation. The court will take note of your refusal to do so and may direct both parties to attempt mediation before court proceedings continue. This may result in delay and cause the judge to think you are ´difficult´ if they do not accept your reasons for refusal.

What does a mediator do?click to collapse contents

Mediators can assist couples to communicate when they are separating and disagreeing about issues such as financial matters and where their children should live. Mediation can be carried out as an alternative to, or before, during or after court proceedings.

Family mediators can give general information about the law and the way the legal system works. They cannot provide advice about a person's legal rights or their best course of action, and can´t make decisions for you or give you legal advice.

Are agreements binding?click to collapse contents

Mediated agreements are not binding in themselves. You may decide to apply to the court following an agreement having been reached via mediation, and ask the judge to make an ´order by consent´, essentially rubber stamping what was agreed. Bear in mind though that the judge must also believe that the order is in the children's best interest.

Questions to askclick to collapse contents

When choosing a mediator, you may wish to ask the following questions at the first meeting or by telephone beforehand:

How much will mediation cost?

Do I qualify for legal aid? (If so, ask if the mediator does legal aid work... not all of them do)

How long do the sessions last?

Is there a waiting list?

Do I need to bring any information with me?

Mediation Package

We provide a free Mediation pack in our shop. This pack includes a printable hard copy of this guide, and Form FM1, and a leaflet on Mediation. FREE

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You children will be affected by your separation. The way in which you behave with your ex-partner, the amount of reassurance you give your children, and how you behave in front of the children will either increase or reduce their stress. Ensure conversations are appropriate to their age and emotional development.

How will your children react?click to collapse contents

No two children will necessarily react in the same way, but all will have underlying worries and thoughts that you need to be aware of, and to help them to handle.

Guilt

Reassure your child that they are in no way to blame or responsible for the situation. Regardless of their age, perhaps the best way to let them know about the divorce is to say "Mummy and Daddy have decided not to be together and will be happier living apart." If both of you can tell your children together, this will help.

Insecurity

Your children need to be reassured as to what will happen to them, where they will live, and that they won´t "lose" one of their parents. Most importantly, they need to be reassured that both parents unconditionally love them.

When younger children see their parents separate, they may believe or fear that their parents´ love for them is also conditional and uncertain. Reassure your children that both parents love them and will always be there for them.

Change

Change brings about insecurity. Keep to established routines. If the children are used to seeing grandparents at a certain time, keep to this. If they have set activities, ensure they are maintained.

With regard to contact, establish new routines as quickly as you can. Speak with your ex-partner and keep to the same bedtime routines, rules, methods of discipline, and ensure you work collaboratively in their upbringing. Don´t try to outbid each other with treats and toys since your children need consistency, and most importantly, your time, security and love. Expensive toys are a poor substitute.

It is also understandable, especially as the contact parent, to relax boundaries (such as disciplining your children for bad behaviour) since you don´t want to risk your children being upset when they come to see you. Boundaries help children to feel secure and you can reduce your worry by strengthening the relationship with your children.

Confusion

Why is this happening? Give your children plenty of opportunities to ask questions, and limit your answers to give them enough to let them know what is going to happen, but not enough to disturb them. They don´t need to know the details of the Court case, and hearing negative comments about their other parent will cause them distress. Keep feelings of anger and blame out of discussions. Let your child know that they can talk to you about how they feel at any time.

Sadness and Anger

Validate their feelings. "I know how sad/angry this has made you feel" and reassure them. "It will take a little time for all of us to get used to the change, but we both love you, and will always be there for you". Encourage them to talk about their feelings, and most importantly, listen to them.

Ask what would help them. It may be a phone call to their absent parent or knowing what is going to happen. You won´t know unless you ask, and the very fact of being asked will help. Be as honest as you can about what will happen.

If there is a new partner in your life, you may face resentment since displaying affection for your new girlfriend or boyfriend can make your children feel disloyal or jealous. Accept that it will take time to adjust to a new situation. Ensure you spend time with them on your own and encourage them to talk about how they feel, and also talk about how you feel. Keep the conversation appropriate to their age and do not disparage their other parent.

How can I strengthen my relationship with my children?click to collapse contents

You strengthen your relationship by spending quality time together, when you can both relax and have fun. Find activities you both enjoy. For younger children, this could be going swimming, bowling, reading stories, taking them to activities and staying involved, playing games together, or going to watch them take part in activities (depending on their age).

Regardless of age, show an interest in what interests them. If you don´t know, then now is the best time to ask. When you're stressed, it sometimes takes an effort to listen to others' problems. Be aware of this.

Mix with friends and family who also have children, so there is an extended network of friends for them to play with and talk to when they are with you.

Keep your promises. If you say you will be there to pick them up at a certain time, or will take them out for the weekend, don´t let them down. If you´re not sure whether you´ll be able to do something, don´t promise it.

Keeping to age-appropriate rules and boundaries helps a child to feel secure and helps them prepare for life. Judge the times when those rules need to be relaxed a little, but if your children´s behaviour slips, consider your own actions, and whether more attention needs to be paid to reassuring them by showing your love, interest, approval, and praise.

What warning signs of stress should I look out for?click to collapse contents

With toddlers and preschool children, watch for regressive behaviour such as thumb-sucking, bed-wetting and restless nights. They may become more sensitive, have tantrums, and engage in power struggles. Keep boundaries in place, but ensure they have your attention and reassurance.

With children of school age it is worthwhile letting the school know about the situation at home. If problems arise at school with the children´s work or behaviour, then the school should be more sympathetic and can work with you to support your child rather than simply punishing them.

With teenagers, they may become more argumentative or withdrawn and you may notice other marked changes in their behaviour and attitude. Crisis situations could include running away, alcohol or drug problems, eating disorders, self-harm or depression. Don´t be afraid to ask for outside help.

Don´t expect your children to adjust to the change overnight and give them time to heal. If you notice them emotionally supporting you through this change, think very carefully whether you should be seeking support from elsewhere. It isn´t healthy for children to take on the role of parent and comforter.

If you become worried about the levels of stress your child is showing, then consider talking to your GP or a counsellor. Discuss your concerns with your ex-partner and work with them. If you can, encourage another member of your family such as your own siblings or parents or an adult family friend to let your child know they can talk to them. Choose someone who understands that blaming your ex-partner won´t help the children.

Should I treat a teenager differently to a younger child?click to collapse contents

Yes. Involve them in decisions about contact. This means you should include them in decisions about holidays and changing arrangements, but not necessarily agree to whatever they say.

What can I do if my children won´t talk to me?click to collapse contents

If they won´t talk to you about their feelings, and you are worried about how they are coping, consider giving them the telephone number of Childline or show them the website.

Reassure your children that you are always there to talk to them, but if they feel unable to confide in you, they can speak to someone at Childline and that what they say will be treated in confidence. It is better that they talk to a trained counsellor than bottle up their feelings.

Whatever your children´s age, you can talk to your GP if you have concerns. Family Lives is an excellent organisation that provides support to parents and I would recommend talking to them if you need to. The charity Families Need Fathers have discussion forums and regional branch meetings where members can talk to other parents and share information and advice.

What shouldn´t I do?click to collapse contents

No matter the provocation, don´t ever fight or argue with your ex-partner in front of your children. They learn from watching their parents, and in addition to the emotional harm caused by witnessing your arguments, it can cause problems that persist through to adulthood. Remember, the definition of harm to children within Family Law includes the impairment of a child's development resulting from seeing or hearing the ill treatment of another person.

Children adjust most quickly to parental separation when their parents work collaboratively in their upbringing, and remain civil. Research confirms that children fare best on all adjustment measures when subject to shared care arrangements. Also see research on Shared Care.

Stess and Wellbeing Packageclick to collapse contents

We provide a free printable hard copy of this guide and our guide to Coping with Stress in our shop. FREE

Managing Stress

Is my stress normal?click to collapse contents

Separation and Family Law cases include many stress factors. Stress is a normal reaction! Stresses come from (and this is in no way an exhaustive list):

grieving and guilt over the demise of your relationship and a sense of failure;
worrying whether your children will live with you or not;
not knowing how often you will be allowed to see your children;
being concerned and hurt over allegations;
feeling excluded from important decisions about your children´s lives;
worrying about your finances;
feeling lonely;
feeling you have little control over what is going to happen;
having to arrange new accommodation.

Feelings of stress arise when situations feel outside our control. Being stressed in these circumstances is entirely natural and appropriate to the situation.

How can I cope with these stresses?click to collapse contents

If you find everything is getting too much, sit down with a close family member or a counsellor and prioritise what you need to do. You may decide that work will have to suffer and perhaps you need some time off for stress. Speak to your GP.

Again, use telephone help lines if you need to - it´s what they´re there for. They are staffed by caring people. The Samaritans operate 24 hours a day. They may have other advice on what you can do to help reduce some of your stress. While you cannot remove yourself from this situation, you do have to get through it, so try to make it manageable. Their telephone number is 08457 90 90 90.

If you find yourself venting at your solicitor, remember it costs upwards of £150 an hour to talk to them, while a counsellor costs £35 an hour and is better qualified to help you cope emotionally. You can find a local private counsellor by contacting the British Association of Counselling and Psychotherapy or by being referred by your General Practitioner. You can also find a counsellor from The Counselling Directory.

Accept that you are only human, and don´t be embarrassed by asking for help.

This site, the support guides and tools were set up to help with stress. We believe that being informed helps people to cope. We wanted to remove the sense of powerlessness that the family courts can evoke.

My work is suffering, what can I do?click to collapse contents

It may be better to take time out, rather than struggle on at work when you´re not hitting targets or reaching the required level of performance. Your health is important for both yourself and your children.

Ensure your employer is aware of the difficulties you are experiencing. Speak to your General Practitioner and consider being signed off work due to stress.

If you have been suffering from stress for more than twelve months, legally this could count as a disability, further strengthening your legal rights. Contact the Disability Rights Commission who will be able to advise you.

My ex-partner winds me up, what should I do?click to collapse contents

If anything contentious comes up while talking to your ex-partner, refuse to discuss it immediately by saying you want to think about what they have said. Agree to write to them, or ask them to write to you. This gives you time to consider what you say, and have someone else check your reply. Ideally, have your solicitor read, edit, and then send the letter on your behalf.

Arguments with your ex-partner won´t make the situation better, and are likely to put you in a much weaker position.

I want the Court to see how difficult my ex isclick to collapse contents

The Court will respect you if you keep your concerns objective while the case is proceeding (and afterwards) and will take note of your behaviour. Keep statements to the Court unemotional and factual, and concentrate on concerns about your children and their relationship with you.

I want my kids to know I´m not the ´bad´ party?click to collapse contents

Disparaging your ex-partner to your children will cause them emotional harm. By all means speak to a close family member about how dreadful your ex-partner is if you need to, but it isn´t appropriate to say this to your children.

Be aware that discussing the details of the case with friends is not allowed in law (see our guide on Courts and Confidentiality). To help you to cope with the emotional stresses of the Court Case, the law allows you to discuss details of the case with a close family member or a counsellor.

Your children will make up their own minds and who is at fault matters less than how your children are cared for. Be a loving and capable parent and this will be how they perceive you to be.

What else can I do?click to collapse contents

Humour and laughter help to relieve stress so see the irony in situations where you can. Letting out pent-up emotion reduces feelings of stress, so don´t be afraid to cry. Find places where you can let out emotions safely, and with people who will be supportive.

Try to have some activities that take you away from the situation. Don´t feel guilty about going out with friends and having some fun if you feel able to.

Stress can take its toll on you physically, so ensure you eat healthily and get plenty of sleep. Taking part in sport will also help since exercise stimulates the production of endorphins and natural opiates that help to create a sense of well-being. Sport can also help with self-esteem and act as a distraction from the Court case.

Are there things I shouldn´t do?click to collapse contents

Don´t turn to drink and cut down on the caffeine in your diet. Both of these can increase feelings of anxiety.

Will everyone understand my stress?click to collapse contents

Not necessarily. You need to consider how you are perceived.

If you lose your temper with an assessor, Social Services, CAFCASS, or in front of the Judge, you may be accused of being an �aggressive character�.
If you appear overly emotional, you may be accused of being an anxious person.
If you lose your temper with your ex-partner, you may be accused of domestic violence (which includes emotional / psychological and physical abuse).
Don´t expect people to make allowances for you. Consider your behaviour in front of anyone who may report back to the Court.
Remember what is at stake, and take the steps you need to help you to cope. Your children need you to be balanced, stable, and healthy. They also need you to get through this in one piece, and you need to not only be a reasonable person, but you need to be seen to be a reasonable person.

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Flexible Working

Introductionclick to collapse contents

Following divorce or separation, many parents find that they need to make adjustments to their working life to meet their children´s needs. Some parents would like to take a more active role as carer, but can´t see how this can be achieved due to work commitments. The same applies to grandparents and other kinship carers, foster parents, guardians, and adoptive parents and partners of any of these who find themselves responsible for a child's upbringing.

Under the Employment Rights Act 2002, parents and carers have the right to formally ask their employer to vary their contract of employment to allow a different pattern of working to assist them in meeting their children's needs.

The Act granted this right to employees with children under the age of 6, and those with disabled children (where the children are under the age of 18). The Act placed a duty on the employer to consider such applications seriously. Many parents/carers aren't aware that this is an option for them or believe that their employer wouldn't consider such a request. IN APRIL 2009, the right to apply for flexible working was extended to include parents of all children under the age of 16.

While the employer can refuse to accept your application, they must have reasonable grounds to support their refusal. You may be surprised at how many requests for flexible working are accepted. Research published in 2006 by the Department for Business Enterprise and Regulatory Reform (previously the DTI) found that four out of every five applications were granted either in full or in part. You gain nothing by not asking.

What is ´flexible working´?click to collapse contents

Flexible working can be whatever arrangements you and your employer agree. This could include (but isn´t restricted to):

working from home;
job sharing;
flexi-time;
time off in lieu;
teleworking;
term-time working;
compressed hours;
flexitime;
staggered hours;
additional leave entitlement.

Who can apply?click to collapse contents

The person applying must:

Be applying in respect of a child under the age of 16 or a disabled child under the age of 18;
Make their application at least 14 days before their child's 6th birthday, unless the child is disabled, in which case the application should be made at least 14 days before the child's 18th birthday;
Be responsible for the care of the children (e.g. be the biological parents, adoptive or foster parents, kinship carer, legal guardians and spouses of these including same sex partners);
Have the children living with them in an enduring family relationship;
Be seeking a variation to their working hours to care for the children;
Have worked for the employer for 26 consecutive weeks immediately prior to making the application;
Not have made an application for flexible working in the previous 12 months.

How do I make the application?click to collapse contents

You should:

Make the application in writing and include in the letter that you are making the application under the 'statutory right to apply for flexible working´.
You must include your proposed changes to your working hours/location.
Suggest ways in which any negative effects for your employer of a change in your working hours/location could be addressed.
Confirm your relationship with your children (e.g. father/mother/step parent/grandparent carer.
Include your desired start date for the changes but bear in mind that you should give your employer a reasonable amount of time to consider and implement your proposals (depending on the desired changes 12 weeks would seem fair).
You must say if you have previously made an application for flexible working and if so, when.
You must date and sign your letter.

Tips:

Approach your employer asking for help and explaining your circumstances. Consider your employer's needs as well as your own when you do. From your employer's perspective, there's a risk that they'll view your request as a problem, so try to provide them with solutions at the same time. At the very least show that you appreciate their support.

If you need to pick up your children from school at 2.30pm on a Friday afternoon, and drop them off on a Monday morning meaning you'll arrive at work late, could you make up the hours on the other days when the children are with the other parent?

Could it be to the employer's benefit if you're willing to work 'unsociable hours' to compensate.

Can you do work from home, and does the employer allow this?

Would a job share arrangement be practical, and could you afford a cut in pay?

If you have a good relationship with your line manager, ask for an informal chat before making the application. Bear in mind that depending on the size of your organisation, your line manager and employer may not be aware that you have a right to apply for flexible working. It is worth being aware that many businesses (of all sizes) now contract out their human resources function, meaning they go to a third party for advice on employment related issues.

If you are a member of a union, ask for their advice and support before making your application.

A large organisation may have a formal policy on flexible working and helping staff achieve a work/life balance. A small business may struggle to accommodate a substantial change to your hours, especially if you are a key individual.

Are the changes to my contract permanent?click to collapse contents

Yes, unless you and your employer have agreed otherwise e.g. for a set period of time or a trial period.

Tip:

If you want the changes to be limited to a specific time period, you should make this clear in your application.

What must my employer do when they receive my application?click to collapse contents

After receiving your application, unless your employer immediately agrees with your requests, and unless you mutually agree otherwise (with regard to the following timescales), your employer is legally obliged to:

Arrange a meeting with you within 28 days of receipt of your application to discuss your request;
Allow you to be accompanied by a co-worker;
Notify you of their decision within 14 days of the meeting with you and their reply must either:
1. Confirm their agreement to your original application and provide a start date for the new arrangements; or
2. Confirm their agreement to alternative arrangements discussed and agreed at the meeting; or
3. Refuse your application setting out clear business reasons as to why they cannot accommodate what you have asked for. If your employer refuses your application, they must also provide you with details as to how you can appeal their decision and they must hear your appeal within 14 days of your having informed them that you wish to appeal. If an appeal meeting is held, you must be notified of the employer´s decision following the appeal and within 14 days of that meeting date.

What are reasonable grounds to refuse?click to collapse contents

Your employer may only refuse your application on one or more of the following grounds:

the burden of additional costs;
detrimental effect on ability to meet customer demand;
inability to re-organise work among existing staff;
inability to recruit additional staff;
detrimental impact on quality;
detrimental impact on performance;
insufficiency of work during the periods the employee proposes to work;
planned structural changes.

Tips:

If your employer is unable to agree to the changes you need, consider whether their reasons can be (and have been) reasonably justified under the above grounds for refusal.

If there are members of the opposite sex who carry out a similar role to you but have a more flexible contract, then you may have grounds to appeal due to sexual discrimination.

If the employer has refused to consider your suggestions as to how your proposals could be made workable without detriment to the business, then you may wish to consider appeal, and if that is unsuccessful, you can take the matter to ACAS for arbitration or to an employment tribunal.

ACAS is a publicly funded organisation whose purpose is to provide conciliation (help employers and employees reach agreement). Their contact details are provided at the bottom of this factsheet.

What if my employer unreasonably refuses?click to collapse contents

First, ask to discuss the reason for their refusal. It may be a misunderstanding and a compromise which is acceptable to both parties may still be reached. If you believe that your employer is unreasonably refusing your application, you have a number of choices:

Accept your employer´s decision.
If you are a member of a union, ask your union representative for further advice and assistance.
Contact the Citizen´s Advice Bureau for advice.
Seek legal advice from a firm of solicitors specialising in employment law.
Contact ACAS and ask them to help both parties find a solution (see the links at the bottom of this guide).
Make a complaint to an employment tribunal (see the links at the bottom of this factsheet for further information about the tribunal process and an online application form).

Tips:

Be aware that you can only make one application for flexible working in a 12 month period.

A further consideration when deciding what to do is that if you intend to lodge a complaint with a tribunal, this must normally be done within three months of your grievance. If you seek advice from an organisation, check when they will be able to meet you to discuss your case.

Will flexible working affect my pay and benefits?click to collapse contents

Quite possibly. Most people would agree it is reasonable for an employer to recalculate your pay on a pro-rata basis should you reduce the number of hours worked. Such matters will depend on your situation and what your employer is prepared to, or can afford to accommodate.

What compensation is there for an unreasonable refusal?click to collapse contents

If an ACAS Arbitrator becomes involved in your dispute, or if matters go to an employment tribunal, and the Arbitrator or judge agree that your employer has acted unreasonably in refusing your application, they can order your employer to reconsider and may also award you compensation. The compensation will be decided based on the circumstances of your case. The maximum compensation is eight weeks pay (with a statutory maximum of £270 per week - set in February 2004).

Will a dispute hurt my career?click to collapse contents

You have a legal right to apply for flexible working so long as you meet the qualifying criteria. If you are dismissed or treated unfairly as a result of your application, you should take legal advice and consider making a claim against your employer via an employment tribunal.

Tip:

If you present your application reasonably and show that you understand your employer's position, you can reduce the risk that your employer will react in a negative way.

Most managers have pressurised jobs and your application will place additional demands on them personally. Make a point of thanking both them and any of your colleagues who may be affected by the changes.

If your employer is unable to accommodate the changes, and has good business reasons for being unable to help, there remains the alternative of finding another job which may provide you with the flexibility you need.

I'm a contractor. Am I covered by these rights?click to collapse contents

No, the rights in relation to flexible working are solely for the 'employed'. It may still be worth arranging a meeting with the company you are working for to find out whether they would accommodate your wishes.

TCM Comment:

Parental involvement in schooling is incredibly important for children, and both parents should be afforded the opportunity to take and collect the children from school and help with homework after. Government and other academic research is conclusive that children do better academically when both parents are involved and take an interest in their schooling.

Our guide on Parental Responsibility and Education sets out the information that the school should send you about your child´s progress. Posted information though is no substitute for the opportunity to discuss matters with a teacher at the school gate. If your child is having problems with a subject or being bullied (or bullying), it is better to resolve matters at the earliest opportunity and to be able to discuss these things informally.

There are many advantages in being involved in your child´s school week. Pick up or drop off from school helps you to meet your children´s friends, invite them to play at your home or to your children´s parties and allows your children´s friends´ parents to see that you are not an ogre with two heads. It is part of a child´s ´family life´.

Flexible working arrangements can help and help child welfare. They're implimented at the highest levels now! David Cameron and Nick Clegg reached an agreement that Cabinet Meetings would start later in the day, to allow them to take their children to school. If the Prime Minister (rightly) views this as a priority in his and his children´s life, then why shouldn´t you and your employer?

Further advice and assistance

ACAS Helpline - Monday to Friday 0800 to 1800 - 08457 47 47 47 www.acas.org.uk.

Information on Employment Tribunals - www.justice.gov.uk/tribunals/employment.

The Importance of ABC

A is for attitude. B is for behaviour. C is for child focused.

ABCclick to collapse contents

Attitude

You may feel that the other parent has treated you appallingly, but the court is primarily interested in the future arrangements for the children. Don´t see court proceedings as an opportunity to run down, insult or denigrate your ex-partner. It isn´t helpful. If there are behaviours which have negatively impacted on the children, then it may be valid to raise them as matters for the court to consider in determining the future arrangements for the children. Two questions for you to consider though. Are the concerns real or due to anxiety, and are they serious concerns? If the answer is ´no´ to either of those questions, you´re probably best to leave them out.

A common fault of litigants, when they prepare their case and arguments, is flooding them with irrelevances which the court simply isn´t interest in. This risks two things, making the parent look unreasonable and obscuring the strong points of their argument.

Go into court seeking fair and reasonable child focused solutions and you´re more likely to gain the court´s sympathy and respect. Go in looking for a fight, and you´re likely to get bruised by the experience.

It isn´t unusual to see statements and hear oral evidence where the party spends the entire time either denigrating their ex-partner, or focusing solely on their ex-partner´s arguments and allegations. While you may need to address allegations, you also need to present your own arguments and keep these central to what you say. Keep these child focused. If you want more time with your children or to protect or enforce the time your have, don´t forget to include ´why´ your proposed arrangements are in the children´s best interests. The court has only a limited time to read and hear evidence. Make what you say or write succinct and clear, and most important, child focused.

Sir James Munby, President of the Family Court, gave the following advice relating to cases where one parent seeks to influence or alienate the child against the other:

"You may think he is an absolute monster. You may think she is an absolute ´blankety blank´. The risk you are running is, that if you carry on like this, your child suddenly one day will realise what went wrong. And when the child is old enough he may walk out. He may say a plague on both your houses. You’ve ruined my life. You’ve done what Larkin famously said, you’ve "fucked me up". I’m off. You’re both as bad as each other.

I ask them, "do you want to spend your declining years alone, hated by your child. It may take 5 years, it may take 20 years but for god´s sake think about that. The reality is that sooner or later the child is going to want to seek out that monster or that bitch. The child will then discover she or he is not as bad as you made out. That will have two effects. One is that there’ll be an increased wish of the child to see the other parent. The other is that the child in that circumstance will condemn you for giving a false impression. You are running a terrible, terrible risk"."

Walk into court with the wrong attitude, with unrestrained anger or paranoia, and have it influence what you say and do, and you run the immediate risk of:

The court forming an impression you are aggressive and controlling;
The court forming an impression you can't control your emotions and this may impact on your childcare;
The court forming an impression you exaggerate or lie so your evidence is unreliable;
The court forming an impression you put your own emotions before your children´s welfare.

If you have concerns and if they are genuinely important, make them factual and relate them to how those concerns impact on the children, but be reasonable in how you do it. Remember that a court will consider whether parents are thinking of their child´s welfare, and whether either or both are capable and willing to promote the child´s relationship with the other parent and wider family.

When considering any course of action, consider the risks and rewards of each, and not as how you (in your emotionally involved state) will view your decision, but how someone else will see it who isn´t personally involved and emotionally caught up in the situation. It´s not an easy task for parties in court, but it is essential.

If you need help in managing stress and emotions, refer to our guides below:

Interim Contact Case Law and Practice Directions

Re D (Contact: Interim Order) [1995] 1 FLR 495

In the case Re D (Interim Contact), and on the question of interim contact, Lord Justice Wall set out that in cases where the principle of contact was at issue, an interim contact order could be made if:

the observation of contact would form part of the proceedings (typically on the advice of a CAFCASS Officer or child psychiatrist; or
if there was sufficient information available to the judge for them to order contact, despite the possibility of their granting a different order at the end of a final hearing and having heard evidence; or
in cases where the issue in question was the amount of contact, an order for interim contact could be made without a detailed investigation of the evidence.

"The guiding principle remained the application of the welfare test to the practical facts of the case. The fact that the need to re-establish contact was in the interests of the child did not mean that the court would necessarily make an offer for interim contact. The elementary question had to be asked as to whether it was in the child's interests for there to be an interim order for contact pending a final determination of that question. The greatest care had to be taken in making an interim order and without hearing oral evidence, to ensure that it was in the interests of the child and that the order did not prejudice the issue. It was difficult to envisage circumstances in which an interim order for contact could properly be made where the principle of contact was genuinely in dispute and where there were substantial factual issues relating to a child which were unresolved without the court hearing oral evidence or having the advice of an expert such as a court welfare officer."

Re M (Interim Contact: Domestic Violence) [2000]click to collapse contents

Re M (Interim Contact: Domestic Violence) [2000] 2 FLR 377

If there is a clear possibility that the court may order no contact at a final hearing (due to there being serious allegations made against you that you pose a risk of harm to the children), it is unlikely for an interim contact order to be made without oral evidence having been heard, or there having been some investigation by CAFCASS.

Re M (Contact: Restrictive Order: Supervision) [1998]

Re M (Contact: Restrictive Order: Supervision) [1998] 1 FLR 721

´A decision to require supervision of contact must be supported by evidence.´

AR (A Child: Relocation) [2010]

AR (A Child: Relocation) [2010] EWHC 1346 (Fam)

"On the facts of this case it is clear to me that supervised contact would only have been appropriate if there was the clearest and most compelling evidence that in some way S's best interests would be jeopardised by unsupervised, normal contact. Given the terms of the Strasbourg jurisprudence to which I have referred, it is almost as if there is a presumption in favour of normal contact and it is for those who say it is inappropriate to prove by clear evidence why this is so."

By Strasbourg jurisprudence, Mostyn J refers to the European Convention on Human Rights, and specifically, the right to family life. He goes on to say:

If one were to draw up a hierarchy of human rights protected by the Convention I would have thought that very near to the top would be the right of a child, while he or she is growing up, to have a meaningful participation by both of his parents in his upbringing. Although this is (strangely) not explicitly spelt out in the text it must be implicit in the notion of the right to a family life.

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Without Notice And Non Molestation Order Case Law

Case law listed below provides guidance regarding process and procedural fairness in without notice applications (applications to the court where the respondent is not notified of proceedings in advance of a matter being heard, and potentially, an injunctive order being made).

The first two cases listed are cited in published judgment and we provide details of the relevant paragraphs/guidance which is referred to in later judgment.

Case law is provided here for the purpose of fairness, equality in arms, and in the interest of supporting Article 6 Rights (the right to a fair hearing). The information is provided to assist unrepresented defendants in checking that the correct procedures have been followed by both the applicant and the court.

At the bottom of this page, we also provide rules in relation to applications for orders made under Part IV of the Family Law Act 1996 (concerning applications for non-molestation and occupation orders).

Re S (A Child) (Family Division: Without Notice Orders) [2001] ER 362click to collapse contents

Re S (A Child) (Family Division: Without Notice Orders) [2001] ER 362

Guidance given by Sir James Munby in Re S (A Child) (Family Division: Without Notice Orders) [2001] ER 362.

When granting without notice injunctive relief in the Family Division, it is generally appropriate for the court to require the applicant (and, where appropriate, the applicant´s solicitors) to give undertakings (i) where proceedings have not yet been issued, to issue and serve proceedings on the respondent either by some specified time, or as soon as practicable, in the form of the draft produced to the court or otherwise as may be appropriate; (ii) where the application has been made otherwise than on sworn evidence, to cause to be sworn, filed and served on the respondent as soon as practicable an affidavit or affidavits substantially in the terms of the draft affidavit(s) produced to the court or, as the case may be, confirming the substance of what was said to the court by the applicant´s counsel or solicitors; and (iii) subject to the previous undertakings, to serve on the respondent as soon as practicable the proceedings, a sealed copy of the order, copies of the affidavits(s) and notice of the return date including details of the application to be made on the return date. Whether or not express undertakings have been given to that effect, but subject to any order to the contrary, an applicant who obtains without notice injunctive relief has an obligation to the court to carry out those steps. The applicant´s solicitor owes such an obligation both to the court and to his lay client.
A person who has given an undertaking to the court is under a plain and unqualified obligation to comply to the letter with his undertaking. Where the undertaking is to do something by a specified time, then time is of the essence. A person who finds himself unable to comply timeously with his undertaking should either apply for an extension of time before the time for compliance has expired or pass the task to someone who has available the time in which to do it. It is unacceptable, least of all for a solicitor, to put forward the burden of other work as an explanation for non-compliance.

W v H (Family Division: Without Notice Orders) [2001] 1 All ER 300click to collapse contents

W v H (Family Division: Without Notice Orders) [2001] 1 All ER 300

Guidance given by Sir James Munby in W v H (Family Division: Without Notice Orders) [2001] 1 All ER 300.

A person who sought relief ex parte, in the Family Division as elsewhere, was under a duty to make full and frank disclosure of all the material facts. Those who failed in that duty, and those who misrepresented matters to the court, exposed themselves to the very real risk of being denied interlocutory relief whether or not they had a good arguable case, or even a strong prima facie case. In every case, however, the court retained a discretion to continue or to grant interlocutory relief even if there had been non‐disclosure or worse. In the instant case, although the court had some misgivings about the way in which matters had been approached at the ex parte hearing, there had not been any wilful or culpable default, and it would be inappropriate to exercise the discretion in favour of X and against W.
In general, any ex parte order in the Family Division containing injunctions should set out on its face, either by way of recital or in a schedule, a list of all affidavits, witness statements and other evidential materials read by the judge. The applicant´s legal representatives should, whenever possible, liaise with the associate with a view to ensuring that the order as drawn contained that information. On receipt of the order from the court, those legal representatives should satisfy themselves that the order as drawn correctly set out the relevant information and, if it did not, take urgent steps to have it amended under the slip rule. They should also respond forthwith to any reasonable request from the party injuncted or his legal representatives either for copies of the material read by the judge or for information about what took place at the hearing. At the very least, if they asked, they were entitled to be told exactly what documents, bundles or other evidential materials were lodged with the court either before or during the course of the hearing, and what legal authorities were cited to the judge. It would therefore obviously be prudent for those acting for applicants in such cases to keep a proper note of the proceedings, lest they otherwise find themselves embarrassed by a proper request for information which they were unable to provide. In the instant case, it was unfortunate that the order as drawn up contained no indication of the material that had been read by the judge. That omission, and the absence of any attendance note of the proceedings, meant that X and his legal advisers had been left in the dark as to what materials had been shown to the judge. However, those matters did not go to W´s entitlement to continuing interlocutory relief.

KY v DD [2011] EWHC Fam 1277click to collapse contents

KY v DD [2011] EWHC Fam 1277

Although a case concerning a wardship application, Theis J refers to past guidance governing applications made without notice.

She expands upon that guidance at paragraph 16 (we recommend you read the judgment in its entirety paying particular attention to paragraphs 13 to 16).

If information is put before the court to substantiate a without notice order, it should be the subject of the closest scrutiny and, if the applicant is not present in person to verify it, be substantiated by production of a contemporaneous note of the instructions. If that is not available, there may need to be a short adjournment to enable steps to be taken to verify the information relied upon.
If additional information is put before the court orally, there must be a direction for the filing of sworn evidence to confirm the information within a very short period of time. If that direction had not been made in this case, the passport order would have been executed when the grounds for obtaining it were simply not there. That would have involved a gross breach of the defendant's rights, quite apart from the court having been given misleading information.
Lastly, leaving the scrutiny that the court should give to without notice applications to one side, it is incumbent on those advising whether such an application is justified to consider rigorously whether an application is justified and be clear as to the evidential basis for it."

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R v R (Family Court: Procedural Fairness) [2014] EWFC 48click to collapse contents

R v R (Family Court: Procedural Fairness) [2014] EWFC 48

Jackson J gives the following guidance on the making of non-molestation orders.

The default position of a judge faced with a without notice application should always be “Why?”, not “Why not?” As has been repeatedly stated, without notice orders can only be made in exceptional circumstances and with proper consideration for the rights of the absent party.
The court should use its sweeping powers under the Family Law Act 1996 with caution, particularly at a one‐sided hearing. Where an order is made, it is the responsibility of the court (and, where applicable, the lawyers) to ensure that it is accurately drafted. This consideration applies with special force when a breach of the order will amount to a criminal offence.
Extra injunctive provisions such as exclusion areas and orders prohibiting any direct communication between parties should not be routinely included in non‐molestation orders. They are serious infringements of a person´s freedom of action and require specific evidence to justify them.
The power to penalise non‐compliance with case management orders should be used firmly but fairly, in a way that supports the overriding objective rather than defeating it. The court should apply the rules (here specifically FPR r.4.6) with that aim.
The court should be on guard against the potential for unfairness arising from the Legal Aid, Sentencing and Punishment of Offenders Act 2012, whereby the applicant is entitled to legal representation as a result of unproven allegations, while the respondent is not. In this case, the fact that one party had no legal advice at any stage was critical to the outcome.

Jackson J points out the procedural irregularities and failures in this case.

A without notice application should not have been made.
A without notice order should not have been granted on this evidence.
The order that was granted did not reflect the judge´s intention.
The orders preventing access to the street and banning direct communication were unnecessary and disproportionate.
At the first hearing attended by both parties, the court did not review the without notice order to ensure that there were no obvious errors of the kind that existed here.
The date given for a contested hearing of Mrs R´s application was too distant to be meaningful.
Mr R´s request for extra time to file his statement should have been granted at the outset.
The hearing date for Mrs R´s application should not have been cancelled.
The application for relief from sanction should have been considered on paper and granted.
The date given for a contested hearing of Mr R´s application for relief from sanction was again too distant to be meaningful.
The District Judge did not correctly apply the rules governing relief from sanction. Had she done so, she would have concluded that there was no good reason for refusing to admit Mr R´s statement.

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Rules Governing Applications for non-molestation orders

In R v R (Family Court: Procedural Fairness) [2014] EWFC 48, Jackson J points out procedural irregularities in that case. When considering whether procedures have been properly followed by the court and applicant, the respondent should be aware of the following rules governing applications for non-molestation orders.

PART 10 - APPLICATIONS UNDER PART 4 OF THE FAMILY LAW ACT 1996

Service of the applicationclick to expand contents

10.3

In an application made on notice, the applicant must serve ‐
1. a copy of the application together with any statement in support; and
2. notice of any hearing or directions appointment set by the court,
3. on the respondent personally ‐
  1. not less than 2 days before the hearing; or
  2. within such period as the court may direct.
Where the applicant is acting in person, the applicant may request the court officer to serve the application on the respondent.
In an application for an occupation order under section 33, 35 or 36 of the 1996 Act1, the applicant must serve on the mortgagee and any landlord of the dwelling-house in question ‐
1. a copy of the application; and
2. notice of the right to make representations in writing or orally at any hearing.
The applicant must file a certificate of service after serving the application.

(Rule 6.23 makes provision for the different methods of serving a document and rule 6.35 provides for the court to authorise service by an alternative method.)

10.6

The applicant must, as soon as reasonably practicable, serve on the respondent personally ‐
1. a copy of the order; and
2. where the order is made without notice ‐
  1. a copy of the application together with any statement supporting it; and
  2. where the order is made by lay justices, a copy of the written record of the reasons for the court’s decision.
  3. (Rule 27.2 makes provision in respect of lay justices giving written reasons in the family court.)
The court must serve the documents listed in paragraph (1) if ‐
1. an applicant, acting in person, so requests; or
2. the court made the order of its own initiative.
In an application for an occupation order under section 33, 35 or 36 of the 1996 Act, the applicant must serve a copy of any order made on the mortgagee and any landlord of the dwelling-house in question.