It’s three years since the much-publicised Family Court reforms were introduced – and the changes are still taking some families by surprise.
Big picture, the reforms were based on the Court wanting parties to work together, rather than turn to judges, to resolve parenting, and wider care, issues.
One of the key changes sees “Family Dispute Resolution” (FDR) as a mandatory, step in the process nowadays, unless the situation meets the “emergency” threshold, requiring immediate judicial intervention. Getting legal advice before, during or after FDR may be helpful.
Even before filing a non-urgent application with the Court, parties must, within the previous two years, have attended a Parenting Through Separation Course, and attempted FDR (mediation) through an accredited provider. Unless you qualify for financial assistance, FDR carries a cost. Parenting Through Separation courses, however, remain free and are available to all parents, whether you’re in conflict or not.
If you’re on a low income, you may qualify for help under the Family Legal Advice Service (FLAS) programme, which provides help at the pre-court stage, and then assistance to draft the court application and affidavit – that is if mediation fails and you need to take the case to the Family Court.
What has taken many parties by surprise under the new system is the fact that there are so many steps to be taken before any judicial involvement and that, unless it’s an emergency situation, lawyers are unable to act for parties in Care of Children proceedings, until directed to do so by the Court.
However, it’s important to note, that does not mean you can’t seek legal advice and support behind the scenes. Indeed, it is a good idea to get that advice at an early stage. You will, however, initially have to front everything yourself, including, probably, the first Court appearance. This is, usually, an “Issues Conference” at which a judge will determine the matters that need to be resolved.
It’s wise to formally ask the judge to allow you to have legal representation at this stage. Often the Court will agree to the involvement of lawyers at this time, and it’s best to have this option open to you, even if you don’t end up using it.
Unless the Court directs otherwise, only with the Judge’s permission can lawyers act at the next stage, the “Settlement Conference”, which is fixed if the Court decides the case should proceed to a hearing.
The Court will also very often appoint a Lawyer for the Child to look into the case and report back to the Court, setting out the views of the child and making recommendations, which might include seeking reports from the likes of a psychologist or social worker. You may be asked to contribute to the costs incurred by the Lawyer for Child or another report writer and that, and the level of those costs, is dependent on a number of factors.
If no agreement is reached at the Settlement Conference then the next step is likely to be a “Directions Conference”, where the parties seek final guidance from the Judge on what needs to be looked at prior to the matter going to a hearing. A court hearing and the Directions Conference will usually be fixed at the Settlement Conference. Lawyers can represent their clients at the hearing as of right.
It’s a lot to keep up with, isn’t it? Some parties enter the process not having taken advice and are unaware just how involved, time-consuming and stressful proceeding down the Family Court route can be. While some families will have no option but to tread the litigation path, it really is a choice that should be very carefully investigated and considered before that path is taken.
Equally, though, it’s vital that people who feel there is a risk to their, or children’s, safety take urgent advice. It may very well be you do not have to participate in mediation, and should, instead, go directly to the Family Court and seek the likes of a protection order.
When you separate, if you’re considering turning to the Family Court, even an hour of legal advice is likely a very worthwhile investment. It should serve to give you a realistic idea of what you are embarking on, the rules by which you’ll need to abide, confirm whether your case warrants urgent judicial intervention, as well as identify the issues at hand and likely outcomes.
I understand it’s sometimes just not possible to reason with the other party, no matter how hard you try. But, if there is even a glimmer, my overarching advice to clients is always do your best to keep open the lines of communication, wherever possible, and, whatever your own feelings may be, step back and try to see the situation through the children’s eyes.