CHAPTER FOUR – HEARINGS AND THE FAMILY COURT ADVOCATE
Without Notice Hearings
In certain circumstances, an application can be made for the court to hear an application without the other party knowing about it. At a Without Notice Hearing the applicant must show that the making of the order is urgent. One example might be to prevent a party taking a child abroad before the hearing as it would not be safe if the applicant gave notice to the other party. A further example may be if an applicant has been threatened with abuse. During a Without Notice Hearing, the Judge will hear the applicant’s reasons for making the application without informing the other party. The court may make the order requested or may postpone making the order until it has heard from the other party. Even if the court makes the order requested, it will usually set a date for a further hearing to decide whether or not the order should continue. The other party will be informed of this hearing date and asked to attend to put forward their views. The Without Notice Hearing is likely to take a more informal approach with the Judge reading the papers and making a decision often without hearing any formal evidence.
The advocate appearing for the applicant may have to make limited submissions but this will vary according to the case.
Directions Hearings
A Directions Hearing is listed for the Judge or Lay Magistrates to review the case and consider whether further information should be provided or action taken by the parties within the proceedings such as Cafcass or any other relevant body. Advocates representing the parties will usually meet together before the hearing to agree the terms of the court order and prepare a draft of the order. The court will consider the draft order and make any appropriate amendments. In the event of a disagreement between the parties, the Judge or Lay Magistrates will adjudicate on the matter. Representations by the advocates will often be in the form of submissions, frequently consenting to the terms of the agreed order. No evidence is heard. Judges and Lay Magistrates are encouraged to manage cases to ensure that the proceedings are progressed in the appropriate way.
The advocate should not assume that an agreement on the terms of a draft order will be ‘rubber stamped’ by the court and explanations are often required to justify the proposed order.
Case Management Hearings
Case management takes place when decisions are made by the court on such matters as:
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the key issues to be determined
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whether the proceedings should be listed for a fact finding hearing
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whether any interim orders need to made pending a final hearing
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whether directions are required to ensure the final hearing proceeds as planned.
The hearing takes a similar form to that of directions but is more structured and focussed in content. Case management is common in Care and Supervision Proceedings.
Contested Interim Hearings
Interim Orders can be made by the court until final orders are made. The hearing often takes the form of a full hearing when evidence is heard by the court and a decision is made pending the final decision of the court. Examples are: Interim Care or Interim Supervision Orders and Interim Child Arrangements Orders.
The advocate will be expected to prepare for a contested hearing, cross examine witnesses and make submissions to the court.
Fact Finding Hearings
If one party makes allegations during family law proceedings and the other party denies those allegations, the Judge will consider whether there should be a Fact Finding Hearing. This is a separate hearing arranged to decide whether or not the allegations are true. Fact Finding Hearings are most common in children cases, but can also take place during other family law proceedings such as for domestic abuse injunctions, divorce or financial remedies.
The advocate is expected to prepare for a contested hearing, cross examine witnesses and make submissions to the court.
Final Hearings
The final hearing brings the proceedings to an end. The Judge or Lay Magistrates will consider all of the available evidence. This includes evidence provided by the parties and any relevant reports provided by others such as Cafcass or the Local Authority. Using all of this information, the Judge will assess the evidence and come to a decision. The Judge may decide to make no order or make an order requested by the parties. The format of the final hearing can take various forms: an Agreed Order, a Contested Hearing (when evidence is heard) or a hearing where the parties make oral submissions without any evidence being called. This depends on the nature of the final hearing.
The advocate is expected to prepare for a contested hearing, cross examine witnesses and make submissions to court as to what orders should be made.