Getting an Order of the Court/Injunction

5.2.1 What the Court can do

The Court can make an Order against a person ordering that they shall not do certain things or that they must do certain things. The Order instructs the person guilty of violence or harassment not to continue to behave in this way.

Such Orders may include the following terms:-

(i) not to use or threaten violence against you
(ii) not to use or threaten violence against a child.
(iii) not to harass, pester or otherwise interfere with you
(iv) not to harass, pester or otherwise interfere with a child
(v) to require the person to leave a property and not to return
(vi) to require the person not to enter on to the property
(vii) to require the person not to enter in to a defined area.
(viii) to require that person to allow you to enter onto the property and not to further restrict your occupation.

These are the principal Orders which the Court may make in situations of harassment or violence. The purpose is to protect you in the best way available. What is appropriate protection will depend on the nature of the past behaviour complained of as well as your past relationship with the person who is violent – i.e. spouse or cohabitee and e.g. your respective rights in the property over which you seek an Order.

The Court has other powers in specific circumstances. These include the power to order the transfer of tenancies or, in certain circumstances, to order who should be responsible for the running costs of a property when one person is required to leave.

The spouse and the cohabitee are those best placed to seek all the possible powers of the Court. This means that if you are a spouse or a cohabitee it is likely that you will be able to obtain an Order relating to your personal protection and to staying in the house (depending on the behaviour complained of). However, your Solicitor will be able to advise you in more depth here as the rules regarding who can obtain which specific Order from the Court are somewhat detailed.

The door is, however, now open not only to spouses and cohabitees but also to most relatives and persons living in the same household to obtain personal protection Orders to prevent harassment and violence. Again, a Solicitor will confirm specifically whether you are legally eligible to seek the remedy as the rules governing who can apply are quite complicated.

You will probably need the help of a Solicitor to make the necessary application to the Court. The person against whom you want the Court to make an Order will have a chance to appear at the Court to have their say. You will have to make a sworn Statement setting out what has been happening and why you should have an Order to protect you.

Your Solicitor will represent you at the Court hearing. The Court will read your sworn Statement and will have a chance to listen both to you and to the other party. The Judge will then make a formal Order against your opponent if it appears appropriate to the Judge to do so. Several days may pass between making the Application and getting to Court for the hearing. In the meantime, your opponent will have to be “served” with your application and with notification of the date when the Court will hear the matter.

Any Order will have a limited time span. It is not usual for such Orders to be made to last for an indefinite period.

5.2.2 Emergencies

If a situation has arisen where you have suffered violence , intimidation or threats and you need protection from further aggressive behaviour urgently, then the Court may hear your case more quickly as an emergency. If your Solicitor considers it such an emergency situation then he/she may be able to get you to a Judge that same day. The Court will have to decide whether to make an Order for your protection based largely on what you say in your statement. The judge may find that you do need protection there and then and make an Order accordingly.

In these circumstances you may also get emergency funding from the Legal Services Commission which will cover this emergency application to the Court.

Such emergency Orders are usually short term – e.g. lasting for a week or so . The Judge will then hear the matter again when your opponent will have the chance to go to the Court and have their say.

5.2.3 What does an Order mean

Although the Order is in one sense only a piece of paper telling your opponent what he/she must do and not do, nevertheless it has the force of an Order of the Court. To have any legal effect it must be served on the opponent. He/she must know what the Court is saying and what it is that they are being told to do or refrain from doing.

Once that person knows about the Order then he/she should not then do anything which contravenes the terms of the Order. Any such contravention amounts to a breach of the Order.

Both the nature and number of any breaches of the Order will be relevant to what the Court then decides to do by way of punishment or enforcement.

Depending on the type of breach it may be possible to enforce the Order so as to make the person comply with it. This means that another application needs to be made to the Court for what are known as “committal proceedings”. A person in breach of certain types of Court Order can be penalised by the Court. The Court has the power to fine or imprison the person who has breached the Order. To encourage compliance in the future, it might e.g. impose a suspended imprisonment on the offender, which would be activated in the event of a further breach of the Order.

5.2.4 Power of Arrest

In many cases the Court will add a “power of arrest” to certain parts of an Order. This gives the Police the power to arrest someone and take them in to custody for certain behaviour which is breaching the Order.

You should contact the police immediately if a breach of the Order is happening or has just happened. Your Solicitor will advise you to have the telephone number of that Police Station to hand and of course the means of contacting the Police. When you phone the Police with a complaint they can arrest the person who is in breach of the particular terms of the Order to which the power of arrest was attached.

The person arrested will come back before the civil Court rather than the criminal Court – even though arrested by the Police – because the Police will (probably) not have charged him with any criminal offence – but will only have arrested him under the power imposed by the Court which made your Order. The Police should produce the person at Court the next day. When the matter comes back before the Court in this way the Judge will have to consider whether he/she is satisfied that a breach has occurred and if so, what the appropriate penalty would be in the particular facts of the case.

This procedure will have been triggered by you contacting the Police to tell them of the breach of the Order. You should also contact your own Solicitor as soon as possible as you will be required to attend Court to give evidence to the Judge about the behaviour you are complaining of namely, what the person has done to breach the Order.

Whether the person remains in custody depends on whether the judge believes that the particular breach of your Order warrants a custodial sentence.

The Police in your area will need to have lodged with them a copy of the Order which has the power of arrest attached. If they do not have a copy of the Order it is more difficult for them to act if phoned by you. Your Solicitor will sort out getting the copy Order to the Police and making sure that they know that the person has been properly served and is aware of the Order.

Protection from Violence or Harassment

5.1 What to do if you are a victim

5.1.1 Police

If you have been assaulted you may press criminal charges. You should telephone the Police and an Officer should attend to take details. If the person responsible is arrested and charged they will have to go to Court. Pending the final hearing you may be afforded some protection by the criminal Court imposing what are known as “Bail Conditions”. This means that in return for that person being at liberty (pending their trial) conditions may be imposed – and these may include them being ordered to stay away from you.

The Police also have extended powers to help under the Protection from Harassment Legislation. This gives them power e.g. to help when stalkers become a problem.

5.1.2. British Telecom

If the form of harassment is by telephone, BT can offer a tracer service in certain cases. Alternatively, they can help by offering a change of number.

5.1.3 Housing Refuges and Woman’s Aid

If you are fleeing violence and chose to leave your residence to escape someone who is subjecting you to violence, then help and support are available from the Woman’s Aid. You should be offered some temporary accommodation at a refuge or other emergency accommodation particularly if you have fled with children.

If you do leave your previous accommodation with your children to escape from violence then you should be granted housing priority as a homeless person.

If you have fled to avoid the further risk of violence or harassment you should also consider obtaining protection from the Court. Solicitors authorised by the Legal Services Commission can grant you the funding (subject to your eligibility) to make an application to the Court for emergency protection – the emergency Order may assist in making you feel safe.

5.1.4 Solicitors

You can get help from a Solicitor concerning a problem of violence by or harassment from another person. Initially for example the Solicitor might write a warning letter requiring the aggressor to stop the behaviour and making it clear that an application will be made to the Court for an Order if the behaviour is repeated.

If this does not cure the problem, the Solicitor will be able to make an application for a Court Order.

You may be eligible for assistance with payment of the Solicitor’s costs from the Legal Services Commission. The availability of that help will depend on your financial situation. The Legal Help Scheme would cover advice and assistance in the office. If an application needed to be made to the Court, the Legal Services Commission would have to consider granting you a Certificate which would provide cover for the legal costs of getting a Court Order. This would be considered both on the basis of your financial eligibility and whether there was a good legal case to bring. The Legal Services Commission will look at a number of factors, including whether the police have been involved, whether bail conditions are in place and whether a letter of warning has been sent, before considering whether the Court application is necessary and appropriate

Legal advice and counseling

As suggested elsewhere in this guide, it is often helpful for cohabitees to consider counselling as their first step if their relationship is in difficulties or if it appears to be about to break down.

Because the financial and property issues arising on the breakdown of a cohabitation relationship can be complicated, and if counselling has not enabled the parties to rescue their relationship, then it makes sense for the parties – if they cannot agree matters sensibly between themselves – to take separate legal advice and guidance on their rights and liabilities.

4.3 Children

Often when parents separate, their biggest worries relate to their children: their children’s future and well-being, and the parents future relationship with the children.

In this section we will try to answer some of the questions most frequently asked by unmarried parents and step parents. [There is a later heading for grandparents and other relatives at Section 8 of this Guide].

4.3.1 What Parental Rights and Duties do I and my partner have towards my child?

Parental rights and duties are recognised in law and together are called “Parental Responsibility”. This term includes “all the rights, powers, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property”.

In practical terms, Parental Responsibility grants to you the legal right to:-

(i) be informed about your child (for example by the school, social services, doctors, dentist),and
(ii) to access information concerning your child (from school, social services, doctors, dentist),and
(iii) to make or participate in making decisions for your child

If when your child was born its parents were not married to each other, then in cases where the child was born on or after 2nd December 2003, both parents will have Parental Responsibility for the child if the fathers name is registered on the birth certificate. If the child was born before 2nd December 2003, only the mother will have Parental Responsibilities unless:-

You may also have Parental Responsibility for a child:

a) if you are a step parent and you have a Residence Order in your favor,

b) the child has been adopted by you.

Once granted, Parental Responsibility will last until the child reaches adulthood. So, even though you are separated or divorced after the child is born you should continue to share Parental Responsibility of your child.

4.3.2 Where will my children live?

It may be that, when you reach the decision to separate, you are also able to make arrangements for the care of your children which prove to be acceptable to both of you, in which case these can continue on an informal basis, being re-arranged by fresh agreement as and when it suits you (and the children) to do so.

It may be that you are generally able to discuss arrangements with your partner, but that there are some points which you have not been able to agree, and that these points may be stopping you from achieving a workable agreement. To break such a deadlock, one answer may be to arrange a meeting with a local Mediator: you can obtain details of local mediation services from either your Solicitor, the local Court or your local CAB.

If your disagreement is more fundamental, and you simply cannot achieve an agreement then you can apply to the Court for a decision to be imposed. Please look at Section 3.4.6 of this Guide for an outline of the Court procedure involved if you apply for a Court Order.

4.3.3 Types of Order that you can ask the Court to make:

Parental Responsibility Order – only fathers can apply to the Court for a Parental Responsibility Order, and only if they do not have Parental Responsibility already.

Please note that unmarried fathers will need to ask the Court to make a separate Parental Responsibility Order at the same time as seeking the Residence Order if they wish Parental Responsibility to continue even if the Residence Order comes to an end.

When considering an application for a Parental Responsibility order the Court will consider: (a) the bond between the father and the child; (b) the attachment between the father and the child; and (c) the father’s reasons for making the application

Residence Order – this replaces the old “custody”order. It simply states with whom a child should live. It gives Parental Responsibility to the holder of the order, for the life time of the order only.

Contact Order – this replaces the old “access” order. A contact order can state who a child is to see, how often, when, where, and whether, for example, that contact should be supervised.

Prohibited Steps Order – such an order can require a person with Parental Responsibility to refrain from taking a particular action or step with regard to the child without the Court’s consent e.g.changing a child’s name or taking a child outside England and Wales for a period of in excess of 28days.

Specific Issue Order – here the Court makes an order concerning a specific question that has arisen in relation to a child e.g. deciding which school a child should attend.

These Court proceedings are intended to be “non-adversarial”, that is to say the, Court will endeavour at all stages to assist you to achieve an agreement, thereby avoiding a hearing. In only very exceptional cases will a child be invited to attend a Court hearing. Sometimes, the Court may ask either the CAFCASS Officer or Social Services to look into the case and to prepare a report. In the report the child’s views and the views of the parents, and of any other interested person will be relayed to the Court, and this will assist the Court in coming to a decision when the parents cannot agree.

The Welfare Checklist

When deciding the case the Court will apply the “Welfare Checklist”, which is a list of the criteria the Court must consider when coming to a decision.

It includes:

a) the wishes and feeling of the child, concerned in light of the child's age and understanding
b) the child's physical, emotional and educational needs
c) the likely effect on the child of any change in their circumstances
d) the child's age, sex, background, and any characteristics the Court considers relevant
e) any harm the child has suffered or is at risk of suffering
f) how capable each of the child's parents, (and any other relevant person in relation to whom the Court considers the question to be relevant), is of meeting the child's needs
g) the range of powers available to the Court

The No Order Principle

Simply because you apply to the Court for an order it does not mean that an order will necessarily be made. In fact the law presumes that generally no order should be made in relation to the children unless the Court considers in the particular case that making an order would be better for the children than making no order at all.

4.3.4 Seeing the other parent

There are no hard and fast rules as to how often, where or when contact should take place between the children and the parent who is not residing with them. It is presumed that all children have the right to know both of their parents and contact will therefore be ordered, unless contact is not in the best interest of the child’s welfare. The Court will need strong and cogent reasons before ruling that contact is not in a child’s best interests. If you have any doubts you should consult a Solicitor.

4.3.5 Can I apply to the Court for Child Maintenance or must I use the Child Support Agency?

The Court generally speaking no longer has the right to hear cases for child maintenance. There are exceptions. You should contact the Child Support Help Line for further information or your local DSS. You can in many, but not all, cases agree child maintenance payments without referring to the CSA or the Court. You cannot enforce either through the Court or through the CSA an agreement for child maintenance; therefore, if you believe that your (former) partner may be an unreliable payer you should give serious consideration to applying to the CSA or indeed to the Court for a consent order if the payer will agree to such an Order being made.

Varying Court Orders

3.5.1 Child Maintenance – varying an existing Court Order

From time to time it may be appropriate to look at an increase in the level of maintenance which the “absent” parent is paying for the children. (The absent parent may, of course, want to look at reducing the payment).

On the whole, if there is an existing Court Order for maintenance then varying the amount of maintenance remains a matter for the Court, if the parties cannot agree on a variation. Even where they can agree, it may be wise to have the Order varied – by agreement – to reflect the new levels of agreed maintenance. This then facilitates enforcement if the paying party defaults, and ensures that the prevailing Order reflects the actual agreed position.

In determining whether there is justification for a variation in the maintenance Order, consideration needs to be given to the income and expenditure of both parents. This means obtaining and giving full financial disclosure in these areas. It is then possible to look at the respective needs and resources of the parties, the ages of the children and all the relevant facts so as to establish an appropriate (new) level of maintenance.

Such documentary disclosure of income and expenditure may put both parents into the position where they can in fact reach agreement in any event about a new and more appropriate level of child maintenance in all the circumstances. If the parents can still not agree then the matter can ultimately be decided by the Court at a hearing.

The CSA can only become involved with child maintenance in existing Court Order cases in limited circumstances. They will be able to make an assessment if the parent with care of the children is in receipt of Income Support or Job Seeker’s Allowance. That parent can also seek an assessment by the CSA in certain circumstances where the Order is made after 05.04.1993. When such an order has been made more than one year before, then the CSA can take over from the courts in determining maintenance payments.

3.5.2 Spouse maintenance – varying an existing Court Order

If a spouse has an Order for maintenance in their favour against the other spouse then it is possible (before or after a divorce) to apply to the Court to request that it should consider a new level of maintenance. This is often (although not always) on the basis of a change in the circumstances of one of the parties. There can, therefore, be a request by the recipient for an increase in maintenance, or equally a request by the payer for a downward variation.

In order to consider whether a change in the maintenance Order is appropriate it is again necessary to look at both parties’ income and expenditure position, following documentary disclosure. This information will reveal needs and resources – and those factors along with age, earning capacity, and the other relevant considerations would form the basis for considering the appropriate level of maintenance in the specific circumstances of the case. There is no fixed formula for calculating the exact level. Every case is different and will be judged on its individual facts.

Production of this documentary evidence may enable the parties to negotiate a new and agreed maintenance deal. If agreement is reached then it is generally best if it is endorsed by the Court. A joint application to the Court should be made requesting it to make an Order “by consent” for the new level of maintenance. If this step is not taken then the new level may be difficult to enforce if the payer defaults.

If an agreement cannot be reached (even after disclosure and negotiation) on a new level of maintenance then the Court can be asked to decide the matter at a hearing.

It is possible to ask the Court to consider making a lump sum Order on an application to vary a spouse maintenance Order. Such a lump sum would be seen as “capitalising” the previously paid maintenance and would be in lieu of future maintenance.

It is also possible for a paying spouse to apply to the Court to end his obligations to pay any future maintenance and the Court can make an Order to end all future claims for maintenance payments.

3.5.3 Varying other final Court Orders made on divorce

On the whole, final Orders made regarding the financial issues on divorce (other than for maintenance) cannot be varied. They are the once and for all and final version of the financial division.

If an Order has just been made and you believe that the Court has “got it wrong” there is a right to appeal. There are strict (and fairly short) time limits within which to lodge an appeal at Court. An appeal is often on the basis that the Court actually misdirected itself and made a mistake on the application of the law or facts. However, advice should usually be obtained from a Barrister (via a Solicitor) as to whether grounds for appeal exist.

There are also certain circumstances where, exceptionally, the Court can be asked to look at a matter afresh – for example where the Court has been misled by one party as to the true financial position at the time when the Order was made.

Children

Often when parents separate their biggest worries relate to their children: their children’s future and well-being, and the parents future relationship with the children.

In this section we will try to answer some of the questions most frequently asked by parents and step parents. [There is a later section for grandparents and other relatives at Section 8 of this Guide].

3.4.1 Will I still have the same Parental Rights and Duties towards my child?

Parental rights and duties are recognized in law and together are called “Parental Responsibility”. This term incudes “all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property”.

In practical terms,Parental Responsibility grants to you the legal right to:-

(i) be informed about your child (for example by the School, Social Services, Doctors, Dentist),and
(ii) to access information concerning your child (from School, Social Services, Doctors, Dentist),and
(iii) to make or participate in making decisions for your child.

The law relating to Parental Responsibility changed in 2003. For children born before 2nd December 2003, if the birth parents of the child were married to each other at the time of the child’s birth, or afterwards, they will both have Parental Responsibility. If divorced prior to the child’s birth, the Mother would automatically have Parental Responsibility, but the Father would not. For children born after the 2nd December 2003, the father will have Parental Responsibility if he is named on the child’s birth certificate.

Parental Responsibility for a child may also be held or acquired if either:-

(i) parental responsibility has been granted to the Father by the child’s Mother (in a special "Parental Responsibility Agreement" which has then been correctly registered), or
(ii) the Court has granted you Parental Responsibility of your child, or
(iii) if you are a step parent and you have a Residence Order* in your favour, and the child has been living in your care within the past six months, or
[* Residence Orders are dealt with at 3.4.3 below].
(iv) the child has been adopted by you.

Once granted, Parental Responsibility will last until the child reaches adulthood. So, even though you may have separated or divorced after the child was born you should continue to share Parental Responsibility of your child.

3.4.2 Where will my children live?

It may be that when you reach the decision to separate you are also able to make arrangements for the care of your children which prove to be acceptable to both of you, in which case these can continue on an informal basis, being re-arranged by fresh agreement as and when it suits you (and the children) to do so.

It may be that you are generally able to discuss arrangements with your spouse, but that there are some points which you have not been able to agree, and that these points may be stopping you from achieving a workable overall agreement. To break such a deadlock, one answer may be to arrange a meeting with a local Mediator: you can obtain details of local mediation services from either your Solicitor, the local Court or your local CAB.

If your disagreement is more fundamental, and you simply cannot achieve an agreement, then you can apply to the Court for a decision to be imposed. Please look at Section 3.4.6 of this guide for an outline of the Court procedure involved if you apply for a Court Order.

3.4.3 Types of Order that you can ask the Court to make:

(a) Residence Order – this replaces the old “custody”Order. It simply states with whom a child should live. It gives Parental Responsibility to the holder of the Order , for the life time of the order only, except Fathers. A Father who does not already have Parental Responsibility will need to ask the Court to grant him a Parental Responsibility Order as well, when seeking a Residence Order.
(b) Parental Responsibility Order – this confers such responsibility on the applicant.
(c) Contact Order – this replaces the old “access” Order. A contact Order can state who a child is to see, how often, when, where, and whether for example, that contact should be supervised.
(d) Prohibited Steps Order -such an Order can require a person with Parental Responsibility to refrain from taking a particular action or step with regard to the child without the Court’s consent e.g. changing a child’s name or taking a child outside England and Wales for a period of in excess of 28 days
(e) Specific Issue Order – here the Court makes an Order concerning a specific question that has arisen in relation to a child e.g. deciding which School a child should attend.

These Court proceedings are intended to be “non-adversarial”, that is to say, the Court will endeavour at all stages to assist you to achieve an agreement, thereby avoiding a full hearing. In only very exceptional cases will a child be invited to attend a Court hearing. Sometimes, the Court may ask either the Court Welfare Officer (CWO) or Social Services to look into the case and to prepare a report. In the report the child’s views and the views of the parents, and of any other interested person will be relayed to the Court, and this will assist the Court in coming to a decision when the parents cannot agree.

The “Welfare Checklist”

When deciding the case, the Court will apply the “Welfare Checklist”, which is a list of the criteria the Court must consider when coming to a decision.

It includes:

(a) the wishes and feelings of the child concerned in light of the child’s age and understanding
(b) the child’s physical, emotional and educational needs
(c) the likely effect on the child of any change in their circumstances
(d) the child’s age, sex, background, and any characteristics the Court considers relevant
(e) any harm the child has suffered or is at risk of suffering
(f) how capable each of the child’s parents (and any other relevant person in relation to whom the Court considers the question to be relevant) is of meeting the child’s needs
(g) the range of powers available to the Court.

The No-Order Principle

Within divorce proceedings it is now highly unusual for any orders to be made in respect of the children, save for a “S41 Declaration of Satisfaction for the Arrangements for the Children”, which simply recites that the Court is happy with the proposed general arrangements for the care of the children.

This is because the law presumes that generally no Order should be made in relation to the children unless the Court considers in the particular case that making an Order would be better for the children than making no Order at all.

3.4.4 How often will the children see the other parent?

There are no hard and fast rules as to how often, where or when contact should take place between the children and the parent who is not residing with them. It is presumed that all children have the right to know both of their parents and contact will therefore be ordered unless contact is not in the best interest of the child’s welfare. The Court will need strong and cogent reasons before ruling that contact is not in a child’s best interests. If you have any doubts you should consult a Solicitor.

3.4.5 Can I apply to the Court for Maintenance or do we need to use the Child Support Agency?

The Court generally speaking no longer has the right to hear cases for child maintenance. There are exceptions. You can contact the Child Support Help Line or your local DSS for further information and you can refer to Section 3.3.5 of this Guide (above). You can in many, but not all, cases agree child maintenance payments without referring to the CSA or the Court. You cannot enforce either through the Court or through the CSA an agreement for child maintenance; therefore if you believe that your (former) spouse may be an unreliable payer you should give serious consideration to applying to the CSA – or, indeed, to the Court for a Consent Order, if the payer will agree to such an Order being made.

3.4.6 An outline of Court procedure on residence and contact applications to the Court

A. Leave

If you are making an application for a Residence Order or Contact Order in respect of a child and you are not one of the child’s parents, you may need to ask the permission of the Court to make the application. This is known as Leave.

B. The Application

The application form is intended to introduce the Court to the people involved and to give the Court a thumb nail sketch of the child’s circumstances. If the Court requires further details from the person either making the application (the Applicant) or from the person receiving the application (the Respondent) then it may ask that they file a statement at a later date.

C. The First Court Appointment

When the Court receives the application it will fix a date for a directions appointment. It is unusual for a final order for residence or contact to be made at this appointment unless the application can be agreed and the Court agrees that an Order is necessary.

The purpose of the first directions appointment is for the Court to see if any agreement can be reached between the parties and if not to identify the issues in the case and direct what further steps need to be taken to enable the Court to make a decision. Procedures vary from Court to Court. Sometimes an officer from the Children and Family Court Advisory and Support Services (CAFCASS) is on hand at Court to meet the parties and help them resolve their difficulties. In every case the Court will direct whether expert reports should be ordered, statements filed and further Court dates fixed.

D. CAFCASS Officer
At the first directions appointment you may, depending on the procedure of your local Court, be introduced to a CAFCASS officer.
(i) If you manage to agree some or all issues and the CAFCASS officer is satisfied that there are no matters that need investigation, then it may be that the application will be adjourned for a period of between eight and twelve weeks to see if the arrangements work, or
(ii) If you cannot reach agreement and the CAFCASS officer thinks it necessary, then a Welfare Report may be ordered by the Court

The CAFCASS Officer is not an employee of the Court, but of the CAFCASS Service. The CAFCASS Officer is specially trained to deal with Court applications for Residence and Contact.

E. Children and Family Report

The CAFCASS Officer as an independent expert will prepare the report. Sometimes, if Social Services are involved with the child’s family a Social Worker may be asked to prepare the report instead.

The Children and Family Report usually takes twelve weeks to prepare. The date for filing the report will be set by the Court.

A copy of the report will be sent to the Solicitors acting on behalf of each of the parties and to the Court. The Children and Family Report is a confidential document and cannot be shown to anyone else other than the Court, the parties and their Solicitors.

F. Witness Statements

If agreement cannot be reached either whilst the report is being prepared or afterwards, it is usually at this stage that the Court will order you and your witnesses to file their witness statements. Your Solicitor will help to prepare your statement.

Sometimes the Court may order witness statements be filed before the report is finished.

G. Hearing

Only if no agreement can be reached will the case proceed to a hearing at Court, when an order may be made.

H. Order

The Court will only make an order if it is in the best interest of the welfare of the child to do so.

The Court’s objective, with the help of the CAFCASS Officer, is to try to help everyone to reach agreement instead of imposing an order upon the parties.

Please note that not every application follows the same route. It may, for example, be that the Court does not feel it necessary that a Children and Family Report be produced in your case. It may be that the Court will feel there needs to be more than one Court hearing to deal with your case.

Finances on Divorce

3.3.1 The menu of Orders a Court can make

A Court will only become embroiled in sorting out the financial and property issues arising on a divorce (or judicial separation) if one of the parties actively seeks its help and involvement.

When an application dealing with finances and property is made to the Court in divorce or judicial separation proceedings, the Court has a very wide range of powers which it can exercise. This includes power to:-

(i) order one spouse to pay maintenance to the other
(ii) order one spouse to set aside a lump sum to secure regular maintenance payments to the other
(iii) order one spouse to pay a specified lump sum to the other
(iv) order one spouse to transfer all or part of the ownership of a specified property or assets to the other
(v) order earmarking or sharing of pension provision with the other spouse

3.3.2 What financial Order will the Court make in practice?

Unlike CSA calculations of child maintenance, financial settlements on divorce are not set by some fixed formula.

The statute dealing with these settlements contains a list of points which are to be taken into account. They do not enable a simple straightforward calculation to be made.

The fact is that every case is different from all others. This is not an area of the law where previous Court decisions set strict, binding precedents to govern later cases. In family law, past cases provide guidance only. A leading Judge once said that advising a client on the likely outcome of his or her particular case will be “a matter of trial and error and imagination”.

One factor of great importance is the welfare of any children. The Court will usually have the children’s needs at the forefront of its mind.

The other points listed in the statute which must be borne in mind are set out in this CHECKLIST, which we have slightly simplified:-

(i) what income and resources are and will be available to the Husband and Wife?
(ii) what are their likely needs?
(iii) what standard of living did the family enjoy before the marriage broke down?
(iv) how old are the Husband and the Wife?
(v) how long was the marriage?
(vi) do either of the parties have any physical or mental disability?
(vii) what contributions have the Husband and Wife each made (or will they be likely to be making) to the welfare of the family, including any contribution such as looking after the home or caring for the family?
(viii) what has the conduct of the parties been?
(ix) what benefits will either lose specifically as a result of the marriage ending?

No single factor carries any greater legal weight than the others.

In every case, the Court is supposed at least to consider whether a “clean break” Order can fairly be achieved. This means a once and for all settlement which does not involve continuing maintenance of one spouse by the other. (Child maintenance is a separate matter). A “clean break” will certainly not be appropriate or even possible in every case e.g. if the Wife has no prospect of work or has part-time work and young children to look after. It will be difficult to get a “clean break” if there is not enough capital available to enable e.g. the Wife to manage.

Despite the press reports of a recent landmark case “White -v- White”, there is still no legal presumption that there will automatically be an equal split of everything. There will be a good number of cases where that is the right outcome – but by no means all.

“Equality” will generally be a more likely outcome in cases where the marriage has been a long one and where both the Husband and Wife have made real and substantial contributions in their various ways to the marriage. “Contributions” include not only direct financial contributions to the marriage, but also the more general contributions that a party makes in caring for the home and the children.

In cases where there is little or no capital to divide up – e.g. if there is a modest house (with a Mortgage on it) occupied by the Wife and small children – it is less likely that the capital (i.e. in this case just the house) will be split 50/50

Having said that, it is necessary to start somewhere with a calculation. As a starting point, therefore, one way to approach the financial issues is this:-

(1) Make a list of all the assets of both parties:

(i) write down the "net equity" in the house (i.e. deduct the present Mortgage debt from the current market value of the house)
(ii) find out the "surrender values" of any endowment Policies (contact the Insurer)
(iii) note down the current values of any savings, shares, unit trusts, investments, other property, cars, valuable antiques, jewellery and any other assets
(iv) obtain at least a rough idea of the value of any business interest of either party
(v) find out the value of all pensions of both parties (current and "frozen" pensions) - the value to ask for is the "C.E.T.V." ("Cash Equivalent Transfer Value")
(vi) estimate the second-hand (not replacement) value of furnishings and contents of the house

(2) Make a list of all the debts of both parties:

(i) overdrafts
(ii) Bank and other loans (find out how much is still owing)
(iii) outstanding tax liabilities
(iv) credit card debts
(v) H.P. debts
(vi) catalogue debts

(3) Add up the assets; add up the debts; deduct the debts from the assets.
(4) Calculate a 50/50 split as a “yardstick”.
(5) See how much each party already has and how much, therefore, would need to be transferred from one to the other to achieve this 50/50 split. (This is only a starting point).
(6) Look to see whether the result would be practical and manageable, and whether it seems fair and reasonable in all the circumstances of the case.
(7) In doing this, work through the “CHECKLIST” above and consider the possible settlement in the light of those factors. Does it still look a fair, reasonable and workable solution? If not, some adjustments will be necessary. Those adjustments will be different in each case, as every case is judged on its individual facts.

This is an area of family law where experience and specialist knowledge are particularly important, and proper legal guidance can be beneficial.

3.3.3 Some practical points to remember

(a) The Court can take into account all assets of the parties, no matter where they came from. Account is taken not only of capital acquired and jointly saved during the marriage, but also from e.g. inheritances of one or both of the parties, damages received by one spouse e.g. for personal injuries, as well as capital acquired before the marriage. That is not to say that the Court will necessarily treat such assets in exactly the same way as joint savings built up over the marriage, but the Court is entitled to bear those assets in mind and to divide them up as it sees fit.
(b) The age of the parties is often a significant factor, as is the length of the marriage.
(c) It is not all “conduct” which the Court will take into account. General “blame” for the breakdown of the marriage is not likely to affect the outcome of financial negotiations. Arguing about conduct always increases the cost of the case and only infrequently actually results in a larger or smaller settlement being ordered.
(d) The Court will not have to make the decision for the parties at all if the Husband and Wife can negotiate their own reasonable terms of settlement. The Court will not become involved unless one of the parties asks it to. It is nearly always better to try to come to a sensible agreement rather than seeking a ruling by the Court.

It is usually wise though, to invite the Court to give its formal “blessing” to your negotiated agreement by incorporating it into a Consent Order of the Court so as to introduce clarity and (often) finality to the resolution of the financial issues. If this is not done then it is possible for matters to be brought up again in the future.

The help of a Solicitor is needed in the preparation of the Consent Order.

It is useful to check carefully whether any intended maintenance figures will be sufficient to meet the reasonable and actual needs of the family following separation.In the case where, for example, the Wife and the children will form one unit, with the Husband living elsewhere, the Wife will need to check her income from all sources – whether earned income (net), child benefit, other state benefits, proposed child maintenance, proposed spouse maintenance, net investment income (if any) and so on.These figures need to be added up to show what income resources will be available overall.(Bear in mind that some state benefits will be reduced by the amount of any maintenance received).

Then, a careful assessment of the likely bills and other outgoings must be made, in order to ensure that any proposed settlement will be sufficient to enable the Wife and children to manage within a reasonable budget.Total income can be compared with total likely outgoings.(By the same token, in this example the Husband will need to carry out similar calculations in relation to his own projected income and outgoings in the new circumstances to be sure that he, too, will be able to manage financially).

To assist in this calculation, we have set out a Household Expenditure Schedule designed to act as an aide-memoire so that you can carry out for yourself the exercise suggested above. Click HERE for the Schedule. Remember that although this Schedule contains most of the regular items of expenditure a typical family might have, you may have others and you need to remember to add them in.

3.3.4 Pensions

The subject of pensions relates almost exclusively to married rather than unmarried couples.

When a marriage breaks down, and a division of the finances has to be considered, the pensions built up by both parties must be taken into account.

This is a complex area of the law, and is subject to detailed legislation and regulation.

The basic position is that the Court has four main courses open to it when considering pensions:

(i) it may choose to make no pension Order at all – e.g. because both parties have satisfactory, existing pension provision, or
(ii) it may use “offsetting” i.e. in a broad brush approach, awarding more of the other available capital to the spouse who has no (or insufficient) pension provision, to offset the loss of pension benefits in which, but for the breakdown of the marriage, they would have participated or
(iii) it may make a pension “earmarking” Order (now called a pension “attachment” Order) under which the Court, on divorce, spells out the percentage of the pension lump sum or income which the pension trustees must pay to the person named in the Order when the pension holder claims payment of that pension, or
(iv) it may make a pension “sharing” Order.

NB
(a) Pension sharing Orders can only be made in divorce or nullity cases, and not in judicial separation cases, and
(b) Pension sharing Orders can only be made in cases where the divorce or nullity petition was issued on or after 1st December, 2000.

A pension sharing Order results in the recipient becoming a member of a pension scheme in his/her own right. It can be made once the Decree Nisi of divorce has been granted, but only becomes effective when the final Decree (Decree Absolute) has also been granted.

The recipient can in effect, have a pension carved out within the other spouse’s scheme, or the value of the newly created pension can be transferred out to another scheme.

Some important points to note

  1. The Pension Fund will be entitled to make administrative charges for setting up the new pension under a pension sharing Order. The charge is likely to be in the region of £750 to £1,000 for each pension scheme affected.
  2. A pension sharing Order cannot itself deal with death in service benefits, nor can it be varied.
  3. The result of a pension sharing Order is to give the recipient a pension in their own right. A pension earmarking (“attachment”) Order does not do this.
  4. A pension earmarking (“attachment”) Order will cease if the pension holder dies. The pension income element of an earmarking Order will cease if the recipient remarries.
  5. A pension earmarking (“attachment”) Order is the only method of dealing with death in service benefits under a pension scheme.
  6. The recipients’ share under a pension earmarking (“attachment”) Order will continue to grow even after the Order is made if the pension holder continues to pay into the scheme. The same is not the case in relation to a pension sharing Order.
  7. A pension earmarking (“attachment”) Order can be made in judicial separation proceedings.
  8. The question whether an offsetting Order, an earmarking (“attachment”) Order or a pension sharing Order should be made will depend on the individual facts of each case.

For example (and these are merely broad illustrations):-

(a) in the case of a relatively young, childless couple, both earning and with separate encashable assets of a reasonable amount, where the Wife has no pension but the Husband has already built up some decent pension provision, an offsetting Order may well be looked at.
(b) in the case of a “young middle aged” couple, the Husband earning a good income (the Wife not earning) where there are some reasonable encashable assets, where no pension provision has been made in the early years but where the Husband now has steady, good pensionable employment – perhaps an earmarking Order may be more appropriate.
(c) in the case of a middle aged couple where the Husband has a good income and the Wife a more modest income, with encashable family assets of, say, £120,000, and where the transfer value of the Husband’s pension is, say, £350,000, then it may be realistic to look at a pension sharing Order, rather than offsetting or earmarking.

  1. A (more or less) uniform method of valuing any pension has been laid down, and it is known as the “Cash Equivalent Transfer Value”. It is this figure which the Court will principally be concerned with – and the figure can be obtained by writing to the Pension Fund in question.
  2. The size of any pension Order made by the Court will, as always in these cases, depend upon the individual facts of the particular case, and will generally form part of a balanced overall settlement package dealing with all of the assets (and liabilities) of the family.

3.3.5 Child Support Agency and the Role of the Courts

The court no longer has the automatic right to make an order for child maintenance except in certain circumstances which will be referred to below. In most cases, if the parent with care of a child cannot persuade the other parent to make a proper financial contribution to the day to day needs of the child, the parent with care will have to turn to the Child Support Agency for help.

3.3.5.1 Child Support Agency

The Child Support Agency (CSA) is a government agency established to unify the way in which child maintenance is assessed. All applications are assessed and calculated by reference to a complicated formula laid down by Parliament, and accordingly all assessments are based on the same rules. Beyond that formula, therefore, little leeway exists for variation according to personal circumstances and individual responsibilities.

Please note that an assessment can only be made against a natural parent of the child. If you are seeking child maintenance against a step parent then you will need to apply to the Court for an Order. An assessment can be made against a parent who has adopted a child or against a parent of a child conceived with the assistance of artificial insemination, but not the gamete donor.

Further, the assessment will only last in the first instance until the child in question has attained 16 years of age. If the child continues in full time secondary education then the assessment can continue until the child’s 19th birthday. Thereafter if the child continues in full time education you will need to apply to the Court for an Order. In certain cases where there is an existing assessment it may be possible to apply for a “topping-up” Order from the Court (see below).

The CSA is obliged to make a calculation where the principal carer (referred to by the CSA as the “person with care”) of the child is in receipt of Income Support or Job Seekers Allowance, except where there is a pre-existing Court Order for maintenance. If there is an existing order the CSA will need to apply to Court for the order to be dismissed before an assessment can be made.

The CSA is not obliged to make an assessment where the principal carer receives Tax Credits, as this is not a welfare benefit.

Sometimes the parent who will be paying the assessment (referred to by the CSA as the “absent parent”) may apply to the CSA.

3.3.5.2 How is Child Support calculated?

In essence the formula requires the payer to hand over a percentage of his or her net income (15% for one child, 20% for two children and 25% for three or more). The system will not take into account the payer’s housing costs. It will, however, take some account , e.g., of the number of nights spent by the children with the paying parent, reducing the amount of maintenance by 1/7th for each night of the week the children stay there.

3.3.5.3 What do I do if an assessment has been made and I think it is wrong?

Whether you are the person applying to the CSA or the parent who will be paying maintenance you may feel the assessment to be wrong, for instance, because:

a) you are not the father of the child, or
b) there is an error in the way the assessment has been calculated, or
c) there is an error of law
a) If you are not certain that you are the child’s father the CSA is usually obliged to suspend the assessment process and apply to the Magistrates Court for DNA testing to be carried out. If the tests prove that you are the father, you will be ordered to pay for the cost of the test in addition to backdated maintenance.
b) Where an assessment is wrong because of an official error, or a misrepresentation or failure by one of the parents to disclose a material fact, you can request a “revision” of the decision. This must usually be done within one month of the decision being made. The officer who made the decision will look again at the case and the change to the assessment if any will be backdated to the time of the original assessment.
c) If the decision was wrong in law you can request a “supercession”. This may also be requested where you have no reason to challenge the original decision but your circumstances have changed.

If the decision is not changed, or you do not agree with the fresh assessment, you can appeal.

This must be done within one month of the date the decision letter was sent to you. Your appeal will be dealt with by a CSA tribunal.

3.3.5.4 What do I do if the CSA ignore or fail to respond to my letters or I do not get a satisfactory response to my telephone queries?

One often voiced criticism of the CSA is the lack of face to face contact with them. Unfortunately its offices are often located far away from where the children’s parents live, and when people ring the CSA their lines are often busy.

The CSA has a leaflet, CSA 2022 “How to complain about the Child Support Agency” which you can obtain by calling the National Enquiry Line on 08457 133 133.

  • In summary, you may complain to the following in turn, until your complaint is resolved:
  • the Customer service staff
  • the manager of the CSA center
  • the Chief Executive
  • the Independent Case Examiner

If the CSA is still proving unhelpful, then you may wish to contact your local MP.

3.3.5.5 The Role of the Court

It is often open to the parents, or step parents, of the child to agree maintenance between themselves. This can be endorsed in an agreement, a contract drawn up between the parties or in an agreed order of the Court.

3.3.5.6 Child Maintenance Agreement

A maintenance Agreement is a private arrangement between the Payer (of the maintenance) and the Payee (the person receiving the maintenance). Neither party can apply to Court for a variation of the Agreement. If the payee suspects that the Payer may not abide by an Agreement, then this may not be a suitable solution.

Please note no Agreement can seek to exclude or oust the jurisdiction of the CSA or the Court; as a matter of public policy neither the CSA nor the Court would uphold or be bound by any such agreement.

3.3.5.7 Applications to the Court for Maintenance for Children

The Court does not ordinarily have the jurisdiction to make an order for Child maintenance between the child’s parents unless there is a pre-existing order in force or the application is by consent (agreement) of the parties. The CSA may have made an assessment, and the parent is applying for a “topping-up” order. The Court will not easily be persuaded that a “topping -up” order is appropriate, and you should seek legal advice upon this point before proceeding further.

There are other circumstances in which the Court will make an order for child maintenance including:

a) if the child is 19 years or over and in full time education or training, or
b) the Payer is ordered to meet some or all of the expenses incurred in connection with the provision of instruction or training; or
c) if the child is suffering from disability, the Court may make an order requiring the person to meet some or all the expenses attributable to that child’s disability

3.3.5.8 Existing Court Orders

It is possible for either party to apply to the Court for the variation of an Court existing order. It is good practice to consider from time to time whether the amount of the order is still appropriate. The variation of an order can include a downward variation to reduce the amount of maintenance paid or an upward variation to increase it. It is also possible for the CSA, through the Secretary of State, acting on behalf of the recipient of the maintenance to apply for the original order to be cancelled so that a CSA assessment can be made.

The application to vary the order should be made to the Court where the original order was made. Variations of Orders are dealt with in Section 3.5 .

3.3.5.9 Enforcement

If the paying party falls behind with payments, then either the receiving party, or if the order is registered with the Magistrates, the Clerk to the Justices can apply to the Court for the enforcement of payment. This can include in certain circumstances an Attachment of Earnings Order, Committal to prison, or Distress (when the bailiff is invited to seize goods and chattels to be auctioned to settle the debt).

3.3.5.10 Other Financial Orders for the benefit of Children

In some circumstances it is possible to apply to the Court for other financial orders for the benefit of a child, including:

a) a lump sum order of an unlimited amount
b) a settlement of property for the benefit of a child
c) the transfer of property for the benefit of a child

As a general rule these orders will cease on the child’s 18th birthday. These applications are unusual and we would suggest you should seek the advice of a Solicitor before proceeding further.

What if we don’t want to divorce?

3.2.1 Introduction

Sometimes, when a marriage gets into real difficulties, a Husband and Wife (or often just one of them) may decide that a period of separation, whether temporary or permanent, has become necessary.

For any of a variety of reasons, however, the parties may decide that they do not want to go through a divorce.

What are their other options?

The main options are:-

(i) to consider counselling
(ii) to make interim private and voluntary arrangements between themselves
(iii) to enter into a written agreement about these arrangements (sometimes in a formal Deed)
(iv) to apply through the Courts for a Decree of judicial separation and, perhaps, to ask the Court to make a financial Order in those decree proceedings
(v) to involve the Child Support Agency (CSA) to obtain financial help from the other spouse in providing for the needs of any children
(vi) to apply through the Courts for financial remedies other than in connection with divorce or judicial separation proceedings.

They may just choose to separate without taking any formal legal steps.

There is no requirement to take any such steps. If the parties can come to interim arrangements between themselves (eg about paying the mortgage and the bills, the arrangements for the children’s welfare and so on) then there is no obligation to turn to the law.

3.2.2 Settled Arrangements – Separation Agreements

One or both of them may decide that they would feel more secure if they came to settled arrangements spelled out in a written agreement (often in the form of a Deed). This will often be called a Separation Agreement (or Separation Deed).

Such agreements can be very useful as either party can, if necessary, apply to the Court to enforce the agreement if the other should fall down on his or her obligations.

But a word of warning – it is legally possible for a Court later (eg in divorce proceedings) on the application of either the husband or the wife, to refuse to stand by the terms of such an Agreement (or Deed) if it seems to the Court that different provisions should be put in place.

(The only way to ensure finality of financial arrangements is to have a Court Order made in divorce proceedings which states that all remaining claims are dismissed once and for all.)

You can, though, increase the chances of a Court later looking favourably on a Separation Agreement (or Deed), if certain steps are followed, namely (before making the Agreement) if each party has proper, independent legal advice, if full and frank financial disclosure has been exchanged between the parties (usually through their Solicitors) and provided that one party does not have undue influence or a dominant negotiating position in relation to the other.

It is sensible, therefore, for each party to have independent legal advice if a Separation Agreement (or Deed) is contemplated.

3.2.3 A decree of Judicial Separation

This does not bring a marriage legally to an end.

As with divorce, the process of obtaining a decree of judicial separation is begun by a petition presented to the Court by one of the parties. Here the grounds are the same five “Facts” as are used to support a divorce petition but without the additional requirement to show that the marriage has “irretrievably broken down”.

A decree of judicial separation ends the legal “duty” to cohabit. This may seem odd, for there is nothing in law to prevent either party from leaving the other anyway – but it does mean that neither the husband nor the wife can be in “desertion” of the other after such a decree is obtained.

Obtaining a decree of judicial separation is a formal step.

For some people, it is an easier concept to deal with than a divorce for, technically, the parties remain legally married – and, as a result, the parties are not freed to enter into new marriages by the granting of a decree of judicial separation

It avoids the religious objections which some people have to divorce.

It also allows either party the choice to use the Court process to sort out, eg any financial or property issues, especially where the other spouse proves intransigent and will not negotiate sensibly, or at all. The Court has the same range of powers open to it to sort out the financial and property issues in judicial separation as it does in divorce proceedings.

It is still possible to petition for divorce after a judicial separation decree has been pronounced.

In some (but not necessarily all) cases, a divorced spouse’s claims to benefit on the death of their former spouse under a pension scheme may be lost. If only a judicial separation decree (and not a divorce decree) has been granted, however, this problem may not arise as the surviving spouse will be the widow or widower of the deceased.

In truth, there are relatively few judicial separation cases – perhaps because if the marriage has reached the point where the Court is being involved then judicial separation is seen as a duplication of the cost if there are then to be divorce proceedings later on.

3.2.4 The Child Support Agency (CSA)

The Child Support Agency can be used whether separated parties intend to divorce or not. Generally, if a separating husband and wife can agree a suitable level of financial support for any children, payable by the “absent” parent, then there is no need to turn to the CSA.

In cases, though, where the parent who has the day to day care of the children is reliant upon certain State Benefits, such as Income Support, then the CSA will automatically seek to be involved.

The CSA is dealt with in more detail elsewhere in this guide.

If separated parties cannot agree on child maintenance, then it will generally be necessary to turn to the CSA, if the parent with care of the children wants to press for a financial contribution from the other party towards the cost of caring for the children.

3.2.5 Other financial remedies through the Courts

If one spouse is proving difficult then, short of applying within divorce (or judicial separation) proceedings, there are other legal steps which can be taken to sort out certain financial issues. In practice, these tend not to be used with great frequency, but briefly they include the following:-

(i) a specialist magistrates’ Court known as a Family Proceedings Court can deal with applications by a spouse for maintenance for that spouse plus a limited lump sum, if appropriate
(ii) a County Court (the same Court that also deals with divorces and Judicial Separation) can deal with a maintenance application for a spouse

Full index to the guide

About us

10.1 Who are we and what do we do?

We are medium size and growing firm of solicitors based in Nottingham.

We have a number of departments dealing with such diverse areas as Company Commercial work, Commercial, Insurance and General Litigation, Property Transactions, Private Client work, Licensing and of course, Family Law matters. Click HERE for our contact details.

Our busy Family Law Department deals with all areas of legal divorce advice and other family work including, for example, divorce, relationship breakdown of cohabiting couples, pre-nuptial contracts, living together contracts, financial advice on divorce and relationship breakdown, children work (both private and in care proceedings), adoption, Child Support Agency/child maintenance advice and injunctions.

The Department is headed by Rachel Brennan.

She is ably supported by three Solicitors namely Joanne Fitch, Alison Woodrow and Helen Shaw, who have a considerable number of years of qualified specialist family law experience between them.

All Solicitors are members of Resolution, a National organisation of specialist family lawyers.

Joanne and Helen are members of Resolution’s specialist family panel.

Joanne, Alison and Helen have trained as family law mediators.

10.2 Fixed fee interview

For first time clients we are happy to give the first interview at a fixed fee of £70 plus VAT.

Please note that our office is in Nottingham. We are unable to give detailed advice on the telephone. If you live outside the Nottingham area it may be more convenient to consult a local solicitor. You can find a local solicitor who specialises in family law by visiting the Resolution website, www.resolution.org.uk.

Resolution (Formerly SFLA)

9.1 Introduction

Resolution Solicitors believe in using an approach which is sensitive, constructive, cost-effective and most likely to result in an agreement. To achieve this, Resolution members follow a Code of Practice.

The original Association was created in 1982 when there was widespread concern that Solicitors and Court procedures were adding to the distress and anger that can arise when family relationships break down. Our members believe that Solicitors should deal with matters in a way designed to preserve people’s dignity and encourage them to reach agreement. The result will often be to achieve the same or more satisfactory solutions than going to Court but at less cost – in terms of emotion and money.

Most importantly, this approach is more likely to encourage family members to deal with each other in a civilised way. For example, it helps parents to put their own differences aside and to agree arrangements that are best for their children. Experience shows that agreed solutions are more likely to work in the long term than arrangements imposed by a Court. Even when proceedings are necessary, it is best for the whole family if the proceedings are conducted in a constructive and realistic way rather than as if in the midst of a war zone.

What is Resolution?

  • We are an association of over 5,000 Solicitors who agree to follow this Code of Practice. The Law Society recommends that all Solicitors practising family law should follow this Code. Our members should explain the Code to their clients, as it will form the basis of the approach that they adopt.
  • We are actively involved in law reform, both initiating improvements and responding to proposals for change.
  • We provide education for our members to equip them to deal with both the legal and practical issues of family breakdown and its emotional consequences. We encourage mediation and counselling where appropriate.
  • Our members vary from newly-qualified Solicitors to those with many years of experience. However, membership is not a guarantee of excellence or legal ability.
  • We produce guidance on good practice in specific areas of family law work.
  • Keeping to the Code is not a sign of weakness. It does not expose the client to disadvantage. The approach the Solicitor adopts should be firm and fair. Solicitors are not prevented from taking immediate and decisive action where necessary. Even when there are ongoing discussions, Court proceedings may be started and continue at the same time in case negotiations do not produce an agreement.
  • The Code is not a straightjacket. Its guidelines cannot be absolute rules. It may be necessary to depart from the Code if professional rules or duties require it.

9.2 Code of Practice for Resolution members

General

  1. At an early stage, you should explain to your client the approach you adopt in family law work.
  2. You should encourage your client to see the advantages to the family of a constructive and non-confrontational approach as a way of resolving differences. You should advise, negotiate and conduct matters so as to help the family members settle their differences as quickly as possible and reach agreement, while allowing them time to reflect, consider and come to terms with their new situation.
  3. You should make sure that your client understands that the best interests of the child should be put first. You should explain that where a child is involved, your client’s attitude to the other family members will affect the family as a whole and the child’s relationship with his or her parents.
  4. You should encourage the attitude that a family dispute is not a contest in which there is a winner and a loser, but rather that it is a search for fair solutions. You should avoid using words or phrases that suggest or cause a dispute when there is no serious dispute
  5. Emotions are often intense in family disputes. You should avoid inflaming them in any way.
  6. You should take great care when considering the effect your correspondence could have on other family members and your own client. Your letters should be clearly understandable and free of jargon. Remember that clients may see assertive letters between Solicitors as aggressive. Your correspondence should aim to resolve issues and to settle the matters, not to further inflame emotions or to antagonise. Threats or ultimatums should be avoided.
  7. You should stress the need for your client to be open and honest in all aspects of the case. You must explain what could happen if your client is not open and honest.

Relationship with a client

  1. You should make sure that you are objective and do not allow your own emotions or personal opinions to influence your advice.
  2. You must give advice and explain all options to your client. The client must understand the consequences of any decisions that have to make. The decision is to be made by your client, you cannot decide for your client.
  3. You must make your client aware of the legal costs at all stages. The benefits and merits of any step must be balanced against the costs.
  4. You should make sure that your client knows about other available services (such as mediation and counselling) which may bring about a settlement, help your client and other family members, or both. You should explore, with your client, the possibility of reconciliation and, where appropriate, give every encouragement.

Dealing with other Solicitors

  1. In all dealings with other Solicitors, you should show Courtesy and try to maintain a good working relationship.
  2. You should try to avoid criticising the other Solicitors involved in a case.

Dealing with a person who does not have a Solicitor

  1. When you are dealing with someone who is not represented by a Solicitor, you should take even greater care to communicate clearly and try to avoid any technical language or jargon, which is not easily understood.
  2. You should strongly recommend an unrepresented person to consult an Resolution Solicitor in the interests of the family.

Court proceedings

  1. When taking any step in the proceedings, the long-term effect on your client and other family members must be balanced with the likely short-term benefit to the case.
  2. If the purpose of taking a particular step in proceedings may be misunderstood or appear hostile, you should consider explaining it, as soon as possible, to the others involved in the case.
  3. Before filing a petition, you and your client should consider whether the other party or his or her Solicitor should be contacted in advance about the petition the “facts” on which the petition is to be based and the particulars, with a view to coming to an agreement and minimising misunderstandings.
  4. When you or your client receive a Petition or Statement of Arrangements for approval, unless there are exceptional circumstances, you should advise your client not to start their own proceedings without giving the other party at least 7 days’ notice, in writing, of the intention to do so.
  5. You should discourage your client from naming a co-respondent unless there are very good reasons to do so.

Children

  1. You should encourage both your client and other family members to put the child’s welfare first.
  2. You should encourage parents to co-operate when making decisions concerning the child, and advise parents that it is often better to make arrangements for the child between themselves, through their Solicitors or through a mediator rather than through a Court hearing.
  3. In any letters you write, you should keep disputes about arrangements for the child separate from disputes about money. They should usually be referred to in separate letters.
  4. You must remember that the interests of the child may not reflect those of either parent. In exceptional cases it may be appropriate for the child to be represented separately by the Official Solicitor, a panel guardian (in specified proceedings) or, in the case of a ‘mature’ child, by another Solicitor.

When the client is a child

  1. You should only accept instructions from a child if you have the necessary training and expertise in this field.
  2. You must continually assess the child’s ability to give instructions.
    27.You should make sure that the child has enough information to make informed decisions. The Solicitor should advise and give information in a clear and understandable way and be aware that certain information may be harmful to the child.
    28.You should not show favour towards either parent, the local authority or any other person involved in the Court proceedings.

29.Detailed guidelines for solicitors acting for children have been drawn up by Resolution. Copies are available using the contact details below.
Email: info@resolution.org.uk or Website: www.resolution.org.uk