When matters cannot be agreed between parties and facts are disputed, the judge will consider evidence at a finding of fact hearing hearing (see our separate guide on Finding of Fact Hearings).
It is at the judge´s discretion (their choice) what evidence is heard in court to assist them in making a decision regarding arrangements for the child(ren). If there is evidence you want to rely upon, it is important that you ask the judge at directions hearings for permission to introduce evidence to proceedings or to challenge evidence at a finding of fact (contested) hearing. This may include:
Please refer to our separate guide on Preparing a Statement. The judge will normally invite parties to provide a statement to the court without the parties needing to request this.
You may wish to include statements from a third party to support your arguments. Please be aware that statements from neutral third parties are likely to carry more weight than those from close friends and family. That said, if your proposals include support from family members in relation to child care (e.g. in the event you or the child are ill) or specifically to confirm that allegations are untrue, their evidence may be useful.
You may append their statement to your own, but be aware that you still need the judge´s permission for their evidence to be heard. If appending a third party statement to your own, ensure you ask within your own statement for their evidence to be admitted to proceedings. Prior to a contested hearing, the court will decide whether the third party must attend court to be questioned on the evidence included in their statement.
Their statement must include a ´statement of truth´ as set out below:
"I [insert their full name] of [insert their home address] make this statement knowing that it will be placed before the court, and I confirm that to the best of my knowledge and belief its contents are true."
Consider whether their evidence is really necessary, and also how they will come across if cross-examined by the other party. If you think they will be emotional, argumentative, aggressive or hostile to the other party, they may do you more harm than good. If they can stay objective, child focused, and appear impartial, it will help.
If the person cannot appear in court (due to disability, being abroad, or for some other reason), be aware that video link appearance in court is extremely expensive, and can run to several thousand pounds. Internet/Skype appearances are not considered secure, and generally not favoured by the court. A judge may accept evidence via telephone, but this may be opposed by the other side (as the judge will be hampered by not seeing the witness´s reactions to questions which form an important part of evidence). Video link appearances are done via satellite link (and are secure), but booking satellite time is why video evidence is so expensive.
Do not make the mistake of suggesting a large number of witnesses/third party statements since you run the risk of being considered overly emotional if not hysterical and wasting the court´s time. If required at all, one or two should be sufficient, and only to support the important parts of your case to the court.
It may be your are alleged to be a drug taker, an alcoholic, or simply too naive to be trusted in caring for your child. Such allegations are very common in court.
If accused of substance abuse, I would recommend arranging a forensic drugs test if you can afford one. While the court may not take the allegation seriously, a test from a forensic laboratory can prove categorically that no drugs have been taken within a time scale, and alcohol tests can show whether you drink to excess. The report from the laboratory should be included with your evidence (again, you should either append the report to your statement, or separately ask the judge for permission to submit it as evidence).
Similarly, allegations of ´parental naivety´ can be nipped in the bud early on. When such allegations are made, I recommend the accused attend either a parenting course or an early years first aid course (or both). Not only does this help confirm they take their parenting responsibility seriously, but they´s have equipped themselves with more skills and knowledge than most! An early years first aid course can cost as little as £45 and be done in a single day. A relatively cheap (and also genuinely useful) investment. Certificates of attendance or evidence of attending the courses should be included as part of your evidence.
If you suspect your ex-partner is anxious about you caring for your child on your own (solicitor´s correspondence may indicate this prior to the First Hearing and Dispute Resolution Appointment (the first hearing at court), if you can attend these courses beforehand, take the certificate with you to the first hearing and ask to show it to the judge. This has been quite successful in reassuring the judge that there is no reason why unsupervised contact cannot be ordered immediately (and also may reassure your ex-partner).
If there is a genuine lack of parental capability, previous referrals to social services, concerns raised by a health visitor or GP, any concerns held by the school, any observations by third parties should be notified to the court. Consider carefully whether there is real concern, or whether the concerns are anxiety based. Parenting doesn´t come with a text book, and all of us start as amateurs. Supporting each other as parents and keeping communication open will be the best thing for your child.
If you are accused of mental illness, while it may be tempting to ask that the court agree to psychological assessments to prove you are well, consider these are expensive and the time taken to find an expert, instruct them, book time into their diary, for them to see you and then write a report is likely to delay things by months. The courts are rightly reluctant to order unnecessary assessments. There is a second consideration that even if you have a mental illness, this does not mean you are incapable of being a loving and safe parent. Mental illness affects many people. It may be more appropriate to ask your GP to write a letter, addressed to the court either refuting the allegation entirely (e.g. Mr/Mrs X has no history or diagnosis of mental illness) or explaining what the illness is and your treatment/response to treatment. At times, CAFCASS may express an opinion mental illness and risks it poses, but they should not. Their unqualified opinion should be challenged (and this can be done more easily if you have a GP´s letter which gives an opposing, and qualified opinion.
Please be aware you should ask the court´s permission prior to submitting certain documentary evidence, which includes medical reports. Our guides to Preparing a Statement and Court Bundles contains more information on this point.
If the court recommends psychological evaluation, please refer to our guide on psychological assessments as the letter of instruction to the expert, and the expert chosen, is particularly important. Consider also contacting the charity MIND who offer advice and support.
False allegations of child abuse, whether physical or psychological, are not uncommon. Where such allegations are made, the court will understandably take a cautious approach until there has been the opportunity to consider evidence.
In such circumstances, we strongly recommend two things. Accept temporary restrictions on contact, but push for either supported or supervised contact. Supervised contact will involve a third party observing contact between yourself and your child, and you should consider requesting that those supervising contact are asked to write a report to the court, detailing their observations. While many understandably see supervision of their time with their child as an unwarranted imposition (particularly when they know the allegations to be malicious), the reports can be very useful in moving matters forward. Reports may include observation that the bond between the parent and child is close and there is no apparent risk, or that the other party´s anxiety or hostility is the barrier to contact. The important thing is to move matters forward, keep some measure of direct contact going, and have the opportunity for a third party to witness the nature of contact and report back to the court. Their report then becomes further evidence to help the court decide the validity of the allegations and whether or not there is any real risk.
Refer to our guides on Contact Centres for more information:
Children who are abused tend to have emotional problems. Consider including the child´s school report in evidence. The school´s opinion that a child is thriving, popular, doing well and has an absence of behavioural problems jars with allegations that the child is abused. Conversely, where the school has observed a child with behavioural/emotional difficulties, it may be there is a problem (albeit the root of that problem still needs investigation).
A further consideration is to ask that the court appoints a guardian to represent the child in court proceedings. This may be ordered where contact is ceased due to serious allegations. The guardian would then also have legal representation in court. The benefit to your case will depend on the quality of the guardian and their evidence to the court, but in many cases, their input has been of great assistance in moving matters forward.
Refer to our guide on the role of the Guardian-Ad-Litem.
One other matter, in relation to possible allegations of child abuse, concerns corporal punishment (smacking children). Given how allegations can take months to unravel, you are foolish to smack a child (even if you feel it is done appriately and you haven´t broken any laws). There are more effective methods of both disciplining a child and ensuring appropriate behaviour. Just don´t do it! If you need alternative approaches to parenting, contact Family Lives (formerly Parentline Plus) who can offer practical advice.
If falsely accused, bear in mind that your demeanour in court will be considered by the judge, and if you are aggressive, overly emotional or come across as volatile (or controlling) this will lend weight to allegations made against you (even in the absence of any other evidence). If there are witnesses who can contradict allegations made against you, consider asking them to put in a statement (and ask the court´s permission for them to do so).
It is not unusual for police to be called to a dispute between two parents, but that does not mean that violence occurred. Police may remove one party from the house (and it is often the male), but again, this does not mean that one party alone was at fault, or that violence occurred. If no charge was made, and the police took no action, make sure this is said both orally during proceedings, to CAFCASS (if involved) and within your statement.
If allegations of violence are genuine, we strongly recommend you accept them. We also recommend you then book yourself on a domestic violence perpetrator or anger management programme. The court may accept your willingness to accept fault, and address your problems when considering your child´s future relationship with you.
If you are a victim of domestic violence, provide details of the incidents where violence occurred, if police were called details of any crime reference number and whether you pressed charges, details of any medical treatment received (and photographs of any injuries sustained), and if the violence was witnessed ask those witnesses to agree to give evidence (and ask the court to agree that their evidence be heard). If the court has previously made orders related to domestic violence (e.g. criminal convictions, injunctive orders, harrassment orders, non-molestation or occupation orders) ensure case numbers and copies of orders made are included in evidence. Legal aid is still available for victims of domestic violence, and you should also seek legal advice to ensure your, and your children´s safety.
Please also refer to our Domestic Violence section.
More information on topics relating to allegations, including organisations which can help, are included on our false allegations page.
What you say in court will form a part of evidence. The court bases judgments on the less strident test of a ´balance of probability´ rather than ´beyond all reasonable doubt´ as happens in criminal proceedings. Consider that the judge will form an impression of you, based on the short amount of time they both see you and hear you (as well as what they are told about you).
If you do not have legal representation, you will need to spend more time talking in court, as there is no-one to do this on your behalf. This potentially puts the litigant-in-person (unrepresented party in court) at a disadvantage, because solicitors and barristers would normally be objective and come across as calm and reasonable (even if their client is less so!). Particular attention needs to be paid to this dilemma, when speaking to the judge during hearings, and at a contested hearing when you may need to cross-examine your ex-partner, their witnesses, CAFCASS, or anyone else called to give evidence. A barrister can ask more awkward questions without running the risk of opinions being formed that they are controlling or aggressive. Think before you speak, and consider your body language too.
At a final/contested hearing, if you are a litigant-in-person (unrepresented) you will need to:
More information on Skeleton Arguments and the Court Bundle can be found via the links below:
Oscar hunts through 1million words of content.
Alphabetic list of content
Follow us on:
Michael Robinson © 2014
Family law information for parents whose children are resident in England and Wales
Crown Copyright material is reproduced with the permission of the Controller of HMSO and the Queen´s printer for Scotland.