Instructions and Case Preparation in Family Proceedings
| Author | Safda Mahmood/Julie Doughty |
| Pages | 141-164 |
Family proceedings are non-adversarial. Advocates may be instructed to represent children, parents, other parties or local authorities. Effective advocacy depends more on thorough preparation of the case, coupled with good negotiation skills with all parties throughout the proceedings, than on the final presentation in court.
The first task is to elicit from all sources available as much information as possible about the circumstances of the case, the client and the child. All evidence relevant to the welfare of the child should be available to the court.
11.1 Action plan on receipt of instructions from an adult or local authority
• Arrange to interview the client or instructing social worker as soon as possible.
• Where appropriate, check the public funding situation and complete the necessary forms.
• Obtain copies of all applications and documents which have been filed with the court.
• Find out whether there are other relevant proceedings current or pending. If there are, obtain details.
• Find out whether there have been previous proceedings in relation to the child(ren) or the family. If so, ask for copies of all previous/existing court orders and copies of documents filed with the court. Consent and appropriate directions by the court may be necessary to authorise and facilitate disclosure of documents from another court or from other proceedings.
• Ascertain who the other parties are. Check whether they have instructed legal representatives, and obtain details.
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• Identify any other people who should be made parties to the proceedings or notified of the proceedings in accordance with the rules, and take appropriate action.
• Let the court and all other parties (or their advocates if they are represented) and the children’s guardian know you are instructed in the matter, and write, inviting communication and offering cooperation. (See Chapter 15 if being instructed by the children’s guardian on behalf of the child.)
• Interview potential witnesses.
• Follow FPR 2010 PD 12A and other relevant FPR 2010 Practice Directions.
11.2 Interviewing clients
Cases involving family breakup or issues of child protection are stressful for all the parties concerned. It is essential to establish a relationship of trust with clients, giving them space in the initial interview to express their feelings, whilst at the same time keeping the interview focused on taking background history and instructions. Set aside sufficient time to allow clients to fully express all they have to say and offer appropriate refreshments – this can provide a welcome break. A checklist may assist to keep the interview focused on the information required. Below are sample checklists of some basic issues to cover when interviewing parents, social workers and medical witnesses, to which can be added specific issues relevant to each case.
11.2.1 Checklist for information from parents
• Full name and address.
• Home telephone number. (Any restrictions on its use?)
• Work telephone number. (Any restrictions on its use?)
• Mobile telephone number. (Any restrictions on its use?)
• Email address. (Any restrictions on its use?)
• Names of all the children of the family and their dates of birth.
• Who are the parents of each child of the family?
• Who has parental responsibility for the child?
• Where does each child of the family live, if they do not live with the client?
• What are the present contact arrangements with the children living elsewhere?
• Partner and family members living in client’s household. This will be of particular relevance so as to ensure there are appropriate assessments undertaken of ‘connected persons’, see in particular the assessment process as set out in regulations 24–25 of the 2010 Regulations, and the Welsh equivalent in regulations 25–28 of the 2015 Regulations. The family’s social/cultural/racial/religious context.
• Does this client, any member of the family or the child(ren) have any special needs, cultural issues, language difficulties, disabilities or difficulties, of which the court, children’s guardian and other parties need to be aware? In particular, if there are issues surrounding the client parent having a learning disability, there should be a referral to the adult disability team, and also note the position surrounding participation directions as per Part 3A of the FPR 2010 and PD 3AA. This came into effect on the 27 November 2017, and has the effect under rule 3A.4 that the court must consider whether a party’s participation in the proceedings (other than by way of giving evidence) is likely to be diminished by reason of vulnerability and, if so, whether it is necessary to make one or more participation directions. Before making such participation directions, the court must consider any views expressed by the party about participating in the proceedings. In this context, see the President’s Guidance: Family Proceedings: Parents with a Learning Disability (10 April 2018), issued by the then President of the Family Division, Sir James Munby. The President has stated that the primary purpose in issuing this Guidance is to bring to the attention of practitioners and judges, the very important Good Practice Guidance on Working with Parents with a Learning Disability 2016 (DoH/DfES, updated September 2016) issued by the Working Together with Parents Network and the Norah Fry Centre for Disability Studies, School for Policy Studies, University of Bristol.
• Also consider whether there may be an issue as to the parent client lacking litigation capacity. If so, there may need for a referral to be made to a psychologist or psychiatrist, so as to assess litigation capacity. This may lead to a possible invitation for the Official Solicitor to become involved, see in particular Part 15 of the FPR 2010, relating to protected parties and also the Practice Note of January 2017 issued by the Official Solicitor, Alastair Pitblado, Practice Note: The Official Solicitor to the Senior Courts: Appointment in Family Proceedings and Proceedings under the Inherent Jurisdiction in Relation to Adults. The Family Justice Council guidance, Capacity to Litigate in Proceedings involving Children (April 2018) contains important material to assist
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courts in addressing capacity issues relating to parties to family law proceedings. It includes, in particular, a checklist for the appointment of a litigation friend, including the Official Solicitor, draft certificate of capacity, notes for assessors, draft letter to independent expert and/or treating clinician in public law proceedings, together with the Official Solicitor’s certificate of capacity, draft letter to a friend or family member of an unrepresented person whose capacity is in question to seek information, and a list of suggested information relevant to the finances of the protected party to support an application for public funding. Also included in the guidance are draft orders when inviting the Official Solicitor to act as litigation friend, and for the provision of directions for disclosure against third parties.
• Also consider whether there may be an issue as to jurisdiction, and in particular, whether there is a need to contact another member state if the child, parent, or other relative has a connection with another member state, in accordance with, in particular, Articles 15 and 55 of the BIIR. See the case of Re E (A Child: Habitual Residence) [2014] EWHC 6 (Fam), in which the then President of the Family Division, Sir James Munby, referred specifically to the BIIR. The President set out that in every care and supervision order application case where there is a European element, the court should set out explicitly, in its judgment, as well as the order, the following:
Ѹ the basis upon which, when the BIIR is applied, the English or
Welsh court is accepting or rejecting jurisdiction;
Ѹ the basis upon which it has or has not decided to exercise the powers under Article 15 of the BIIR.
The President also stated that the English and Welsh courts need to act with speed when dealing with any requests that are made of the court, pursuant to Article 55 of the BIIR. In Re N (Children) [2016] UKSC 15, Lady Hale emphasised that the assessment of whether a transfer would be in the best interests of the child should be based on the principle of mutual trust and on the assumption that the courts of all member states are in principle competent to deal with a case. There may be a need obtain relevant information for use in Family Court proceedings by using the Protocol: Communicating with UK visas and immigration (UKVI) – In family proceedings (17 May 2018). This protocol enables the Family Courts to communicate with UK Visas and Immigration, the relevant division of the Home Office, to obtain immigration and visa information for use in Family Court proceedings.
• Obtain general information about this client, including: background, education, attainments, current or past employment, interests and significant life events.
• Does this client or any partner, family member, carer or cohabitee have any convictions or cautions for offences which may affect an assessment of their capacity to care for the child(ren)? For example, conviction for an offence listed in Schedule 1 to the Children and Young Persons Act 1933, drink- or drug-related offences, etc?
• Convictions should be disclosed to the court, see Re R (Minors) (Custody) [1986] 1 FLR 6.
• Does the client or any family member have any particular skills or attributes relevant to their parenting ability?
• Have there been any previous court orders or applications made to a court in respect of this child, or any other child of the family or any family member?
•...
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