What happens at the First Hearing?
Unless there is an urgent issue which needs to be considered, or the applicant needs to apply for permission to make their main application, the first hearing in a children case will be the First Hearing Dispute Resolution Appointment, which is referred to as the ‘FHDRA’ (also pronounced as ‘fedra’).
If Cafcass has been able to complete safeguarding and prepare its letter for the Court, then this will have been considered prior to the hearing. If the parties to the case are legally represented, then the representatives will have discussions with their respective Clients and with each other before the hearing starts to see if any agreement can be reached as to a way forward, whether this is, for example, progression of contact or what further evidence the Court will need before being able to progress the case.
The hearing may take place before a Legal Advisor, a Deputy District Judge authorised to deal with children cases, a District Judge, or a Circuit Judge depending on the issues in the case and the complexity. This will have been determined at gatekeeping and allocation which takes place once an application is issued. A Family Court Advisor (‘FCA’) from Cafcass will also be present.
All Court hearings are recorded and the case number and the case name, eg ‘Smith -v- Jones’, will be announced by the Legal Advisor / Court Usher once recording begins. Whoever is hearing the case will first introduce themselves and the FCA. If both parties are represented, the Court will hear from the representative for the applicant who will summarise the history, the reasons for the application and the concerns of the applicant. If the parties have managed to resolve any issues, or both sides have agreed what further evidence is required, the Court will be informed about this at this point. It will then be the turn of the representative for the respondent to address the Court.
If one of the parties is represented but the other is not, the legal representative will be expected to speak to the unrepresented party – ‘litigant in person’ – before the hearing to explain the procedure for the hearing and to see if any agreement can be reached. The representative must tread very carefully to ensure that the party who is not represented does not feel bullied or pressured in any way or made to feel that they are at a disadvantage as they are representing themselves.
If it is the applicant that is unrepresented, it may be that the Court will first hear from the respondent’s representative, who will set out the history, and if any progress has been made in discussions. The applicant will be asked to confirm their position and concerns and the Court will then ascertain the position of the respondent. As more and more people are having to represent themselves due to the restrictions of legal aid and the costs of instructing solicitors, the Courts have to ensure that an unrepresented party understands everything and feels as if they are being treated fairly. This sometimes leads to the party who is represented feeling as if the Court is biased towards the unrepresented party as the Court may let them speak for longer! Rest assured any good family lawyer will know how to summarise your position to the Court and provide all information the Court needs at that time and will keep things as short as possible.
If both parties are unrepresented the Judge / Legal Advisor is likely to ask questions of each of them to obtain the information that the Court needs as they will be fully aware that the parties are not legally trained, have likely to have never stepped inside a Courtroom before, and have no idea what they are supposed to do or what is about to happen!
In all scenarios, the Legal Advisor or Judge may ask for clarification on certain points before turning to the FCA to see what the position of Cafcass is. The FCA may also ask for clarification on certain points before expressing its opinion.
Discussions will then turn to what needs to happen to progress the case which are referred to as ‘directions’. The more common directions are :-
• Statements from all parties
• Drug/alcohol test
• Letter from GP or other medical evidence in respect of one or both parties and the child
• Information from the child’s school
• Information from any support services
• Police disclosure
• Section 7 Report from Cafcass or from Social Services
If any report requires a fee then the Court will need to consider whether the cost of the report is proportionate to the case, which means is the report essential enough to the case to warrant the costs or can the information be obtained some other way? If the report is required then the fee will normally be split between the parties. If one party is in receipt of legal aid, and it is clear the other party cannot afford to pay half (normally after giving oral evidence about their financial position to the Court under oath) then the Court can order that the cost is covered under the legal aid certificate. However, the fact that one of the parties has the benefit of legal aid does not automatically mean that all the costs will be covered under the legal aid certificate.
If there are allegations of domestic abuse made by one of the parties, the Court will also need to consider whether a finding of fact hearing is needed. There may not be sufficient information at the FHDRA to make this decision and therefore the person alleging abuse will be asked to prepare a statement setting out the allegations and the other party will then file a statement in response. If represented, the party who allegedly suffered abuse will also be asked to prepare a schedule of allegations, also known as a Scott Schedule or schedule of findings. Police disclosure may also be needed. The matter will then be listed for a directions hearing for the Court to consider whether a finding of fact hearing is required.
Once directions and any contact arrangements between the FHDRA and the next hearing are agreed, the legal representative for the applicant will be asked to draft an order for approval by the Court. If the applicant is not represented but the respondent is, then it will fall to that representative to draft it. Otherwise, the Court will prepare the order and send a copy to both parties.
The date that the case returns to Court, whether for directions or Dispute Resolution Appointment, is normally set before the hearing concludes but will be contained within the order in any event.
If either party is represented, their legal representative will have a post-hearing discussion to answer any questions that their client has, and will ensure that the client fully understands the position of the Court and Cafcass and what needs to happen next, and alleviate any concerns.