Here’s what to expect at a family court hearing, when it takes place at court, whether you have a lawyer or not, and how virtual hearings try to replicate it. Being prepared means you won’t be taken by surprise or thrown off balance (by ‘court’ I mean the decision-making institution. Court means a judge, magistrates or a jury and those who run the court).
When you arrive at the family court
You will probably be told to turn up for your family court hearing by 9.30am. Court schedules are unpredictable and although your hearing may not be due until later in the day, the court wants to use its time efficiently and needs to be ready to change plans depending on what happens.
Sometimes witnesses or litigants fail to turn up. Sometimes cases are settled unexpectedly quickly or, more often, unexpectedly slowly. Sometimes negotiations are taking place, so a case does not go into a hearing, leaving a gap to be filled. When these things happen, the court may want your case to move up in the queue, starting sooner than scheduled. Equally, you need to be ready for your case to be delayed and maybe even rescheduled, for similar reasons.
As soon as you go into the building, you will have to pass through security. You will have to empty your pockets and put any bags through a metal detector. You will have a metal detector passed over you and may be frisked. There’s often a queue of lawyers, other officials and other litigants and witnesses in the court lobby waiting to go through security and you take your turn.
You have to find where in the building your case is going to be heard. There will be a notice board with lists of cases identified by the case number and the names of the litigants. This will tell you which court room your case will be heard in and you can follow the signs or ask the staff where it is. If you have a lawyer, you may find your solicitor or barrister is already there, or maybe just the opposition and their lawyers. If you have found the right court room and you have a lawyer coming, just wait patiently. They will find you.
Negotiations
If lawyers are involved in your family court hearing, it is rare for a case to go straight into court, especially if it is your first day there. You should expect there to be discussions, not just your lawyers discussing the case with you but also your lawyers discussing the situation with the opposition lawyers. Each side therefore usually finds and occupies a consulting room which becomes their headquarters for the day. Your lawyers, after talking with you to make sure they are up to date with any developments or changes, will meet the opposition to start to negotiate.
The lawyers want to see if anything can be agreed between the parties (i.e. the litigants, you and your opposition). Faced with the reality of the hearing, you or your opposition may begin to feel that there are some things that would be better agreed between you rather than leaving it to the court to decide. It will always be much better for you if you can find a solution to at least some of your disagreements yourself rather than rely on a complete stranger, i.e. the judge or magistrates, to decide for you. You can then concentrate the hearing in front of the judge on the particular issues that you and your opposition cannot agree. If there are some potential agreements, your lawyers give advice about what response might be the most beneficial for you. They will take your response back to the opposition and continue the negotiation. During this time, the lawyers will keep the court informed from time to time of your progress. If time gets short or progress is stalled, the court may insist that the discussions end and the hearing goes ahead.
If there are no lawyers, then you too can try to negotiate with your opposition and see if you can come to any agreements. Presumably, given that you have ended up in court, this will be difficult and, further, there may be too much ill feeling between you to have a useful discussion. In that case you will simply wait to go into court. But it’s a good idea to try to narrow the issues between you, so do try.
With or without lawyers, there will come a point where no further agreements can be made. Either the lawyers or you and your opposition should then draw up a list of the things that have and have not been agreed so that the judge or magistrates can see what they have to decide. The court should also have a look at what has been agreed to be sure that the agreements seem sensible. If not, they may question them and invite further discussion.
In the court room
Once you are in the court room, whoever is the applicant, after taking the oath, gives evidence first. Giving your evidence starts with you presenting your case, followed by cross examination. If you have a lawyer, they will start you off by asking you questions which help the court to understand your case. Without a lawyer, you will have to present your case yourself. That means that you have to present your evidence based on the statement you will have filed before the hearing.
Your evidence should be your account of facts: Who you are; what your circumstances are; and what you say has happened.
- Your oral evidence needs to match what is in your statement and you cannot start introducing new information that was not in your statement.
- Your personal details are your name, age, address and personal circumstance such as work and family;
- What has happened, when, where and with what result, with the evidence to support what you say;
- What decisions you are seeking from the court and why;
It’s quite likely that, in the absence of lawyers, the court will need to ask you some questions to clarify what you are saying.
Your opposition can then ask you questions. If they have a lawyer, then you can expect a well organised probe of your evidence, intended to expose any weaknesses or inconsistencies. If no lawyers are involved, you and your opposition have to question each other. The judge or magistrates will try to ensure that you both keep as focused as possible on the issues that they need to decide.
The court room is no place for raised voices, recriminations, emotional speeches or insults. You want the court to be sympathetic to you and you will achieve that by presenting the facts that are your evidence in a calm and rational way and not by becoming emotional or demanding sympathy. No amount of histrionics will substitute for evidence.
Once the applicant has presented their case and been cross examined, it is the turn of the respondent to go through the same process.
Professional and expert witnesses
If there is a professional or expert witness in your family court hearing, they will give evidence too. A professional witness gives factual evidence based on their professional background. For example a doctor will give evidence about what the patient said (the symptoms) and what a physical examination showed (the signs), what any pathology results were and what they mean. A professional witness should present facts and not opinions. By contrast, an expert witness can give opinions about how the evidence can be interpreted. These witnesses can also be cross examined, either by your lawyer if you have one, or by you if you don’t.
A final summary
Finally, after everyone has given their evidence, you will be invited to summarise your case again, the applicant first followed by the respondent. This time you can add any additional comments drawn from the evidence that has been presented earlier in the hearing, which may have changed the situation from how it had seemed at the start of the hearing. For example, you may need to clarify issues that emerged during your cross examination or your questioning of your opposition. This is also an opportunity to explain again what decisions you want the court to make.
You should explain why you think the court should agree with your requests. For example, in the family court, the most compelling reasons will be benefits to the child or children. The court will be much less interested in your own welfare as an adult, although if effects on you of a decision will rebound in a significant way on the child, then that can be very important as well.
Virtual hearings
Virtual hearings are controversial for several reasons:
- Video and audio technology can be unreliable and it can be hard to hear or see what is going on;
- Many litigants struggle with technology anyway, even when it’s working properly, adding to the stress of the event;
- Using video means that only faces can be seen so a lot of information which comes from a witness’ body language is lost. Using only the phone is even worse;
- It’s harder for litigants to discuss things with their lawyers if they are not in a room together.
- There is also less flexibility to allow negotiation between parties. It’s harder than when everyone is present in a court building. Starting times have to be more rigid because people cannot wait for long online, in case of a change of timetable, in the same way as they can in a court waiting room and negotiating online allows for less subtlety than negotiating face to face;
- Giving evidence from your own sitting room can make a court hearing seem unserious;
- Having others participate, such as an interpreter, becomes even more complicated than normal.
Nevertheless, virtual hearings will undoubtedly continue in the family court because they can save time and perhaps money. They may be suitable for uncomplicated hearings, such as those where information is shared to review progress or set a timetable, but they are probably never a good solution for a first hearing or any complex decision making. The court will try to make virtual hearings as similar as possible to court room hearings.
Be prepared
It is stressful enough going to the family court to have your personal issues combed through by others and potentially exposed to public scrutiny. The more you can feel in control of your situation the better and being prepared for the waits, the pressures to come to agreements you have resisted, the challenges of giving evidence, the uncertainty about the outcome, the more you will be able to stay rational and thoughtful about your decisions.
ONRECORD is committed to helping litigants navigate the family court process as effectively as possible. Knowing what you are doing, what is likely to happen and what to expect can play an important part in helping you make your case.