Writing a Court Order
If you've reached this section, you will probably have already been through at least one hearing in the court and have experience of the process. It is totally understandable that you may feel exhausted emotionally and physically, especially when supporting your child(ren) through this process as well. Writing a court order may seem very daunting, but if you break it into the sections, it can be a very empowering process, especially when standing your ground against your ex-partner's counsel.
Many barristers are professional, courteous, fair and have integrity. Although barristers are held to high professional standards, this does not mean that they will all be fair in their dealings with you as their job is to represent their client's (your ex partner's) interests and get the best result for them, as barristers are self employed and their reputation is what brings them their income in a very competitive industry.
It is wise to be aware that when writing the court order, you need to be your most vigilant.
Some barristers will take advantage of the fact you are self representing and try to adjust the wording in the order to suit your ex partner. If you are not sure on what wording means, if you feel the barrister is trying to manipulate you, stop. Take a pause. Refer to your notes, get a friend to read through the wording, seek advice from a service. You do not need to bend to their pressure. If you really feel the barrister is being manipulative, ask the court to speak to the judge. This is your life, this is your children- it needs to be right for you.
FHDRA and Directions Hearing Orders
The first type of hearing in Family Court is a 'First Hearing Dispute Resolution Appointment' or a 'Directions Hearing'. The type of hearing you have first is dependent on your case, what factors are involved e.g. domestic abuse or disputes over child arrangements. The gatekeeping team in the court will process your application and decide who is the most appropriate type of judge to hear your case first.
CAFCASS may have already assessed any level of risk or harm, they will have sent you a 'Gatekeeping' letter with recommendations to the court as to what they should 'direct' (i.e. ask for) to help solve your case.
The order that is produced at the end of this hearing will outline what you, your ex partner and any other services or professionals must legally do before the next hearing.
The court has an interest to resolve cases as quickly as possible and they will offer you and your ex partner opportunity to come to any agreements before or in the hearing.
You have the right to refuse any agreements and set out to the judge your reasons why, you don't have to agree just because of the pressure of the courtroom.
Below are some examples of the templates used by courts to create orders for FHDRA / Directions hearings. What will usually happen if you are self representing, is that you will agree on what was said and agreed in the hearing with opposing counsel, write up the order and send it to the judge to 'seal' (agree).
Remember that in a working day, judges may be hearing a case every hour, each with their own set of complex circumstances and decisions to be made. You must make sure you have accurate notes for yourself, don't rely on a judge or opposing counsel to remember everything that was said and agreed in a hearing.
Dispute Resolution Appointment
& Final Orders
A 'Dispute Resolution Appointment' is scheduled to narrow the issues of your case. You may have had a FHDRA or Directions Hearing to allow the judge to hear the first presentation of your case, where they will have asked for further evidence to be produced and/or CAFCASS to carry out a 'Section 7' report where they will offer their opinion to the court on the issues at hand.
In the DRA, the court wants to hear what matters are still in dispute and why, for example the overnight arrangements, school collections etc. They will also want to know what you and your ex partner have agreed on between your first hearing and the DRA.
The aim is to avoid a Final Hearing if possible, the judge will encourage resolution but if this agreement cannot be reached, they will schedule a Final Hearing and 'direct' (order/ask for) more evidence to help them come to a final conclusion.
The DRA also ensures that the welfare of your children is the court's primary consdieration, if safeguarding concerns are unresolved then the judge may continue or adjust any interim orders that were put in place in the FHDRA or Directions Hearing.
In short, the DRA is about settling if possible and preparing for a Final Hearing if not.
The Final Hearing is where the court will decide on the arrangements for your children going forward. If there is no agreements between you and your ex partner, you will be leaving the decisions to the judge you appear in front of on the day.
Due to the way the court system works, it is unlikely that you will have the same judge throughout the process. You cannot rely on each judge to know your case like you do, therefore you must learn to clearly restate your case key points, evidence and updates clearly, factually and in an easy to understand way.
Use our guides on 'Position Statements', 'Bundles' and 'How To: Court Hearings' to help you prepare.
If you do get to a Final Hearing, it is imperative that your McKenzie Friend or you take notes to ensure you get the Final Order right.
Non Molestation & Occupation Orders
The hearing process for Non Molestation and Occupation Orders are scheduled slightly differently, due to the urgency and safeguarding risks that are associated with requesting these types of orders.
These orders are also governed by Part IV of the Family Law Act 1996 so the application is made on a FL401 form, instead of the C100. See our 'Court Forms' guide on how to fill these out.
The application for these orders can be made 'without notice' due to the immediate risk of harm, i.e. your ex partner is not told about the hearing. You can also request an 'urgent hearing' if it is safe for your ex partner to know about the application but the issues are still urgent.
The first hearing will still be a Directions Hearing or FHDRA. However, the judge may make an interim order on the same day to protect you and/or your children. The judge will schedule a 'return hearing' usually within 7-14 days.
At the return hearing, your ex partner will have the opportunity to represent their side of the case and the judge will decide whether to continue, vary or discharge (remove) the interim order. Directions may also be given to services such as police, GP or school to give further evidence.
If there are issues of domestic abuse or violence, the judge may schedule a Fact Finding Hearing, in that hearing the judge may need to request other evidence and issue an order containing more directions or if the judge is satisfied with the evidence presented, they will schedule a Final Hearing.
If issues of child arrangements and protective orders overlap, the court will usually deal with the protective orders first to ensure the safety and welfare of your child(ren) and then address long term arrangements. If this is the case for you, you need to submit the C100 form, C1A and FL401 forms at the same time.
For example, you may apply for a Child Arrangements Order for your 7 year old daughter alongside a Non Molestation Order against her father due to his harassing and abusive behaviour. The court grants the Non Mol Order first, preventing further harassment and orders an interim child arrangement to limit her father to supervised visits at a contact centre. At the final hearing, after reviewing CAFCASS reports and reports from the contact centre, the judge decides he can only have indirect contact until the risk reduces and schedules a Dispute Resolution Appointment in 6 months to assess progress.
Writing a Court order: The Process
1
Speaking to opposing counsel
Be clear about what you want before you go into court and throughout the process. Court can be a heated and emotionally draining experience, but by remaining professional and respectful, you can communicate your requests in a way that prioritises your children's wellbeing.
Put all of your communication with the opposing counsel in writing, ensure you keep all of your correspondence and take notes at the hearings.
If you don't understand any legal jargon, the opposing counsel should explain it to you clearly, without using it as an opportunity to manipulate you into agreeing to your ex partner's requests.
Negotiating is not the same as arguing. If opposing counsel will refuse to agree to your requests then these will need to be explored and decided upon by the judge. You can only present your arguments and evidence to the court in the hearings, the judges role is to look at all the evidence and decide on the issues that are still outstanding.
2
Using 'tracked changes' in Microsoft Word
When writing court orders, legal professionals use Microsoft Word and a feature called 'Tracked Changes' to track what is not and what is agreed. It can be an overwhelming process if you have not used this feature before, especially under the pressure of the court process.
A useful place to start is to practice before the hearing with a friend using the feature, see the video walkthrough below.
If you have an accessibility need which makes using the feature unworkable, or you find the feature too complicated, you can use a simple 'colour code' system. A good one is to highlight the words in the order that you agree to in blue, and the words you don't agree to in red.
Remember, you need your own notes from the hearing as to what was agreed. Neither you or your barrister should introduce changes into the wording or the arrangements at this stage. If you think opposing counsel is trying to manipulate the wording of the order unfairly, contact the court and ask for the judge's contact details.
3
Agreeing the wording in an order
This is the most important part of the process.
This stage is where being a litigant in person can come in useful, the language should be clear and not open to misinterpretation. If you don't understand it, don't agree to it.
After you've made all the changes, ask opposing counsel to produce one final clean copy before sending to the judge to seal. This enables you to read through and have a McKenzie Friend read through the final document and ensure it is clear, concise and what you agreed to.
Once the wording is agreed upon, it will be sent to the judge to sign and send back to you, this last stage makes the court order legally enforceable and binding.
If your ex partner 'breaks' any part of the order with regard to the child arrangements, then you can apply for an Enforcement Order, you will then go through the same process of hearings and providing evidence 'beyond a reasonable doubt' that your ex partner breached the order.
Key sections of a Final Order
Recitals
Recitals are the first statements in a court order that outlines agreements and understanding between you and your ex partner, the 'parties'. These are declarations and intentions, unlike the main body of the order which contains legally binding commands. Recitals aren't typically enforceable by the court through an immediate 'breach of order' application, the courts expect the parties to uphold these in good faith.
There are established phrases which can seem intimidating upon first glance, for example 'AND UPON the Mother agreeing that'. The primary purpose of recitals is to ensure that the named party agrees to perform certain actions, these actions can cover:
Communication: Notifying each other of proposed changes to your child's school, doctor, nurseries etc.
Consultation: A common phrase in court orders is 'unilateral decisions' or 'unilaterally' which means making a decision without asking or talking to the other parent. Unless there are safeguarding risks, generally courts want parents to consult each other on decisions regarding their child's lives.
Cooperation: Courts want co parents to cooperate with each other in their child's best interests, court orders are designed to reduce 'acrimony' (squabbling and conflict) to reduce stress on your child's life.
In your position statement and before the hearing it is useful for you to think about and note down any recitals you want your ex partner to 'undertake' (agree to) and try to agree to these before you enter court.
Scope of Recitals
Agreements and Undertakings
These are intentions or promises that you and your ex partner have made to each other, for example agreeing to communicate respectfully or consult each other on major decisions about your child's life such as education, health, or holidays.
Background information
Recitals can contain a brief history of the case to assist the next judge in the next hearing or a judge in a new hearing if you have to return to court.
Agreements outside of the court's power
These are matters the parties have agreed to but that the court cannot legally enforce unless it is written into a specific order for that purpose. For example your ex partner agreeing not to live a certain distance from your home, but if this becomes an issue later on, you may have to apply for a Non Molestation Order.
Child Arrangements
The main body of the order will outline clearly the legally binding arrangements regarding your children's care. The wording and the process are informed by your child's best interests, judges will use the , a list of eight factors that the family court must consider under the Children Act 1989 when making decisions about your child's upbringing.
The wording is very specific as to who your child 'lives with' and who they 'spend time with'. If you agree to your ex partner having a 'shared lives with' order, it can acknowledge both of you as having a primary role, even if the time isn't split equally between you in reality. A 'spends time with' order means that you are recognised as the primary carer for your child and your ex parent has 'contact' with your child.
The Final Order tries to eliminate any reason to come back to court so the arrangements can cover term time, holidays, birthdays, celebration days, religious holidays, sickness, medical issues and school events.