Little things sometimes matter (yes I’m a pedant)

Of course I am a pedant. All lawyers are pedants. The trick is to judge which of the little things you really should sweat.

Here's a little thing that I think does matter, or might in some cases. The C1A.

The C1A is the supplemental information form that Applicants and Respondents in cases involving child arrangements are supposed to complete where they are saying there are issues of domestic or other abuse. In the context of Practice Direction 12J and the Child Arrangements Programme, where the ethos is on early safeguarding, and on triaging cases so that they are safely conducted and so that the need for protective measures or fact finding exercises is identified early, these little forms really matter. Or they have potential to. But for some reason they are usually just ignored, especially the Respondent's C1A, which comes along later when the safeguarding train has already chugged off from the platform. That gets forgotten, like the middle sibling who nobody notices.

Take a recent example. Applicant father issues with a C100. Mother responds with a C1A. Cafcass carry out safeguarding checks (in which M raises domestic abuse but in a fairly non specific way) but don't recommend a fact finding hearing. The safeguarding letter is produced at the FHDRA, but it does not mention the C1A. Lo and behold, when checked CAFCASS confirm they don't have the C1A and haven't therefore taken it into account. They conduct a review and change their recommendation to one for a Fact Finding. What if I hadn't spotted it? A LiP wouldn't know to do this, and I almost missed it myself. The facts of the case don't matter here, its the process I'm interested in.

I've seen this sort of thing quite often. In another case of mine the C1A kept getting left out of the bundle. Applicants often don't seem to receive them (I think this is because it is unclear who is supposed to serve them - the rules say the court serves the C100 but don't specify with the C1A, and the form itself doesn't really help as it only talks about sending it to the court).

So anyway, because I am a saddo I checked the rules. Part 12 is useless. PD12C doesn't help. PD12B (Child Arrangements Programme says that the court will send CAFCASS the C1A if supplied no later than 2 working days after the date of issue (pa 8.9), but of course this is the APPLICANT'S C1A, by this stage the Respondent won't have even got the application probably. It goes on to say that 'The court shall not send Cafcass any other application...unless the court has made a specific direction...therefore, any application which is not in Form C100... will be returned to the court at which the application has been issued'. This just means, I think, that Cafcass don't want all the crud people tend to attach to their applications. But it isn't really about the C1A, which is not an 'application'. There is NO mention of a Respondent's C1A so it just isn't properly woven into the safeguarding process.

The C1A is mentioned in the bit about the Gatekeeping stage, but again the only C1A they will have at that early juncture is the applicant's C1A. It is usually the Respondent who fills in a C1A, because the preponderance of applications are by parents wanting contact when the other says it isn't safe. In the section heading Safeguarding - not a whisper about the C1A.

This is where it gets weird.

The C7 acknowledgment form says this. It firstly tells Respondents that if they tick yes to the various harm questions on C7 they must fill in a C1A. And then it says :

...When you have answered the questions make copies of both sides of this form. You will need a copy for the applicant, and each party named in the application for an order (form C1, C100, C78 or C79).

Post, or hand, a copy to the applicant and to each party. Then post, or take, this form, and the Statement of Means and Supplemental Information Form if you have filled one in, to the court at the address below. You must do this within 14 days of the date when you were given the Notice of Proceedings, or of the postmark on the envelope if the Notice of Proceedings was posted to you.

Now this seems to suggest that you are supposed to serve the C7 but just file the C1A.

AND it also seems to be the case that you have 14 days to do this. This is going to be quite close to the 17 working days Cafcass have to do their checks, although in practice Cafcass are I think sometimes given / take a little longer.

Now I would certainly not want to suggest that the safeguarding checks should take any longer than they already do - the wait for the court to actually DO SOMETHING when you are desperate to see your child is quite awful enough. But if the C1A is to have any purpose shouldn't it be properly fed into the pre FHDRA safeguarding process? Shouldn't the court be obligated to send it on to Cafcass, or shouldn't the Respondent be obligated to send it to them directly? Or perhaps even Cafcass should check with the court for a C1A as a part of their other safeguarding checks? They certainly don't seem to be picking up the existence of these forms from their safeguarding telephone calls and I guess many litigants would not know what a 'C1A' is if asked about it on the phone (even if they've completed it not long before).

One day, particularly where Respondents are in person and without legal aid, are frightened and inarticulate, a C1A might save someone's life. One day the neglect of what a C1A says might leave a child or adult exposed to harm. In most cases it doesn't matter, and it gets picked up at one point or another, and in many cases the allegations in a C1A are neither her nor there - but the point of these checks is to help the court distinguish which is which. So we really ought to do it properly.

MMU Family Law Conference

Details of an interesting looking conference in Manchester below - complete with the President of the Supreme Court : All Hale Brenda!! #halestorm


We are pleased to write with details of MMU's 2nd Annual Family Law Conference, on 9 March 2018, 10am-4pm. The conference brings together a mixed audience of academics, practitioners and students to discuss current issues in family law in a relaxed and supportive atmosphere.

We are delighted to have Lady Hale, President of the Supreme Court, as our keynote speaker, with her 'View from the Supreme Court Bench'. Dr Frances Burton from Aston University will be delivering a very timely paper about the future of the Family Court. She has been writing and presenting on this topic for some time now and we are sure her paper will provide a fascinating basis for discussion among academics and practitioners. Nigel Shepherd, chair of Resolution and Head of Family Law at Mills & Reeve Solicitors, will be presenting about his experience of the changing social and political context around no fault divorce. Lucy Crompton from MMU will present a paper seeking to revive 'compensation' for career sacrifice and get it back on the judicial agenda. She will be hoping to muster some enthusiasm for this from, especially, the practitioners in the audience.

Places are limited. You can register at the early bird price of £65 until 26 January, thereafter £85 (£25 for students).

The conference is suitable for CPD for practitioners. 

visit the conference webpage here.

For further information, please contact Lucy Crompton (

2018 off to a great start then

First day back at court today. It has not gone well so far...

Your correspondent is in the robing room quietly stewing, having arrived at nine o'clock for a ten o'clock hearing (halo in hand) that isn't in fact until noon. Courtserve : We Heart You. Hashtag NOT.

In truth it began to unravel long before then as I lay in bed shivering at midnight realising the radiators weren't working because they haven't been bled, and listening to the wind tear bits off my house like a child demolishing a lego build (house still standing this morning but it didn't sound like that at the time - there is a large tree-bush affair next to the garage that thumps loudly on it whenever its windy. It's right next to my window...)

And then even the emergency suit turned out to be too small. Can't imagine how that happened *cough*. I blame Cadbury's Roses.

So all in all my arrival here by 9 o'clock, with papers and wearing a suit that still buttons up was a pretty epic achievement. Needless to say I am overjoyed to find it a wasted journey.

As I sat down in the robing room to get some work done (hurrah for PCU Wifi which is now working in our court building), having carefully stretched my laptop charger across the floor from the in-floor plug bar to the not very close to it desk (especially positioned to create a trip hazard it seems - yes I have left my comment in the comments box pointing this out) an email pinged into my inbox. A DFJ is finding that the LAA are refusing to meet the costs of parents attending hearings unless there is an order directing their attendance. Yes, that is refusing to enable parents (who often have no income because they can't work and their benefits have been stopped when their kids were taken) to get to hearings at which their childrens' whole future is to be decided. Doesn't it make you just furious? Anyway, the solution to this is apparently to include a standard direction in CMOs now saying that parents must attend. This makes me even more grumpy than I ever so slightly was before receiving the email. FPR 27.3 provides that :

Unless the court directs otherwise a party shall attend a hearing or directions appointment of which that party has been given notice.

What is so difficult to understand there? Parents need to be at hearings about their children. They'd need to be there even if FPR 27.3 didn't exist and even if a kindly DFJ didn't try to help out by repeating the rule in all their orders (The LAA's own guidance acknowledges that travel expenses ought to be met by them and not the client - even where the client is a bit hopeless and loses their travel tickets). And that the LAA refuse to acknowledge this (they must know its true really - surely?) is a symptom of how our system has lost sight of the need to do real justice rather than just box tick or offer a ritual daily saving at the altar of proportionality.

Personally, I don't think we should pander to this computer says no mentality. We should challenge this nonsense and say THERE DOESN'T NEED TO BE AN ORDER YOU MUPPETS. Again and again until they get it.

Plus, if the LAA doesn't pay their travel expenses how will they ever get to stroke the stress-dog before their children are adopted?

2018, you suck so far.

Right, grump over. I'm off to write a book...


The Civil Finance Electronic Handbook that I linked to above says this at page 72 (I hadn't spotted it before - I was looking at page 58) :

The rules for payment of funded client travel expenses differ depending on the situation.

  • Attendance at court: The funded clients travel expenses will be paid where it is reasonable for the client to attend court. The guidance states this is as a witness of fact and we would expect to see justification as to why this is considered reasonable. These same principles apply for third parties who are required to attend court as a witness of fact.
  • Travel to attend experts: These are paid where it was necessary for client to attend the expert and where the client cannot afford to pay for visiting the expert (the client is impecunious). When considering whether the costs should be allowed we would need to consider the cost of the travel, distance to the expert and the method of travel.

Where travel costs are payable we should consider the most reasonable form of travel, this is usually public transport. Any travel by taxi will require justification. [my emphasis]

The Costs Guidance referred to is here and that says that the costs of travel to court other than as a witness of fact will be assessed at the end of the case (page 7-8, 26-28). Although in places it appears to suggest that travel expenses other than as a wtiness of fact will never be payable, it does say this :

  1. The usual principles as to reasonableness and proportionality apply. If it was unreasonable for the client to attend the hearing in furtherance of his or her case, for example because the hearing was an interim hearing where the client’s presence was not strictly necessary, then the disbursements would not normally be allowed.

So on that basis the costs of attendance at a hearing other than a final hearing / to give evidence ARE claimable, but they have to be reasonable. There will of course be cases where it really isn't necessary for a client to attend a hearing, but they will be in my view pretty few and far between - which is no doubt why the FPR have, since the year dot, set out a default position that they should come to court.

If this really is a growing problem (and according to the grapevine I know it is) then I would like to think that someone will do something about it and challenge the LAA on their guidance. It's tough for solicitors if they are continually shelling out and then not being paid, but even tougher for clients whose solicitors say they can't afford to take the risk (I've met some of each, I don't criticise either). Perhaps one of the representative bodies can take this up with the LAA?

Right. Now it's time for my hearing.