Upcoming Final Hearing Advise

[Lee79]

Hey everyone, this is my first post here so bare with me. I’m hoping any of you can give me tips/advise for my upcoming final hearing from your own experiences etc. Before that here’s my story:

BU with ex in Nov 2019 was amicable. She moved back to Leicester to live with her parents. We had a generous agreement with child arrangements concerning our daughter who was 9 months old at the time. The only thing that was set out was my daughter was to stop over at her paternal grandmothers during overnight stays as I’m a heavy sleeper and may not be able to hear her in the night.

29th April 2020 it all changed. (My ex discovered I was in a new relationship a week prior but contact remained as normal). It was my usual Wednesday spent with my daughter when the ex called me crying asking if my girlfriend is pregnant - I was shocked as I hadn’t yet told her the news. I said yes she was - her reply was I’m picking up my daughter and I will see you in court. From that day on I was denied all contact with my daughter.

I applied for mediation in May 2020 which I attended (over the phone) but my ex did not bother. My ex has lied to my solicitors saying I’ve had random people at my house and the covid pandemic as being reasons for her stopping contact at the time but her main reason for ceasing contact is her safeguarding concerns over our daughters welfare due to my excessive drinking.

I’ve been a heavy drinker for many years.. before even being with my ex but I’ve never been violent etc.. I just simply like to have a drink every night/most nights after work, drinking from home rather than going to the pub and i still carried out all my parental responsibilities etc and had a brilliant relationship with my daughter.

I have gone through 3 hearings over the phone in Nov 2020, Jan 2021 & May 2021 and had my interview with cafcass. The courts ordered a S7 report and as recent as the last hearing an addendum report. I’ve had 2 HST which have come back high. I am registered with DRP which I have been attending appointments and prescribed medication to help reduce my alcohol intake - I know this goes against me but I have never put my daughter in any sort of danger. My first time attending DRP was during my relationship with the ex and after some time didn’t carry on as I felt I had my drinking under control. I started drinking excessively again in Oct 2020 during which time my father was dying and my son was born.

The S7 report is fairly positive and has gained the support of my cafcass worker. Since Aug 2021 I have been seeing my daughter fortnightly through a contact centre. My cafcass worker even attended a contact centre visitation at the same place one afternoon for someone else, and got to observe first hand our relationship and even included in her S7 report that I met all of my daughters basic care needs.

My final hearing is coming up in May for a stepped child’s arrangement order for me to spend time with my daughter together with a child arrangements order for her to live with her mother. I have a barrister at my solicitors recommendation.

I have text messages from when we broke up that shows her willingness for our daughter to spend time with me, sharing no safeguarding concerns. Surely this proves that all of this is because of learning of my girlfriends pregnancy.

I guess my question is can my barrister use this as evidence when she is cross examined - even though our statements have been filed to the courts? Can I write a letter telling the courts of my side of the story - which is the truth? I’ve cut down a lot on my drinking yet my daughters mother condemns me in her statement picking up on every flaw, focussing on the past and not the positive changes I have made for myself and our daughter. She even proposes the court grants her visitation requests over the recommendation of cafcass. Ideally I would like everything to be 50/50 concerning our daughter. Do the courts usually go by cafcass’ recommendations? Do they listen to the father too or side with the mother?

 

[Roblox]

Hi. If relevant I think your barrister will be able to put forward. If there's never been safeguarding issues then you should be OK.

The drinking will be a concern. Could you (being honest) give an oath that you won't drink whilst you have your daughter. That would probably go along way.

The presumption is that both parents should spend time with the child and it takes a lot for that not to be the case. Other than this drinking issue is there anything else your ex has which she has proof of. Allegations etc

 

[Roblox]

The courts will usually go by cafcass recommendations unless there's reason not to do so. Someone else will probably be able to help more but I'm not sure about 50 / 50 given what you've explained.

 

[Ash]

Hi. Your statement for the final hearing is your evidence - and any actual evidence such as emails or texts should have been attached to that to back up your assertions in your statement.

Once statements have been exchanged and the bundle submitted to court, you can’t include any other evidence (unless the other side agrees to it being added after the exchange).

Hopefully your statement will have evidence backing your case? It’s easy to get caught up in defending allegations rather than showing what the actual situation was.

However - the fact that it’s gone to a final hearing means it’s been accepted there are no welfare issues.

What did you actually ask for on your C100 form? Presumably you asked for specifics to be ordered on your statement? Eg exactly how many days a week and which weeks holidays etc. If not then do a position statement setting that out.

 

[Ash]

I missed the 50/50 bit. Did you ask for that in your initial application? If so you can argue for it. (Or your barrister can). Yes courts generally follow Cafcass recommendations (maybe 98% of the time ish). But that’s why you need a barrister - to persuade the Judge .

Sadly yes she will play on any issue like drinking and while it sounds bad, I know for a fact that my ex drinks like a fish and always has done. Even when my son was a baby. It worried me a bit but it didn’t seem to affect her parenting (which is bad whether drinking or not!).

You have got to a final hearing so you will get an order. Your barrister will cross examined your ex on her statement with a view to finding contradictions in it - if the barrister can prove she has lied or contradicted herself then her whole statement is disregarded. That works for you too - her barrister will try and make you lose your cool and get angry and then say - look he has anger issues! Don’t fall for that - stay calm. Pause if you need to think before replying. But also be yourself. Judges are human and can warm to one party or the other.

If this evidence you mention hasn’t been included then just give it to the barrister and ask him if he can bring this circumstance into things when questioning your ex.

 

[Ash]

What did Cafcass recommend? Was it just live with Mother and spend time with Father? Or did they recommend specifics like every other week-end until child starts school and then every other week-end and half the holidays.

You mentioned Cafcass had seemed ok with you. In some cases, where a Dad has felt the Cafcass report has been unfair, biased or they only saw the children with the Mother, then some Dads have cross examined the Cafcass officer at final hearing (as a way to undermine their recommendation and get what they asked for). But it doesn't sound like your Cafcass officer or report has been that way (if they saw you with your daughter).

 

[Lee79]

Hi Ash, thanks for your reply!

So Cafcass recommended in their S7 addendum report that there be a CAO - outlining that our daughter live with her mother and a stepped spending time with me. This starts on alternate Saturdays for a period of 8 weeks (4 sessions) for 4 hours at her paternal grandmothers which is also supported by her. Following that is another period of 8 weeks (4 sessions) which should take up a full day. In addition to this, spending 3 hours during a weekday in between fortnightly weekend contact - again supported by my mother. This is followed by staying over from Saturday PM until Sunday PM fortnightly over 4 sessions. Followed by Friday PM to Sunday PM. This is for a period of 6 months. It’s also outlined that after this, I should be allowed additional time with my daughter during the school holidays or taking her on holiday. Cafcass also proposed religious celebrations and birthdays be split equally at 50/50. Her mother outlined a different proposal in her statement though.

 

[Lee79]

My statement just seemed to agree with the recommendations that cafcass put forward.. we didn’t challenge or change anything. We acknowledged the chronic/excessive levels of alcohol consumption but also included the positive steps I’ve taken to reduce my intake.

I sent my solicitor all of the messages from the time we were communicating effectively about contact over our daughter until she cut off all contact and suddenly me drinking was the problem and asked me not to harass her but he didn’t include any of them. She completely cut our daughter off from my side of the family. The only evidence she has are the alcohol reports and her statement shows a text message telling me to not harass her - all I did was beg to see my daughter and to be told she was ok.

 

[Lee79]

Hi. If relevant I think your barrister will be able to put forward. If there's never been safeguarding issues then you should be OK.

The drinking will be a concern. Could you (being honest) give an oath that you won't drink whilst you have your daughter. That would probably go along way.

The presumption is that both parents should spend time with the child and it takes a lot for that not to be the case. Other than this drinking issue is there anything else your ex has which she has proof of. Allegations etc

Hi - It is included in my statement and my S7 report that I will not consume alcohol 24 hours prior to being in contact with my daughter which I completely agree with!

 

[Ash]

That sounds fairly reasonable up to the point where it's vague about time during school holidays. Just trying to work out how old your daughter will be now. Is it September 2023 she would start school?

I think what I would ask for in a position statement - if you haven't in your statement is something like.

I am in agreement with Cafcass stepped schedule but feel it should be accelerated as my daughter spent significant time with me until the age of x months and still has that bond and familiarity with me. I also respectfully request that any schedule be on a shared care basis, lives with both parents.

From the time we separated on x date, arrangements were extremely amicable with Mrs Ex with us sharing the care of our daughter until x date, when Mrs Ex found I had a new partner who was pregnant and immediately stopped my daughter seeing me. My concern about a progressing schedule taking too long to progress, is that this will increase anxiety in my daughter after the sudden separation at age x months and then the infrequent time together since.

I therefore respectfully request the court makes an order as follows:

Child name to live with both parents:

With Father

Four hours every Saturday for a period of 6 weeks with my Mother's present
All day on every Saturday for a period of 4 weeks with my Mother present
All day on every Saturday for a period of 4 weeks plus 3 hours midweek time for a period of 4 weeks, with my Mother present
Alternate Saturdays from 3pm through to 5pm Sunday plus 3 hours midweek for a period of 8 weeks
Every other week-end from 3pm Friday through to 9am Monday plus 1 midweek overnight until x name starts school in September x year.
With two 7 day periods of holiday each year and one 5 day period of holiday each year, until x name starts school

From September x year
Week 1: Wednesday from school through to Monday morning school drop off.
Week 2: Wednesday from school through to Friday morning school drop off.

Child to live with Mother at all other times during term time.

This providing for 7 nights out of 14 with each parent during term time on a 2-2-5-5 basis

School holidays:

For the school holidays to be shared equally between the parents, with defined weeks. A full half term with each parent and a split half term with each parent and with school holidays commencing at the end of the last day of term and finishing at the start of the first day of the following term,

 

[Ash]

Posted at the same time. Your solicitor hasn't done a good job. Get rid and get a direct access barrister. You can deal with them directly and save a load of Solicitors fees. My experience is most solicitors side with Mothers.

If you've agreed with the Cafcass recommendation in your statement though it could be tricky now to ask for more time. But you could use the argument I mentioned above about time progressing quicker and cite avoidance of separation anxiety for your daughter after all this time.

I would do a position statement yourself, get a consultation with a barrister and they will tell you straight what is the best and worst case scenario. In my experience they are likely to say - you're certain to get xyz, you "might"get xyz - you're unlikely to get xyz due to this info, but we can still try.

The problem is, the Cafcass recommendations leave it open for abuse by the Mother - she can say - well he's not safe, that's why his Mother needs to be there - and then when it progresses to time jsut with you, her refuse to allow it to progress citing issues or allegations again.

What you need is allegations knocked on the head (by the cross examination).

 

[Lee79]

What is the difference between a statement and a position statement? I’m confused, sorry.
Even in the hearings, I felt my solicitor didn’t fight my corner hard enough. I wouldn’t be able to afford a direct access barrister at this stage as much as I would like to.

My daughter was born in Feb 2019. I see what you mean about contact during school holidays.

 

[Lee79]

There has also not been any acknowledgement of my daughter meeting her paternal half sibling. I’ve tried to encourage their meeting at the contact centre but nothing.

 

[Ash]

That happens so much and I also learned the hard way. Solicitors run up a lot of bills to get you where you are now. A direct access barrister will usually charge a fixed fee for the hearing. A consultation would be extra, but you don't need to have one. You can just email them about what you are hoping from the hearing and sending them any info instead.

Solicitor's fees for the final hearing would be a bit less than a Barrister's. But in the meantime the solicitor charges you for every phone call, every letter received and read and so on. The Barrister just takes on your case at the hearing to help you win.

If you've agreed to what Cafcass have recommended it will mean another return to court at some point as it's left vague about school holidays. Whereas if you ask for everything in this order to last throughout childhood you have a clear order with no ambiguity.

A statement for a final hearing is a much bigger document and is basically your "evidence" for the hearing. You can't submit evidence until a final hearing.

A position statement is a more informal thing, like a note. You can send one for every hearing - the idea being it's up to date info - states the "position" since the last hearing and now technically. But it's also an opportunity to set out exactly what you'd like ordered. Don't ask, don't get. Technically you shouldn't need a position statement as well as your main statement for final hearing, but it's a way

It makes me angry that so many Dads get a raw deal because solicitors pander to the idea that a Dad should be grateful for any snippet thrown his way and the assumption the child will live with the Mother.

You could expect to pay £4000 plus VAT for a good barrister for a full day's final hearing. Anything cheaper than that and they are likely not to be up to much (and they can cost a heck of a lot more than that).

"As the name implies, it is a written statement setting out your ´position´, which at a first directions hearing, should briefly setting out what it is you want the court to do, and why.

At later hearings, position statements can also be useful to give both the court and the other party to proceedings pre-warning of any change in your ´position´ (e.g. what you want to happen)."

statement templates — Advice

www.familycourtsupport.social

 

[Ash]

So in this case, your position statement could update the position from when you wrote your statement. For example you could say that you are finding your daughter becomes anxious at the end of the current short visits and you now feel the progressing schedule should be speeded up a bit with more significant time. And it then gives you the opportunity to drop in how much time you had by amicable arrangement initially. It doesn't matter that that was a long time ago. What matters is the bond - during that time your daughter formed a permanent bond with you and having taken further advice you are conscious of "stability and continuity" and feel there needs to be regular and significant time with both parents - and set out what you want. You could also add anything else that has happened since statements were submitted. Eg if your ex has been difficult over anything. If anything else has changed etc.

A barrister would just call it a "note" but it's usually known as a position statement. It's just double line spaced with each paragraph numbered and the title "Position statement of Father", your name and case number at the top. No more than two sides of A4.

This is something the Judge can then consider after the cross examinations.

What were you going to do for final hearing? Use the same solicitor? Or do it yourself. At a final hearing it becomes much more "legal" and the adversarial element of court proceedings comes in. With formal things like cross examinations. It's not astage where you sit and wait to see what people are going to tell you what you can have - it's a stage where you try and win the case and get what you want (or close to it).

There are Dads who do a final hearing on their own. But you need to be quite confident and read up about how to cross examine your ex. The cross examination is partly what sways the Judge. The Judge may look at the reasoning and common sense in your position statement and agree that a progressing schedule should progress quicker.

One Dad argued that and got the progressing order speeded up followed by shared care. Because you need to show there was no reason for you not to be seeing your daughter in the first place.