Hello all. Some of you may know me as @Franno85 from twitter, others may know me in my professional capacity as a lawyer or as a supporter of the fantastic Rita Project. I expect you have all heard enough from me on twitter or at various events, however Madelaine asked me to do a guest blog post for her and how could I refuse.
Womens Aid provide a helpful description of a non-molestation order – the order is aimed at preventing your partner or ex-partner from using or threatening violence against you or your child, or intimidating, harassing or pestering you, in order to ensure the health, safety and well-being of yourself and your children. There are other people against whom an order can be made against but for the purpose of this blog, I am referring to a current or ex partner.
I open this blog with a caveat that no two cases are the same and no two clients are the same, however the approach to dealing with emergency situations is generally the same. Of course, each client should receive specific advice on their case and the options available to them.
Generally, the initial contact is by telephone and you begin by taking some initial details to enable you to carry out a conflict check to make sure you can assist the person calling and also to ascertain the nature of their enquiry (i.e. why is the matter urgent). Secondly, you take some basic financial details to ascertain if you feel they would be eligible for public funding. At this stage, if the lawyer feels they are able to help, they will ask the client to make their way into the office urgently.
Whilst the client is making their way into the office, a telephone call is being made to the urgent appointment line at the Court to seek an appointment to issue the application and for it to be placed before a Judge that day for consideration.
Once the client arrives, they are taken into an interview room and a full legal aid assessment is carried out (they will have been told on the phone to bring things such as 3 months bank statements for all accounts, proof of mortgage/rent costs, 3 months wage slips/proof of benefits, childcare costs). If the figures show that the client should be eligible for emergency public funding this is explained to them with the caveat that if the Legal Aid Agency disagree, then they may have to repay the costs to them. If the client agrees, then the application is submitted and the forms are signed for the file.
The next steps is to move onto preparing the papers necessary to make the Court application. At this stage, the lawyer is trying to ascertain from you and show to the Court that your case meets the legal tests for both an emergency order and for an order without notice to the other party. At this point, you may feel that you are not being listened to, however this is not disrespect by your lawyer, this is your lawyer knowing what information is needed at this stage to satisfy the Court. This may feel odd to you, as you are used to your support workers having the time to sit and really listen, however when we are responding to an emergency situation we need to deal with matters swiftly and ensure that we have satisfied the legal tests.
Once the papers are drafted, the lawyer and the client then head off to the Court to issue the application and await the decision as to whether an emergency hearing will be granted. This can involve a lot of waiting around as often you are waiting for a Judge to come out of a hearing to have time to consider the papers.
The Judge has to consider the test at s45(2) of the Family Law Act 1996 - in layman's terms there needs to be a risk of significant harm to the applicant or child, that risk is attributable to the behaviour of the respondent or the applicant would be deterred from making an application on notice or the respondent is aware of the proceedings but is evading service. If the Judge agrees that the matter should be heard as an emergency, they will give a time that a hearing will take place.
Once the case is called before the Court, the lawyer will introduce the parties and summarise why the application has been made. Often at emergency hearings, the Judge will have questions and it is common for the client to respond to these directly. There is nothing to fear from being asked questions by the Judge and often it is clarification such as “is the address near a main road” - this is often asked when an exclusion zone is requested to avoid an inadvertent breach of the order by the other party.
Once the Judge is satisfied that the legal tests have been met, an order will be made and a return date set. A further hearing is required to allow the other party the chance to present their case to the Court.
This stage again involves waiting around as the order needs to be drawn up by the Court (typed up) and copies sealed and given to the lawyer for service. Once this is done, the lawyer will ensure the client has a copy to take away with them. The next step is for the lawyer to get back to the office and arrange for a process server to attend to collect the papers and arrange personal service on the other party. Only once the order is served is it effective I.e. legally binding on the other party. The process server will also ensure that the order is logged with the police and on the Police National Computer so that if you need to call 999, they are away of the order and will respond accordingly.
I hope you will see that there is a lot of work involved in dealing with an emergency situation and that your lawyer is taking the urgent steps required to protect you and your family. The approach taken by the lawyer doesn't mean that they don't care about your story and how the other party’s behaviour has affected you, however they have a job to do and at that moment in time, that is to secure an order to keep you and your family safe from harm. Prior to the return hearing, there will be a further opportunity for you to meet with your lawyer and at that stage, there will be time for you to raise all of the issues that concern you and your lawyer will have time to listen and if necessary include these in a further statement for the Court.
If you have any queries regarding this blog or wish to be sign posted to services that can assist you, please contact me at firstname.lastname@example.org