In this section we concentrate on situations where a mother has been the victim of domestic violence, but the process described here also applies to any parental dispute about contact or residence.
If you have recently separated or never made a formal arrangement about the children after you separated from their father, you can apply to court for a Child Arrangements Order.[47] This is where you say where you want the children to live and what contact they should have with their father. If you don’t have a lawyer or legal aid hasn’t come through yet, you can fill in the form yourself and take it or post it to the nearest family court to where you and the children live.[48] If you are on benefits, you do not need to pay the court fee (at the time of writing £215). You will need to fill in a Fee Waiver Form [49] and get a letter confirming your benefit payments which should be dated within the last three months. If you or the children are at risk of harm or abuse you need to fill in an additional form [50] and give brief details.
If you are representing yourself, remember to carefully read the Guidance Notes for all these forms because if you don’t follow the requirements (for example by not taking copies of the forms with you) your application will be rejected.
If you are a victim of domestic abuse, you do not have to attend a Mediation Information and Access meeting (MIAM), whilst in all other situations you are expected to attend a MIAM before initiating court proceedings. The only exceptions to this, in addition to domestic abuse, are if you are bringing an urgent application such as a claim of child abduction, a risk of harm to the child, or you do not know the address of the other person. You are also exempt if you are making what’s called a “without notice” application, if you have a disability that can’t be facilitated by mediators or in cases where the child has been made party to the proceedings and is represented themselves. MIAM’s do not apply to applications for a No Molestation Order or to enforce an earlier order of the court that has been broken.
You may be entitled to legal aid (now called Public Funding) if there has been domestic abuse (either in the past or if it is continuing by the father pressing for residence/contact). Domestic violence includes controlling, coercive, abusive behaviour; it is NOT limited to rape, sexual and/or physical violence.
If you own property in your own name alone, you won’t get legal aid. If you jointly own your home with your ex-partner, you may now be able to get legal aid following a recent court ruling. You will not be eligible if you have “capital” of £8000 or more – this includes all savings and money in the bank. If you have an expensive car or jewelry these may also put you over the financial limit.
If you’re not sure about the financial limits, apply anyway in case you are eligible. If you want to apply for legal aid under the domestic violence rules [51], ask your GP to refer you to a domestic violence organisation (for example Women Against Rape or Women’s Aid) and that organisation can then refer you to a lawyer for legal aid.
If you cannot get legal aid always take someone to court with you, especially if you don’t have a lawyer. A friend or relative can be your McKenzie friend and judges are supposed to be a bit more considerate towards anyone representing themselves. We know that fathers are more likely to have a lawyer than mums so it’s important to know your rights and stick up for yourself in court! See other options in Section 8.
As a victim of domestic violence, you have a right to be treated as a vulnerable witness in court. Two useful legal documents are Practice Direction 12J (PD12J), and Practice Direction 3AA (PD3AA). PD12J says that where allegations of domestic violence have been made, the judge should have a fact-finding hearing. It also spells out how women with a violent ex-partner ought to be treated in family proceedings. If you have a lawyer, make sure they use these documents and ask them to insist that the judge follows them as this could make all the difference to your case.
If you are representing yourself, you can still ask the court for protective measures under PD12J, which include the use of video link for giving evidence, a separate waiting area and screens in the courtroom. It’s important to email the court ahead of time, explain you are requesting these protections under PD12J, and then take a copy of your request with you to show court staff in case no arrangements have been made. It is not uncommon for the arrangements not to be in place, so you may need to insist once you’re at court and show proof of making the request. Stick to your guns!
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