Re:Can I still use Case Law?

Hi,

Applied for shared res and submitted a statement which I though was child focussed. I was half expecting Cafcass involvemnet and a report to be carried out but this didn't happen and judge has referred this to a final hearing. I don't think he's too keen on my app as he feels I'm being akward and simply dragging mum to courts.

Anyhow, I didn't include references to case law in my statement and was asked in the last hearing whether we wanted to submit additional statements and we both said no.

The probelm is now, I feel my case could benefit from having case law mentioned but:

a) Don't quite know how to have it included in the final hearing or for it to be considered and am worried I will infuriate the judge.

b) Not quite sure how to apply it to my arguments i.e. do I just present my argument and say the following case law supports this argument etc?

Briefly what is your argument and what case law were you thinking of using? Children cases are often about everyday parenting issues. There isn't normally a lot of law involved and unless you understand the case law and how to apply it is often better not to quote it.

The higher courts make case law which is binding on the lower courts when the circumstances are the same. If the circumstances are different a judge can make a different decision.

Hi Fiona,

The basic crux of my argument is that:

Son has been staying with me for well over 5 years now (extended alternate weekends and midweek contact and his main summer hols i.e. week in X-mas, Easter and 2 in summer plus the fact that I have been keeping him for weeks at a time when mum has struggled with childcare arrangements. There is also the fact that there are no welfare concerns and never have been.
My argument is the fact that contact had long been established and he is now living with me as I have been taking him to school, putting him to bed, making breakfast, helping with home work, taking him on short breaks, he’s been spending time with family members etc in other words all the duties that his mother has been carrying out with him and would like an order to recognise this fact and that he does indeed have two homes, albeit lives with mother that little bit more.
There are no specific case law which apply to my case but would like to make reference to the fact that the various case laws, I have been looking at all seem to highlight decisions taken by judges to grant SR to reflect the reality of the way children live their lives with both parents and thus in my case should recognise he does indeed have two homes. I.e. Case law: Re A, D v D & Re: C

The other issue I have is in relation to mother highlighting animosity and lack of communication between us both. The same question was asked by the cafcass officer during our initial meeting and she wondered how we would communicate with each other during SR, as we had been failing to do this for years now. Thus would have liked to make reference to case laws where judges seem to underline the fact that SR can be achieved even when there is animosity between parents and no exceptional circumstances have got to be provided (Case law: A v A, Re K, Re W). In some cases parental hostility could be alleviated as per: A Father and a Mother v Their Two Children (B and C) (2004) EWHC 142 (FAM) but am really struggling to find anything on this case and what it was technically all about.

A v A is the "standard" case in which shared residence is ordered despite the intense hostility between the parents - the mother had made false allegations against the father of sexual abuse. The father had applied for sole residence.

Where there is hostility of that degree the parents are obviously incapable of cooperation without outside intervention, and in A v A that was provided by NYAS. If you are going to use A v A you therefore need some equivalent way of enabling handovers, either by NYAS, CAFCASS or a contact centre.

The case also features a s91(14) order preventing further litigation until the children reach the age of 18. Of course, as with all family court decisions, it is impossible to know what the outcome was for the family or what effect the orders made are having on the children.

The case is available on Bailii here: http://www.bailii.org/ew/cases/EWHC/Fam/2004/142.html.

Thanks for that Forseti. The point I wanted to make with this case was that despite the hostility and lack of cooperation SR was still granted.

My case is nowhere near as bad as many of those that are out there. There have never been allegations of sexual abuse, no history of DV, no attmpts by mother to try and return to courts to reduce contact hours, albeit their have been breaches and various alegations slung in relation to not being able to care for the child and how it would destabalise son if shared res was ordered.

In matter of fact her statement is all about her and how she is suffering, which is complete nonsense.

In contrast to the case laws and various other stories I've been reading on forums where shared red has been ordered, my case seems nowhere near as bad and to some effect that worries me too!

The problem I have now is how do I get to site snippets of these various case laws to support my arguments as I did not inlcude anything in my statement and no further statement are to be filed?

Would I be able to use case law in the final hearing, even if it wasn't mentioned or included in my original statement?

Anyone?

You can but i wonder how wise it would be, very often lay people will bend case law to suit their situation, it really is best left to barristers to argue case law.

The other issue is if you intend to use case law know your stuff, you will be in front of a district judge who will know exactly how it should be interpreted, if the other side is represented again it is never wise to out lawyer a lawyer, or try i should say, you will lose.

Contact issues are often matters of practicality, keep it that way, muddying the water will waste valuable time that could be used to look at the important issues.

When you act alone you can`t beat plain English and reasonable requests, one of the biggest mistakes LIP`s make is to try and be something they are not, a general comment and not aimed at you of course.