1. One of the most common tasks you'll have to undertake when going through family law proceedings is to produce position statements, so I thought I'd offer some guidance as to how to approach these, along with provide you with a template which can be found here:-
2. There is a huge difference between position statements and witness statements. Position statements are usually 2 pages (sometimes up to 4) and contain just the key points which I'll go into further on. Witness statements are much much longer, contain evidence and are usually much less restrictive in size. I may cover those in a future blog.
3. Why write a Position Statement? Sometimes the'y re ordered, often they're not. However, if done correctly they can massively help out both you and the court. They will help the court quickly get to grips with the case, and see what the key issues are, without having to ask lots of questions to establish where the case is at. It will help you because you will be sitting in the court room with (probably) lots of documents in front of you, but this one will be the key document. It will have your position for that hearing on it. If the court asks you to introduce your case (commonly asked of the applicant in particular) then you will be able to ease your nerves by asking the court whether they've had a chance to read your statement, and if they have, whether they have any questions on its content. It will also ensure you don't forget any points you wish to make.
4. Please don't fall into the trap of writing reams and reams of information, reasoning arguments and long paragraphs. This will hugely weaken the effectiveness of a position statement as the court will have to wade through the content to find what they need. It's also not the time and the place - a witness statement is more the place for detailed reasoning for instance. It's definitely not the place to attach any evidence either. I understand how tempting it is to write chapter and verse as it's the first time you will have had to put your side of things across to the court. However, wait until the court has asked for it. The Position Statement is truly effective if it can be contained within short paragraphs on a single page - that's pro-level statement writing!
5. Turning now to filling in the form. The top section (if you’re using my template) should be self explanatory, but obviously you'll need to add your own case number, name of court, children's names and dates of births, applicant and respondent's names.
6. The section between the lines should read something like (as an example) POSITION STATEMENT OF THE APPLICANT, BORIS JOHNSON, FOR THE HEARING ON 4TH JULY 2020, AT 10AM, BEFORE JUDGE DONALD TRUMP.
7. The following numbered sections are how to lay out the information that you are giving. Each point should be in short numbered paragraphs. I've used the same system in this blog post, so you can see roughly what I mean.
8. The font size is often stipulated by the courts to be no smaller than size 12. A jovial barrister once told me it's because most judges struggle to see text smaller than that, even with their readers on! Spacing between paragraphs like this should mean you can usually get away without double spacing.
9. So what about content? As I always say, each Family Law case has unique circumstances so there's never one size that fits all. However, there are some common elements that almost all Position Statements will have. Those are Background / Contact since last hearing, Response to Safeguarding letter / Section 7 recommendations, and Proposals for contact. There may also be a section entitled additional points, if necessary.
BACKGROUND INFORMATION
10. Ooh, a subtitle! You can stick those in to divide your position statement into sections. That'll be helpful to find your way around the position statement when it's in front of you in court. You'll note I said in point 9 that this section could be called Background OR Contact since last hearing. If this is your first hearing (FHDRA) then this section should be called background. If it's any other hearing then this section should be contact since last hearing.
11. Background information should not be lengthy. You're looking for 2-3 points here really, any more will dilute the points you want to make later on. Things like "The parties were married in 2012, and divorced in 2020. We have two children called Alfie (6) and Betty (3). Since our separation the children have lived with their Mother and have spent Fridays to Mondays each weekend with me their Father". Your next point could be "Following an argument over the division of time for the upcoming summer holidays, Mother has unilaterally suspended all contact with the children. This application seeks to put a Child Arrangements Order in place so that contact is reinstated with me as soon as possible.
12. If the first section is to be contact since the last hearing you could make points like "Since the last court hearing contact has been taking place in a contact centre as ordered. Betty was not keen at first as she was uncomfortable with the location, but both children eventually settled. Reports for the sessions were supervised by Mrs A. Supervisor who has been in contact with CAFCASS throughout. Contact was very positive."
RESPONSE TO SAFEGUARDING LETTER
13. This section could be either response to safeguarding letter or response to section 7 recommendations, depending on which part of proceedings you are in. In either case you will want to spend a maximum of 1-2 points per recommendation made by CAFCASS / Children's Services.
14. Let's say for example that one of the CAFCASS recommendations is for contact to progress to community based contact, and then unsupervised you could respond with "I agree with the CAFCASS recommendation that contact no longer needs to be supervised. I welcome the opportunity to move things forward. Given that it's no longer appropriate to be supervised I suggest that contact doesn't need to be in the community, as we are approaching the winter months where it will be cold outside, and instead I would ask that contact takes place at my home."
PROPOSALS FOR CONTACT
15. This section is the most important, and the one which the courts will take the most note of. Generally speaking (with the exception of cases where domestic abuse features, in particular) this is the business end of the statement. Both parties will make their proposals for future contact between the parents and the children. As you get towards the end of proceedings the idea is that there are fewer and fewer elements left that are not agreed.
16. Firstly, if not already agreed then you will need to write whether you would like the children to live with you or the other parent, or whether it should be 'shared care'. The next point should be how this time should be divided. There are examples of shared care (50/50 arrangements) found here.
17. If shared care isn't something you think is achievable then you will need to say briefly why the children should live with you. For example "I would request that the court grant a lives with order, to reflect the fact that since our separation the children have lived here with me in the former matrimonial home for five out of seven days". You will then need to give details in the following paragraphs about how you feel the time should be divided.
18. If there is space left on your Position Statement you could furnish it with suggestions of how some or all of the following should be set out: Christmas, Summer holidays, Easter, Children's Birthdays, Parent's Birthdays, Mothers & Father's Days, Parental communication (eg an app / email), any video / phone calls (known as indirect contact), how the passports will be kept, and how travel and handovers should happen.
19. If things are still early on in proceedings then it could be how to manage the progression of contact, or any interim arrangements that could take place.
ADDITIONAL POINTS
20. This is where you can raise any other issues - if you have space! This might be for example that you're concerned that the other parent has stopped you from accessing information concerning the children from the school. Perhaps it could be that you wish to request consideration of the children at a special event, such as a family wedding.
21. Finally, SIGN IT! Without having signed it the court doesn't know that it's definitely yours! It's good practice to get used to this. If you don't sign a witness statement for example then it could be that you're prevented from giving oral evidence in a case - I've seen it happen!
22. Once written, do make sure you send it in good time to the court and to the other party. It could be that you agree a time and date to exchange the statements. This is good practice but doesn't always happen - even when ordered by the court. I would urge you not to wait until the last moment to gain any perceived advantage. That's not what a position statement is for. You're not trying to counter the other parent's arguments, you're merely setting out your position for this particular hearing and what you'd like the court to consider.
23. I hope this has been useful. I'm aware there's multiple ways to approach position statements, especially because they're frequently misunderstood as witness statements, but the above is the approach I use and it seems to be well appreciated by my clients and judges alike.
24. To have me assist in your case, or draft a position statement for you(!) please book my time via
Neil Andrews 13.07.22
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