Case study 2 - family law - custody of the children - England and Wales

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In this case study on family law – custody of the children, Member States were asked to provide information for the suing party on litigation costs in order to consider the following situations:

Case A – National situation: Two persons have lived together unmarried for a number of years and the father is named on the birth certificate. They have a three year old child when they separate. A court decision grants custody ("custody" is called "residence" in England and Wales) of the child to the mother and a right of access ("access" is called "contact" in England and Wales) to the father. The mother makes an application to the court to limit the father’s right of contact.

Case B – Transnational situation where you are a lawyer in Member State A: Two persons have lived together unmarried in a Member State (Member State B) for a number of years. They have a child together but separate immediately after the child’s birth. A court decision in Member State B gives the child’s custody to the mother with a right of access to the father. The mother and the child move to live in another Member State (Member State A) as authorized to do so by the Court decision and the father remains in Member State B. A few years later, the mother sues in Member State A to change the father’s right of contact.


Costs of proceedings

Important points to note about the information provided

It should be noted that there are many influences that dictate the process involved in bringing such cases in the courts of England & Wales, therefore it is not possible to set out the definitive costs involved. Details of current fees can be found on the Link opens in new windowHMCTS Court and Tribunal Fee website. Where possible actual fees have been included for certain aspects of the processes but these should be viewed as a guide only.

Court fees often depend on the tier of court used and the steps involved in the individual case, a full list of fees charged can be found at Link opens in new windowHMCTS Court and Tribunal Fee website. The Link opens in new windowLaw Society and Link opens in new windowBar Council may be helpful in finding a legal representative, but they do not hold information on costs of legal representation as this will depend on many factors of the particular case concerned.

For the examples here, we assume that:

  • The father makes an application to the court for a child arrangement order for him to spend time with his child, at the same time making an application for parental responsibility as he is not married to the mother and did not acquire parental responsibility through birth registration. If one or both parties receive legal aid they will be referred to an initial meeting to discuss whether mediation would be suitable for them. If the answer is no the case proceeds to court.
  • The court decided the child should live with the mother and the father is given parental responsibility and an order specifying when he will spend time with the child.
  • The mother returns to court and applies to vary the terms of the child arrangement order.

Note that:

  • Fees are correct as at 22 April 2014. Court fees are subject to change, so you should always check with the court, legal representative and any other individuals or organizations who are involved that an amount is still the current fee.
  • You have to pay a court fee to make an application to the court and pay further court fees at different stages of the court case. You may qualify for a “fee remission” (depending on your personal circumstances) which means that you may not have to pay a court fee or only have to pay part of it. However, you have to apply for a separate remission for each fee payable throughout the court process. So, for example, applying for a remission when the first application is made would only give you the remission for that first “issuing” fee.  This is because your personal circumstances might change during the court action, and you might no longer be eligible for a remission later in the case. Or you might become eligible for a fee remission during the case.
  • There are also likely to be costs that you need to pay as your case goes forward. Costs might include legal fees, travel and accommodation, loss of earnings and witness costs. In some instances, at the end of the case, the court may decide that you also have to pay the costs of the other party to the case or they have to pay yours. If the court decides to make an order about costs at the end of the case the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party, but the court may make a different order. The judge assesses the costs at the end of the case.  So, if you lose, you may have to pay the costs of the winning party. And even if you win, you may not get back all the costs that you have had to meet during the claim. Costs can vary considerably depending on the case.  There are some specific rules that apply on costs, depending on the particular court and procedures involved.

N/A is shown in the tables where the answer is Not Applicable and N/K is shown in the tables where the answer is Not Known.


Indicative costs in England & Wales

Indicative costs for court, appeals and alternative dispute resolution


Case Study

Court

Initial court fees

Transcription fees

Other fees

Case A

Commencement of proceedings for child arrangement order (£215) and parental responsibility (£215).

For a list of current fees, please refer to Link opens in new windowHMCTS Court and Tribunal Fee website

The Applicant will need to make a request for a transcript to the court where the hearing took place. The court will then provide details of  a list  of accredited  court transcribers’ to the applicant.   Applicant will then need to liaise directly with transcribers’ who will return typed document  to the court for the relevant judge’s approval.

N/K

Case B

Commencement of proceedings for child arrangement order (£215) and parental resposibility (£215).

For a list of current fees, please refer to Link opens in new windowHMCTS Court and Tribunal Fee website

 

The Applicant will need to make a request for a transcript to the court where the hearing took place. The court will then provide details of  a list  of accredited  court transcribers’ to the applicant.   Applicant will then need to liaise directly with transcribers’ who will return typed document  to the court for the relevant judge’s approval.

N/K

 


Case Study

Appeals

ADR

Initial court fees

Transcription fees

Other fees

Is this option open for this type of case?

Costs

Case A

Currently £125 for a Section 8  case or £180 for a Care and Supervision matter. For a list of current fees, please refer to Link opens in new windowHMCTS Court and Tribunal fee website

Please see above

N/A

Yes, mediation can be used at any time.  The court can direct parties to attend a contact activity’ (information session) about mediation if it feels this would help to resolve the dispute and hence benefit the child.

Information about alternative dispute resolution following breakdown of a family relationship (including costs) is available at the website of the Link opens in new windowFamily Mediation Helpline (or by calling the Helpline on 0845 6026627 from within the UK and +44 1823 623650 from outside the UK).

A party is expected to pay for mediation sessions unless they qualify for legal aid.

The parties are expected to pay for a contact activity designed to give information about mediation, unless they qualify for legal aid or can demonstrate that they would suffer financial hardship if they paid the fee.  Assistance of up to £450 is available though this is subject to change..

Information about alternative dispute resolution following breakdown of a family relationship (including costs) is available at the website of the Link opens in new windowFamily Mediation Helpline (or by calling the Helpline on 0845 6026627 from within the UK and +44 1823 623650 from outside the UK).

Case B

Currently £125 for a Section 8  case or £180 for a Care and Supervision matter. For a list of current fees, please refer to Link opens in new windowHMCTS Court and Tribunal fee website

Please see above

N/K

See above.

See above.



Indicative costs for lawyer, bailiff and expert


Case Study

Lawyer

Is representation compulsory?

Average costs

Case A

No

The Link opens in new windowLaw Society and the Link opens in new windowBar Council may be helpful in finding a legal representative but they do not hold information on the costs of legal representation as this will depend on many factors of the particular case concerned.

Case B

No

As above, though there may be two sets of lawyers’ fees involved in cross-border hearings.

 


Case Study

Bailiff

Expert

Is representation compulsory?

Pre-judgement costs

Post-judgement costs

Is use compulsory?

Cost

Case A

No.

When cases are issued, the court serves documents automatically by postal service. There is a cost of £110 for service by the court bailiff if the applicant does not want the court to serve documents by post.

For a list of current fees, please refer to Link opens in new windowHMCTS Court and Tribunal Fees website.

 

Note: information about the role of bailiffs and enforcement officers in England & Wales can be found at Link opens in new windowHMCTS Court Contacts website.

See left.

See left.

No

Information on experts can be found at the website of  the Link opens in new windowMinistry of Justice

Case B

Costs for service of divorce

Documents for service on respondents depend on the type of service accepted in the Member State where service takes place.

See left

See left

No

Information on experts can be found at the website of  the Link opens in new windowMinistry of Justice



Indicative costs for witness compensation, pledge or security and other relevant fees


Case

Study

Witness compensation

Pledge or security

Are witnesses compensated?

Cost

Does this exist and when and how is it used?

Cost

Case A

N/A

N/A

N/A

N/A

Case B

N/A

N/A

N/A

N/A



Indicative costs for legal aid and other reimbursement



Case

study

Legal Aid

When and under which conditions is it applicable?

When is support total?

Conditions?

Case A

Legal Aid will only be available for this type of work where there has been, or there is a risk of, domestic violence or child abuse and where suitable evidence is provided in respect of this. The normal means and merits tests apply (see section on Legal Aid).

See section on Legal Aid

Suitable evidence demonstrating that there has been or is a risk of domestic abuse or child abuse must be provided.

See section on Link opens in new windowLegal Aid on GOV.UK

Case B

Legal aid is available only for proceedings that take place in England and Wales (see above).

See section on Legal Aid

See section on Link opens in new windowLegal Aid on GOV.UK

 



Case

study

Reimbursement

Can the winning party obtain reimbursement of litigation costs?

If reimbursement is not total what is percentage in general?

What costs are never reimbursed?

Are there instances when legal aid should be reimbursed to the legal aid organisation?

Case A

It is possible for a party to make an application to a family court for reimbursement of costs. Costs will be awarded to the applicant only if the judge considers that the other party has acted in a way that causes unnecessary costs to be incurred.

See the answer to the left.

See the answer to the left.

Clients may be liable to pay a contribution, depending on their income and capital.  (See Case 1A)

Case B

It is possible for a party to make an application to a family court for reimbursement of costs. Costs will only be awarded to the applicant if the judge considers that the other party has acted in a way that causes unnecessary costs to be incurred.

See the answer to the left.

See the answer to the left.

Clients may be liable to pay a contribution, depending on their income and capital  (See Case 1A)



Indicative costs for translation and interpretation


Case

study

Translation

Interpretation

Other costs specific to cross-border disputes?

When and under which conditions is it necessary?

Approximate cost?

When and under which conditions is it necessary?

Approximate cost?

Description

Approximate cost?

Case A

N/A

N/A

N/A

N/A

N/A

N/A

Case B

Translation of documentation required

There are no regulations governing translators’ fees. The translator or translation company fix their own fees.

See section on Translators’ and Interpreters’ Fees

See section on Translators’ and Interpreters’ Fees

N/K

N/K


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Last update: 20/06/2017