Civil Law is a form of private law (including family) concerning the relationship between individual citizens and covers all law outside criminal. It is the means by which individuals (‘applicants’) assert claims against others (‘respondents’) and have those rights adjudicated and enforced. The aim is to settle disputes between individuals and provide remedies – many have heard of ‘the small claims court’- an aspect of civil law- and know such hearings are held in private. It is not concerned with punishment as such, although breach of a court order may result in contempt of court proceedings, breach punishable by up to 2 years’ custody and/or a fine. Property, probate, contract, family and tort (a wrong/injury arising out of an act or failure to act) are generally aspects of civil law. The standard of proof is ‘the balance of probabilities,’ so someone may succeed in a civil case, without enough evidence for a criminal prosecution.
Criminal Law is an aspect of public law and relates to conduct of which the state disapproves and which it seeks to control and/or eradicate. It involves the enforcement of particular forms of behaviour. Cases are brought in the name of the Crown (R v) The prosecutor prosecutes a defendant (‘the accused’). The hearings are public. The standard of proof is high – ‘guilty beyond reasonable doubt.’ There is also a ‘public interest’ test to be met before a case is brought.
Hybrid offences blur the distinction between civil and criminal responsibility. A civil court makes an order against an individual, but with the attached sanction that any breach will be punished as a criminal offence. For example the Protection from Harassment Act 1997.
The Family Court comprises the county court (usually presided over by a district judge) and the family proceedings court (presided over by three lay magistrates or a district judge, formerly called a stipendiary magistrate). It deals with all family proceedings save those reserved for the High Court – if, for example, the applicant is a minor. Family courts are broadly divided into two areas: private and public family law.
Private family law matters are brought by individuals, usually in connection with divorce or separation. Judges can make various Section 8 orders under the Children Act 1989, including orders to decide where a child will live and time spent with each parent – now called child arrangement orders – or to prevent a child’s removal (prohibited steps). Financial applications for child maintenance or for financial (‘ancillary’) relief in divorce proceedings may also be made. Where someone wishes to separate safely from a threatening, controlling partner a non-molestation order or injunction under part IV of the Family Law Act 1996 (FLA) may be sought, its purpose to control the situation while related issues are resolved. An occupation order may determine occupation of the former family home for 6 months renewable, regardless of legal rights, while matters are resolved.
Public law cases are usually brought by local authorities, also under the Children Act, when a child has suffered significant harm or is considered at risk of significant harm. Parents of children subject to, for example, care applications have non-means, non-merits tested legal aid. All such cases begin in the Family Proceedings Court before magistrates – to be transferred to the County Court before a high court judge if complex.
Family Courts handle cases arising from those areas of law typically resulting in a series of ‘directions hearings’ where orders are made requiring a person to do or not do something. Applications concerning children are referred to a CAFCASS (Children and Family Courts Advisory and Support Services) officer for investigation.
District Judges are the lowest tier of judges and easily the most numerous. Sitting in the county court and dealing with all types of civil law cases they are largely drawn from the ranks of solicitors. Typically county court judges hear applications in chambers – a private office with desks pushed together in a large rectangle, headed by the judge, with the parties and their representatives sitting either side. Only solicitors, legal executives or barristers have rights of audience in the county court. However, removal of most private family law legal aid has led to a huge growth in unqualified lay supporters (‘Mackenzie friends’) accompanying litigants in person (LIP’s). The ‘rights of audience’ requirement does not prevail in private law applications in the Family Proceedings courts, where magistrates sit, although these – like their county court counterpart – are also held in private.
Ex parte directions hearings are hearings in civil courts where just one side or party to proceedings is present. They take place in non-molestation injunction order applications where an applicant’s statement alleges violence or threats of violence and specifies the fear that if forewarned the respondent would pressurise the applicant into withdrawing the application.
Inter partes hearings are hearings where both sides are present or where the respondent has been served with notice of the hearing of an application, whether they attend or not.
Barristers and Solicitors – what’s the difference? Both have a 3-year degree in law or its equivalent 1-year (after a non-law degree) qualification, the Graduate Diploma in Law. Intending barristers then sit bar exams after a further year’s study, focusing on advocacy skills for contested hearings, civil and criminal. Intending solicitors sit Law Society exams, focusing on law and procedure. Within the specialisms of the main heads of law, there may be further specialisms. For example, one family law solicitor may specialise in high value ancillary relief (financial) work attached to divorce. Another, working in a firm with a legal aid franchise, may specialise in Children Act proceedings and Family Law Act part IV (domestic abuse) proceedings. Barristers may specialise in criminal law, acting for defendants or for the Crown Prosecution Service (CPS) in prosecuting them. Or they may specialise in civil law, including public and private family cases.
Lawyers and Legal Advisers – what’s the difference? These are terms that can mislead the general public. To call yourself a solicitor, under Law Society regulations you need the required exam and updated training qualifications, also a current, paid-up practising certificate. Calling yourself a lawyer or legal adviser is like calling yourself an accountant – open to anyone, as opposed to being an actual chartered accountant. If things go wrong and a client needs to sue, there may be insufficient indemnity insurance there to meet a claim.