Hi All,
I have proposed to my solicitor that, in my Witness Statement, that I draw on various cases of persuasive and binding case law and include that case law as exhibits. An example would be case law where “Lives with / Lives With” Orders have been ordered despite parental conflict. Another example would be a case where Double-Barrelling of surnames was encouraged by a high court judge.
My solicitor says there’s no need to discuss these in the statement as my barristers can mention them. My solicitor also has removed the case law from my exhibits.
My question is: how can the barrister draw on the case law if it’s not included within the exhibits? Do all parties not have to receive a copy of the case law so that they can be referred to the paragraph to which she is discussing?
Are there any disbenefits (besides a magistrate finding it rather irksome to have a large bundle to read) to submitting exhibits such as case law?
If an unsatisfactory decision is made and I wish to make an appeal, I understand that it would be incumbent upon me to point out where the judge/magistrate has erred in law (e.g. he failed to acknowledge this case law xyz). Is it still possible to make an appeal on these grounds if the magistrate or judge had never been referred to the case law in the first place? Thanks
FYI - there is a page limit on this updating statement submission, so I understand a need for brevity, but the exhibits wouldn’t use up that page limit. Also there wasn’t a page limit on the last submission but my solicitor still decided to do the same (i.e. not discuss or append the case law to the statement but rather say “the barrister can talk about that case law if she wishes”).
Hi,
With case law i would include small snippets into the main body of your statement and not as exhibit. Example: It’s worth looking at the comment made by an appeal judge in the 2014 case of M(A Child):
“It is still the case that 50/50 shared care arrangements between parents are comparatively rare in private law children cases. Research shows that a number of factors have to be in place, practical matters such as the close geographical proximity, but, above all, the couple have to be on reasonable or good terms so that the to and fro of everyday life for a child is accommodated without undue emotional fall out.”
Exhibits are generally for evidence, such as screenshots of whatsapp messages/facebook posts or image of a greeting card etc.
@bill337 it’s a shame that the judge said this. It directly contradicts Lady Justice Black in T v T [2010] EWCA para 26 “…not is it necessary that there should be cooperation and goodwill between them and shared residence orders have been made in cases where there is hostility overall”.
with the case example you give, it gives a green light for a parent to make the co-parenting relationship as difficult and hostile as possible in order to then turn around and say “we’re not in good terms so shared care and/or 50/50 can’t work”.