A: When it’s only a direction

I’ve noticed how stressed my clients can get about sending their documents to the court on time so here’s an explanation of how directions work.

The court will always make an order at the end of a case: that’s the whole point of applying to the court in the first place, to have a judge make a decision you’ve not been able to agree between yourselves. And sometimes the court makes interim orders along the way.

In children proceedings interim orders are often made for contact, and sometimes a ‘lives with’ order is made before the end of the proceedings. In financial proceedings usually the only interim order made is for interim maintenance to be paid by one spouse to the other. In divorce proceedings an order for costs may be made with the decree nisi. In injunction proceedings a non-molestation order, or even occasionally an occupation order, may be made at the first hearing with just the applicant present, and then a ‘return date’ is fixed for the respondent to attend as well when the order may be continued or discharged. These are all orders.

During the proceedings the court will make directions, and these will be included in your court order so it can be hard to spot that some are orders and some just directions. The purpose of directions is to ensure the judge will have all the information they need before they make their final order. Directions usually have a set date (often with ‘by 4pm’) for statements, reports, valuations etc to be “filed and served”. This means they have to be sent both to the court and to your ex or their solicitor and, if you’re a litigant in person, it’s important that you always do both.


What happens if you don’t do what the court has ordered or directed you to do?

If for example you’ve been ordered to make your child available for contact with the other parent, or to pay your ex a lump sum, and you don’t do it, your ex may take you back to court by way of enforcement proceedings. Court orders are made to be obeyed and judges aren’t impressed if you break them. What they will do about it will depend on all the circumstances of your particular case and can range from a bit of a telling off (of one or both of you) to being sent to prison (very rare indeed and never without some warning).

But if you don’t do something the court has directed you to do, or don’t do it on time, it’s a different matter. Obviously you will do your best to do what you’re asked in the time given but it can be difficult, especially if it’s a witness statement you have to write. It’s not always necessary to stress about getting it done on time and often it can be more important to do the job well than in the time given.*

A timetable may be worked out at court with, for instance, each party to write a statement and then Cafcass will be given some weeks after that to file their report. The judge then says the next hearing will be on ‘the first open date’ two weeks after that.

But when the listing office come to allocate the next hearing date, they may not have one until two months after that. When Cafcass receive the order they will ensure their report is ready in time for that hearing but they often won’t prepare their report for the date ordered. So you can work backwards, and take more time to prepare your statement. And in children cases things often happen, and change, so it can be better to delay your statement so it is as up to date as possible.

If you want to delay your statement in this way it’s best to agree with your ex’s solicitor that you both do your statements later: just write to them and say you can’t get yours done in the time and ask if they will agree to you both filing your statements a few weeks later.

If however you have a tight timetable then it’s much more important to get your documents in on time. If you have to write a statement for Cafcass to see before they write their report, you will want them to have it before they talk to your ex and your child, so make sure they have it on time (and do send it to them as well as to the court and your ex).

If you have another court hearing coming up very soon, be sure to get your document there at least a week before. This is especially important at the moment with so many remote hearings. When you are at court, if the judge hasn’t received your position statement or some other document you can just hand a copy over at the hearing. But you can’t do that on a phone or video hearing. Also, the court staff seem to be more and more stretched now and it’s taking even longer than usual for them to get documents onto the right file. If it’s a long statement you’ve written you want the judge to have read it before the hearing so make sure it’s at court in plenty of time.  If it’s an important document, or a position statement sent just a couple of days before, it can be worth ringing the court to make sure that they’ve not just received it (which they can quickly check on their email inbox) but also that they’ve put it on your file which will go to the judge at the hearing.

If a document is late and it’s lateness doesn’t affect or delay the proceedings, it won’t matter. Your ex or their lawyer may grumble, but you’re probably used to that. If, on the other hand, you’ve been directed to file a statement of not more than five pages and you write ten, you do risk the judge refusing to read it or admit it into the proceedings (or maybe they will only admit the first five pages) as they just don’t have time to read lots of long documents and they’re really cracking down on it.

So before you panic about not getting something in on time and worry about disobeying a court order, the questions to ask yourself are:

  • Is it an order or a direction?
  • What will happen if I don’t send this on time?
  • How will that affect the outcome I want from the proceedings?

The last question is also important in that some things you’re told to produce may not be in your interests and you may prefer a ticking off to producing something unhelpful to your case!

If your ex has narcissistic tendencies they probably won’t comply with either court directions or orders, because they believe they are above the law and these rules don’t apply to them. Try not to get annoyed as that just clouds your judgement (and, frankly, you should have expected it!) and you want to be able to think clearly about what to do about it. The usual rule when dealing with narcissists applies here too: ‘pick your battles’, as well as my frequent advice to ‘watch and learn’.

They are not going to fight fairly and will do all they can to put you at a disadvantage. You will see how little is said or done when people don’t comply with court directions, and you need to work out how much it prejudices you if they keep refusing to do what the court directs. They may do it just to wind you up (i.e. to get narcissistic supply) because they know you will abide by the letter of the law (even when it’s only a direction) and will be upset when they don’t. Or they may do it because it doesn’t suit them to disclose what they’ve been asked to. Or because they want to delay the proceedings so they can control you for longer, or so you run out of money and can no longer afford to be represented.

In these situations it’s really important to think it all through clearly and logically – preferably with someone outside your immediate circle as a sounding board. Because emotionally – if not mentally and financially too – you’re probably desperate for the court proceedings to end so it’s easy for your judgement to be clouded and to make the wrong decision. So start with the end in mind – what is your ultimate goal for these proceedings? Then consider the missing evidence and ask yourself what might happen if it does go in, and what could happen if it doesn’t.

It is possible to get documents produced if you have the time, energy and money to do it.  In 2019 a man was sentenced to three months in prison for failing to do a Form E in financial proceedings.

Before you get too excited though, the sentence was suspended for seven days so no doubt he did it within that time, having delayed for over a year. And his assets were said to be worth at least £300,000,000 so clearly it was worth his wife pursuing this.


*Please note the above re documents being filed on time refers only to family law.

If you’ve read The Salt Path you will know the ruinous danger of putting documents into court late in other proceedings. If you’ve not read it, I would highly recommend it although I’m told it’s a ‘marmite’ book i.e. you either love it or hate it. I loved it. It’s not about family law but I was struck by the comment on Damien Hirst’s statue, Verity, in Ilfracombe which is a pregnant woman standing on a pile of law books, holding a sword up high and with the scales of justice behind her back. Half of the sculpture shows her internal anatomy with the foetus clearly visible:

“No wonder she’s hiding the scales. Hid the truth behind a front that distracts the eye.  It’s a true representation of British justice.  Anyone can have it, if they can afford to tip the scales”.

Their ‘friend’ who got them into this mess appears to have been a narcissist, talking them into such a foolish investment, having no empathy for them as he let them face court proceedings, and having lost his other friends long since.  But the book is inspiring and goes to show that no matter what happens to you in this life, or who has done what awful thing to you, it’s important to just get back on your feet, put one in front of the other, and do something, no matter what, rather than sitting feeling sorry for yourself, or expecting someone else (especially the courts!) to fix it.  It seems that when you take some action the universe meets you half way and sends the right people along at the right time to help you out.  It’s an uplifting read: never give up, never lose hope.