What to do, what to avoid, and the key procedural guidance
A good statement in private law children proceedings is evidence, not a grievance document and not a skeleton argument in disguise. The starting point is FPR Part 22. Rule 22.4 defines a witness statement as a signed written statement containing the evidence which that witness would be allowed to give orally. Rule 22.6 then provides that, if the witness is called, the statement will ordinarily stand as that witness’s evidence in chief. Read with the overriding objective in FPR 1.1, the task is to produce a document which is fair, proportionate, focused and genuinely useful to the judge.
Timing matters. In private law children proceedings, Practice Direction 12B makes plain that the ordinary position is that evidence is not filed before the FHDRA unless it supports a without notice application, is directed on issue, or is directed for an interim application. That point is often overlooked. Parties frequently feel driven to front-load their case with a lengthy narrative at the outset. The rules point in the opposite direction. Evidence should be filed when directed, and for a defined purpose.
The first question when drafting is therefore a simple one: what issue is this statement intended to prove? Under FPR 22.1 the court may control the evidence by identifying the issues on which it requires evidence, the nature of that evidence, and the manner in which it is to be placed before the court. The court may also exclude evidence which would otherwise be admissible. In practical terms, a statement should track the order made by the court and the issues identified for determination. It should not attempt to tell the story of the whole relationship unless that is genuinely necessary to understand the live issues.
As to form, Practice Direction 22A remains the basic guide and should be followed carefully. The statement should bear the correct case title, identify the maker by name and address, be written in the first person and, so far as practicable, in the witness’s own words. Pages and paragraphs should be numbered. Dates and other figures should be expressed numerically. Chronology usually helps. So does discipline in paragraph structure. One paragraph should deal, so far as possible, with one point only.
One of the most common errors is failing to distinguish between evidence from direct knowledge and matters based on information or belief. PD22A requires the statement to say which matters are within the maker’s own knowledge and which are matters of information or belief, and to identify the source of any such information. That is not a technical nicety. It goes to weight. A statement which blurs fact, rumour and assumption is immediately weakened. A statement which is clear about source and limits of knowledge carries far more authority.
Content should remain firmly factual. A witness statement is not the place for extensive legal submissions, rhetorical attacks on the other party, or commentary on the strength of the case. It is entirely proper to explain what orders are sought and why, but the reason should be rooted in facts and welfare, not in slogans. A reliable approach is to ask four questions of each paragraph: what happened, when did it happen, how does the witness know it, and why does it matter to the child or to the issue the court must decide?
The child must remain at the centre of the document. Private law children proceedings are not a forum for adult score-settling. Practice Direction 12B reflects the fundamental principles that the child’s welfare is paramount, delay is likely to prejudice welfare, and no order should be made unless it would be better for the child than making no order at all. A well drafted statement explains the effect of events on the child’s routine, schooling, emotional wellbeing, health, sense of safety and relationships. A poor statement reads as though the real objective is to criticise the other parent rather than assist the court.
Where domestic abuse or other allegations of harm are raised, precision becomes especially important. Practice Direction 12J requires the court to identify the relevant factual and welfare issues at an early stage and to consider whether findings of fact are necessary. The statement should therefore identify incidents with care: dates or date ranges, place, who was present, what was said or done, whether the child saw or heard any part of it, and whether there was any report to police, school, GP or another professional. General assertions of being bullied, intimidated or controlled are weaker than particulars of actual conduct from which the court can draw its own conclusions.
Tone matters. The best statements are measured, calm and exact. They do not overstate. They do not guess. They do not indulge in unnecessary character assassination. Expressions such as ‘narcissistic’, ‘alienating’, ‘deranged’ or ‘dangerous’ are often deployed far too freely. I see them a ‘shockingly high’ (see what I did there?) amount and they don’t help. Unless the statement is referring to an actual diagnosis or expert opinion, labels of that kind rarely assist. The safer course is to describe the conduct relied on and allow the court to evaluate it. Concrete evidence is more persuasive than adjectives. The job of putting colour on events is that of the barrister, not the author of the statement.
Exhibits require real restraint. Practice Direction 22A sets out how exhibits should be identified and marked, but Practice Direction 27A is equally important. The bundle should contain only documents relevant to the hearing and necessary for the court to read or to which the court will be referred. Unless the court otherwise directs, the bundle should not be burdened with large volumes of correspondence, emails, text messages, WhatsApp messages, social media material, photographs, bank statements or miscellaneous notes. The same discipline should govern the statement itself. A handful of decisive exhibits is usually better than a mass of undigested material.
There are a number of practical checks which should always be carried out before a statement is signed. Does the statement answer the court’s order? Is every paragraph relevant to a live issue? Are dates, names, schools, medical references and addresses accurate? Is hearsay identified and sourced? Are exhibits correctly marked and referred to in the text? Has confidential contact information been included unnecessarily? Under rule 29.1 a party is not required, unless the court directs otherwise, to reveal a private residential address or other contact details. Sensitive information should therefore be handled with care.
The statement of truth must not be treated as an afterthought. FPR 17.2 requires a witness statement to be verified by a statement of truth. FPR 17.4 provides that a witness statement which is not verified may be ruled inadmissible. FPR 17.6 goes further and provides for contempt proceedings where a false statement is made without an honest belief in its truth. The standard wording set out in PD22A should be used. A solicitor or barrister drafting the document should make sure the witness has read it carefully, understood it, and is content that it accurately reflects the evidence they can honestly give.
Compliance with case management directions is just as important as the contents of the statement itself. Under FPR 22.10, where a witness statement for the final hearing is not served within the time specified by the court, the witness may not be called unless the court gives permission. A carefully drafted statement can be rendered useless if it is served late. Good drafting practice therefore includes checking the order, diarising the deadline, allowing time for revision and signature, and ensuring service takes place in a form permitted by the relevant procedural rules and any specific direction in the case.
A persuasive statement in private law children proceedings is not the longest one. It is the one which helps the judge decide the real issues fairly and quickly. It should be concise, chronological, issue-led, child-focused and moderate in tone. It should separate fact from comment, identify the source of hearsay, exhibit only what is necessary, and comply in form with the Family Procedure Rules and Practice Directions. Anything which does not advance a live issue in the case should usually be removed.
The principal drafting references are FPR Parts 1, 17 and 22, together with Practice Directions 12B, 12J, 22A and 27A. Anyone preparing evidence in a private law children case should have those provisions to hand before drafting begins.
For assistance in this area of law, contact clerks@anvilchambers.co.uk