Witness summons in the family court: the neighbour who said no

The legal issue

Separated parents shared their son's time, with alternate weekends at his father's. One Sunday evening, bringing him home, the father shouted threats on the mother's doorstep and struck the glass panel of her front door until it cracked, while their son stood crying in the hallway. He drove off before anyone was called. She stopped the overnight stays and applied for a child arrangements order, describing the incident on a C1A form. He denied it. The court fixed a fact-finding hearing about that one evening. The only independent witness was the next-door neighbour, who had heard everything through the wall but refused to give a statement.

The law this rests on

• FPR 24.2(1): a witness summons is a document issued by the court requiring a witness to attend court to give evidence or to produce documents to the court.
• FPR 24.2(3): there must be a separate witness summons for each witness. Form FP25 (GOV.UK, HM Courts and Tribunals Service) is the witness summons form.
• FPR 24.3(2): a party needs the court's permission to have a summons issued less than 7 days before the date of the final hearing, for a witness to attend on any date except the date fixed for the final hearing, or for any hearing except the final hearing. FPR 24.3(4): the court may set aside or vary a witness summons.
• FPR 24.4(1) and (2): the general rule is that a witness summons is binding if it is served at least 7 days before the date the witness must attend, and the court may direct that a summons served later is binding.
• FPR 24.5(1): the party on whose behalf the summons is issued serves it, unless that party says in writing, when asking the court to issue it, that the court should serve it instead. FPR 24.5(3): where the court serves, the party deposits the money for the witness in the court office.
• FPR 24.6: at the time of service, the witness must be offered or paid a sum reasonably sufficient to cover travel to and from court, and compensation for loss of time as specified in Practice Direction 24A.
• PD24A paras 1.2, 3.2 and 3.3: two copies of the summons are filed for sealing. Where the court serves, the deposit covers travel and lost earnings or benefit, the latter based on the sums payable to witnesses attending the Crown Court.
• Form FP25: disobedience of a witness summons is a contempt of court, and the witness may be fined or imprisoned for contempt.
• FPR 22.9: a party required to serve a witness statement for use at any hearing who is unable to obtain one may apply, without notice, for permission to serve a witness summary instead. Unless the court directs otherwise, it must include the name and address of the intended witness (22.9(3)) and be served within the period in which a witness statement would have had to be served (22.9(4)).
• FPR 3A.5, 3A.7(a) and 3A.8(1)(b): the court must consider whether the quality of a party's or witness's evidence is likely to be diminished by vulnerability, must have regard to the impact of any actual or perceived intimidation, and can allow a witness to give evidence by live link.
• PD12J para 19(g): where a fact-finding hearing is necessary, the court should consider whether oral evidence may be required from third parties and, if so, giving directions for the filing of their written statements.
• PD12J para 20: when the court fixes a fact-finding hearing, it must at the same time fix a dispute resolution appointment to follow.
• PD12J para 29: the court must record its findings in writing in a schedule to the relevant order.
• PD12J para 36(3): the court should make an order for contact only if it is satisfied that the physical and emotional safety of the child and the parent the child lives with can, as far as possible, be secured before, during and after contact, and that the parent the child lives with will not be subjected to further domestic abuse by the other parent.
• Domestic Abuse Act 2021 s.1(2) and (3)(b): violent or threatening behaviour between people aged 16 or over who are personally connected is domestic abuse, whether it is a single incident or a course of conduct.
• Domestic Abuse Act 2021 s.3(2): a child who sees or hears, or experiences the effects of, the abuse, and is related to either person, is a victim of domestic abuse.
• Family court fees (GOV.UK, EX50): no separate fee is listed for a witness summons. An application within proceedings costs £62 by consent or without notice (fee 5.1) and £195 on notice (fee 5.3), and help with fees may be available. Form C2 is used to ask for an order or directions in existing proceedings about children.

How we approached it

We advised her to stop asking the neighbour and not to go over what the neighbour had heard, so no one could say the account had been shaped. A summons cannot make a witness write a statement, so we advised her to ask for permission to serve a witness summary under FPR 22.9, setting out what the neighbour was expected to say, with her name and address.

In the same application on form C2, made within a week of coming to us, she asked for permission for a witness summons on form FP25 (needed under FPR 24.3(2) because the fact-finding hearing came before the final hearing) and for the neighbour to give evidence by video link under FPR Part 3A. The judge granted all three requests.

We advised her not to hand the summons over herself. She instructed a process server to serve it three weeks before the hearing, well ahead of the general 7-day rule in FPR 24.4, with the bus fare and a sum for lost time, as FPR 24.6 requires. We also helped her prepare her own statement, keeping to what she saw and heard, with the photographs and the glazier's receipt attached.

The outcome

The neighbour gave evidence by video link. She described shouting through the wall, a threat, repeated bangs, cracking glass and a child crying. The judge found the incident proved, including that the son was in the hallway and heard it, did not accept the father's account, and recorded the findings in writing.

After a Cafcass report, the parents agreed a child arrangements order at the dispute resolution appointment. The son lives with his mother and sees his father on daytime visits, with handovers at a local leisure centre, so the father no longer comes to her door, and no overnight stays for now. Outcomes depend on the evidence, so nothing here is a promise.

What to take from this

• A witness who refuses to give a statement can still be required to come to court. A witness summons on form FP25, under Part 24 of the Family Procedure Rules, requires them to attend and give evidence.
• Check your court order first: does it allow statements from other witnesses, and by when? If not, ask the court quickly.
• Where the fact-finding hearing comes before the final hearing, you need the court's permission for the summons (FPR 24.3(2)). Apply early, on form C2.
• If the witness will not write a statement, ask for permission to serve a witness summary instead (FPR 22.9). Have their full name and address ready. Unless the court directs otherwise, the summary must include them and is due when statements are due (FPR 22.9(3) and (4)).
• Serve the summons at least 7 days before the hearing (FPR 24.4), and offer the travel money and compensation for lost time when it is served (FPR 24.6). Keep proof of service.
• If you or a witness is frightened, ask the court early for special measures, such as a video link (FPR Part 3A).
• Do not chase, coach or brief the witness. Keep original photos, messages and phones, and edit or delete nothing. Never raise the case with the other parent, and post nothing about it online.