The Children and Families Act comes in to force in just under two weeks - on the 22nd April 2014. It signals a number of changes and a new way of ‘child focussed thinking’ in family courts, and may well make a significant difference to the way family law practitioners approach court hearings. This article highlights some of the more major changes contained within the Act, and suggests some points that those working in the family courts should consider:
Section 10 of the Act introduces a mandatory requirement to engage in mediation prior to instigating court proceedings. Section 10 (1) provides that ‘Before making a relevant family application, a person must attend a family mediation information and assessment meeting.’
In practical terms, this change makes mediation mandatory, so that all applicants will be expected to have sought out and attended mediation before making ‘a relevant family application’. In broad terms, ‘relevant’ family proceedings include almost all private law applications relating to children, as well as almost all applications for financial remedies.
There is some discretion under the Family Procedure Rules for judges in the family court to waive the requirement for pre-application mediation, but from what I have heard from judges anecdotally, I expect that the requirement will be adhered to fairly rigorously, and applications will be adjourned until the mediation step has been attempted. Solicitors are likely to have to direct potential clients to mediation services before they advise that an application should be made to the court.
Section 11 of the Act inserts four paragraphs into the Children Act 1989, regarding the further involvement of parents in the life of a relevant child. Section 2A creates the presumption that the ‘involvement of that parent in the life of the child concerned will further the child’s welfare,’ and section 2B defines involvement as ‘involvement of some kind, either direct or indirect, but not any particular division of a child’s time.’
Broadly, this change to the Children Act provides the expectation that both parents of a child should remain involved in that child’s upbringing in some way. It is presumed that such involvement will be in the child’s best interests according to the welfare checklist. So, what effect will this change have in practical terms? The truth is, we still don’t know. Section 11 will certainly mean that the court will have to consider much more carefully any application which may lead to a parent not having involvement with his or her child. This would involve, for example, any application to remove parental responsibility, or to refuse contact (using the language of the current provisions). Whilst the new provisions do not create a presumption of shared parenting, they do mean that judges, lawyers, and parties will have to think about how best to include both parents in a child’s life, and may lead to more creative solutions to the common problems of geographical distance, or a significant gap in time of contact. Having said that, some may suggest that ‘direct or indirect involvement’ bears a striking similarity to ‘direct or indirect contact’.
Child arrangements orders
This will be perhaps the most obvious change facing anyone appearing regularly in family courts dealing with private law proceedings. As of 22nd April, ‘residence’ and ‘contact’ are no more! They are replaced by ‘child arrangements. As regular family law practitioners will know, many parents involved in contact disputes seem to get fixated on the terms ‘residence’ and ‘contact’ almost more than the intention behind those words. The provisions of section 12 are designed to remove this problem (although it is questionable whether deeply divided parents will simply start arguing over ‘arrangements’ instead of ‘residence’). The section removes ‘residence order’ and ‘contact order’ from the Children Act, and replaces them with a ‘Child arrangements order’ which is defined in section 12(3) as ‘an order regulating arrangements relating to any of the following—
- with whom a child is to live, spend time or otherwise have contact, and
- when a child is to live, spend time or otherwise have contact with any person.’
In purely practical terms, the lucky lawyer for the applicant whose job it is to draft the order will have to throw away his or her private law order template, and replace it with a template reading ‘The arrangements for the child shall be as follows….’. Whilst there is certainly a significant semantic change, how much difference these provisions will make in real terms are less clear. The hope is that there will no longer be the appearance of two-tier parenting, and that instead parents will feel that they are equally involved, and will work together for the child. The reality may be that a child still lives with one parent, and sees the other on alternate weekends!
It is worth noting that these changes will impact not only residence and contact orders themselves, but also those provisions which rely on them - for example the ‘resident’ parent being allowed to take the child out of the jurisdiction. This must be borne in mind, and it will be important to word orders very carefully to ensure the outcome is what you intended.
The new Act will bring in many changes to the way that the courts deal with family law, and this is a short summary of a few of the biggest ones. We do not yet know how the Children and Families Act 2014 will work in real life. Will it be the wide ranging and fundamental child-centric change that the Government hopes for, or will it simply be a largely pointless re-wording and re-titling of the current provisions? Either way, with the new Act coming into force before the end of the month, we will all find out soon.