The 22 April 2014 saw far reaching changes to the way that the Courts operate both physically and statutorily. The President of the Family Division, Sir James Mumby has hailed it as a ‘cultural revolution’. The introduction of the Children and Families Act 2014 abolishes the concepts of Residence and Contact and instead introduces the Child Arrangements Programme. The other major change sees the establishment of the single unified Family Court.
The Children and Families Act 2014
Despite much anticipation and discussion, on 22 April most practitioners were still pretty unclear as to what the ramifications of the new Act would be. There had been some incremental changes incorporated by the Court already, for instance to the way in which the introduction of expert evidence is dealt with in cases and also an attempt to curtail Public law care cases to a 26 week limit.
Under the previous Act, the Children Act 1989, parties applied for either a residence order which settled where a child lived or a contact order which settled what contact a child should have with a non-resident parent or other party. The Act also established specific issue and prohibited steps orders to clarify issues relating specifically to parental responsibility. Under the new Act there is a significant attempt to move away from the strict nature of the previous terminology with the end of residence and contact orders and the introduction of child arrangement orders. Specific issue and prohibited steps remain as they were. After 20 years of residence and contact, the child arrangement order promises a different approach, freeing parents from the strict previous concepts. Whilst there is no legal presumption of shared parenting as some would have liked, the change to child arrangements orders, it is hoped, will take the ‘sting out of the tail’ of proceedings and orders and will banish the view that one side wins and the other loses.
To accommodate this, the Welfare Checklist has been amended and parents should be aware that unless it is contrary to the welfare of a child, parents should be involved in their children’s lives. Obviously any parent wishing to argue that their children would indeed by harmed by a parent being involved would need to produce appropriate evidence.
The child arrangement order itself is found at section 12 of the Act. A child arrangement order means an order regulating arrangements relating to any of the following:
a) with whom a child is to live, spend time or otherwise have contact , and
b) when a child is to live, spend time or otherwise have contact with any person.
Previously residence orders also provided the provision of a parental responsibility order to the named parent which lasted after the cessation of any residence order, neither of the above orders provides parental responsibility and therefore applications will need to be made separately for those.
One significant change is the introduction of a requirement for parties to find out about and consider mediation (MIAM) before the issuing of applications for certain orders unless exemptions apply. Under the Children Act the same was considered to be good practice but not mandatory and certainly not fatal to an application being heard. It is hoped that increased mediation will reduce the number of cases before the courts and the court will during the life of a case, proactively try to divert cases to mediated settlements.
Other changes include:
- Substantive changes to the way the courts deal with care proceedings including a 26 week limit on proceedings.
- Alterations to the provision of child care in the hope that there will be an increase in child care and wrap around provision.
- The ability for children to remain on foster care until the age of 21
- A legal duty is placed on schools to support children with medical conditions
- Directions given to authorities to support young carers and parent carers
- Reform to residential care for children
- A requirement that state funded schools provide free school lunches to all pupils up to year 2
- Extended parental leave and rights to attend ante natal appointments
- Adoption leave and pay to reflect birth parents entitlement from April 2015
The unified single Family Court
Until 22 April, there was effectively a three tiered court system for family cases. Most straightforward matters were dealt with at the Family Proceedings Court (otherwise known as the Magistrates Court) at venues across the country. Cases then progressed, usually due to complexity, to County Court level or The Principal Registry in London and then finally to the High Court.
Since 22 April, England and Wales has a single Family Court, this court brings together all of the Courts identified above, all sitting under the same roof, with the work allocated accordingly under a ‘gatekeeper’ system. Previous jurisdictional boundaries have disappeared.
The High Court will retain limited jurisdiction for dealing with cases involving mental capacity or international issues and will retain its inherent jurisdiction powers. The Court of Appeal and Supreme Court are not affected by the Act and remain as they were. The physical aspect of the changes remains to be realised in some areas and will presumably be an organic process. In London the Magistrates Court at Wells Street has been closed and for the time being the Principal Registry on High Holborn is dealing with all cases. There is also some suggestion that in due course there will be further courts opening in the east and west of London.
Fostering for adoption is introduced by the Act, a controversial section which allows authorities to place children with prospective adoptive parents where there need not have been court proceedings to determine that the child should be removed.
Only time will tell whether the new orders are simply semantics or a real cultural shift as to how separating parents view their continued roles in their children’s lives.