On Friday, we had a fantastic time at the North and South family law seminar. There will be more about that in a future blog, but you’ll have to wait until I’m back from my holidays – rather than complex legal debates, I’ll be concentrating on spotting Mickey Mouse for the next few days.
But before I leave, here are some thoughts on the new draft legislation in England and Wales, published at the start of this month, which would make changes to the English family justice system. These provisions follow on from the recommendations made at the end of 2011 by the Family Justice Review, chaired by David Norgrove, which portrayed a system plagued with delay and expense. The draft legislation, if implemented, would give effect to some of the recommendations for change.
I was particularly interested in two aspect of the draft English legislation.
Firstly, it is proposed that, prior to making an application to court in relation to children, the applicant must (with certain exceptions) attend a meeting to receive information about mediation and other avenues of resolving their dispute without involving the court. This is known as a “Family Mediation Information and Assessment Meeting” (or MIAM for short). The stated aim is to encourage cooperation between the parties and to keep as many cases as possible out of court. This would extend and reinforce the MIAMs scheme already operating in England and Wales for financial remedy cases upon divorce.
Few people, particularly family practitioners, would argue that an adversarial court process is the best place for resolving disputes relating to children. But will introducing a MIAM actually reduce the number of child cases in the courts? Mediation, by its very nature, is a voluntary process. If one party (or both) refuses to participate, then mediation cannot take place. In my experience, family practitioners are very well aware of the benefits of mediation, collaborative law and other non-litigated solutions. They already encourage their clients to explore these wherever possible. In the remainder of cases where court action is inevitable, will a compulsory MIAM actually have any effect?
The second issue which I noted is the proposal to replace “residence” and “contact” orders with a “Child Arrangement Order”. So far, this is a change in terminology rather than a substantive change in the law – we have still to see whether the Westminster Government follow through on their promise to bring in “shared parenting”.
The new Child Arrangement Order will deal with who a child should live with, who the child should spend time with and who the child should have other types of contact with. The rationale is that the current terminology of ”residence” and “contact” implies a winner and a loser, which takes focus away from what is important – the best interests of the child.
Again, it is difficult to imagine how this provision will radically improve child cases in England for the better. Even if there were a shift in terminology, the orders granted by the court are, in practical terms and effect, unlikely to differ. The courts are already operating based on the fundamental principle that the welfare of the child is the paramount consideration, rather than whether one parent will feel defeated if not awarded a residence order. The change seems unlikely to assist the court. The intent may instead be to alter parents’ attitudes towards post-separation childcare arrangements. Given that we still regularly have clients who ask about “custody” and “access” (concepts which have not been part of the law for a very long time now) I would question whether another change of wording will even register with the general public.
To borrow a phrase from yet another jurisdiction (and coincidentally my holiday destination), is this a case of “plus ça change, plus c’est la même chose”?