The new Act: Change for Private Law Proceedings

24 Mar

As well as the changes to shared parental leave (see Gemma White’s entry on our 12CP Barristers’ Employment Blog, 27.02.14 for more details), children in care being given the choice to stay with their foster families until they are 21, a new legal duty on schools to support children with medical conditions better, making young carers’ and parent carers’ rights to support from councils clearer, changes to protect children in cars from second hand smoke and changes to provide all children in state funded schools in Reception, Year One and Year Two with free school lunches, the Children and Families Act 2014 also introduces changes in private law proceedings, which have not received as much press attention as the other proposed changes.  Although perhaps not as headline grabbing as our Deputy Prime Minister’s plan to reform children’s health with three years of healthy (ahem) school dinners, these changes are important ones for practitioners and lay parties alike.

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Acts of Parliament
As well as the changes to shared parental leave (see Gemma White’s entry on our 12CP Barristers’ Employment Blog, 27.02.14 for more details), children in care being given the choice to stay with their foster families until they are 21, a new legal duty on schools to support children with medical conditions better, making young carers’ and parent carers’ rights to support from councils clearer, changes to protect children in cars from second hand smoke and changes to provide all children in state funded schools in Reception, Year One and Year Two with free school lunches, the Children and Families Act 2014 also introduces changes in private law proceedings, which have not received as much press attention as the other proposed changes.  Although perhaps not as headline grabbing as our Deputy Prime Minister’s plan to reform children’s health with three years of healthy (ahem) school dinners, these changes are important ones for practitioners and lay parties alike.

New terminology for Residence/Contact Orders
The Children and Families Act 2014 (http://www.legislation.gov.uk/ukpga/2014/6/contents/enacted) brings in significant changes for the way that the Court will describe the arrangements for the children within private law proceedings. This affects what is currently called “residence” and “contact” orders (formerly, and still referred to as such by some lay clients, known as “custody” and “access” orders), which will now be amalgamated into a single order, namely a “child arrangements order”, which deals with the arrangements as to: (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”. These changes are set out in section 12 of the CFA 2014.

The changes made have caused consequential amendments, which are set out in Schedule 2 of the Act.

Continued Parental Involvement
There has been much in the media about “shared parenting”; whilst the Act does not go as far as adopting a presumption of shared parenting, there are significant changes set out in section 11, which legislate for a presumption of “continued parental involvement” following the separation of a child’s parents.
Section 11 inserts the following paragraphs into the welfare checklist (section 1 Children Act 1989):

“(2A) A court, in the circumstances mentioned in subsection (4) (a) or (7), is as respects each parent within subsection (6) (a) to presume, unless the contrary is shown, that involvement of that parent in the life of the child concerned will further the child's welfare.
(2B) In subsection (2A) "involvement" means involvement of some kind, either direct or indirect, but not any particular division of a child's time.
(6) In subsection (2A) "parent" means parent of the child concerned; and, for the purposes of that subsection, a parent of the child concerned—
(a)  is within this paragraph if that parent can be involved in the child's life in a way that does not put the child at risk of suffering harm; and
(b) is to be treated as being within paragraph (a) unless there is some evidence before the court in the particular proceedings to suggest that involvement of that parent in the child's life would put the child at risk of suffering harm whatever the form of the involvement.
(7) The circumstances referred to are that the court is considering whether to make an order under section 4(1)(c) or (2A) or 4ZA(1)(c) or (5) (parental responsibility of parent other than mother)."

The main impact of this will be seen on: 
•    an application for a section 8 order or a special guardianship order, and for variation or discharge of such orders (s 1(4) CA 1989);
•    An unmarried father's application to the court for parental responsibility (s 4(1)(c) CA 1989);
•    An application for removal of parental responsibility granted under s 4(1) CA 1989 (s 1(2A) CA 1989);
•    An application by an unmarried second female parent for parental responsibility (these types of case arise out of lesbian couples undergoing IVF) (s 4ZA(1)(c) CA 1989); and
•    An application for removal of parental responsibility granted under s 4ZA (1) (c) (s 4ZA (5) CA 1989).

It is unclear at this stage what impact this will have on applications. The court (and CAFCASS) already adopt the starting point that each parent should be involved in the life of their child if at all possible, and in a case I dealt with on Friday, the Magistrates made that very point, so whether or not including this presumption in the wording of the statute will have much impact, if any, on applications remains to be seen.

MIAMs
The Act has also made a pre-proceedings mediation information and assessment meeting compulsory. Section 10(1) of the Act provides: "Before making a relevant family application, a person must attend a family mediation information and assessment meeting." A relevant family application is defined at section 10(3) of the Act as being: an application which (a) is made to the court in, or to initiate, family proceedings [as defined by the Courts Act 2003, s 75], and (b) is of a description specified in Family Procedure Rules.” This would include: most applications in private law relating to children as well as applications for a financial remedy.

Whilst for some time now parties have been encouraged to take part in mediation prior to commencing proceedings, the reality is that in a high proportion of cases this does not occur. It should also be remembered that whilst mediation is an excellent means of getting parties talking and moving towards making their own arrangements, which is an empowering experience, it is not suitable in every case. It remains to be seen whether or not the introduction of a compulsory initial meeting will lead to a decline in applications before the Court, which the government is doubtless aiming for.

The Act is due to come into force later next month; let us know what your experiences are and we will keep our blog updated with any significant changes that we experience from the new Act.

Zosia Keniston

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