Huge changes sweep across the family law sector by Zoe White

family law

2014 seems to be the year for sweeping changes across the family law sector. The Marriage (Same Sex Couples) Act came in to force on 13th March 2014 and signalled the start of an unprecedented number of changes that are set to shake up family law.

Next Tuesday – 22nd April – further changes will follow. These include:

Single Family Court

A single Family Court will come into existence, under section 31A of the Matrimonial and Family Proceeding Act 1984, as amended by the Crime and Courts Act 2013. This court will deal with all family proceedings, with only a small number of matters being reserved for the High Court. These include:

*cases already being heard in the High Court

*cases where there is an order directing that the proceedings should be heard in the High Court

*or where there is a rule, enactment or Practice Direction that states the proceedings should be started in the High Court.

The court has the power to make any order that the High Court or County Court could make should the case be before them. Due to the fact that the single Family Court is able to sit anywhere within England and Wales there will continue to be geographical areas which are judicially led and managed by the Designated Family Judge within that area. The idea is that all geographical areas and proceedings taking place within those areas will be managed and operated as a single family court. The current family proceedings courts, care centres and family hearing centres will become redundant and the magistrates and county courts will no longer be able to deal with family proceedings. It is intended that there will be one central location at which the Designated Family Judge will be situated, this being the Designated Family Centre. This will be the primary location at which hearings will take place, although dependent on geographical location there may be Hearing Centres attached to this central location at which hearings may also take place. The Designated Family Centre will have a single point of entry, where possible, for the issuing of proceedings for the entire area. There will also be a single and unified administrative office at the Designated Family Centre for the entire area. This will include a centralised ‘back office’, a centralised ‘gate keeping and allocation team’, and a centralised listing system.

The process which now follows the introduction of the single Family court is as follows: individuals may choose within which Designated Family Centre they file their proceedings, although this must then be where all proceedings within the case are filed (see the Family Procedure Rules 9.5(1)). Once the proceedings have been filed they will be passed to the ‘gatekeeping and allocation team’, at which point the application will be assessed and appropriately allocated to the level of judge required – potentially even a High Court judge sitting in the Family Court. Should the applicant believe a certain level of judge is required then they may complete an allocation proposal form. Once allocation has occurred, standard directions will then be issued by the gatekeepers.

If the case is allocated without a hearing either party can apply to the court in writing, no later than 2 days prior to the first hearing and ask them to reconsider allocation.  A case may be transferred to the High Court if and only if a judge of the High Court or above orders it. Under the Part 18 procedure of the Family Procedure Rules 2010, a case may be transferred from one Designated Family Centre to another. Appeals made from the Family Court are covered by s.31K(1), as well as by the Access to Justice Act (Destination of Appeals) (Family Proceedings) Order 2014/602.

In addition to the above, various application forms are being updated, specifically the divorce/dissolution/judicial separation petition form (D8); the statement in support of petition forms (D80A – E); the nullity petition form (D8N); and the statements in support of annulments (void and voidable marriages) form (D80F and D80G).

The Children and Families Act 2014

The next major change within family law is the enactment of the Children and Families Act 2014. This  covers both public and private children’s proceedings. Most changes under this act come in to force on the 22nd April 2014 – however there are a few exceptions, these being detailed in the Children and Families Act 2014 (Commencement No. 2) Order 2014/889.

Section 14 of the Act introduces a 26-week time limit on the determination of care and supervision proceedings. This time limit has been tried and tested since 2nd July 2013. It can be extended in 8 week blocks up to a further 26 weeks. Each extension must be necessary and will require specific justification. In addition to this, Section 14(4) of the Act means that interim care and supervision orders may now be made for longer than 28 days and will end automatically after 8 weeks where a direction is made under s 37(4) and no application for a care or supervision order is made. In order to make a care order, the court will only have to consider provisions which set out the long-term plan for the upbringing of the child (the permanence provisions). Finally, should certain people wish to contact the child post-adoption an application must now be made under section 51A of the Act. The child, those who applied for the adoption order and those in whose favour the order was made are the only individuals who do not need leave to apply. Those who may apply include relatives of the child (by blood, marriage or adoption), any former guardian, any person who had parental responsibility for the child immediately before the adoption order, any person who was entitled to make an application under section 26 for contact with a child placed or to be placed for adoption, and any person whom the child has lived with for at least one year.

Within the private children’s law sector, Contact and Residence Orders become null and void, with section 8 of the Children Act 1989 amended by section 12 of the 2014 Act. They will be replaced by Child Arrangement Orders.

A further provision has been added to the Children Act 1989 which states that the court should presume that the involvement of both parents within the child’s life is in the best interest of the child, unless this is disproved. This involvement may be direct or indirect and does not necessarily mean the division of the child’s time between the parents. A specific explanation of the word parent is given in section 11 – but this NOT due to come into force on 22nd April.

Mediation Information and Assessment Meetings (MIAMs)

It is now a statutory requirement to attend a MIAM before making an application to the court in relation to family proceedings. It may be that a MIAM is considered inappropriate if it falls under one of the exemptions – these being: domestic violence, child protection, urgency, or previous MIAM attendance. There are a number of further exemptions, including the absence of a family mediator within 15 miles of the prospective applicant’s home. If one of the exemptions are used the court has the right to make enquiries into whether the exemption is valid or not. In addition, at every stage in the proceedings the court must consider whether an alternative form of dispute resolution is more appropriate. The court can adjourn proceedings if it considers non-court dispute resolution is appropriate.

Only an authorised mediator may conduct a MIAM and FPR 3.9(2) sets out how a mediator should conduct the MIAM. A MIAM is a short meeting that presents mediation as a way of resolving disputes. It allows the parties to understand the assistance mediation can provide. The nature of the dispute will be discussed and the possibility of mediation will be explored. It will be held no later than 15 working days of contacting a mediator.

Child Arrangement Programme

A Child Arrangements Programme (CAP) applies when there is a dispute between separated parents and/or families about arrangements concerning children. It aims to assist parties in reaching a safe and child-focused conclusion to disputes relating to their children and discourage them from going through litigation in order to settle their disputes. If it is impossible for the parties to reach an out of court resolution the programme encourages a swift and amicable resolution.

A flowchart summarising the operation of the CAP is available here.

Divorce and Dissolution

The Children and Families Act abolishes section 41 of the Matrimonial Causes Act 1973 and the equivalent section 63 of the Civil Partnership Act 2004. These sections ask the court to consider whether it should exercise its powers under the Children Act 1989. The D84B certificate which states whether or not these powers should be exercised is no longer needed. The Statement of Arrangements for Children form (D8A) will no longer need to be filed. Other forms that refer to the statement of arrangements will be amended – for example the petition for divorce and dissolution (D8) and the statements in support of decree nisi (D80A – F).

This is only a short summary of some of the changes that will grace family law on the 22nd April 2014. Only time will tell what effect all these changes will have on the family law system but one thing is for sure – those in practice are about to see the biggest revolution in family law for many a year.

For answers to virtually every question one might have in regard to the single Family Court, Jordan’s have published an article entitled The single Family Court – Essential Update.

Family Law Week has also summarised the many legal changes here.

An official government summary is available here.

 

Zoe completed her English degree at Queen Mary, University of London in 2010. She went on to study for a Masters at the University of Glasgow and undertook her family lawGraduate Diploma in Law with a distinction at Staffordshire University. Zoe then went on to complete her Legal Practice Course at BPP Law School in Manchester, achieving a Distinction in Family Law.

Whilst studying for her Graduate Diploma in Law she wrote a paper entitled “An evaluation of the system of child protection in the UK in light of cases such as ‘Baby P’ and ‘Climbie’”.

Zoe also has previous experience in criminal law, in particular working on the fraud case of R v Nadir, and in-house commercial law.

In her spare time, she practices martial arts and currently holds a second dan black belt in karate.  But also enjoys reading a wide range of literature and long distance running.

 

Photo by drmama via Flickr

 

Stowe Family Law Web Team

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2 comments

Paul - April 18, 2014 at 2:03pm

What happens to existing residence and contact orders? Presumably these continue with full force and effect but does the latest legislation affect them in any way?

jen - July 2, 2014 at 1:00pm

If parties agree on child arrangement can they include them to a consent order and file for approval by court? Or do they have to definitely agree on arrangement via mediator and then file the consent order with court?

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