New Rules for 2014

On 22 April 2014, a new vision of the practice of family law in England and Wales was ushered in. This was as a result of increasing distaste in government circles with the amount of public money being spent on family breakdown. The process of this very significant change began in 2013 with the eradication of legal aid for all family cases, except in cases of domestic abuse. It has moved on to the adoption of various recommendations of the Family Justice Review, which was published in November 2011.

There is plenty of evidence around now that the removal of legal aid has had a devastating effect on the family justice system, bringing in huge delays and increasing the pressure on already overworked court staff and judges. This is due to litigants in person (LIPs) bringing their own applications without recourse to legal help, so that there is at least one LIP in 50% of cases in courts today. Without the moderating influence of legal advice, or from the Legal Aid Board, more unmeritorious cases are being bought to court and clogging up the system. Also their lack of legal training means that their cases take up more court time. There is nothing wrong with someone bringing their own case to court, as long as they have some support. The only support that was there has been removed.

How are we faring, a couple of months on from this?

The main changes to affect the general public are as follows:

1. 1.       Compulsory mediation meetings for all those wishing to bring an application against their former partner for a financial order on divorce or an application regarding a child.

Mediation is a good thing. I am a mediator and have seen first hand the benefits to both parties to a relationship from being able to speak openly about their concerns, and ultimately shape their own agreement. However the essence of mediation is that it is voluntary. People don’t want to be pushed into it, and, early reports indicate that far from discouraging litigation, this new rule has seen mediation uptake drop by 50%. This means people are going to the initial mediation assessment and immediately refusing to co-operate. This then gives them the green light to issue their court application without further ado.

1. 2.       The Single Family Court

In order to streamline the allocation of cases, there is now a unified family court system which brings together the judiciary in County Courts, Magistrates `courts and the High Court. The idea is that eventually judges of all these different levels will be working together in one building, serving a larger community than currently and enabling cases to be shared and transferred more effectively. So far example, instead of a number of County Courts in London, the Central Family Court and the West London Family Court have been set up. The former remains at what was called the Principal Registry of the Family Division on High Holborn, but slightly revamped, and the latter has involved the opening of a new court at Hatton Cross, with judges being moved from different areas to populate it.

This is a good development, as it will ensure better judicial management of cases, and hopefully a greater likelihood that a family case will be heard by the same judge all the way through to the end. “ Judicial continuity” has been shown to be beneficial in the vast majority of cases.

There will be need to be considerable investment of public money in court buildings and infrastructure, and there is justifiable anxiety about the availability of funding to ensure that this innovation is rolled out properly and completely.

1. 3.       The Children & Families Act 2013

New terminology and strict time limits have hit the court system. This is the most significant change to children law since the Children Act in 1989 altered the emphasis that orders must be for the benefit of the children involved, rather than to satisfy their parents’ desires.

Since the Children Act 1989, concepts of ‘custody’, ‘access’ and ‘care and control’ were abolished and replaced with ‘Residence’ and ‘Contact” orders. These have themselves been swept away in favour of ‘Child Arrangement Orders’,which endeavour to remove labelling of parents as either having the children living with them, or seeing them on a regular basis. This labelling has been the cause of a huge amount of litigation and whilst there is no presumption in favour of shared parenting, the message being clearly sent is that the courts see both parents having a proper involvement in their child’s life, provided that it is safe and not contrary to the child’s welfare. Importantly, the court will now require evidence of risk of harm where such allegations are made by one parent against the other, which will hopefully mean that fewer such allegations will be raised and proved.

The new child arrangements orders are to specify where and when a child is to “live, spend time or otherwise have contact with a person” (section 12 of the Act).

Although any change which stresses the need for both parents to be involved in their child’s life is to be applauded, there seems little new law on enforcement of orders against an unwilling parent. This has always been an area where the family court struggles. Unless there is some teeth to these orders, the court will continue to be overwhelmed by the sheer determination of one parent to refuse to co-operate with the other. Also the new Act still retains the old law that a parent who does not have parental responsibility by virtue of being on the child’s birth certificate if the child was born after 2003, or by being married to the child’s mother at the date of the child’s birth, has to apply to court to obtain it if the mother does not agree.

1. 4.       New Court Forms

There is a plethora of new forms which were brought in on 22 April, many of them not even given to the legal profession in advance, so we’re all getting to grips with them. The important thing to know here is that your application will be rejected if it’s not in the correct format, and this will cause you delays. So look up the relevant form on the Ministry of Justice’s website (www.justice.gov.uk/forms/hmcts), or check with your local court office.

Can we help you? Please call us on 0845 658 6639 or email us at pd@blanchardslaw.co.uk

© Punam Denley July 2014