Family Law Reforms - The Single Family Court has arrived.
FAMILY LAW REFORMS – THE BIG DAY HAS ARRIVED!
(Did you miss it?)
David Gareth Evans - 22nd APRIL 2014
As all family practitioners must have noticed by now, 22nd April 2014 was an important date in the reform of the family justice system, as it marked the coming into force of a number of important structural and legal changes to both private and public law cases.
The Single Family Court
As of the 22nd April 2014 the forum for hearing family cases became unified with the establishment of the single Family Court. No longer will there be any distinction between the Family Proceedings Court or the County Court; all become different tiers of the one unified Family Court. Indeed, the Family Proceedings Court has now ceased to exist. Similarly, the judiciary in the new Family Court incorporates all judges, from circuit judges to magistrates, albeit at varying levels in the unified hierarchy.
The Family Division of the High Court retains only 2 reserved areas of work: cases invoking the inherent jurisdiction of the High Court (wardship etc.), and international cases. Cases will now only be transferred from the Family Court to the High Court for any other reason by the President or Judge of the High Court (not s.9).
Private Law
22nd April 2014 saw the issuing of the new Child Arrangements Programme (CAP), contained within a new PD12(B) to the FPR. The CAP fundamentally overhauls the pre-existing Private Law Programme and does away with “residence” and “contact” orders altogether. These are now replaced by “child arrangement orders”, which should specify with whom a child lives and who a child sees. These are intended to do away with possessory concepts and a focus on parental rights, to replace them with child-focussed arrangements. Transitional provisions allow for any pre-existing residence and contact orders and/or applications to be converted into child arrangement orders or applications for the same.
The CAP also introduces a new structure for the progression of private law cases, much like the streamlined revised PLO in public law. Whilst under the old regime ADR was actively promoted and encouraged, the new CAP introduces a requirement to attend at a Mediation Information and Assessment Meeting (MIAM) before making an application to the Family Court for a child arrangement order.
As with the new PLO in public law proceedings, an allocation and gate-keeping team is established to determine the level of tribunal to hear the case. There will be directions upon allocation in a new form CAP01.
The CAP does still provide for urgent/without notice applications, if any delay caused by attending at a MIAM would cause: a risk of harm to the child; a risk of unlawful removal of the child; a significant risk of a miscarriage of justice; unreasonable hardship to the prospective applicant; or irretrievable problems dealing with the dispute, including the loss of evidence (CAP para.12).
The CAP retains the First Hearing Dispute Resolution Appointment (FHDRA) and a new pro-forma (CAP02) order will be used for further directions from this hearing, if agreement cannot be reached.
The CAP introduces a new hearing, akin to an IRH in public law proceedings, known as the Dispute Resolution Appointment (DRA). This hearing will be used to identify the key issues to be determined by the court, but may also be used as a final hearing if necessary. As one might expect, there is also a new order form for directions at a DRA (CAP03).
If a fact-finding hearing is necessary, there is a revised Practice Direction 12J to regulate such hearings.
Lastly, and as with the prior private law arrangements, a Final Hearing would then be listed to deal with final welfare issues. Yet again, a new form is introduced (CAP04) for the final order.
A useful flowchart of the new arrangements under the CAP can be found here.
A link to the new PD12(B) is here.
The President's Guidance on the use of Prescribed Documents (Private Law), which provides for the new pro forma described above can be found here.
Public Law
The Children and Families Act 2014 came into force on 22nd April 2014 and places the new/revised PLO on a statutory footing by way of insertions into section 32 Children Act 1989 (CA89). It also removes the time limits imposed on interim care/supervision orders by amendments to section 38 CA89 - once granted, interim orders now remain extant until the final disposal of proceedings.
Section 13 of the 2014 Act places the amendments to r.25 of the FPR on a statutory footing, relating to the court’s duty to restrict expert evidence and to only allow necessary expert evidence. Interestingly, s.13 specifically excludes local authority social workers and CAFCASS officers from expert designation.
Section 15 of the 2014 Act provides for section 31(3A) in the CA89. The effect of this provision is to require the court only to consider the permanence provisions in the local authority’s care plan, but not the remainder of it.
Section 8 of the 2014 Act makes some clarifying amendments to the contact whilst in care provisions at section 34 of CA89 and section 9 of the 2014 Act deals with post-adoption contact.
Bundles
The new comprehensive and intricately-detailed Bundles Practice Direction 27A came into force on 22nd April 2014. This PD is essential reading for all family solicitors, as there are costs consequences for non-compliance provided for in the PD (at para.12.1). Furthermore, it should be noted that para.4.3(c) requires that there be a position statement from all parties included in the preliminary documents section of the bundle, which includes a summary of the directions sought at the hearing in question and at the final hearing.
The new PD27A is here.
This article is intended as interest and information only. It should not be considered legal advice and the reader is encouraged to undertake their own research and study of the legislative changes before relying on the same.
