Six of one

Last year, economist David Norgrove and his panel produced their government-commissioned report on a review of the family justice system. The government formally responded to the final report of the Family Justice Review in early February, and the response heralds a change in family law.

Word of warning

One important recommendation the government has chosen to ignore in the review is of ‘no change’ to the Children Act 1989 with regards to shared parenting. Norgrove’s report had said: “No legislation should be introduced that creates or risks creating the perception that there is a parental right to substantially shared or equal time for both parents.” However, the government has decided to change the Children Act 1989 to include a ‘presumption of shared parenting’.

In Australia, a similar provision for a ‘meaningful relationship’ was made in its 2006 family law reforms. This has led to more litigation because the term ‘meaningful’ has come to be measured in terms of the amount of time each parent has with a child rather than the quality of their relationship with the child. Ken Clarke described the Australian experience as “disastrous” on Radio 4’s Today programme in early February.

Given that the pitfalls in the Australian experience are recognised, the legislation is going to require some very careful drafting.

A further important change is to do away with the terms ‘residence’ and ‘contact’ orders. The government agrees with the Norgrove report that the terms have become associated with the idea of winning and losing. Instead there is to be a new child’s arrangement order, and we will have to get used to some new drafting terms.

Parents are to be encouraged to work together to develop a Parenting Agreement to set out the arrangements for the care of their children post separation. The government says it will ensure that in the process for making these agreements the child’s relationship with their wider family, such as grandparents, is emphasised.

If parents cannot resolve disputes themselves, they can access a hub through the internet and a telephone service for information about dispute resolution and parenting programmes such as Separated Parents Information Programmes (PIPs).

I doubt very much that this hub service is going to be manned by qualified lawyers and it is concerning what quality of advice people will receive. Will the hub be able to identify victims of domestic violence, for example? What about clients whose first language isn’t English? For some people, there is no substitute for face-to-face advice.

Although the government response mentions dispute resolution, the focus is on mediation (including a 150 per cent increase in public funding for mediation) but not collaborative law (although it was mentioned in the Norgrove report). This is disappointing for me and other collaborative law practitioners who have a growing practice in this area. Some clients want their lawyer with them at the mediation and I have had great success with couples choosing the collaborative route.

Jumping through hoops

As with claims for a financial remedy order, clients are to be required to attend a Mediation Information and Assessment Meeting (MIAM) to determine whether mediation would be suitable. We are already seeing a significant rise in requests for MIAMs at Osbornes (and a significant difference in what firms are charging for them), but in many (perhaps most) instances, clients are viewing this as a hoop they need to jump through before they can commence court proceedings. Surely any family law practitioner worth their salt is going to discuss mediation with their client early on. Forcing people to attend a MIAM goes against what mediation is all about and, in making it compulsory, a client’s mindset will be very different to how they would approach it otherwise.

Having said that, in my experience with claims for a financial remedy order, those clients failing to attend a MIAM before issuing have not suffered any penalty imposed by the court – whether that be an adjournment while mediation is explored or costs penalties.

A single family court is to be created with one point of entry, in place of the current three tiers of court. All levels of family judiciary (including magistrates) are to sit in the family court and it is proposed that work would be allocated to one of a number of ‘tracks’ depending on case complexity or urgency. It will be interesting to see how these proposals develop. Given that it is less than a year since the Family Procedure Rules were introduced, and we have the complexity of the new EU Maintenance Regulations, there is never a dull moment.

Divorce law remains unchanged, save for the removal of the requirement for the court to consider arrangements for children in divorce proceedings.

Breaches of contact orders within 12 months are to be brought back to court within a set number of days, before the same judge who made the original order. Existing enforcement powers (which include a fine, imprisonment or unpaid work) are to continue to be available to the judge at this early stage together with, in exceptional cases, reversing the child’s residence to the other parent.

The government believes that a much stronger warning should be given at the outset of proceedings about the potential consequences of either parent breaching a child’s arrangement order. The government is also exploring options for wider enforcement sanctions to make it easier for the courts to take enforcement action. In my experience, Judges are reluctant to use enforcement measures and firm warnings at the outset to parents are ignored by those who will do anything to prevent contact.
I accept that tougher sanctions such as imprisonment are a last resort – they do little to repair the relationship between the parents - but if one party believes the court will not be robust, they will continually breach orders and cause extreme delay and irreparable damage to the children’s relationship with the absent parent.

All in good time

A few words about public law, which is not my area of practice. In what has become the headline recommendation, legislation is to be introduced to provide for a time limit of six months for the completion of care and supervision cases.

A plethora of change is planned in care and adoption procedure. These include judges being given a more robust role in deciding and ensuring the timetable for the child is met and ensuring, wherever possible, that the same judge sees a case through from beginning to end, and judges being given greater discretion over the duration of interim care orders and their renewal, removing some of the administrative processes connected with the current renewal arrangements. The use of experts reports is to be reduced and where an expert report is ordered, the court will be specifically required to consider the impact the delay will bring.

The government says it will ensure the role of the court is properly focused by, first, leaving it to the local authority to scrutinise the detail of the care plan (although it is accepted that the court will still need to consider the core elements of the plan). Many practitioners have voiced concerns about a reduction in the court scrutiny of care plans when local authority budgets are extremely tight and social workers on a case frequently change. Second, the requirement that local authority adoption panels should consider the suitability for adoption of a child whose case is before the court is to be removed. Plus the process and timeframe for recruiting prospective adopters is to be changed.

My colleague Naomi Angel, who is co-chair of the Law Society’s Family Law Committee, says: “Where decisions are being made about permanent removal of children from their families because of abuse or neglect their best interests must be central. Cases should be resolved more quickly than at present, but not at the expense of all necessary information being available to the court making such far-reaching decisions.”

We will all need to keep on top of the changes as they are introduced, and to respond to further government consultations, if we can find the time...

Lisa Pepper is a partner at Osbornes Solicitors LLP