Sweeping Changes in Family Courts

On 22 April 2014 a number of changes were brought in which will mean that the way in which family cases are run will affect everyone involved in family work.

To start with, there is now a single Family Court that will deal with all family proceedings (with limited exceptions reserved to the High Court).  Proceedings will now be issued by the Family Court and will be allocated to a level of judge according to their type and complexity.  Judges, as well as lay magistrates will sit in the Family Court and it is hoped that your case will be heard by the same bench throughout.

This article and others which will follow will (hopefully) set out those changes in a way which allows you the reader to be able to understand and implement those changes with relative ease. This article will focus primarily on Mediation.

If you are someone who is going through a separation, divorce or involved in a dispute concerning finances post separation or, children then read on…..

The Children and Families Act 2014 (‘the Act’) received Royal Assent on 13 March 2014 and came into full force on 22 April 2014.  The most significant changes for family for anyone concerned with the areas of private law children (as opposed to care proceedings) relate to:

• Compulsory MIAMS [s.10]
• Continued Parental Involvement [s.11]
• Child Arrangement Orders [s.12]

Is Mediation now compulsory?

Yes

You will now need to have attended a family Mediation and Information and Assessment Meeting [‘MIAM’] before being able to make an application in certain private law proceedings relating to children (the old ‘residence’ and ‘contact’ orders by way of example) and in certain financial remedy cases.

The other party will also be expected to meet with the Mediator.  Failure to do so could mean a costs order being made against one/both of you.  The preliminary meeting, known as a MIAM is compulsory and once you both have attended that session it would be expected that Mediation would continue.

There are exceptions to this mandatory requirement, the main one being if there is an allegation of domestic violence within the preceding 12 months which has required police involvement then you need not attend a MIAM.  Do check whether you come under any of the exceptions which are set out below.

So how do I go about arranging a MIAM and what is a MIAM?

The MIAM is a preliminary meeting with each person to allow each of the couple to find out more and for the mediator to assess suitability. Both will usually be willing to start Mediation after these meetings have taken place and this is an important step toward finding solutions without recourse to the Court process.

An experienced Mediator can make a big difference and each party needs to have confidence in their Mediator.

You can ask your solicitor to recommend an appropriately qualified Mediator or, you can go to www.resolution.org.uk;  or www.fmc.org.uk.  We have Mediators who can assist you at our firm.

Once you have seen a MIAMs Mediator and you still wish to make an application then provided that that Mediator is authorised to sign the relevant forms, you can then make your application to court.

It is important to note that for a court to issue a hearing in your case, it will need to be satisfied that you have complied with s.10 of the Act and also with Part 3 of the Family Procedure Rules and the revised Practice Direction 3A.

You can read/download the relevant sections here.

s.10 Children and Families Act 2014

Part 3 Family Procedure Rules 2010

Family Procedure Rules 2010 Practice Direction 3A

A final note in relation to claiming a MIAM exemption:  If the party making the application uses one of the MIAM exemptions listed above the court can inquire into whether the exemption was validly claimed.  If the court finds it was not validly claimed the court can adjourn proceedings and direct the parties to attend a MIAM.  In deciding whether to adjourn for a MIAM the court will have regard to the factors listed at FPR 2010, r 3.10(3).

What is Mediation?

It is the resolution of your dispute carried out in a constructive and non-confrontational way, with the presence of an independent third party.  We have a Mediation leaflet that you can download here.

When we Mediate we cannot give legal advice but we can provide information to both parties.  We ensure that you understand your position clearly so that you can ask your solicitor the right advice, should that be necessary.

Means tested legal aid is available for family Mediation and whilst we do not carry out legally aided Mediation at this firm we can direct you to the appropriate organisations if necessary.

We carry out Mediations at our firm.

Even if you don’t qualify for Legal Aid, the cost of a successful mediation is much less than a long draw out Court process and outcomes in our experience of both Court and Mediation are usually better. Most importantly, parents are usually better able to get on with each other which is better for their children.

I have attended the MIAMs and Mediation is not going to work so how do I make my application?

By obtaining a Form C100 which can be downloaded from the HM Courts and Tribunals Services’ website.  You will see that this form also contains the sections which your Mediator will need to complete.

The fee is approximately £215.00 but do check with your local court.  All forms must now be sent to your nearest centralised court [‘Family Court point of entry’] and then you will be informed about where your case will actually be heard.  Go to https://courttribunalfinder.service.gov.uk to find out where you should send your completed forms.

What is Continued Parental Involvement and what is the effect on me as a separating parent?

Essentially the Court will now presume, unless the contrary is shown, that continued parental involvement will further the child’s welfare.  This does not mean that a child’s time should necessarily be divided and the involvement could be in any form whether direct or indirect.  So, the presumption is in favour of involvement unless it can be shown, for example, that such continued involvement will place the child at risk of suffering harm.

For practitioners this section is included as an amendment within the welfare checklist of s.1 of the Children Act 1989 at sections (2A), (2B), (6) and (7).

The full section, as amended, of s.1 CA 1989 can be found here

You can read s.11 of the Act here

So, if you are applying for or a respondent in any one of the following applications, the Court will need to have regard to the principle of presumption of continued parental involvement:

• Applications for a s.8 order or special guardianship order and for variation or discharge of such orders (s.1(4) CA 1989)
• Unmarried father’s application to the court for parental responsibility (s4(1)(c) CA 1989
• Applications for removal of parental responsibility granted under s.4(1) CA 1989 (s 1(2A) CA 1989)
• Application by an unmarried second female parent for parental responsibility (cases involving lesbian couples undergoing IVF) (s 4ZA(1)(c ) CA 1989);
• Application for removal of parental responsibility granted under s4ZA (1) (c) (s4ZA (5) CA 1989

So what impact?

Well at the moment it is hard to tell how different the courts will look at such cases, though it may prompt the courts to impose more shared care arrangements.  In turn, perhaps this will encourage parents to be more willing to negotiate agreements in relation to children.

The welfare of the child remains the court’s paramount consideration and if you are concerned about your child’s (children) potentially being at risk of harm then you must inform the court/your lawyer.

Child Arrangements Orders

The effect of s.12 of the Act is that there are no longer ‘contact’ and ‘residence’ orders and instead there will be one order known as a “child arrangements order” which will regulate “with whom a child is to live with, spend time and have contact” and “when a child is to live, spend time or otherwise have contact with any person”.

You can read s.12 of the Act here

Whether this new terminology will have a definitive impact on the way in which the courts view and consider applications under s.12 of the Act remains to be seen.