The new Child Arrangements Programme
Article by Lorna Borthwick, barrister at Cornwall Street Chambers, explaining the recent changes relating to private law matters in the family courts and what those changes will mean in practice for parents and practitioners.
TAGS: Children, Courts, private law, contact, residence, separated parents, Children Act 1989, Children and Families Act 2014, child arrangements order, MIAM, mediation, CAFCASS, FHDRA
The ‘Private Law Programme’ was a set of guidelines first introduced in 2004 and revised in 2010 which sets out best practice, which Courts should follow when dealing with disputes involving separated parents and their children. In recent times, there have been several changes to the law which have affected such cases. These include the removal of Legal Aid from the vast majority of private law cases, the introduction of the Single Family Court and the arrival of a new Children and Families Act 2014. This introduces changes to the names of the orders which the Court can make when dealing with disputes between parents and brings in measures to divert parents away from Courts when resolving disputes involving their children. In light of all these changes, a Senior Judge, Mr Justice Cobb, was invited to look at the Private Law Programme, and to come up with recommendations for new guidelines to resolve these disputes in the most optimal and efficient way and to prepare documents to help implement those recommendations. The initial report from Cobb J’s ‘Private Law Working Group’ (PLWG) was published in November 2013. Following consultation, the PLWG published its final report in March 2014. This report and the framework it proposes to introduce are now awaiting approval from the President and it is anticipated that its recommendations will be introduced later this month, at the same time as the related statutory provisions and rules are brought into force. This article examines what the main provisions of the new guidance – known as the ‘Child Arrangements Programme’ (CAP) will look like and how they are likely to work in practice.
Table of contents
- The need for a new Private Law Programme
- New provisions introduced by Children and Families Act 2014
- Measures to assist LiPs
- The structure and focus of the new CAP
- Directing parents away from the Court system
- The First Directions Hearing Appointment (FDHRA)
- Further hearings
- Timescales for proceedings
- Review / monitoring of orders made by the Court
- Enforcement of orders
- Outstanding matters on which more work is needed
The need for a new Private Law Programme
‘Private Law disputes’ in this context are those in which parents cannot agree over an issue involving their child. Examples of these might be disputes over where the child lives, how much time they spend with another parent, which school they attend, whether a parent should be allowed to take the child on holiday or whether a parent should be allowed to change a child’s name. These disputes will come before the Court because one parent makes an application for an order under the Children Act 1989 (Part II) for an order determining that dispute.
The Private Law Programme set out the approach which the Court should take when dealing with these disputes and how they should be managed. However, in April 2013, the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) came into force. This effectively removed Legal Aid from parents who wished to bring a private law application to Court and meant that huge numbers of litigants in person (LiPs) are now using the Court system. The Court’s approach therefore needed to take account of this significant change and adapt its procedures accordingly. This meant the Private Law Programme would need to be adapted too.
The Crime and Courts Act 2013 also introduced provisions to establish the ‘Single Family Court’ so that there will no longer be separate Magistrates, County and High Courts, and applications will just be dealt with by ‘the Family Court’. These cases must, however, be allocated to the appropriate level of Judge within that Court to be dealt with and so new guidance was needed to take this into account.
New provisions introduced by Children and Families Act 2014
This new Act, largely coming into force in April 2014, also introduced several new sections which will have a direct effect on private law disputes. These provisions form the backdrop against which these cases will take place and so it was necessary for there to be further revision of the Private Law Programme to take these changes into account.
- S.10 makes it compulsory for a parent who makes a relevant application to Court (which includes private law applications) to attend a Mediation Information and Assessment Meeting (MIAM) before their application can be made. This MIAM is to offer information on alternatives to Court such as mediation and is designed to ensure that parties are given information and an opportunity to consider resolving their disputes away from the Court.
Criticism has been levelled at this section, as it only makes attendance at a MIAM compulsory for the person making the application (the Applicant) and does not require a Respondent (the other parent) to attend such a MIAM too. Since any mediation to resolve the parties’ dispute would inevitably involve both parties attending and taking part, many people felt that it would have been better to require both parties to attend and be given information about this alternative to Court. However, it was felt by both the Government when drafting the Act, and the PLWG when drafting the new guidance, that nothing could be done to require anyone other than the Applicant to attend this MIAM. This remains, however, a significant potential flaw in the system of ensuring that parents move away from Courts to settle their disputes.
- S.12 introduced new terminology for orders made in respect of certain applications within private law disputes. Instead of ‘residence’ and ‘contact’ orders, which S.8 of Children Act 1989 currently allows Courts to make, there will be new ‘child arrangement orders’ which set out “with whom a child is to live, spend time or otherwise have contact” and “when a child is to live, spend time or otherwise have contact with any person”.
It remains to be seen whether the change in name for orders actually makes a difference in practice. It is hoped that it will encourage parents to focus on their children rather than the ‘label’ attached to orders in relation to them and which were often seen as producing ‘winners and losers’. Others have pointed out that the new terminology would not necessarily prevent parents continuing to have disputes over how much time each of them has with their child following separation and the new orders would simply change the name of the order without actually preventing the underlying dispute.
- S.11 introduces a presumption of continued parental involvement into the welfare checklist in S.1 of the Children Act 1989. This effectively means that whenever a Court is considering certain applications within private law disputes, it must presume, unless the contrary is shown, that the involvement of each parent within the life of the child concerned will further the child’s welfare. A further amendment introduced by the House of Lords confirmed that “involvement” does not mean any particular division of the child’s time.
There was much discussion around this section during the passage of the Bill and there were concerns expressed that the drafting of it is not very accessible to LiPs who may well misunderstand its effect. There was widespread media reporting with reference to ‘shared parenting’ and this too, has been unhelpful in expressing the true meaning of the section or its effect.
The structure and focus of the new CAP
The PLWG produced their draft ‘Child Arrangements Programme’ (CAP) as part of its Draft report. The CAP was finalised following the consultation process and is now awaiting approval from the President of Family Division. The final version has not been published as yet, but it is possible to assume what it will look like in light of the PLWG reports.
The CAP is broken down into sections and from the outset, will stress the importance of the ‘voice of the child’ within the dispute. Explicit reference will be made to Guidelines which set out what should happen if Judges wish to meet children during a case and emphasis is placed upon the need to involve children, as appropriate in the context of their age and understanding, in the decision making process. The CAP also sets out the relevant rules of procedure and the ‘key welfare principles’ which the Court must apply, namely:
(i) The child’s welfare is the paramount consideration for the Court;
(ii) Delay is likely to be prejudicial to the child;
(iii) No order will be made unless the Court considers this to be better for the child than making no order at all (the ‘no order’ principle).
A key theme throughout the CAP is that parents should resolve their own disputes wherever possible, and the fact that alternatives to Court are likely to be quicker, cheaper and less stressful, is clearly pointed out. Parenting plans, under which parents can draw up their own written agreements about issues such as where children spend their time, are specifically referred to and encouraged.
Prominence is given to a section entitled ‘Signposting services’ which aims to direct parents to resources from which they can gain information, advice and assistance to resolve disputes themselves without having to come to Court. The Government website “Sorting Out Separation” was seen as an important tool in this exercise. However, some organisations have continued to express concerns about the lack of knowledge and understanding amongst the public about processes such as mediation for separating couples to resolve their disputes. Further education and information is likely to be necessary if separating parents are to use these alternatives to Court in any significant numbers.
Measures to assist LiPs
The CAP itself will, from the outset, reflect the fact that LiPs are likely to be extremely common users of it and the simple language used within the CAP is designed to assist their understanding of it. A glossary of terms will be included within an annex to the CAP to assist LiPs who may have limited knowledge and experience of Court processes. The clear explanations of what the Court will do and consider at each stage of the process are also aimed at helping LiPs navigate the Court process.
It has been confirmed that in cases involving LiPs the Court will now serve copies of the application to start proceedings on the Respondent to avoid the situation whereby some parents have only found out about the application when CAFCASS contact them. The Court service will also prepare bundles for use at final hearings in cases involving LiPs, if the Judge orders this to be done. Both these steps have been welcomed as helpful in ensuring cases can be dealt with fairly.
The PLWG has also produced a helpful Flowchart diagram, which graphically and visually explains the new CAP system to Judges and professionals and most importantly to LiPs using the system.
Directing parents away from the Court system
The CAP confirms that there will be 3 points within a case where it is clear that no further progress will be possible unless the Applicant can demonstrate that the MIAM attendance requirement has been fulfilled or an exemption granted:
- At the point when the C100 is submitted (this is the form which ‘starts’ the case).
- At the allocation / ‘Gatekeeping’ stage (where it is decided which level of Judge will hear the case and decide what should happen at the end of it)
- At the First Directions Hearing Appointment (FDHRA) (the first hearing in the case)
Whether the requirement to attend such a MIAM will actually result in the parents successfully using mediation to resolve their dispute remains to be seen, but it is clear that the intention is for this to happen. The CAP also confirms that the Court is expected to keep the option of alternative dispute resolution alive at all stages of a case and can put the case ‘on hold’ whilst the parties attend mediation.
This is the first hearing of the case which will take place involving the parties. Before this hearing, CAFCASS (the Children and Family Court Advisory Service) will carry out safeguarding checks with local authorities, the Police and the parties themselves. This information will be available at this hearing in the form of a letter from CAFCASS, confirming whether there are any risks, for example from domestic violence or concerns that a party might pose a risk to the child in question.
At the FDHRA itself a CAFCASS officer will be available, as well as a mediator in areas where one is available. The CAFCASS officer will speak with each party separately and will spend some time, with the collaboration of the Court, seeking to “conciliate and explore with the parties the resolution of all or some of the issues between them if safe to do so”.
The FDHRA aims to provide an opportunity for the parties to be helped to understand the issues in dispute between them and ideally, to resolve these disputes. Final orders can be made at this hearing and it is anticipated that in many cases, they will be.
If the matter is not capable of resolution at this hearing, the Court will decide what steps should be taken to progress the matter. This can include asking for more reports, for example from a local authority to provide more information on a child’s welfare and any potential harm that they may be at risk of suffering (S.37 report) or from CAFCASS to find out what the child’s wishes and feelings are in relation to the issues. These reports are known as S.7 reports after the section of the Children Act 1989 under which they are ordered.
If this hearing does not result in resolution of the case, it is likely that the Court might well order that the parents attend a Separated Parents Information Programme (SPIP).
The Court will have a chance to consider the allocation of the case which determines which type of Judge will hear the case. It is anticipated that the vast majority of cases will be heard and decided by Magistrates or by a District Judge (the next ‘tier up’ within the judicial hierarchy). The case can, at this stage, be transferred up to a higher level judge if the Court thinks that it is necessary, perhaps as a result of information now available in relation to safeguarding concerns for example.
The Court will also consider matters such as whether any interim orders should be made, to deal with matters until the case can be resolved finally. These could include orders setting out when and how a party should see the child pending the next hearing of the case.
A clear timetable will be set up for the case to move forward, and a date will be given for the next hearing so that parties leave Court knowing when that will take place.
Further possible hearings after the FDHRA include the following:
(i) Dispute Resolution Appointment – held after the preparation of the S.7 report and designed to either be used as a final hearing to resolve matters or to narrow the issues further and decide what further evidence will be needed for the final hearing.
(ii) Fact-finding hearing – this would be held where there were issues of domestic violence which may have a bearing on the nature of the relationship or contact that a parent had with a child. The Court would hold such a hearing to determine whether allegations of domestic violence were made out so that future decisions could be taken and risk assessed on the basis of firm facts.
A new Practice Direction is being drafted currently for approval by the President which will set out how such fact-finding hearings should take place and be managed by the Court. The PLWG has commented that the way in which such fact-finding hearings take place when LiPs are involved needs to be monitored carefully over the next year. It may be that further amendments to Practice Directions will be needed in future if they cannot be carried out safely and fairly without different methods being adopted by Courts faced with dealing with them.
(iii) Final hearing – where all efforts at resolution of the dispute by agreement have failed and the Court needs to determine the case.
Timescales for proceedings
The timetable under CAP is expected to be ‘tight’ (5 – 6 weeks from issue of application to FDHRA, at which it is anticipated many cases will be finished and resolved). However, the PLWG stopped short of recommending any overall limit on the timetable. This was despite there being a significant degree of support during the consultation process on the CAP for such an overall limit, expressed in weeks, to be placed on the process.
Considerable cooperation between agencies such as the Courts, CAFCASS, local authorities and Police will be needed to ensure that safeguarding information and reports can be made available to fit within this timetable. Whether this will be achievable in practice remains to be seen.
Review / monitoring of orders made
An important new feature of the CAP is the emphasis on the resolution of disputes without the need for ‘reviews’ by the Court. In order to meet what the PLWG saw as “the perceived tendency of litigants to become dependent on the Court process to regulate / determine aspects of the children’s lives” review hearings will not be ordered, unless they are necessary, in the child’s best interests, and for a clear purpose.
To achieve this, any S.7 reports or S.37 reports by Local Authorities should set out phased proposals for medium and longer term plans, to help end the need for review hearings by the Court.
The CAP envisages that where monitoring of orders is required, the only methods by which this should be done are by way of CAFCASS monitoring (whereby they monitor the compliance with Court orders for contact) or the making of a Family Assistance Order (FAO) under S.16 CA 1989 whereby a CAFCASS officer or the local authority become involved to “advise, assist and befriend” any person named in the order, which can mean a parent, someone with whom the child is living or the child himself. Both these monitoring provisions would take effect for 12 months and potentially place further burdens on local authorities and CAFCASS which they are likely to be unwilling to take on.
Enforcement of orders
If a parent fails to comply with an order setting out, for example, when the other parent should see the child then an application can be made to the Court to enforce the order and ensure that it is complied with. The new CAP includes a section reiterating the importance of compliance with Court orders. It includes a specific recommendation that where action is being taken to enforce the order and the original order was made more than 3 months ago, then the safeguarding checks by CAFCASS should be renewed. It also recommends that District Judges are given powers to deal with committals, whereby parents who breach an order can be sent to prison. The PLWG has also continued to recommend within its final report, that an Enforcement Parenting Information Programme (EPiP) (which would presumably operate along similar lines to the existing SPiP) should be developed.
Outstanding matters on which more work is needed
The PLWG has made it clear that there are several areas where more work is needed to complete the CAP and make it effective.
More work is needed to take practical steps to assist LiPs in preparing cases. It is hoped to produce witness statement templates which LiPs could use to prepare the evidence they wish to present to the Court at a final hearing. Guides and leaflets are being written to explain various aspects of the LiPs which it is hoped will be available very shortly, to coincide with the launch of the Single Family Court on 22nd April 2014.
More specific training for Judges is needed to help deal with LiPs and the nature of proceedings in which they are involved which will often have to be more inquisitorial, with Judges asking more questions of the parties to find out the relevant evidence upon which to determine the case.
Finally, the PLWG outlined real concern within the system over cases where Judges deem expert reports (eg. into matters such as drug / alcohol testing or mental health) to be ‘necessary’ under rules which permit expert evidence to be filed, and yet there is no funding available for them as parties do not have representation or even if they are represented, the Legal Aid Authority refuse to fund such reports. The Ministry of Justice is asking users of the system to provide further evidence of such problems so that it can consider whether further action is needed.
Overall the new CAP provides a welcome, clear framework to try and help parents resolve their disputes over their children in a child-focused, timely, and non-litigious manner. There are still areas however, where it remains to be seen whether the CAP will actually work in the way it is hoped. It will only be once the new system is fully ‘up and running’, which may take some time yet as new rules and statutory provisions come into force; that we will see whether the new CAP will be as much of an improvement on the old one as the PLWG anticipate.
Draft Report of Private Law Working Group to President of the Family Division – 8.11.13
Final Report of Private Law Working Group to President of the Family Division – 25.2.13
Family Justice Council Guidelines on Judges Meeting Children 2010
Lorna Borthwick is a Barrister at Cornwall Street Chambers in Birmingham
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