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The Children and Families Act 2014 – Private Law Proceedings: what practitioners need to know

Anna Heenan, solicitor with Gregg Latchams LLP in Bristol, examines the new statutory provisions in respect of MIAMs, continued parental involvement and child arrangement orders.


Anna Heenan, solicitor, Gregg Latchams LLP











Anna Heenan, solicitor, Gregg Latchams LLP

The Children and Families Act 2014 (the "Act") has now received Royal Assent.  This article aims to outline the key changes which practitioners dealing with private law children work need to know when the statute comes into force on 22 April 2014.

The most significant changes for children lawyers dealing with private law matters relate to:

  1. Compulsory MIAMS (section 10)
  2. Continued parental involvement (section 11)
  3. Child arrangements orders (section 12).

Practitioners should also be aware of the Private Law Working Group's work on a Child Arrangements Programme (CAP) to replace the Private Law Programme.  The CAP is designed to make the necessary procedural changes to accompany the changing landscape of private law children work.  The final version of the CAP is, it is understood, undergoing some final minor amendments. For more information about the draft CAP, click here.


1. MIAMS

Section 10(1) of the Act provides:

"Before making a relevant family application, a person must attend a family mediation information and assessment meeting."

In short, this means that MIAMS are now compulsory and so all clients will be expected to attend such a meeting before making an application to the court. It is clear that the Government is seeking to encourage the use of mediation:

"we have changed the law to make sure that separating couples always consider mediation as an alternative to a courtroom battle."

"A relevant family application" is defined by s 10(3 ) of the Act as an application which

(a) is made to the court in, or to initiate, family proceedings [as defined by the Courts Act 2003, s 75], and

(b) is of a description specified in Family Procedure Rules.

In broad terms this will include all the most usual applications in private law proceedings relating to children and in proceedings for a financial remedy.

The Law Society's practice note on family mediation, published in 2011, is also worth a re-read.  It provides general guidance on MIAMs, including guidance on the meaning of "a relevant family application" and the circumstances in which a MIAM is not needed.


2. Shared parenting (or not)

Background
The origin of the Act can be traced back to the Family Justice Review in 2011.  The Family Justice Review was commissioned by the last Labour Government to review the family justice system as a whole, with particular emphasis on the delays in public law proceedings. 

One of the most controversial issues addressed by the Family Justice Review was shared parenting.  The Family Justice Review's final report concluded that there should not be any legislation that "might risk creating an impression of a parental 'right' to any particular amount of time with a child" (para 4.27).

In its response to the Family Justice Review, the Government made clear that it did not want to introduce a presumption of shared parenting but it did suggest that there should be "a legislative statement of the importance of children having an ongoing relationship with both their parents after family separation, where that is safe, and is in the child's best interests…. a meaningful relationship is not about equal division of time, but the quality of parenting received by the child" (paras. 61-62).

The Government subsequently launched a public consultation on 'Co-operative Parenting Following Family Separation: Proposed Legislation on the Involvement of Both Parents in a Child's Life'.  Section 11 of the Children and Families Act was the eventual outcome of that consultation.

Section 11
There has been a lot of discussion about shared parenting in the media but the Act does not introduce a presumption of shared parenting.  Instead, s 11 of the Act, entitled "Welfare of the child: parental involvement", introduces a presumption of continued parental involvement into the welfare checklist in s 1 Children Act 1989.

It is worth quoting the amended s 1 in full (the amendments by the 2014 Act are shown in bold):

"1  Welfare of the child

(1)     When a court determines any question with respect to—

(a)     the upbringing of a child; or

(b)     the administration of a child's property or the application of any income arising from it,

the child's welfare shall be the court's paramount consideration.

(2)     In any proceedings in which any question with respect to the upbringing of a child arises, the court shall have regard to the general principle that any delay in determining the question is likely to prejudice the welfare of the child.

(2A) A court, in the circumstances mentioned in subsection (4)(a) or (7), is as respects each parent within subsection (6)(a) to presume, unless the contrary is shown, that involvement of that parent in the life of the child concerned will further the child's welfare.

(2B)     In subsection (2A) "involvement" means involvement of some kind, either direct or indirect, but not any particular division of a child's time.

(3)     In the circumstances mentioned in subsection (4), a court shall have regard in particular to—

(a)     the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);

(b)     his physical, emotional and educational needs;

(c)     the likely effect on him of any change in his circumstances;

(d)     his age, sex, background and any characteristics of his which the court considers relevant;

(e)     any harm which he has suffered or is at risk of suffering;

(f)     how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;

(g)     the range of powers available to the court under this Act in the proceedings in question.

(4)     The circumstances are that—

(a)     the court is considering whether to make, vary or discharge a section 8 order, and the making, variation or discharge of the order is opposed by any party to the proceedings; or

(b)     the court is considering whether to make, vary or discharge [a special guardianship order or] an order under Part IV.

(5)     Where a court is considering whether or not to make one or more orders under this Act with respect to a child, it shall not make the order or any of the orders unless it considers that doing so would be better for the child than making no order at all.

(6) In subsection (2A) "parent" means parent of the child concerned; and, for the purposes of that subsection, a parent of the child concerned—

(a)  is within this paragraph if that parent can be involved in the child's life in a way that does not put the child at risk of suffering harm; and

(b)  is to be treated as being within paragraph (a) unless there is some evidence before the court in the particular proceedings to suggest that involvement of that parent in the child's life would put the child at risk of suffering harm whatever the form of the involvement.

(7) The circumstances referred to are that the court is considering whether to make an order under section 4(1)(c) or (2A) or 4ZA(1)(c) or (5) (parental responsibility of parent other than mother)."

What does section 11 mean?
Section 11 means that whenever the court is considering one of the following applications it will need to have regard to the presumption of continued parental involvement:

What will be the practical impact?
The short answer is that it is very hard to tell.

In the Government's document "Children and Families Bill 2013: Contextual Information and Responses to Pre-Legislative Scrutiny)" the suggestion is made that the section is intended to inform parents about how the courts work, rather than to engender a change in that approach:

"The Government remains of the view that a legislative amendment will send an important message to parents about the valuable role which they both play in their child's life. As well as helping to promote greater understanding about the way in which court decisions are made, we believe the amendment will, in time, encourage separated parents to adopt less rigid and confrontational positions with regard to arrangements for their children."

It may, therefore, be that there is very little change in terms of the courts' approach.  However, the concern is that the legislation may prompt the courts to be more willing to impose shared care arrangements and it may make parents negotiating in the shadow of the law more likely to agree such arrangements.  Whilst that, of itself, is not problematic, the Family Justice Review raised concerns that in the Australian context similar reforms had led to increased numbers of shared care arrangements in cases where there were safety concerns.

Section 11(2B) (inserting s 1(2A) into the Children Act 1989 above), which was introduced as a Lords' amendment, is designed to counter some of these concerns by making clear that continued parental involvement does not require a particular division of a child's time. However, will the increasing numbers of parents representing themselves be aware of what the statute says or is their information likely to be influenced by discussions about "shared parenting" in the media and by other interest groups?


3. Child arrangements orders

The effect of s 12 of the Act is that "contact" and "residence" orders are no more.  Instead, there will be a single order, a "child arrangements order", which deals with the arrangements as to "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."

As one might expect, this change has a lot of knock-on effects and schedule 2 to the Act sets out the consequential amendments.  Perhaps the most interesting are the changes in the context of child abduction. 

Section 1(1) of the Child Abduction Act 1984 ("CAA") makes it a criminal offence to take a child under 16 out of the UK without appropriate consent.  However, s 1(4) of that Act provides that a person who has a residence order in respect of a child may  take that child out of the UK for a period of up to one month. Schedule 2, para 47 amends section 1(4) CAA so that it refers to a person "named in a child arrangements order as a person with whom the child is to live".

Not only does this emphasise the importance of the wording chosen but it perhaps also suggests that the change in terminology might not have the impact the Government is hoping for.  Are some parents as likely to be concerned about a child arrangements order stating that the child is to live with them as they would have been to have the term residence order attached to those arrangements?

Given that the Act will come into force in just over a month's time, there is not long to wait to find out. 

19/3/14