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The Children and Families Bill – what private children lawyers need to know

Piers Pressdee QC, of 29 Bedford Row, examines the private children law provisions of the newly introduced Children and Families Bill

Piers Pressdee QC
, 29 Bedford Row

Forewarned is forearmed. Family law is littered with bills which never become statutes and with statutes which have never been brought into force, but one suspects that the aspects of the newly introduced Children and Families Bill considered within this article will not fall into that category. The clauses that will be of interest to private children lawyers represent the government's response to the Family Justice Review in that area. The proposed changes can be grouped into the administrative, the procedural and the substantive, but it is the substantive proposals to do away with residence and contact orders and to introduce a presumption of shared parental involvement in the life of a child that most catch the eye.

The administrative clauses
What might be described as the administrative clauses are to be found at clauses 17 and 18 of the Bill and can be dealt with shortly. The former proposes the repeal of section 41 Matrimonial Causes Act 1973 and section 63 Civil Partnership Act 2004, which, in proceedings for a decree of divorce, nullity of marriage, or judicial separation or, in relation to a civil partnership, for a dissolution, nullity or separation order, currently require the court to scrutinise the arrangements for any children concerned and consider whether it should exercise any of its powers under the Children Act 1989. The legislative aim is simply to streamline court process and save judicial time, with freestanding applications under the Children Act 1989 to be used where disputes over arrangements for the children or child protection concerns arise. Clause 18 proposes the repeal of uncommenced provisions of Part 2 of the Family Law Act 1996 – a repeal foreshadowed as long ago as 2001.

The procedural clauses
There is a Levesonic flavour to clauses 10 and 13, which respectively deal with MIAM attendance and with expert evidence in family proceedings concerning children. In both cases, the underlying rationale seems to be that legislative change is required because (for want of a better expression) self-regulation has failed.

Clause 10(1) (which makes no distinction between applicants who are publicly funded and those who are not) provides that any person who wishes to make a relevant family application must first attend a family mediation information and assessment meeting to find out about and consider mediation, or other forms of non-court based dispute resolution. What the Bill does not do is to provide the detail of how that general principle is to operate in practice, it being left (by virtue of clause 10(2)) to the Family Procedure Rules to specify the circumstances in which MIAM attendance is not required; to make provision about the convening and conduct of a MIAM; to set out the consequences where the applicant has not attended a MIAM; and to make provision as to the evidence that is to be considered when the court determines whether there has been any contravention of the attendance provision.

Clause 13 makes fairly detailed provision about when expert evidence may be sought or put before the court in children proceedings. The intention, in relation to such proceedings, is that these measures will replace similar provisions contained in new Part 25 of the Family Procedure Rules, which, on the back of the Family Procedure (Amendment) (No. 5) Rules 2012, came into force on 31 January 2013. Clauses 13(1), (3) and (5) respectively provide that the court's permission is required to instruct an expert to provide evidence for use in children proceedings; for a child to be medically or psychiatrically examined or otherwise assessed by an expert for the purpose of preparing expert evidence for the court; and to put expert evidence (whether written or oral) before the court. Clauses 13(2) and (4) provide that, where an expert is instructed or a child examined or assessed without the court's permission being first obtained, then the resultant evidence is inadmissible unless the court rules that it is admissible. Clause 13(6) sets out the test for permission, providing that it will only be given if the court is satisfied that the expert evidence is necessary to assist the court in resolving the proceedings justly. Thus the new test of necessity – "on any view significantly higher than the old test of what is reasonably required" (per Sir James Munby P in Re TG (A Child) [2013] EWCA Civ 5  – is to be given statutory force. And clause 13(7) sets out a number of factors to which the court has to have regard when deciding whether permission should be given.

The advent of child arrangements orders
In line with a key recommendation of the Family Justice Review, clause 12 of the Bill removes the current definitions in section 8(1) Children Act 1989 of residence and contact orders, replacing such with the new child arrangements order. A child arrangements order is defined as an order regulating arrangements relating to with whom a child should live, spend time, or have other types of contact, or when they should do so. As now, specific matters arising in connection with the exercise of parental responsibility for a child, and that do not concern with whom the child should live or have contact, are to be dealt with by means of specific issue or prohibited steps orders.

Schedule 2 to the Bill deals with the multitude of amendments consequent on the introduction of the child arrangements order and the replacement of residence and contact orders in the private law context. What is apparent from them is that the focus is henceforth to be on the content of the order, rather than its name. Several amendments do no more than replicate, insofar as possible, the current position regarding residence and contact orders, but some go further. Of particular note in this regard are the proposed amendments to sections 11A to 11E Children Act 1989 (currently relating to "contact activity directions" and "contact activity conditions"), which broaden the scope of the activities that can be directed or imposed beyond the promotion of the contact provided for or being considered by the court. The new "activity directions" and "activity conditions" – and the absence of the word "contact" from the title is instructive – will more generally be about helping to establish, maintain or improve the involvement of a person in a child's life.

The stated policy aim underpinning the introduction of the child arrangements order is to move away from terminology that implies that there is a winner or loser in private law disputes concerning children. Whether or not the proposed new regime will achieve the harmony hoped for, or whether in the more conflictual case it will instead focus the parental battle more keenly on the actual division of parenting time, remains to be seen.

The presumption of parental involvement
Clause 11 of the Bill falls to be seen within the context of the long-running debate as to whether there should be some form of statutory private law presumption of shared parenting or parental involvement. During the passage of what became the Children and Adoption Act 2006, Parliament specifically considered but decided against such a statutory change. The Family Justice Review looked at the issue again. But, having received and considered a wealth of evidence from home and abroad, its conclusion was no different: "the core principle of the paramountcy of the welfare of the child is sufficient … to insert any additional statements brings with it unnecessary risk for little gain." The government disagreed. In its 'co-operative parenting following family separation' consultation, launched in June 2012, the government consulted not on whether there should be some amendment to the Children Act 1989 ("to reinforce the principle that both parents should continue to play a role in their child's care post-separation, providing that this is safe and appropriate"), but on the form that such an amendment should take. What now appears in clause 11 is a tweaked version of the government's preferred "presumption" option as set out in its consultation paper.

Clause 11 proposes to introduce a new section 1(2A) into the Children Act 1989. The effect of this amendment is to require the court, when determining contested applications for or for the variation or discharge of a section 8 order or when considering the award or removal of parental responsibility, "to presume, unless the contrary is shown" that involvement of each of the relevant child's parents in his or her life "will further the child's welfare". However – and it is a key however – a parent only comes within new section 1(2A) "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 is to be [so treated] 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" (proposed new section 1(6)).

A number of observations fall to be made in respect of this somewhat tortuous proposed amendment. The first is obvious: the presumption manifestly does not apply to all parents. The second is that the presumption is not of itself determinative: even where it applies, the court would then have to go on to consider whether the presumption is rebutted on the basis that it is shown that the involvement of that parent would not in fact further the child's welfare. The government's stated legislative rationale is to meet the criticism "that the law does not fully recognise the important role that both parents can play in a child's life" and "to help restore confidence in the family court system". In introducing the Bill, the government has been at pains to stress that the proposed legislative change makes no reference to time and certainly does not give or imply the creation of any rights to equal time, and it has similarly sought to be clear that no displacement of the paramountcy principle is intended. Yet quite how the land will lie, if and when this proposed amendment (or something like it) is enacted and in force, again remains to be seen. "Perception", as Oscar Wilde once opined, "is everything"; and it is not hard to see how different parents will see different things in the statutory wording (whatever its precise form), and how this may well fuel rather than avoid conflict and litigation.    

The next steps
The Children and Families Bill received its first reading (without debate) in the House of Commons on 4 February 2013. The second reading and debate will take place on 25 February 2013. Whilst there will doubtless be some tinkering with the wording here and there, the smart money has to be on the substantial implementation of the clauses considered above. In most part, they carry the approbatory imprint of the Family Justice Review, and, in the key area where that approval is absent, the political momentum in favour of statutory change is likely to prove unstoppable. And full implementation is unlikely to be slow in coming. As the President records in his February 2013 Family Justice Modernisation Programme Implementation Update, "it is the government's intention that the Bill and consequential changes will progress sufficiently quickly to allow the key practical changes it introduces to the way courts deal with family cases to be implemented at the same time as the introduction of the Single Family Court by the Crime and Courts Bill in April 2014". The clock is therefore ticking. And, in the meantime, private children lawyers can expect their more clued-up clients to be only too aware that change is in the offing and to want to know what such change will mean for them and their families. Forewarned will indeed be forearmed.