19 March 2019 - Article
Sir David Norgrove's Family Justice Review (FJR) published in November 2011 found that the family justice system was struggling to cope with its responsibilities, resulting in an increased risk of harm to children. The Review made numerous recommendations. The Government's response published in February 2012 agreed with most of the recommendations of the FJR with one controversial exception. The Government did not accept Norgrove's rejection of the presumption of ‘shared parenting' between separating parents. This discrete issue has been the subject of a consultation paper issued in June 2012. The consultation closed on 5 September 2012 and we await the report. In the meantime Mr Justice Ryder was appointed Judge in charge of the Modernisation of Family Justice programme. His encouraging report was published on 31 July 2012 and demonstrated a willingness to grapple real issues faced by litigants and a desire to secure access to justice for the future. The Government has now pressed ahead with some of the recommendations that they did agree in the FJR. On the legislative side, the Government announced a Children and Families Bill in the Queen's Speech on 9 May 2012 which forms part of a larger package of legislative changes regarding children and families to be introduced between now and 2014. This is to be distinguished from the draft legislation on family justice for pre-legislative scrutiny which was published this month.
Current Proposed Legislative changes
The proposed changes in the published draft legislation will have an impact on both private and public law children cases, the divorce process, the use of expert evidence and other forms of Dispute Resolution with the aim being to streamline and speed up the process of access to family justice. On the use of Dispute Resolution, if accepted, a key change will be that before an application can be made at Court concerning private law child matters and financial remedy proceedings the applicant will have an obligation to attend a mandatory Family Mediation Information and Assessment Meeting (MIAMs), save with exceptions and/or in exceptional circumstances. The court will also have more control and input on how those meetings are to be managed. Although MIAMs were introduced as part of a pre application protocol contained in the Family Procedure Rules 2010, they were not uniformly attended and this change is central to the government's aim of minimising litigation. Although the Government did not accept the FJR's rejection of ‘shared parenting' stating that ‘legislation may have a role to play in shared care' it is not seeking to achieve the previous stated aim of introducing a presumption of shared or equal care in this draft legislation. The emphasis of this draft legislation in relation to private child law is on the practical arrangements about who a child should live with, who the child should spend time with and who the child shall have other types of contact with, such as indirect contact through Skype. They aim to neutralise the terminology used to depart from the 'winner/loser' and 'made in favour' of approach to litigation. Residence and Contact Orders will be replaced by a 'child arrangements order'. Coupled with changes about the practicalities of facilitating arrangements for the children, the focus is to be on the child's needs as well as on the responsibilities of those caring for the child to meet those needs. Extensions are to be made to those that can acquire Parental Responsibility. This may be relevant to involved grandparents and fathers who do not currently have Parental Responsibility as they will be able to acquire it under the terms of the child arrangement order. The procedure for undefended divorces is to be made less of a burden on Judges and dealt with by administrative staff in the first instance. The use of expert evidence in both private law and public law children cases is to be excluded unless the court grants permission. The court will decide the need for expert evidence for example by considering the impact of any delay in obtaining the expert evidence on the child and the child having to undergo an assessment.
Views on shared parenting
Whether the proposed draft legislation is a stepping stone towards introducing the Government's plans for shared care or one where they are stepping back from those plans – only time will tell. In the meantime we await the report following the close of the consultation on this issue. The Law Society and the Office of the Children's Commissioner for England have both expressed their views that the Government's plans for shared parenting are 'seriously flawed' and have 'grave concerns about the proposal to legislate' respectively. The main concern is that the presumption of cooperative parenting will become one of equal parenting, which may not consider the interests of each individual child. Written by Claire Blakemore and Nancy Khawam on behalf of Withers' divorce and family department.