Family Law

The family law reforms are two working days away. The volume of material for family law professionals to read and digest is huge and the Children and Families Act 2014 is a biggie at 241 pages long. This is the fourth article in our series of essential updates, designed to give family law professionals a neat summary of the need-to-know points for 22 April 2014.

To prevent this article being too long we've paraphrased the Act but obviously the Act should be referred to itself for the detail. Below is just a (hopefully) helpful summary of the key provisions that you may need to get your head around first. This is a starting point and focuses on the most relevant provisions for family law only.

In a nutshell:

The Children and Families Act 2014 (CFA 2014) covers both public and private children proceedings. In public law proceedings, amongst other things, it imposes a 26-week deadline for care and supervision proceedings (as piloted since July 2013), it scraps the 28-day time limit for interim care/supervision orders and it introduces new provisions regarding post adoption contact. In relation to private law proceedings it introduces a controversial new subsection into s 1 of the Children Act 1989, adding a presumption of parental involvement, which was hotly debated, and contact and residence orders are no longer - in their place are child arrangement orders. The requirement to attend a MIAM is now embodied in legislation (CFA 2014, s 10) as well as the rules about expert evidence in FPR Pt 25 (CFA 2014, s 13). The CFA 2014 gets rid of the requirement for the court to consider on divorce/dissolution whether to exercise its powers under the Children Act 1989 and therefore the Statement of Arrangements (Form D8A) is scrapped.

When:

Most of the ones that family lawyers are interested in come into force on 22 April 2014 (although see below - one provision does not). See the Children and Families Act 2014 (Commencement No. 2) Order 2014/889 for details of when other provisions come into force.

The Statutes and Statutory Instruments that make the changes:

The Children and Families Act 2014
The Family Procedure (Amendment No. 3) Rules 2013/3204
The Family Procedure (Amendment No. 3) Rules 2014 2014/843
(Plus the amended Practice Directions)
The Child Arrangements Order (Consequential Amendments to Subordinate Legislation) Order 2014/820
Children and Families Act 2014 (Commencement No. 1) Order 2014/793
The Children and Families Act 2014 (Commencement No. 2) Order 2014/889

Summary of the changes:

Public law

(1) The 26-week time limit on the determination of care and supervision proceedings, which has been piloted since 2 July 2013, is made statutory (CFA 2014, s 14 which amends s 32(1)(a) of the Children Act 1989). The 26-week limit can be extended by up to 26 weeks, in up to 8 week chunks, but the court has to be convinced that each extension is necessary to enable the court to resolve the proceedings justly (CFA 2014, s 14(3) which adds a new s 32(3)-(10) to the Children Act 1989). Extensions are not to be granted routinely and are to be seen as requiring specific justification.

(2) An Interim Care Order or Interim Supervision Order can now be made for longer than 28 days (CFA 2014, s 14(4) which amends s 38 of the Children Act 1989). Where a direction is made under s 37(4) and no application for a care or supervision order is made, any interim order made on giving the direction will end automatically after 8 weeks.

(3) When deciding whether to make a care order the court will be required to consider the permanence provisions of the care plan but will not have to consider the remainder of the care plan (subject to s 34(11)) (CFA 2014, s 15 which amends s31(3A) of the Children Act 1989). The permanence provisions are the provisions setting out the long-term plan for the upbringing of the child.

(4) New provisions are brought in for post adoption contact. Instead of applying for a s 8 order, if somebody (not just anybody, they have to fall into one of the categories outlined below) wants contact with a child post-adoption an application can be made under the new s 51A (inserted by CFA 2014, s 9). The people who can be named in a new post-adoption contact order are listed at s 51A(3) and include relatives of the child (by blood, marriage or adoption), any former guardian, any person who had parental responsibility for the child immediately before the adoption order, any person who was entitled to make an application under s 26 for contact with a child placed or to be placed for adoption and any person whom the child has lived with for at least one year. Everybody except the child themselves and the person who applied for the adoption order or whose favour the adoption order is made, must apply for leave first. The factors for the court to consider when deciding whether to grant leave are listed at s 51A(5). Section 51A can also be used to apply for an order prohibiting contact.

Private law

(5) Contact and residence orders are scrapped and instead we will have child arrangements orders, and CA 1989, s 8 is amended by CFA 2014, s 12 accordingly. The terms ‘residence order' and ‘contact order' are used in lots of places, not just in the CA 1989, but also in many other statutes and statutory instruments. This means a lot of amendments need to be made and Sch 2 to the CFA 2014 has a list.

(6) The change from residence order to child arrangements order has had an impact on other parts of the Children Act 1989. For example, it used to be the case that where a residence order was in force with respect to a child, the child's surname couldn't be changed and the child couldn't be removed from the UK for a month or more without either the written consent of every person who had parental responsibility for the child or the leave of the court (CA 1989, s 13). This section has now been amended so that instead of referring to a residence order it refers to a child arrangements order if the arrangements regulated by the order consist of, or include, arrangements which relate to either or both of the following -

(a) with whom the child concerned is to live, and
(b) when the child is to live with any person.

Amendments in a similar vein have been made to s 10 (who can apply for a s 8 order) - the person named in a child arrangements order as the person with whom the child is to live (rather than the holder of a residence order) - may apply as of right for a s 8 order. See Sch 2, Pt 1 of the Child and Families Act 2014 for further similar amendments.

(7) What about old contact orders and residence orders that were made before the 22 April 2014? After 22 April they will be deemed to be child arrangements orders in respect of either: (a) with whom and when a child is to spend with or otherwise have contact with a person (old contact orders); or (b) with whom and when a child is to live with a person (old residence orders).

(8) An extra provision has been added to CA 1989, s 1 that says that the court should presume, unless the contrary is shown, that involvement of each parent in the life of the child will further the child's welfare. There is then a further provision that explains that ‘involvement' means involvement of some kind, either direct or indirect, but not any particular division of a child's time. The wording of these sections have been controversial and amendments have been made in the process of the Bill becoming an Act. It is worth taking a look at the exact wording, which you'll find at CFA 2014, s 11. There's also some extra wording about who a ‘parent' is (excluding parents who would put the child at risk of suffering harm). Note that at the time this article was written there was no date yet for these provisions coming into force - s 11 was not on the list of sections coming into force on 22 April 2014.

(9) MIAMs - The old PD3A already contained the requirement that a party should attend a mediation and assessment meeting (MIAM) before making an application, and now the requirement is set out in statute by CFA 2014, s 10 to strengthen and give it statutory force. FPR 2010 Pt 3 and 3A have been revised (see our MIAM article, coming soon).

(10) Expert evidence - Last January, FPR 2010 Pt 25 and the Practice Directions were extensively amended. Section 13 of the CFA 2013 mirrors the amendments made to Pt 25 in relation to experts in children proceedings. So now the requirement for expert evidence to be ‘necessary' to assist the court to resolve the proceedings justly is statutory (along with other provisions such as needing permission of the court instruct an expert in children proceedings etc - see CFA 2014, s 13 for details) and it no longer appears in r 25.1 (although it appears at r 25.4(3) for non-children proceedings).

Divorce/dissolution etc

(11) Section 17 of the CFA 2014 gets rid of s 41 of the MCA 1973 (and the civil partnership equivalent CPA 2004, s63). These sections are the ones that require the court to consider on divorce/dissolution whether to exercise its powers under the Children Act 1989. It then send out the D84B certificate which almost always says that there are children but that the court does not need to exercise its powers under the CA 1989 with respect to any of them nor give any direction under the Matrimonial Causes Act 1973, s 41(2). Those certificates will no longer be sent out and statements of arrangements for children (Form D8A) will no longer need to be filed either. Other forms that refer to the statement of arrangements will need to be amended (e.g. the petition - D8 and the statements in support of decree nisi - D80A - F) - but we haven't seen the amended versions yet.

Other

(12) The ill-fated provisions of the Family Law Act 1986, which were never commenced, are finally repealed by CFA 2014, s 18. So long no-fault divorce...
(13) The FPR 2010 and accompanying Practice Directions have been amended to reflect the changes described above, as well as adding the new Public Law Outline and Child Arrangements Programme (read our CAP - essential update here). A new version of Practice Direction 12J - now called ‘Practice Direction 12J: Child Arrangements & Contact Order: Domestic Violence and Harm ' has also been added.

To do:

(1) Unfortunately there will be no getting round having to sit down with the Act itself and reading it. Good news, as a family lawyer you probably only need to read Parts 1, 2, (maybe) 5 and 10 of the Act if you're pressed for time (and who isn't?).

(2) Key word search all of your precedent documents for the words ‘contact' and 'residence' and amend accordingly (probably to ‘child arrangements order').

(3) Check out our Family Law Reform page, which is a free resource bringing together everything you need to know about the family law reforms in one place. On that note, the new version of the Red Book will be published soon with the amended version of the Children Act 1989 and FPR 2010, and insightful expert commentary. 

The Practice Notes in Practice Plus are currently also being updated to be up to date with all the 22 April 2014 changes too.

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