In 2004 a new scheme was introduced in relation to private law children cases (i.e. cases not involving a local authority). Called the Private Law Programme, the scheme was intended to set out ‘best practice’ in relation to how the courts should deal with disputes between parents over the arrangements for their children. The Programme was revised in 2010, to take account of developments in law and practice.
In August this year, the President of the Family Division set up the Private Law Working Group. This comprises judges and others involved in private family law work. Its remit: to make recommendations to the President “in relation to the resolution of Private Family Law Disputes (concerning children) in the most optimal and efficient way, building upon the President’s Revised Private Law Programme”. The Group has now published its report.
The report addresses the changes in practice and procedure that are necessary in the light of four recent or imminent developments:
1. The launch of the Family Court in April 2014 (see my previous post here).
2. The likely requirement for applicants in private law children cases to attend Mediation Information and Assessment Meetings (MIAMs), and the increased emphasis upon out of court dispute resolution.
3. The reduction in the availability of legal aid following the government cuts earlier this year.
4. The likely change in terminology for private law orders to be brought in by the Children & Families Bill (contact order and residence order to be replaced by a new child arrangements order).
The Group recommends that the Private Law Programme be replaced by a new Child Arrangements Programme (CAP). The name is a nod to the new terminology, and intended to emphasise that the child is the focus of the scheme.
The CAP has a number of aims, including placing a greater emphasis on mediation for resolving disputes, adapting to the changes resulting from the new Family Court and meeting the needs of a system in which there will be a higher number of litigants in person. It is designed to be more comprehensive (covering all aspects of the private law process, including the pre-proceedings phase) and more accessible, for both litigants in person and judges.
To support the new arrangements, the Group has prepared a number of draft supporting documents, all of which can be found here. I would draw particular attention to the draft flowchart for the CAP, which sets out graphically how the CAP is intended to operate.
Other points of note in the report:
1. The Group has decided against recommending a strict time limit for the resolution of cases, as there is with the 26 week time limit in care cases.
2. The government online information hub, Sorting Out Separation, should be ‘beefed up’ with more information, and more widely promoted.
3. The First Hearing Dispute Resolution Appointment (‘FHDRA’ – the initial hearing, at which the court identifies the issues and whether it is possible for the matter to be settled by agreement) should be retained largely in its present form.
4. There should be a ‘plain English’ guide for litigants in person (one is now being prepared).
5. Concerned that litigants in person have to take responsibility for the service of court orders, the Group invites the Courts Service and the Ministry of Justice to consider the feasibility of courts serving orders and applications (I can’t see this happening under current economic restraints).
6. Lastly, the Group recommends the publication of clearer guidance in relation to the enforcement of orders.
The President welcomes comments upon the proposals contained in the report from anyone with an involvement or interest in the family justice system. Details of where to send comments can be found on this page.