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The Children & Families Act: A year in family law part 1

Mark Christie is the head of the dedicated Children’s Department here at Stowe Family Law. In the first of a three part series, he looks back on significant developments in family law during 2014.

As we  approach the end of 2014, it seems an appropriate time to reflect upon events of the last twelve months and developments and changes within our field of practice.

April 2014 heralded a significant change to certain aspects of the law relating to children with the implementation of the Children & Families Act 2014. Much of its provisions are now operational and we have now had several months to see the effects of this legislation.

This Act replaced residence and contact orders with what are now known as child arrangements orders. Accordingly, post-April 2014, in any private legal dispute arising from parents being unable to agree on arrangements for their children, an application now has to be made to the Court for a child arrangements order and not a residence or contact order as was previously the case. The other orders the Court has the power to make under the Children Act 1989, namely ‘specific issue’ orders and ‘prohibited steps’ orders remain in place.

The rationale behind this change in the terminology is that parents often perceived residence and contact orders as very unequal, with the parent who obtained a residence order feeling that he or she was far more in control and therefore in the driving seat. Similarly, the other parent who had only secured a contact order could be left feeling much less in control and in a weaker overall position. In some cases this feeling of inequality and unfairness led to applications being made by a parent for a shared residence order in circumstances where it would not really be justified. Indeed I had requests from clients for shared residence orders in those very circumstances before April this year.

With the stroke of a pen, the more neutral language and greater apparent fairness of the child arrangements order has made a significant change to the perceptions of parents. Such orders simply state that a child will spend time or live with one parent and spend other time or live otherwise with another parent.

Another significant change introduced by by the Children & Families Act 2014 was the requirement that a party intending to apply to Court for an order under the Children Act 1989 must now attend a Mediation Information and Assessment Meeting (MIAM). The purpose of these is to provide that parent with appropriate information about the availability and suitability of mediation as an alternative to Court.

Applicants must attend a MIAM unless one of a number of statutory exemptions apply. In the main these relate to the existence of domestic abuse (though it has to be said that the bar is set very high – and perhaps too high – to claim this particular exemption). Other exceptions apply amongst other circumstances, to when mediators are not available or the parties live in separate countries.

Whilst in theory the goal of encouraging mediation is laudable, recent studies suggest that there has not been the take up in the use of mediation that the Government had hoped for.

The Act has also brought in other changes. We saw the introduction of a ‘presumption of parental involvement’ by both parents (subject to certain safeguards), the streamlining and speeding up of Court procedures and paperwork and some strengthening of the judiciary’s ability to manage the cases which come before them. The costs of litigation are now contained, for example, via very strict control on the introduction and use of expert evidence within the courtroom.

Some eight months in, I am inclined to the view that the changes brought in by the Children & Families Act have largely had a beneficial impact, though of course it is still, relatively speaking, early days.

Mark Christie is the head of Stowe Family Law’s dedicated Childrens Department. Mark has specialised in family law for more than 35 years and provides clients with a wealth of practical experience.

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