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Hayley Trim's Analysis: Family Justice Review – a few thoughts
Sep 29, 2018, 19:09 PM
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Nov 4, 2011, 12:07 PM
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And the answer is... yes - the Family Justice Review Panel has recommended in its final report the abolition of the terms contact and residence in favour of "child arrangements orders". Mind you, reading and hearing some of the reaction to the review, you would think we were still pre 1990s with the old language of custody and access. It is amazing how slowly society's understanding changes and I wonder how long it will take for the idea of "child arrangements orders" to enter the social consciousness and into everyday language.
I have already written about how I think the media has overreacted to the decision not to include in the legislation a presumption of shared parenting or a statement about meaningful relationship with both parents. Meanwhile many of the recommendations have been underreported or ignored, including this important proposal to significantly amend the Children Act to focus on children's arrangements rather than the delineation of parental roles.
The proposal in private law proceedings is to steer separating couples via the information hub to a parenting agreement, failing which to MIAMs, PIPs, DRS (Dispute Resolution Services - formerly ADR) and only then to a single family court and a FHDRA where they will be allocated to a simple or complex track. Those who make it beyond the acronyms would end up with a child arrangements order (CAO?). The order may be accompanied by a parental responsibility order for fathers who do not otherwise have it. Wider family members including grandparents will still need to apply for leave to make an application. The implications for enforcement, rights of custody etc will need to be thought through.
Of course some parents who really want to fight will do so anyway, and the Review notes that the child arrangements order will still need to provide for where a child will live - which is bound to be a source of contention - as well as what time is spent where. But taking out the labels removes one heated issue from the mix.
One concern is that although fewer cases may get to court (obviously a good thing), by the time they do so, those cases may be much more difficult to resolve and the outcome may be less desirable.
Other elements of the Review, not being headline grabbers, have also received very little attention, for example it recommends:
Charges for public law applications should be removed;
A pilot where judges and magistrates learn the outcomes for families they have adjudicated on;
Courts not to interfere with care plans beyond the essentials of where a child is placed and contact issues;
A consultation on amendment of s 34 to promote sibling contact;
Six month time limit on care and supervision proceedings and judicial discretion for interim orders to be made for longer periods within that time limit;
Adoption panels would not be required to consider a child's suitability for adoption where a case is before the court- the court's scrutiny is sufficient;
Tighter case management and monitoring of experts and more focused instructions;
A pilot on formal mediation approaches in public law proceedings;
Family Drug and Alcohol Court to have further limited roll out;
Support for the tandem model;
Judicial continuity in all family cases;
There to be no link between maintenance and contact (the interim report had suggested suspension of maintenance as a potential tool in enforcing contact);
Different issues (including where possible money and children) could be dealt with together in consolidated proceedings;
Divorce to be initiated by the online hub, submitted to a centralised court processing centre and if uncontested dealt with by the courts administratively, but two stage process of nisi and absolute to remain (although the terminology should be updated).
Significantly the Review also recommends a review of financial orders including an examination of the law noting that a codified framework could reduce the need for judicial intervention. Will potential cost savings be sufficient incentive for government action on this?
Although the focus on comprehensive online provision of information makes sense, there are many people who do not feel comfortable with technology and who will need help to access the resources. In my view a helpline is unlikely to be sufficient and in-person support and assistance via CAB etc will be necessary.
Where do lawyers fit in? The Review says:
"The supply of properly qualified family lawyers is vital to the protection of children."
"We recognise the importance of legal advice during dispute resolution processes. The relationship between mediators and solicitors is important for clients who may need legal advice before agreement."
"We also recognise the significant role solicitors play in supporting clients to resolve disputes, helping many to reach agreement without court proceedings."
"The legal aid cuts may lead to a reduction in numbers of family solicitors and barristers and the closure of some firms. There is also a risk that lower funding may dissuade future entrants to this area of the profession."
The Review expresses concern at the proposed legal aid cuts, but treats them as a foregone conclusion saying their impact must be "monitored". For the structural reform proposed to create a Family Justice Service, for the IT that will be required and for many of the panel's recommendations, money is needed. And as the Review confirms "no new money is available to fund change before 2014/15." The Review, along with legal aid, seems likely to find itself a victim of short term cost saving at the expense of long term joined up thinking.
Hayley Trim is a Family Law PSL at Jordan Publishing and was formerly a family solicitor practising in London.