Family Law

[Updated: Thursday 10 May 2012]

A new Children and Families Bill has been announced in the Queen's Speech at the state opening of Parliament.

The Bill will implement plans to allow parental leave to be shared between parents, make inter-racial adoption easier, provide greater schooling choices for pupils with special educational needs, and improve fathers' access to their children after divorce.

Ministers plan to introduce more flexible parental leave following an independent report in May 2011 that recommended that the right to request flexible working be extended to those with parental responsibility for children up to the age of 16.

Changes to rules on adoption would prevent local authorities delaying an adoption to find the perfect match if there are suitable adopters available. The ethnicity of a child and prospective adopters will come second, in most cases, to the speed of placing a child in a permanent home.

The government plans to introduce a number of the recommendations contained in the final report of the Family Justice Review published in November 2011. These include:

• creating a time limit of six months by which care cases must be completed;
• making it explicit that case management decisions should be made only after impacts on the child, their needs and timetable have been considered;
• focussing the court on those issues which are essential to deciding whether to make a care order;
• getting rid of unnecessary processes in family proceedings by removing the requirement for interim care and supervision orders to be renewed every month by the judge and instead allowing the judge to set the length and renewal requirements of interim orders for a period which he or she considers appropriate, up to the expected time limit;
• requiring courts to have regard to the impact of delay on the child when commissioning expert evidence and whether the court can obtain information from parties already involved;
• requiring parents in dispute to consider mediation as a means of settling that dispute rather than litigation by making attendance at a Mediation Information and Assessment Meeting a statutory prerequisite to starting court proceedings, and;
• freeing up judicial time by allowing legal advisers to process uncontested divorce applications.

The development of the Children and Families Bill will also introduce legislation to ensure children have a relationship with both their parents after family separation, where that is safe and in the child's best interests.

Sarah Higgins, Partner in the Family Team at Charles Russell LLP, believes that further legislation on this issue is unnecessary. "The Queen's Speech stated that: 'Ministers intend to strengthen the law to ensure children have a relationship with both their parents after family separation, where that is safe, and in the child's best interests.' Whilst on the face of it that seems an uncontentious aim, this was not the recommendation of the Family Justice Review final report in November 2011.

"The risk of a change in emphasis is that at the moment the court has to look at the welfare of the child as the paramount consideration, rather than the rights and interests of the parents. Normally the welfare of the child requires the court to promote a relationship with both parents after separation in any event, without the need for further legislation," Ms Higgins added.

However Stuart Ruff, a family law solicitor with Thomas Eggar LLP, says the proposals could have gone further. "It is pleasing and long overdue to see that there are proposals regarding fathers seeing their children after a divorce, as paternal relationships can suffer following divorce. It is to be hoped that there will not be a rush to allege [safety] concerns as a way to bypass this, which will result in the courts having to explore any such allegations and, in turn, may make cases last longer. I would liked to have seen this provision extended to grandparents as they are often forgotten when parents separate."

Other plans unveiled as part of the Queen's Speech include measures in the Crime and Courts Bill to create a single county court system and a single family court for England and Wales.

Also announced as part of the Crime and Courts Bill are plans to overturn the ban on filming and broadcasting from law courts. Once the legal changes have been made broadcasting will be introduced initially at the Court of Appeal, where filming will be permitted of opening and closing legal arguments made by lawyers and the judgements handed down.

When contacted by Newswatch the Ministry of Justice press office was unsure whether broadcasting would be allowed in family law cases at the Court of Appeal. After checking, a spokesman called back to say that filming would be allowed but that "normal reporting restrictions would apply".