The Private Law Working Group, which was set up by the President of the Family Division in August 2013 under the chairmanship of Mr Justice Cobb, has now reported. Its Report recommends the replacement of the Private Law Programme with an entirely new Child Arrangements Programme. The Working Group has prepared further draft documents and also approved an expectation document prepared by Cafcass.
The Report (available to download below) explains that the Private Law Working Group has sought to devise a programme which:
'(a) Places a greater emphasis on mediation and out-of-court dispute resolution services for resolving low risk disputes concerning children;
(b) Identifies key resources for litigants to access such services currently;
(c) Re-inforces the (likely) imperative for most Applicants to attend a MIAM (Clause 10 of the Children & Families Bill 2013) before issuing an application for a court order;
(d) Preserves and builds on the aspects of the existing private law procedure which are believed to work well;
(e) Adapts the arrangements for resolution of private law cases to fit the new model for family justice in The Family Court;
(f) Aims to ensure that private law cases are allocated to the right tier of judge;
(g) Meets the needs of a system populated by a high number of Litigants in Person ("LiPs").'
Explaining the methodology and principles utilised by the Private Law Working Group, the Report states:
'In guiding our deliberations we have conscientiously prioritised the key principles underpinning the determination of all private law children disputes, whether in or out of court, namely that:
(a) the child's welfare is the paramount consideration;
(b) delay is likely to be prejudicial to the welfare of the child, and
(c) a court order should only be made if it positively promotes the best interests of the child.'
The Report also sets out the context and general objective of the Child Arrangements Programme within private law children disputes:
'The "Child Arrangements Programme" ("CAP") integrates the existing Pre-Proceedings Protocol (PD3A FPR 2010) (insofar as it applies to private law children disputes), and the Private Law Programme (PD12B FPR 2010). The objective is to set out a supportive, clear, process for private law cases. We considered it important to give greater profile to the pre-proceedings phase; it is well-recognised that pre-proceedings work with families is crucial if the reforms to the family justice system are to succeed in achieving optimal outcomes for children in a way which respects their and their families' human rights. This is as true in private as it is in public law.'
All draft documents are available in the Practice Guidance section of Newswatch. The Report and Child Arrangements Programme will be published in full in the December issue of Family Law.
The President would welcome and value all comments from anyone with an involvement or interest in the family justice system on these proposals. Comments should be sent to Nicola Massally (Nicola.firstname.lastname@example.org.) and Joanna Wilkinson (Joanna.email@example.com)
Comments on the draft Guidance on Allocation and Gatekeeping should be sent by 2 December 2013 and on everything else by 6 January 2014 at the latest.
The draft Guidance is available to download here.