The labours of the Private Law Working Group, set up by the President of the Family Division back in August 2013, have now come to fruition and on 22 April the new Practice Direction 12B - Child Arrangements Programme will be here. Highlighted in this, the latest in our series of articles, are some of the salient points to note.
In a nutshell:
The new Practice Direction 12B - Child Arrangements Programme (CAP) applies where a dispute arises between separated parents and/or families about the arrangements concerning children. It encourages and promotes the use of Dispute Resolution Services and where a matter does require the intervention of the court, swift resolution of the dispute.
In effect 22 April 2014
The Statutes and Statutory Instruments that make the changes:
Children and Families Act 2014
Practice Direction 12B - Child Arrangements Programme
PD 12J - Child Arrangements and Contact Order: Domestic Violence and Harm
Summary of the changes:
There is contained in the CAP a strong reiteration that Dispute Resolution Services, including mediation, are available to provide opportunities for parents and families to work in a positive and constructive way, and should be actively considered and attempted where appropriate to do so. A Mediation Information and Assessment Meeting (MIAM) must be attended before a relevant family application to court is made (unless one of the exemptions contained in r 3.8(1) or 3.8(2) FPR applies).
A relevant family application (see r 3.6 FPR and paras 11 and 12 of PD3A) for the purposes of the CAP is an application in private law save for:
- proceedings for an enforcement order, a financial compensation order or an order under para 9 or Pt 2 of Sch Al to the Children Act 1989;
- any other proceedings for enforcement of an order made in private law proceedings; or
- where emergency proceedings have been brought in respect of the same child(ren) and have not been determined.
Families are encouraged to work with each other to develop a Parenting Plan and there is a section in the CAP dedicated to signposting a range of various services to help families.
Even if proceedings are before the court, the judge or magistrate is obliged to consider, at every stage, whether non-court dispute resolution is appropriate. The same goes for the parties themselves.
The applicant will be required, (on the amended C100) to confirm attendance at a MIAM or specify that an exemption applies. The application is then considered by the Gatekeeper (a nominated legal adviser and/or district judge responsible for deciding which level of judge in the family court should initially deal with the application) within one working day of the date of receipt in accordance with the appropriate Rules of Procedure.
In applications for child arrangements orders (but not necessarily for specific issue or prohibited steps orders), before the FHDRA Cafcass (the Children and Family Court Advisory and Support Service) shall identify any safety issues and will carry out safeguarding enquiries, including checks of local authorities and police, and interviews with parties as necessary to feed this information back to the court.
The CAP outlines in detail the timetable for private applications in s 22:
Day 1: Paperwork received from the applicant. The court office checks the paperwork and the application will not be issued unless it has been completed correctly.
Day 2: Case considered and allocated by Gatekeeping team in accordance with the President's Guidance on Allocation and the Family Court (Composition and Distribution) Rules 2014. The Gatekeeper will check whether form C100 is completed. If there has been no MIAM, and there are reasons to believe that the applicant should have attended a MIAM, the Gatekeeping judge can direct that a MIAM should take place before the FHDRA.
Day 17: (ie 17 working days from the date of its receipt of the application) Cafcass provide safeguarding check to the court (or 20 working days for Cafcass Cymru).
Week 5: (or latest, week 6): Case listed for FHDRA (before week 5 if requirements of notice have been abridged).
Thereafter, the case may be listed for fact-finding hearing, Dispute Resolution Appointment ‘DRA' and/or final hearing. If an application is not finally resolved at FHDRA and directions are given for a further hearing, where the parties are both Litigants in Person (LiP), HMCTS can be directed by the court to prepare a LiP bundle for use by the court at subsequent hearings.
Cases may be adjourned where agreement is reached if there are still safeguarding checks or risk assessments to be finalised, but for no longer than 28 days to a fixed date.
HMCTS will now serve C100 applications on the respondent, instead of the applicant being required to do this. The court will also send the necessary documents to Cafcass no later than 2 working days after the date of issue.
The key welfare principles within the CAP are s 1 of the Children Act 1989 and FPR 2010 rr 1, 3 and PD3A, 4, Pt 15 and PD15B, Pt 16, Pt 18, Pt 22, Pt 24, Pt 25, 27.6 and PD27A. Where a fact-finding hearing is required, this should take place in accordance with Practice Direction 12J FPR.
Sections 21.1-21.8 of the CAP deal specifically with enforcement of child arrangements orders and should be referred to in regard to the issues the court will consider, and the range of powers available in the event of a breach.
For Parenting Plans: see Cafcass ‘Putting Your Children First: A Guide for Separated Parents'.
For public funding issues, note that the Legal Aid Agency (LAA) will provide funding for MIAMs and family mediation for all those who are eligible. Parties may find out if they are likely to be eligible for legal aid at the following link: https://www.gov.uk/check-legal-aid.
If there is a Parenting Plan - don't forget to attach it to your C100 application. Additionally, if the C100 isn't fully completed this could cause a delay with issuing so be vigilant for any missing information.
Familiarise yourself with the circumstances in which a MIAM is required.
Begin using the amended application form C100, incorporating in a single document, and with various other amendments, the previous forms C100 and the FM1.
Ensure you have looked at all relevant documents which are:
(1) The Child Arrangements Programme;
(2) The Guidance on Allocation and Gatekeeping (and schedule);
(3) The Guidance on Continuity and Deployment (Private Law);
(4) The Guidance on use of Prescribed Forms (Private Law);
(5) The CAP flowchart
also the revised PD12J FPR 2010.
For all the information regarding the forthcoming family law reforms, visit our new, fully up-to-date Family Law Reform page with all the latest news, analysis, legislation and cases.
Amy Sanders is a Family Law PSL at Jordan Publishing and was formerly a children and family solicitor practising in London and more recently in Devon.
She can be contacted on Twitter: @Amy_Sanders1