A Single Family Court?

On 22 April 2014 a number of changes will come into force which will ‘revolutionise’ the family court system as we know it.

In the words of Sir James Munby, the President of the Family Division, ‘we are on the cusp of history’ as ‘22 April 2014 marks the largest reform of the family justice system any of us have seen or will see in our professional lifetimes’.

Family law practitioners across the country are busy grappling with these procedural changes as they are being published (at a rapid rate!) to ensure that mistakes are not made and the transition to the new system goes as smoothly as possible from next week.

So, what does this mean for those who are currently in the midst of family law proceedings and/or who will require use of the family court in the future?

Some of the most significant changes to be aware of (in no particular order) are: –

• Mediation. Attendance at a MIAM (Mediation Information and Assessment Meeting) will be compulsory for the prospective Applicant. The prospective Respondent is now also expected to attend.  If a Respondent has refused to attend a MIAM the Court can order that they do so and can adjourn proceedings until this requirement has been satisfied. There are limited exemptions, most significantly where there has been domestic violence or where the application is urgent and/or to prevent risk of harm. However, the Court can make enquiries as to whether any exemption claimed is valid. If an exemption is not considered valid, attendance at a MIAM can be ordered.

• Child Arrangement Orders. There are no longer ‘Contact’ or ‘Residence’ orders in proceedings regarding children. Instead, these orders are now collectively referred to ‘Child Arrangement Orders’. These Orders set out with whom and when a child is to live, spend time or otherwise have contact with a person. There will be a Child Arrangements Program (CAP) in place which applies wherever there is a dispute about arrangements concerning children (Practice Direction 12(b)). The aim of the CAP is to ensure that all matters regarding children are either dealt with by non-Court dispute resolution (i.e. mediation, collaborative or through parenting programmes) or if dealt with in Court are dealt with as swiftly as possible. The CAP reinforces the welfare principle. It confirms that the child’s welfare ‘must be the highest priority’, that the process must be ‘child-focused’, and that a child should feel their wishes and feelings have been considered. Practice Direction 12(j) contains a presumption that the involvement of a parent in a child’s life will further the child’s welfare, but only ‘so long as the parent can be involved in a way that does not put the child or other parent at risk of suffering harm’. The CAP makes it clear that the first hearing (FHDRA) is not privileged.

• No more ‘Statement of Arrangements’. There is no longer a requirement for a Divorce Petition to be accompanied by a Statement of Arrangements form when there are children involved. Instead, only the Petition will be needed to start the divorce proceedings. This means that the arguments and anxiety which can be caused by completion of the form will be avoided. If there is an issue about the arrangements to be made for a child then it is for the parents to resolve this either through non-Court dispute resolution, or through the Court’s.

• Single Family Court. There will be a ‘single’ Family Court system to replace the three tier court system of the County Court, the Family Proceedings Court and the High Court. The single Family Court will include the High Court and will group together District Judge’s, Circuit Judges, lay Magistrates, and High Court Judges. All applications must be issued at a Designated Family Centre. In London there will be three Designated Family Centres, the Central London Family Court at First Avenue House on High Holborn (currently the PRFD), the West London Designated Family Centre at Hatton Cross, and the East London Designated Family Centre, the location of which is still to be confirmed. Once the application is issued it will be allocated to the appropriate Hearing Centre where the appropriate Judge will deal with the application. A case will only be allocated to the High Court if there are good reasons for this. There will be a ‘centralised and unified administration’, involving a centralised back office, gate keeping and allocation team, and listing system, to cover the single Family Court. There will be Gatekeepers who will allocate all applications the next working day after they are issued. The Gatekeepers also have the power to make directions on issue, such as requiring parties to attend a MIAM if they have not done so or their exemption claimed is not accepted as valid, directions for an accelerated hearing if there is an urgent issue, or directions for the filing of evidence in exceptional circumstances.

• Continuity. The aim is to provide ‘continuity of judicial involvement’. In children proceedings, this means that the same Judge should deal with every hearing, from the first hearing (FHDRA) to the Final Hearing. In financial proceedings, this means that the same Judge should deal with the first hearing (FDA) and any interim hearings until the FDR, and then, if the matter is not settled at FDR a Judge will be allocated to the Final Hearing and will attend all interim hearings in between.

• Bundles. A new Practice Direction has been issued in relation to the preparation of Court Bundles, which all family law practitioners must take careful note of. If the Practice Direction is not followed the Court has the power to make a Wasted Costs Order and re-list the hearing. This Practice Direction requires all Court bundles to be limited to one lever arch file and contain only those documents which are relevant and necessary and will be referred to at that hearing, unless the Court orders otherwise. The bundle is to be agreed four working days prior to the hearing, lodged at Court two working days prior to the hearing, and all preliminary documents lodged by 11am the day before the hearing. The Practice Direction also sets out specific requirements as to the order and pagination of documents and the length and content of certain documents. It is an essential read for every family law practitioner (Practice Direction 27A) and also deals with how to remove or re-lodge a bundle, and how to take cases out of the list. Whilst the Practice Direction is in force from 22 April 2014, the requirements that a bundle be limited to one lever arch file and that certain documents should not be included unless ordered by the Court are not in force until 31 July 2014. However, it would be good practice to comply with the entirety of the Practice Direction from the outset.

And, things still to come….

• Transparency. On 16 January 2014 Practice Guidance on Transparency in the Family Courts was issued. This emphasised a greater need for transparency of family proceedings to improve the public’s understanding of, and confidence in, the Court system. To achieve this, the Practice Guidance aimed to increase the number of Judgments available for publication. Sir James Munby will be soon be issuing a further draft Practice Guidance dealing with the disclosure to the media of certain categories of document, subject to appropriate restrictions and safeguards, to achieve greater transparency.

• Arbitration. Sir James Munby proposes in the near future to issue a draft rule change to enable applications under the Arbitration Act 1996 to be made in the Family Court and to prepare draft guidance on the procedure for such applications.

• Orders. Sir Nicholas Mostyn, working with a team of family law experts, has already produced a first batch of draft precedent orders and will shortly be issuing a second batch for discussion and comment. This change will not take place until after April 2014. Once the precedent orders are finalised it is intended that implementation of this change will be staged.

All in all, this is set to be an interesting and challenging time for those involved in the Family Court system. Here’s hoping that this is a revolution for the better!

*Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*