A New Children & Families Bill

[23.5.14 update – this Bill became the Children And Families Act 2014 and parts of it are now in force.]

Last week, the Queen announced Parliament’s intentions for the next term, including the introduction of a fair few measures to reform the law applying to families in a new Children and Families Bill, to be introduced in April 2013. We at CFLP thought we’d give you a rundown of the proposals.

The government will be introducing measures to allow court-based legal advisers to process uncontested divorce applications, rather than requiring a judge to consider each and every one. This is intended to have the effect of freeing up judges’ time (we suspect they will need it, to deal with the influx of self-represented litigants flooding the courts when legal aid is removed next April); it will also finally convert divorce into a purely administrative process (and if you’re interested in the history of how it got to this point, have a look at our previous post here). In our view this is an entirely sensible development, although as we’ve said before we’d quite like the government to go a little bit further and move to a system where everyone can obtain a divorce or civil partnership dissolution without having to make allegations of fault.

Unsurprisingly, despite all the noise made by David Cameron about same-sex marriage a couple of months ago, there will be nothing in the next Parliament to progress those aspirations. It’s true that the consultation doesn’t close until the middle of June (find it here), but it’s clear that the whole area has slipped down the priority list, possibly due to pressure from the right of the party. Cabinet minister Phil Hammond said on Sunday that rather than focusing on gay marriage, the government has to concentrate instead on “things that matter”. What an unfortunate turn of phrase that is for those of us who believe in equality! We will wait with slightly subdued interest to see the results of the consultation and the government’s subsequent response.

Back to the Bill: in disputes between parents about children where there are no significant concerns requiring the local authority to intervene (what we call “private law”), the government will be making attendance at a Mediation Information and Assessment Meeting a statutory prerequisite to starting court proceedings. At present, the requirement on a prospective court applicant to attend such a meeting to investigate the use of mediation is not universally enforced by court staff or judges. The government clearly considers that it needs to strengthen the requirement and make it statutory to give it more force. It is also part of their drive to put mediation at the heart of the family justice system and make mediators the gatekeepers for it, something that has been met by near-universal trepidation among the mediation profession.

Most interestingly, the government has confirmed that it intends “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.” It believes that this change will encourage separated parents to sort things out without involving the courts, and to make agreements “that fully involve both parents” (see the Department for Education’s press release).

We have noted practitioners’ concerns about a change of terminology previously. In our view, the law already supports involving both parents in the care of the child as a best option wherever it is safe to do so, and this is the approach already taken by the courts and by mediators. The paramount principle that guides the court, when making a decision about the future arrangements for children, is what is in the best interests of that particular child or those children. Some consider that any principle inserted into the Children Act requiring there to be a presumption of anything will dilute the paramouncy principle, create expectations on the part of separated parents that are not wholly compatible with children’s needs, and make it more difficult for those who have serious concerns about another parent’s safe parenting to establish a case for restricting their contact with the children. Others believe that a reinforcement of a two-parent principle for children will redress what they consider to be a post-separation gender bias about the care of children, or simply make explicit a principle which is already ingrained in the law.

The Government clearly understands that there are reservations. Indeed, David Norgrove was not himself in favour of this change in his report on Family Justice which the government commissioned. It has announced its intention to consult shortly about how the legislation can be framed to ensure that a meaningful relationship is not about an equal division of time but the quality of time that a child spends with each parent. We wish them luck with untangling this, which seems like a game of second-guessing how parents in the midst of emotional turmoil will be persuaded that what the law seems to imply does not actually mean that after all, even though they changed the law specifically to imply it.

For regular readers, it is unlikely to have escaped your attention that the introduction of this Bill is likely to coincide with the removal of legal aid in private family cases, meaning that it is likely to be up to mediators as the first line of defence for the courts in the new system to tell newly separated parents that the law does not mean what they think it means, without actually being able to give them any legal advice, and then to suggest that they negotiate from that position. A perfect storm indeed.

We’ll let you have details of the consultation when it is announced, so you can have your say. In the meantime, you could always tell us what you think.