New family court guidance on private law

On the 22nd of April 2014 the Children and Families Act 2014, came into force after receiving Royal Assent on the 13th of March 2014. The Act introduces landmark changes that give an overhaul to the welfare of children under both private and public law.

The UK Government says that The Act will effect changes that “give greater protection to vulnerable children, better support for children whose parents are separating, a new system to help children with special educational needs and disabilities, and help for parents to balance work and family life”. The Act also provides vital changes to the adoption system, with some of its parts taking effect in June and October 2014.

The major changes in private family law will also affect adult and child survivors of  Domestic Violence & Abuse (DVA), who consequentially end up in disputes about child residence and contact arrangements. This is a crucial factor as marital separations or divorces caused by DVA have completely different and devastating dynamics, as compared to marital separations or divorces caused by any other issues.

Residence orders and contact orders have now been abolished, and are replaced by Child Arrangement Orders. A Child Arrangement Order will stipulate: (a) with whom a child is to live, spend time or otherwise have contact; (b) when a child is to live, spend time or otherwise have contact with any person.

In addition there is also a Child Arrangement Programme 2014 (CAP 2014), which replaces the Private Law Programme. The CAP 2014 is to be applied where there is a dispute between separated parents and/or families about arrangements concerning children.  This Programme is designed to aim to facilitate and encourage resolution of child disputes out of court and, where not possible, dispute resolution is to be done swiftly through the courts.

The CAP 2014 includes a flow chart which gives guidance of the processes to be followed in its implementation. It also has summary of the key welfare principles and key provisions within the Family Proceedings Rules. CAP 2014 also emphasises that the child or young person should feel that their needs, wishes and feelings have been considered in the arrangements made and should be involved in the decision making of the arrangements, at an extent appropriate to a child’s age and level of understanding.

Of importance in DVA legal procedures, there is a practice direction for DVA titled: Practice Direction 12J – Child Arrangements & Contact Order: Domestic Violence and Harm. The direction outlines how CAP 2014 should be applied in cases where DVA is an issue. It covers how to administer court hearings, and the multi-dimensional factors to be considered pertaining to the child and the parent whom the child lives with.

It also provides instructions on how courts should facilitate contentious issues like contact, and the identification of emotional and psychological abuse, and emotional safety. In addition the the courts should consider ‘the likely behaviour during contact of the parent whom findings of DVA are made and its effect on the child; and the capacity of the parents to appreciate the effect of past DVA and the potential for future DVA’.

Some of the procedures in Practice Direction 12J are not new, but if they are followed, these court procedures will result in very significant changes to the livelihoods of adult and child victims. Research shows that, historically only 10% of judges follow practice directions. Therefore the success of the new family court guidance on private law highly depends on how all legal practitioners will apply them, with the mindset of improving of the lives of adult and child victims.

A bonus to the changes instated on the 22nd of April 2014, is the abolition of fees for non-molestation and occupancy orders, as part of an overhaul of the fees charged in civil and family courts in England and Wales. A non molestation order is applied when preventing an abusive partner or ex partner from perpetrating threats of DVD or actual actions of DVA, against adult or child victims.

An occupation order determines and regulates who lives in the family home, and employ restrictions that prevent the abuser from entering certain areas of the home or certain parameters around the location of the house. A victim can apply for an occupation when they no longer feels safe to live at the same house as the abuser.

The Law Society describes, the April 2014 changes in private family law as “the most significant for a generation“. They add that as part of the significant changes, the president of the Family Division issued a comprehensive set of court documents, which are of great benefit to law practitioners. The sets are as follows:

Practice Direction 12B – the Child Arrangements Programme (CAP) Download the practice direction (PDF 187kb)

Practice direction 12J – child arrangements and contact order: domestic violence and harm Download the practice direction (PDF 66kb)

President’s guidance on continuity and deployment Download the guidance (PDF 61kb) 

President’s guidance on allocation and gatekeeping for proceedings under Part II of the Children Act 1989 (private law) Download the guidance (PDF 38kb)  Download the accompanying schedule (PDF 22kb) 

President’s guidance on the use of prescribed documents (private law) Download the guidance (PDF 16kb) 

Child Arrangements Programme: flowchart Download the flowchart (PDF 103kb)

 

Information Sources:

United Kingdom Government

The Law Society

Community Care

MacDonald Oates LLP Solicitors

Anna Heenan, Gregg Latchams LLP

Louise McCallum, Zenith Chambers, Leeds   

Krishna Fatania, Blavo & Co

Justice For Children

McKenzie Friend Family Law

National Centre For Domestic Violence

© Kudakwashe Nyakudya 2014. All Rights Reserved.

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