Today sees some of the most significant changes to the family justice system in England and Wales for a generation. The vast majority of family law cases will be affected by this overhaul to practice and procedure, which has been called revolutionary by the country’s most senior family law judge and other commentators. Pic of confetti by Kevin H, Flickr under creative comms
The key reforms are as follows:
Single Family Court
Some 40 years after it was first proposed, we now have a Single Family Court. Instead of cases starting in the High Court, county court or Magistrates’ court, there will be a single point of entry for most family law applications.
The idea behind the Single Family Court is to have one point of entry with a ‘gate keeping team’ who will allocate each case to an appropriate level of judge depending on the type of case and its complexity. Each area will have a Designated Family Centre and a Designated Family Judge, although at least initially there may not appear to be much change, as most of the same buildings will actually be used.
One of the main objectives is to make it easier to get the same judge to deal with a case throughout, with the different levels of magistrates, legal advisors and judges working more closely together.
Mediation and other out of court options
For a few years now someone wanting to issue a family law application for example about children or money had been expected to attend a Mediation Information Assessment Meeting (MIAM) to find out whether mediation or other out of court options (such as collaborative practice and now arbitration) might be a better way to deal with things.
From today, that expectation has become a requirement in most cases. There are exemptions (for example where there is domestic violence or the need for a court to act very urgently), but in most cases a MIAM will now be necessary.
This brings privately paid proceedings in to line with the requirement that existed for a long time where the person making the application to the court wanted legal aid. Legal aid has of course now largely gone for private family law proceedings (see HERE), but it is still available for mediation if you are financially eligible.
Even if you do not go to a MIAM at the outset, the court can still postpone your case at any time for a MIAM to happen or for mediation or another non-court approach to be explored.
Child arrangements orders
Almost 25 years ago, we got rid of custody as a concept and replaced it with residence and contact orders, although it has to be said that many people, including the media, still refer to custody.
Now, residence and contact orders have been replaced with child arrangements orders. The thinking behind this change is that, like custody before it, residence and contact have often been seen as ‘badges of honour’ in Children Act cases. The Child Arrangements Order is intended to help parents focus on the practical issues of the day to day care of the child rather than the legal labelling.
In practice, a Child Arrangements Order will still deal with where a child lives and the time spend with each parent so it could be argued that this change is more about perception than reality, but that in itself will be worthwhile if it helps parents to avoid unnecessary conflict.
These key changes will hopefully encourage more couples and parents to at least explore ways to deal with family law issues out of court. Where there are court proceedings, the idea is for there to be a more efficient process which gets the case dealt with more quickly and consistently. In care proceedings (where the local authority is intervening in the care of children), there is now a formal target of 26 weeks from start to finish for a case to be completed as it is recognised that in most situations delay is bad for children.
What these changes don’t put right is the impact on some of the most vulnerable in society of legal aid being scrapped for independent legal advice and representation in most private family law cases.
The new justice minister Simon Hughes is right to emphasise the benefits of out of court options. Many more people could benefit from mediation, collaborative and arbitration. But the reality is that getting good legal advice from a family lawyer committed, such as Resolution members, to helping people find solutions and avoiding conflict is the best way to promote other approaches. That’s why, since legal aid was decimated a year ago, referrals to mediation have plummeted and mediation services up and down the country have been going out of business, even though legal aid is still there for mediation itself (and in a pretty limited way for advice on turning a mediated agreement into a court order). It was family lawyer supporters of mediation who were the main referrers.
More info: www.resolution.org.uk; www.familymediationcouncil.org.uk
Nigel is vice chair of the family lawyers group Resolution and a partner at the law firm Mills & Reeve