What we need to know…
The Children and Families Act 2014 (the ‘New Act’) has been a long time coming and created much debate over the proposed amendments it makes to the Children Act 1989. The New Act received Royal Assent on the 13th March 2014 and is due to come into force on the 22nd April 2014. So you may be thinking this is not a lot of time for professionals and lay people to get to grips with the changes.
The main changes introduced by the New Act which everyone should be aware of are:
- Compulsory MIAMS (Section 10)
- Rebuttable resumption that the involvement of a parent in the life of a child will further the child’s welfare (Section 11)
- Introduction of ‘Child Arrangements Orders’ (Section 12)
- Child Arrangements Programme (CAP) to replace the Private Law Programme
1.MIAMS
Under the New Act parties are now required to attend an Initial Mediation Assessment Meeting before making any family application to the Court.
Section 10(1) of the Act provides:
- Before making a relevant family application, a person must attend a family mediation information and assessment meeting.
- The Law Society’s practice note on family mediation provides guidance on MIAMS, including when they are not required and what applications come within the definition of ‘relevant family application’ for the purposes of the Act.
2. Rebuttable Presumption of parent involvement
Clause 11 of the New Act amends Section 1 of the Children Act 1989, inserting the rebuttable presumption that the involvement of a parent in the life of a child will further the child’s welfare. This follows recent government debate about whether there should be a persona of ‘shared parenting’ following the Family Justice Review. It seems that the rebuttable presumption of ‘involvement’ is the middle ground.
Subsection 2A has been inserted into section 1 the Children Act 1989 by the New Act and reads as follows:
- A Court, in the Circumstances mentioned in subsection (4) (a) or (7), is as respects each parent with subsection (6)(a) to presume, unless the contrary is shown, that involvement of that parent I the life of a child concerned will further the child’s welfare.
- ‘Involvement’ is then defined in subsection (2B) of the Act:
- In Subsection (2A) ‘involvement’ means involvement of some kind, either direct or indirect, but not any particular division of the child’s time.
- ‘Parent’ is defined in the amended subsection 6 of the Act:
- In Subsection (2A) ‘parent’ means a parent of the child concerned; and, for the purposes of that subsection, a parent of the child concerned-
- (a) is within this paragraph if that parent can be involved in the child’s life in a way that does not put the child at risk of suffering harm; and
- (b)is to be treated as being within paragraph (a) unless there is some evidence before the court in the particular proceedings to suggest that involvement of that parent in the child’s life would put the child at risk of suffering harm whatever the form of the involvement,
Therefore the court will have to consider the presumption of involvement when making any Section 8 Order.
It is hard to tell how this will affect the procedure in practice and whether this addition will carry more weight in promoting a shared care arrangement where possible. It is also concerning that the presumption implies a parent’s involvement in a child’s life unless the other parent can prove that by doing so would put the child at risk of harm.
It is assumed that the definition of ‘significant harm’ contained at section 31(9) of the Children Act 1989 will apply:
‘Harm’ means ill-treatment or the impairment of health or development including, for example, impairment suffered from seeing or hearing the ill-treatment of another’.
It is therefore questionable whether this addition to the Children Act 1989 will create an increase in claims of harm in order to prevent contact.
3. Child Arrangement Orders
Section 12 of the New Act abolishes Contact and Residence Orders and replaces them with a single ‘Child Arrangement Order’.
Section 8 of the Children Act has been amended to define the new Order:
‘Child Arrangement Order’ means an order regulating arrangements relating to any of the following-
- (a)With whom a child is to live, spend time or otherwise have contact, and
- (b)When a child is to live, spend time or otherwise have contact with any person.
The definitions of Prohibited Steps Order and Specific Issue Orders remain unchanged.
Schedule 2 of the New Act amends Part II of the Children Act 1989 which includes the provision that:
Where a child arrangements order which regulates with whom and when the child is to live is in force with respect to a child, no person may Cause the child to be known by a new surname, orRemove the child from the UK without either the written consent of every person who has parental responsibility for the child or leave of the courtThis does not prevent the removal of a child for a period of less than 1 month, by a person named in the child arrangements order as a person with whom the child is to live.
It is clear therefore that a clear definition will continue to be made between orders that deal with who and where the child lives (aka a Residence Orders) and child arrangements orders that deal with who the child is to spend time or have contact with (aka a Contact Order).
4. Child Arrangements Programme (CAP)
The CAP is designed to replace the Private Law Programme and will contain the procedural changes required to implement the New Act. At the time of writing the final draft has not be released, however it is understood that the changes will be minor and so it is worth considering the draft as soon as possible. It is understood that the CAP has been designed to streamline the private law process in a similar fashion to the 26 week rule imposed on public law proceedings.
We have Solicitors offices in Southampton, Hedge End, Chandlers Ford, Winchester, Lymington and Richmond-Upon-Thames.
