The Children and Families Act 2014 is due to come into force on 22 April 2014. The Act will introduce a few changes to the way in which cases concerning children are dealt with, and this blog will highlight some of those changes.
Mediation Information and Assessment Meetings
Firstly, the Act makes Mediation Information and Assessment Meetings (MIAMS) mandatory. Our earlier post Keeping it Out of Court discusses these meetings. There are some applications where a MIAM will not be necessary, but subject to this Section 10(1) of the Act provides:
“Before making a relevant family application, a person must attend a family mediation information and assessment meeting.”
This means that for most applications relating to children, and for a financial order, a MIAM will need to have been attended. The intention is that these meetings will actually lead to matters being resolved without the need for Court proceedings.
There are a few exemptions to the requirement, and if one of those applies the application to the Court can be made without a referral to a MIAM being made. These include where there has been an allegation of domestic violence which has resulted in a police investigation or civil injunction proceedings, where the application is for an order in existing family proceedings, where there is no mediator available in the prescribed geographical distance within the acceptable timescale, where there is current social services involvement as a result of child protection concerns, and where the application is urgent for a variety of specified reasons.
Child Arrangement Orders
The new Act also once again changes the terminology for orders relating to children. The current terms are “residence” for where a child lives, and “contact” for how the child spends their time with a parent or other person with whom they do not live. Applications to the Court can therefore be made for contact orders and for residence orders. Despite this, many people who come to see me still ask about “access” and “custody”, terms which still get used in the press and on television and which predate the Children Act 1989. Following the implementation of the new Act there will be one type of order; the “Child Arrangement Order.” This will determine where a child is to live, and when they should spend time or otherwise have contact with another person.
Presumption of Involvement
The move away from Contact and Residence is an attempt to encourage parents to adopt less confrontational and polarised positions about the arrangements for their children. The Act does not actually go so far as to introduce a presumption that there should be shared care, but it will introduce a new provision into the law which governs these types of applications. The Children Act 1989 specifies very clearly at the outset that in any application concerning a child the child’s welfare shall be the court’s paramount consideration.
The Court will look at a list of factors that should be taken into account when faced with such an application; known as the welfare checklist. This is found in section 1(3) of the 1989 act and specifies that the judge should have particular regard to:-
(a)the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);
(b)his physical, emotional and educational needs;
(c)the likely effect on him of any change in his circumstances;
(d)his age, sex, background and any characteristics of his which the court considers relevant;
(e)any harm which he has suffered or is at risk of suffering;
(f)how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;
(g)the range of powers available to the court under this Act in the proceedings in question.
The new Act goes on to introduce a new provision into the 1989 Act; sections 1(2A) and 1 (2B):
(2A) A court… is .. to presume, unless the contrary is shown, that involvement of that parent in the life of the child concerned will further the child’s welfare.
(2B) In subsection (2A) “involvement” means involvement of some kind, either direct or indirect, but not any particular division of a child’s time.
This means that there is now to be a presumption of involvement by both parents, provided of course that this is consistent with promoting the child’s welfare, but that this presumption is to be in no way considered to give a parental right to a specific amount of time with the child, or to create a presumption that there should be shared care. I posted here about shared parenting and the Government Consultation which has led to this change in the legislation. The focus is to be on the importance of children maintaining a relationship with both parents, and not on any specific division of time.
All three of these changes will take effect on 22 April 2014 when the Children and Families Act 2014 comes into force. Quite what impact they have on the cases heard by the Court on a day to day basis remains to be seen.
Image by franciscojgonzalez under a creative commons licence