The Children and Families Act, in force since 22nd April 2014, has brought about important amendments to the Children Act 1989. The amendments affect both public and private law cases, but this short piece attempts to summarise the key noteworty changes within private law applications.
Change of Programme
The old Private Law Programme, has been replaced with the Child Arrangements Programme (CAP), which is set out at PD12B. Perhaps the most striking difference between the two, is the greater force with which the CAP attempts to encourage parties to mediate. Parties must, with a few exceptions, attend a Mediation Information and Assessment Meeting (MIAM) before issuing proceedings, during which they will be assessed as to whether they are suitable for mediation or not. Furthermore, a judge is obliged to consider, at every stage of court proceedings, whether non-court dispute resolution is appropriate, and if so, is to adjourn a hearing until such has taken place.
In what seems to be aimed at addressing unnecessary delay in cases, the instruction of an expert is to be considered at no later than the First Hearing Dispute Resolution Appointment (FHDRA), and of course part 25 of the FPR must be complied with. The CAP also sets out in an appendix all the necessary terms to note, some of which are set out below.
Change of Terms
The language of the Children Act 1989 has been updated so that what used to be referred to as a Residence Order is now referred to as a Child Arrangement Order (CAO). The CAO sets out arrangements relating to (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 other person. The key here is that the word “residence” has been eradicated, although orders will continue to make reference to direct and indirect “contact”. The change of terms seems to be in aid of making the non-resident parent not feel any less important that the parent with whom the child lives. It may be considered doubtful that it will have such an impact on the perception of parents, given that in experience, a lot of parents still use terms such as “custody” and “visitation rights” or “access rights”, despite such terms not being recognised in English law.
Change of Form
Guidance issued by the President of the Family Division identifies the prescribed documents to be used in support of the CAP. Practitioners who also specialise in public child law, will recognise the format of the prescribed forms, as they are very similar to those currently used within public law proceedings. At the Directions on Allocation, any directions are made using the CAP01 form. The CAP02 form should be used at the FHDRA if an agreement and final order is not reached at that stage. At the Dispute Resolution Appointment (DRA), a CAP03 form is used, and a CAP04 form is used when a court makes a final order.
The CAP certainly places a much greater emphasis on alternative dispute resolution, and attempts to encourage even further, separated parents working together to reach an agreement. The change of language used appears to support that aim. Where practitioners often come into contact with parties between whom communication has entirely broken down, it will be interesting to see whether the CAP achieves the desired results.
For access to all the important documents mentioned above, including the President’s Guidance, and prescribed forms, follow the link below:
Gloria Ikwuakolam is a barrister at 1 Essex Court specialising in public and private child law cases. For more information visit www. 1ec.co.uk