Category Archives: Family

RIP Residence Orders

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.

Conclusion

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:

http://www.familylawweek.co.uk/site.aspx?i=fo129064

 

Gloria Ikwuakolam

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

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High Court opens possibility of Sharia divorces

Digital StillCameraIn a recent Judgment, the High Court referred a divorce dispute to a religious court. The case concerned a Jewish couple, who had their divorce agreement concluded under rabbinical law, following the High Court’s approval. It is expected that the judgment will have far-reaching implications for other couples seeking to divorce in a religious court.

Mr Justice Baker decided that the couple’s dispute would be better dealt with by referring it to a senior rabbi in New York for arbitration instead of the usual lines of litigation in the UK. Mr Justice Baker made a cited a lecture given by the then Archbishop of Canterbury, Dr Rowan Williams, in which he said ‘citizenship in a secular society should not necessitate the abandoning of religious discipline’.

However, the Judge made it clear that the full ruling of the New York Rabbi would not be binding as the ruling was made outside of the UK jurisdiction. It appears therefore that although the Court was prepared to delegate some of its authority, any future religious decisions or rulings will be of guidance to the UK courts and will not necessarily have to be followed.

Further details on this interesting topic can be found in an excellent post at www.lawandreligionuk.com, the blog of David Pocklington.

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Children giving evidence in Family Law proceedings – guidelines

In the case of Re W [2010] UKSC 12, the presumption against children giving evidence in family law proceedings was effectively removed. Children can now be called to give evidence in limited circumstances, and the number of cases involving such live evidence has been on the increase since that Supreme Court judgement.

Helpfully, the Family Justice Council has recently provided guidelines in respect of children giving such live evidence. The process has been explained in a simple and easy-to-follow manner that most practitioners will appreciate. Please click here to see the guidelines.

Jasvir Degun

jdegun@1ec.co.uk

Jasvir is a specialist in Family Law and Landlord & Tenant Law.

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Changes to the FPR 2010 – Witness Statements replace Affidavits in many family law matters

This week marks the first anniversary of the Family Procedure Rules 2010 coming into force, and there have already been changes implemented to the FPR 2010.

From 6th April 2012, affidavits will now be replaced with witness statements in the following applications in both ex-parte/”without-notice” and “on notice” hearings:

– Non-Molestation Orders

– Occupation Orders

– Forced Marriage Orders

– Form Es – new forms now available at http://hmctsformfinder.direct.gov.uk/courtfinder/forms/form(e)-eng.pdf

– statement in support of Divorce Petition

This simplification of the procedural system is small and yet far-reaching at the same time, and it shows one of the ways in which the FPR 2010 is benefitting family law practitioners from a practical perspective.

Jasvir Degun

jdegun@1ec.co.uk

Jasvir is a specialist in Family Law and Landlord & Tenant Law.

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Financial Remedy Orders – an end to intervenor problem

In Goldstone v Goldstone [2011] EWCA Civ 39, [2011] 1 FLR 1926 the Court of Appeal identified a gap in the FPR as to joining parties (intervenors) to aplications for financial remedy orders under FPR Part 9. It appears that the Family Procedure Rules Committee have decided to add a new rule (provisionally 9.26B) to address this.

The court can exercise the new powers under it’s own initiative or at the application of a party, such application to be made under the Part 18 procedure.

The rule will provide – along the same lines as CPR r19.2 – that the court may direct that a person (or body) be added to proceedings for a financial remedy if:

(a) it is desirable to add the new party so that the court can resolve all matters in dispute in the proceedings; or
(b) there is an issue involving the new party and an existing party which is connected to the matters in dispute and it is desirable to add the new party so that the court can resolve that issue.

The rule will also provide for a party to be removed where no longer desirable for them to be a party to the proceedings.

Joanna Shaw
jshaw@1ec.co.uk

Joanna practices across matrimonial and family law, property matters, housing and employment law.

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