A revolution: combined Family Courts and other family law changes
A mini revolution is about to take place in relation to all family law proceedings. From the 22nd April the two types of court that presently operates in the Magistrates Courts and County Courts is to disappear and there is going to be one unified Family Court.
Although the profession and the judiciary have been aware of the proposed changes for some time the truth is that the rules and the new forms are only just being published. No-one knows how the new unified court is going to work out and at this stage no-one really knows who is going to do what.
Cases that might previously have normally been heard before Magistrates may now be heard before County Court District Judges and vice versa. Every Magistrates Court sits with a “Legal Adviser” and their role is going to become far more central than it has ever been before. It is widely anticipated that Legal Advisers will conduct many preliminary hearings (without any Magistrates). This is a role which, for the most part, has formerly been conducted by County Court District Judges. Even the name of the first hearing has been given a more purposeful direction it now being called a First Hearing and Dispute Resolution Appointment (FHDRA).
Changes to child law
When the present Children’s Act was introduced in 1989 it removed the notions of custody and access. It gave all married parents a legal relationship between their children called “Parental Responsibility” (PR).
The Act introduced law which allowed the courts to make orders pertaining to Residence, Contact, Specific Issue or Prohibited Steps.
Unfortunately Residence and Contact Orders were still looked upon by the media and the general public as being Orders akin to custody and access even though the law said that they were something completely different.
In order to counter this public perception The Children & Families Act of 2014 is removing Residence and Contact Orders altogether. The court will now be able to make a Child Arrangement Order (although the court will still retain the right to make Orders pertaining to specific issues or prohibited steps).
Future Court Orders will direct where children live or who they may stay with on certain days. The old notions of custody and access are finally being buried.
So far as many are concerned, government has missed out on the opportunity of changing the law pertaining to unmarried couples. Where a couple are unmarried only the mother automatically has PR but if the father’s name is placed on the birth certificate he also obtains it. There are other ways in which the unmarried father can obtain PR and those processes are continuing under the new rules. The law is also going to be extended from the 22nd April so that where a court makes a Child Arrangement Order and the court directs that the child is to live with a parent for a period of time then the court also now has to make a Parental Responsibility Order as well.
Another and important substantial change is that no application will be able to be issued unless an applying party has first attended a Mediation Information Assessment Meeting (MIAM) with a qualified mediator.
The new court application form includes within it the need for a mediator to certify that the case is not suitable for mediation otherwise the Applicant may very well not be able to issue the application. At the time of this blog being written it is also anticipated that the same rule will apply to financial applications. What this means in practice is that if a person tries to issue an application either in relation to children or in relation to finances at the new Family Court then they will be unable to do so unless they have attended a MIAM meeting. Unless therefore a mediator is going to say that the case is not suitable for mediation then proceedings will not be able to be issued except in very limited circumstances including for example risk of immediate harm to a child or a risk of unlawful removal of a child from the UK.
There are other exemptions which will apply as well particularly in relation to violent relationships but the whole essence of the new regime is to require people to attend mediation. At the moment two courts are being used for family proceedings in Hull, but my expectation is that in due course all family court work will be conducted in what is now the Magistrates Court as opposed to the existing County Court building.
There are numerous other changes being introduced by the new law and the Unified Family Court. How these are going to work out in practice remains to be seen but there is no doubt that this is a determined effort by the legislature to change the whole way in which family disputes are resolved and conducted.
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