All change? The Children and Families Act 2014

The Children and Families Act 2014 has now gained Royal Assent and will come into force on 22 April 2014. The Act introduces several changes affecting how the courts in England and Wales should approach disputes between parents who are unable to agree on arrangements for their children. On the face of it, these changes appear to be quite extensive. However, a close examination suggests that this may not actually be the case.

The first change is that the Act introduces a presumption that when parents are separated, the involvement of both parents in the lives of their children should be promoted. When the Act was debated through Parliament, it was once thought that this presumption would be more extensive. Pressure groups such as Families Need Fathers wanted a presumption that shared care arrangements between parents would be promoted. This was seen as unworkable and unwise.

The key question is whether the new presumption actually changes how the courts are likely to approach parental disputes. Time will provide us with a definitive answer but many lawyers suspect that the new presumption will only have a limited effect. Why?

• For many years the courts have followed the principle that they should normally promote contact between a child and a parent seeking contact with their child.
• The courts have generally upheld the principle that it is in the best interests of children to have firm relationships with both of their parents.
• Any presumption can be argued against. If it is clear that a parent seeking contact with a child poses a risk to that child or the other parent, the courts must continue to ensure that the welfare of the child takes priority.

So, many lawyers are perhaps accurate when they describe the new presumption as merely a form of ‘window dressing.’ If so, it raises the question of why the presumption was introduced in the first place.

The second change introduced by the Act is in the terminology to be used by the courts in making orders over parents who are unable to agree upon arrangements for their children. Even now, many parents commonly refer to terms such as ‘custody’ and ‘access’ in this area. This ignores that the Children Act 1989 abolished those terms. Instead, the two common orders that the courts have made in this area over the last few decades are:

• Residence orders – these define with which person a child is to live. A child can reside with more than one person and this is known as shared or joint residence.
• Contact orders – these provide that a person with care for a child (often via a residence order) should make a child available to see another person. Contact can be on specific days/times or could simply be ‘reasonable contact’ depending upon the individual circumstances.

The trouble with the above terms is that inadvertently, many parents believed that a ‘two tier’ system of parental orders was created. Holders of residence orders felt that they had control and power over their child or children. Parents with contact orders (often fathers) often felt like they were ‘second class’ parents and resented the apparently higher status of the parent with a residence order. Parties who emerged from the court process in this way often felt like ‘winners’ and ‘losers’ depending upon the order they obtained.

The courts have not been blind to these feelings. One way in which the courts have tried to equalise any feelings of discontent has been by making an increased number of shared residence orders. The rationale behind this was logical. If both parents emerge from court with a residence order, neither one will feel that they have won or lost. This all sounds well and good but the reality seems to be that shared residence orders were sometimes made when objectively, they were not strictly appropriate. In cases where parents were locked in conflict, they often became a sticking plaster, designed to ease any feelings of anger and animosity by creating an apparently level playing field.

The above illustrates that the language used by the courts is enormously symbolic and important when it comes to parental disputes. It seems that the new Act recognises this too. As from 22 April 2014, residence and contact orders will cease to exist. Instead, we have the rather bland (but very neutral) new term – the child arrangements order. This means that in future, no parent will emerge from court with a residence or a contact order. It will be the specific detail contained in the child arrangements order that is crucial in setting out the exact nature of the arrangements for any child.

It is difficult to predict whether the new terminology of the child arrangements order will lead to a reduction in the number of parents leaving the court process feeling unhappy and marginalised. Many parents who have gone through the court process have nothing positive to say about it. Delay, expense and inefficiency are all common complaints in this respect. Can changing some words really make a difference?

This leads us to the third major change introduced by the Act. However, one could say that this is not a change at all. Since 2012 it has been a requirement that in most circumstances, a parent seeking a residence or contact order must have attended a Mediation Information and Assessment Meeting (MIAM) before they can start court proceedings. This ‘requirement’ has turned into something of a shambles. There have been vast differences in how courts up and down England and Wales have dealt with this requirement. Some have been commendably strict. Others have been extremely ‘relaxed’ with the idea.

The intention of requiring parents to attend MIAMs was that it should lead, in theory, to a significant reduction in the number of parents who issued court proceedings regarding their children. The reality is that it has not. There are a variety of reasons for this but the government remains of the view that whenever possible, mediation and other forms of dispute resolution should be promoted. Court proceedings should be the last resort.

The new Act stresses that it will be ‘compulsory’ for parents to attend a MIAM before they can issue court proceedings, save for a limited number of exceptions.  It is expected that courts will apply this requirement strictly but one could argue that they should have been doing so since 2012. Will this change lead to a reduction in the number of parents who turn to the courts? It is hard to say. The government’s strong promotion and support of mediation services is well intended. However, parental disputes can be extremely complicated and the drastic cuts to Legal Aid have left many parents unsure over their options and which way to turn.

Our Family Department is always ready to offer advice upon all types of parental disputes including residence, contact and parental responsibility. We continue to offer a 30 minute free appointment to all new clients. If you are contemplating such an agreement, please get in touch.