Children And Families Act 2014
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Child Arrangements Orders
The Children and Families Act 2014 introduces child arrangements orders, replacing residence and contact orders. Under section 8(1) of the Children Act 1989, as amended, a child arrangements order means an order regulating arrangements relating to any of the following:-
a) With whom a child is to live, spend time or otherwise have contact;
b) When a child is to live, spend time or otherwise have contact with any person.
These provisions also came into force on 22 April 2014.
Child Arrangements Programme
The Child Arrangements Programme ('CAP 2014') is contained in Practice Direction 12(B): (CAP 2014). This was issued on 22 April 2014. The CAP 2014 replaces the Private Law Programme.
The CAP 2014 applies where a dispute arises between separated parents and/or families about arrangements concerning children. The Programme is designed to try to facilitate and encourage the resolution of disputes outside of the court system and, where not possible, swift resolution of the dispute through the court system. Local practices and initiatives can be operated in addition to and within the framework.
The CAP 2014 endeavours to avoid litigation where possible, with an emphasis on out of court dispute resolution. All prospective applicants, save those who may claim an exemption or whose case is deemed unsuitable by an authorised mediator, must firstly engage in a Mediation Information and Assessment Meeting. If pre-proceedings resolution proves impossible, the basic structure of the programme is:
- Safeguarding checks
- First Hearing Dispute Resolution Hearing
- Case Management directions if agreement not reached, including statements and section 7 reports where appropriate
- Finding of fact hearing, if required having applied the new Practice Direction 12J
- Dispute Resolution Hearing
- Further case management directions if agreement not reached
- Final hearing.
The court will exercise its powers flexibly. This includes the court cancelling or repeating a particular hearing.
The following summarises the key elements of the CAP 2014, but does not substitute the need for all practitioners in this area to read the extensive guidance contained in the Practice Direction 12B, extending to 32 pages.
The CAP 2014 includes a useful summary of the key welfare principles and key provisions within the Family Proceedings Rules (paragraph 11). The Programme emphasises that the child or young person should feel that their needs, wishes and feelings have been considered in the arrangements made and should be involved in making the arrangements to the extent appropriate given their age and level of understanding (paragraph 4).
A useful flowchart has also been created for the CAP 2014.
Practice Direction 12J - Child Arrangements & Contact Order: Domestic Violence and Harm is also essential reading, outlining how the CAP 2014 should work in cases where domestic violence or abuse is an issue.
Practitioners should also have regard to Practice Direction 3a - Pre-Application Protocol For Mediation Information And Assessment.
In this article references to Cafcass include Cafcass Cymru and references to Cafcass officer include Welsh Family Proceedings Officer.
The Mediation Information And Assessment Meeting (MIAM)
MIAMs are central to the CAP 2014. The provisions are contained in paragraphs 5.3 - 5.12.
MIAMs can be carried out only by an authorised family mediator. If the parties are willing to attend together, and this is assessed by the mediator to be safe, the meeting may be conducted jointly. Otherwise separate meetings will be held.
Once at the MIAM information will be provided about mediation, ways in which the dispute may be resolved otherwise than by the court, and the suitability of mediation for trying to resolve the dispute. The mediator will also assess the existence of or risk of domestic violence or harm to a child who would be the subject of the application.
Prospective applicants must attend a MIAM before making an application to the court for determination of most issues concerning a child. The term 'relevant family application' is defined in r3.6 FPR.
In certain circumstances prospective applicants are exempt from the MIAM requirement. The categories of MIAM exemptions are contained in rule 3.8 FPR. They include:
- domestic violence
- child protection concerns
- related proceedings being issued in the previous 4 months
- disability leading to an inability to facilitate a MIAM
- lack of contact details for respondents
- imprisonment/bail conditions preventing engagement
- non-residency in England and Wales
- that a child would be one of the prospective parties
- unavailability of MIAM facilities.
Practitioners should have regard to rule 3.8 FPR in full for details of exemption categories.
The CAP 2014 indicates that it is not expected that victims of domestic violence should attempt to mediate or participate in forms of non-court dispute resolution. It is also recognised that drug/alcohol misuse and/or mental illness are likely to prevent couples from making safe use of mediation or similar services (paragraph 5.2).
Alternatively, an authorised family mediator may provide a mediator's exemption indicating that mediation is not suitable as a means of resolving the dispute.
The prospective applicant, or their legal representative, must contact a family mediator to arrange attendance at a MIAM. A prospective respondent is also expected to attend a MIAM, whether a separate MIAM or the same one attended by the prospective applicant. Where at least one party is eligible, the Legal Aid Agency will cover the costs of both parties to attend a MIAM.
Following issue of an application, the judge is obliged to consider, at every stage of court proceedings, whether non-court dispute resolution is appropriate (paragraph 6.1). The court may direct that the proceedings, or a hearing in the proceedings, be adjourned to enable the parties to obtain information and advice about non-court dispute resolution and where they agree to participate in the same (paragraph 6.3).
On issue, and at FHDRA, the court will consider whether the MIAM exemption has been validly claimed, whether the Respondent has attended a MIAM and whether if the exemption has not been validly claimed, the proceedings should be adjourned to enable a MIAM to take place.
Some courts will be offering MIAMs and an 'at-court' mediation scheme.
Urgent and Without Notice Applications
Paragraph 12 of the CAP 2014 addresses this area.
Where an order is sought as a matter of urgency an application may be made to the court for an emergency order, without the requirement of attendance at a MIAM. Rule 3.8 (c) FPR sets out the categories of urgent application justifying an exemption.
Without notice applications are provided for at paragraphs 12.2 to 12.4 of the PD. They should be made only exceptionally and where the giving of notice would enable the respondent/s to take steps to defeat the purposes of the injunction, where the case is one of exceptional urgency or if notice were given this would be likely to expose the applicant or relevant child to unnecessary risk of physical or emotional harm.
Following any urgent or without notice hearing, unless all issues have been determined or the application dismissed, the judge may make gatekeeping decisions including allocation and venue of future hearing or shall refer the application to the relevant Gatekeeping team.
The Application and Issue (Day 1)
The application for a child arrangements order or other Children Act 1989 private law order must be made on the relevant prescribed form. Paragraph 8 sets out the procedure in detail.
For section 8 Children Act 1989 applications the applicant will be required to complete new form C100 and confirm attendance at a MIAM, or specify that a MIAM exemption applies (unless the application is for a consent order or the application concerns a child who is the subject of public law proceedings or a public law order). Any Parenting Plan should be attached to the C100.
The court will either provide the applicant with a copy of the C100 and notice of hearing on the day of issue, or within 2 working days of issue. Unless the Applicant requests to serve on the Respondent, or is ordered to do so by the Court, the Court will serve the C100 and C1A and notice of hearing within 2 working days of issue. The Court will send a copy of the C100 and C1A (if supplied) to Cafcass and the C6 Notice of Hearing no later than 2 working days after the date of issue.
No evidence is to be filed in relation to an application until after the First Hearing Dispute Resolution Appointment unless filed in support of a without notice application or directed by the Court on issue, or directed by the Court to resolve an interim application (paragraph 17).
Allocation and Gatekeeping (Day 2)
This is considered within paragraph 9. The application will be considered by a nominated Legal Adviser and/or Nominated District Judge ("the Gatekeeper/s") within one working day of the date of receipt.
The Gatekeepers will allocate to the appropriate level of judge in the Family Court in accordance with President's Guidance on Allocation and Gatekeeping for Proceedings under Part II of the Children Act 1989 (Private Law) and Schedule to the Allocation and Gatekeeping Guidance - Private Law and the Family Court (Composition and Distribution of Business) Rules 2014.
In determining the appropriate level of judiciary the Gatekeepers will consider (paragraph 7 Guidance on Allocation):
- The need to make the most efficient and effective use of the local judicial resources that is appropriate, given the nature and type of application
- The need to avoid delay
- The need for judicial continuity
- The location of the parties/any relevant child
When, on allocation, Gatekeepers are considering specifically the issue of complexity, it is envisaged that they will allocate all relevant family applications to the lay justices (or at the FHDRA by legal advisers) unless they are of the type set out in Parts 1 to 3 of the Allocation Schedule.
It is envisaged that proceedings described in Part 1 of the Schedule will be allocated to a district judge or a district judge (magistrates' court) (unless considered by the district judge to justify transfer to a circuit judge). It is envisaged that proceedings described in Part 2 will be allocated to either a district judge/district judge (magistrates' court) or to a circuit judge or High Court judge. Part 3 of the Schedule concerns High Court cases and the inherent jurisdiction.
There is an expectation that lay justices will not hear any contested private law application where the estimated length of the hearing is in excess of 3 days, without the same having been approved by the justices' clerk in consultation with the Designated Family Judge.
The Gatekeepers are able to issue directions on issue (Form CAP01) in certain circumstances. Where they find that the exemption from attending a MIAM has not been validly claimed they will direct the applicant or the parties to attend a MIAM before the First Hearing Dispute Resolution Appointment (unless the Gatekeeper considers that a MIAM requirement should not apply in all the circumstances applying rule 3.01(3) FPR)). Directions can be given for an accelerated hearing where it appears that an urgent issue requires determination. Exceptionally directions may be made for the service and filing of evidence.
Judicial continuity from FHDRA to final order is the objective (paragraph 10 CAP 2014). The importance of continuity is also reflected in the President's Guidance on Continuity and Deployment.
Safeguarding Letter (to be provided within 17 working days of receipt of the application)
Any application for a child arrangements order will be sent to Cafcass who will undertake safeguarding enquiries, the outcome of which is to be contained in a safeguarding letter (or report in Wales) and is to be sent to the court within 17 working days of receipt of the application and no later than 3 days prior to the hearing.
Paragraph 13 of the CAP 2014 addresses safeguarding checks. Cafcass will seek information from local authorities and carry out police checks on the parties. Where possible Cafcass will undertake telephone risk identification interviews with the parties and if risks of harm are identified, may invite the parties to meet separately with the Cafcass officer. Cafcass will record and outline any safety issues for the court in the form of a Safeguarding letter (report in Wales). The Cafcass officer will not initiate contact with the child prior to the FHDRA.
Cafcass are required under s16A CA 1989 to undertake and provide to the court risk assessments where the Cafcass officer suspects that a child is at risk of harm.
The First Hearing Dispute Resolution Appointment (FHDRA) (Week 5 - Week 6)
The First Hearing Dispute Resolution Appointment (FHDRA) will usually take place in week 5 following issue of the application and no later than in week 6. Where time for service has been abridged it may take place within 4 weeks.
Paragraph 14 discusses the FHDRA in considerable detail.
The respondent should have at least 10 working days notice of the hearing where practicable, unless time is abridged. The respondent should file a response on Forms C7/C1A no later than 10 working days before the hearing, unless time is abridged.
A Cafcass officer will attend the FHDRA. The Cafcass officer shall, where practicable, speak separately to each party at court before the hearing, in particular where it has not been possible to conduct a risk identification interview.
The FHDRA provides an opportunity for the parties to be helped to understand the issues that divide them and to reach agreement. If agreement is reached the court will be able to make an order, in many cases the final order reflecting that agreement. The court will assist the parties, so far as it is able, in putting into effect the agreement/order in a co-operative way. If agreement cannot be reached, remaining issues will be identified and the Cafcass officer will advise the court of any recommended means of resolving the issues and directions will be given.
The FHDRA will be conducted in the manner the court thinks most appropriate in the interests of the child (see paragraph 14.13). Considerations will include whether a fact-finding hearing is needed to determine allegations which are not accepted and whose resolution is likely to affect the decision of the court.
If safeguarding information is not available at the FHDRA, the application will be adjourned until the safeguarding checks are available. Interim orders, unless to protect the child's safety, should not be made in the absence of the safeguarding checks.
At every FHDRA there will be a period in which the Cafcass officer will seek to conciliate and explore with the parties the resolution of some or all of the issues between them, if safe to do so. Local procedure will be followed.
The court will consider whether the case may be suitable for further intervention by Cafcass, whether a referral for mediation should be made (including an at-court mediation assessment), whether collaborative law is appropriate, whether a Parenting Plan should be completed, whether the parents should attend the Separated Parents Information Programme or other activity or intervention.
The court will consider whether a rule 16.4 children's guardian should be appointed (see paragraph 18).
A consent order will not be made without scrutiny by the court. The making of a final order may be deferred where safeguarding checks/risk assessment work remain outstanding. If satisfactory information is then made available, the order may be made at the adjourned hearing in the agreed terms without the need for attendance of the parties, failing which the case will be adjourned for further consideration with an opportunity for the parties to attend to make further representations.
Reports may be ordered if there are welfare issues or other specific considerations which should be addressed in a report by Cafcass or the local authority. The court should direct which specific issues relating to the welfare of the child are to be addressed. Welfare reports will generally only be ordered in cases where there is a dispute as to with whom the child should live, spend time, or otherwise have contact with. A report can also be ordered if there is an issue concerning the child's wishes and/or if there is an alleged risk to the child and/or where information or advice is needed which the court considers to be necessary before a decision is reached.
The court may further consider whether there is a need for an investigation under section 37 of the CA 1989.
The Practice Direction suggests that the FHDRA is the latest point at which consideration should be given to the instruction of an expert in accordance with rule 25.6(b) FPR. Section 13 Children and Families Act 2014 and Part 25 FPR must be complied with. In relation to cases where the preparation of an expert report is necessary but the parties unrepresented and unable to fund the preparation of such a report, the PD says only "the court will need to consider carefully the future conduct of the proceedings."
Wishes and feelings of the child
Children and young people should be at the centre of the proceedings and feel that their needs, wishes and feelings have been considered in the court process. Specifically the court should ask whether the child is aware of the proceedings, whether the wishes and feelings of the child are available and/or to be ascertained (if at all), how is the child to be involved in the proceedings (e.g. whether they should meet the judge/lay justices, encouraged to write to the court, have views reported), who will inform the child of the outcome of the case, where appropriate.
Where no final agreement is reached the court will consider what, if any, issues are agreed and what are the key issues that remain to be resolved (both should be recorded on the order).
The court will determine whether a fact-finding hearing should be listed.
The court will consider whether any interim orders can be usefully made, such as indirect/supported/supervised contact.
Directions will be made for the filing of evidence prior to the Dispute Resolution Appointment or Final Hearing.
The court will consider whether to list a Dispute Resolution Appointment in advance of a final hearing (envisaged in most cases).
Judicial continuity will be actively considered.
The case can be transferred to another court or re-allocated.
A detailed order on CAP02 should result from the hearing (see suggested areas to cover at (a) to (k) at pages 21 - 22 of the PD), where possible provided to the parties before they leave the courtroom. The parties should know the date, time and venue of any further hearing before they leave the court.
Timetable for the child
Already a familiar term to public law practitioners, the timetable for the child is introduced in the private law context at paragraph 15. There is however no presumption as to when the proceedings should conclude. Court proceedings should be timetabled so that the dispute can be resolved as soon as safe and possible in the interests of the child.
The judge should at all times have regard to the impact that the court timetable will have on the welfare and development of the child concerned. The judge and the parties should pay particular attention to the child's age and important landmarks.
Private law proceedings should not be adjourned for a review/s of contact or other orders/arrangements or addendum section 7 report unless such a hearing is necessary and for a clear purpose consistent with the timetable for the child and the child's best interests.
The CAP 2014 encourages Cafcass or, where appropriate, the local authority to make recommendations for stepped phasing-in of contact arrangements (medium to longer term recommendations) within section 7 reports, so far as they are able.
The CAP 2014 suggests the use of a Monitoring order under section 11H CA 1989 or a family assistance order in cases where active involvement or monitoring is required.
The court must at all stages of the proceedings, and specifically at the FHDRA, consider whether domestic violence is raised as an issue, either by the parties or Cafcass or otherwise (paragraph 6 PD 12J). The Court will decide whether a fact-finding hearing is necessary by reference to the revised Practice Direction 12J Child Arrangements & Contact Order: Domestic Violence and Harm.
The Practice Direction incorporates and supersedes the President's Guidance in Relation to Split Hearings (May 2010). The PD, extending to 40 paragraphs, is crucial reading for all practitioners in this area.
As in the case of its predecessor, the purpose of revised PD 12J is to set out what the Family Court should do in any case in which it is alleged or admitted, or there is other reason to believe, that the child or a party has experienced domestic violence or abuse perpetrated by another party or that there is a risk of such violence or abuse.
The term 'Domestic violence' is given a wider definition such that it:
"includes any incident or pattern of incidents of controlling, coercive or threatening behaviour, violence or abuse between those aged 16 or over who are or have been intimate partners or family members regardless of gender or sexuality. This can encompass, but is not limited to, psychological, physical, sexual, financial, or emotional abuse."
'Controlling behaviour' is defined as an act or pattern of acts designed to make a person subordinate and/or dependent by isolating them from sources of support, exploiting their resources and capacities for personal gain, depriving them of the means needed for independence, resistance and escape and regulating their everyday behaviour.
'Coercive behaviour' is defined an act or a pattern of acts of assault, threats, humiliation and intimidation or other abuse that is used to harm, punish, or frighten the victim." [paragraph 3 PD 12J)
The PD gives guidance as to the factors to take into account in determining whether it is necessary to conduct a fact-finding hearing (paragraph 17). Paragraph 19 sets out in detail the areas that should be considered to ensure that comprehensive directions are made in advance of the fact-finding hearing.
Where the court fixes a fact-finding hearing, it must at the same time fix a Dispute Resolution Appointment to follow (paragraph 20 PD 12J).
Paragraphs 35, 36 and 37 set out in detail the factors that should be taken into account when determining whether to make child arrangements orders in all cases where it is found, or admitted that, domestic violence or abuse has occurred. Paragraph 36 provides that the court should only make an order for contact if it can be satisfied that the physical and emotional safety of the child and the parent with whom the child is living can, as far as possible, be secured before during and after contact, and that the parent with whom the child is living will not be subjected to further controlling or coercive behaviour by the other parent.
Dispute Resolution Appointment ('DRA')
The nature and purpose of this hearing is addressed in paragraph 19.
A DRA will be listed following preparation of the section 7 report of other expert report or Separated Parenting Information Programme, if this is considered likely to be helpful in the interests of the child.
A DRA will also take place following any fact-finding hearing.
It is envisaged that most cases will be listed for a DRA, rather than straight to final hearing.
The author of the section 7 report will only attend the DRA if directed to do so by the court.
The court will identify the key issues (if any) to be determined and whether these can be resolved/narrowed. The court will consider whether the DRA can be used as a final hearing. Evidence may be heard to resolve or narrow the issues. The court will consider what evidence should be heard to resolve the outstanding issues at the final hearing. In the event that the case cannot be concluded, final case management directions will be made. These will include the filing of further evidence, a statement of facts/issues to be determined, a witness template/skeleton argument and listing the final hearing.
Practice Direction 27A (the Bundles Practice Direction) must be complied with.
Enforcement of Child Arrangements
Paragraph 21 sets out guidance as to the procedure to be followed by the court in the event of an enforcement application and the wide range of powers available to the court. The Gatekeepers will list any application for enforcement of a child arrangements order for hearing, before the previously allocated judge (if possible), within 20 working days of issue. The Practice Direction emphasises that enforcement cases should be concluded without delay.
It remains to be seen how the CAP 2014 will work in practice as the courts adjust to the new child arrangement orders framework. Areas of interest will include:
- Whether the requirement to attend a MIAM will lead to a reduction in court applications
- How strictly the courts will enforce the MIAM requirements where these have not been complied with before issue
- How the courts will deal with cases where expert evidence is necessary but neither party is in receipt of public funding or in a position to privately fund such evidence
- Whether the new Practice Direction 12J will result in more or fewer fact-finding hearings
- Whether the Dispute Resolution Hearing system will lead to a reduction in the need for final hearings. To what extent will DRHs be used as final hearings/evidence be heard to narrow issues?
- Whether the CAP 2014 will lead to a reduction in the average length of private law cases.