Thursday Review: All... family... lawed... out...

It's all happening...

The Ministry of Justice has asked the Family Justice Council to take forward the Law Commission’s recommendation to clarify the law of “financial needs” on divorce or dissolution of a civil partnership. The new guidance is to be published later in the year. Hopefully, this will lead to greater certainty, although it seems slightly odd to me that 'needs' is still being considered in isolation of all of the other s.25 factors.

Unsurprisingly, there has been rather less media interest in the denouement of the 'forced caesarian' case than there was in the opening scenes. On Tuesday the President pulled down what will hopefully be the final curtain, when he made an adoption order in favour of the couple with whom the child has been living since last November.

The Legal Services Consumer Panel has today publishing the first-ever detailed study into the emerging market of fee-charging McKenzie Friends. The watchdog has ruled out statutory regulation, which seems remarkable to me, considering the level of regulation of the legal profession. In particular, I understand that there are to be no qualification requirements and no insurance requirements. No disrespect to all the good MFs out there, but this really does smack of a second-class service for second-class citizens, i.e. those who cannot afford full legal representation.

Moving on, Sir Paul Coleridge (left) is moving on. He is retiring from the judiciary, following his chastisement by the Judicial Conduct and Investigations Office last December, after giving interviews and writing a newspaper article about his beliefs in support of traditional marriage. His retirement is a bad thing on two counts. Firstly, we are losing an otherwise highly regarded judge and secondly, he will now be free to promote his backward views on marriage without fear of falling foul of the JCIO.

Lastly, but by no means leastly, today marks the last day of the old regime. On Tuesday the revolution of the new family court and all the other reforms of the family justice system will be upon us, and such things as the Family Proceedings Court and s.41 MCA will be consigned to the guillotine. All of the changes have entailed enough new law to make even the most hardened revolutionary wonder whether it was all worth it, as a look at my last post will confirm. I for one am all family-lawed out - and I am (thankfully) no longer practising.

Still, at least we all have the Easter break ahead, during which we can re-charge our batteries. Have a good one.

Confused by all the changes coming in on the 22nd? Where to find the answers.

We may be on the cusp of history, but there are an awful lot of changes happening in family law, and an unprecedented amount of new material for practitioners to assimilate. Thankfully, however, there are a number of good resources around the net, which should make the task just a little bit easier. I thought I would set out here all of the ones that I have found, together with links to original materials.

Jordans Family Law - A page bringing together the essential information regarding the forthcoming family law reforms, including the single family court, Children and Families Act, CAP, PLO, etc.

Family Law Hub - A summary of the key changes for finance and divorce cases that will kick in with implementation of the single Family Court, including the distribution of business.

Single Family Court - family justice system reforms - A brief summary of the new family court.

The single Family Court – essential update - A useful, and occasionally amusing, update "designed to give family law professionals a summary the key changes happening on 22 April 2014."

MIAMS - essential update -  This article summarises the essential points you need to know about MIAMs for the 22 April 2014.

10 things you need to know about family law reform - Geraldine Morris at LexisNexis lists ten important things about family law reform in 2014.

What do you need to know about the updated family court forms? - Updated court forms anticipated to take effect from 22 April 2014.

Public Law Outline and public law proceedings materials - As the title says.

Child Arrangements Programme and private law proceedings materials - Ditto.

Public Law Outline (PD 12A) – essential update - Likewise.

Child Arrangements Programme (PD 12B) – essential update - Some of the salient points to note in the CAP.

The Children and Families Act 2014 – essential update - A summary of the need-to-know points for 22 April 2014.

Children and Families Act 2014 – A Guide for Public Children Lawyers - Explains the changes introduced by the Children and Families Act 2014 of most interest to public children lawyers.

The Law Society Family court resources page - 'Dedicated tools and resources for solicitors working in family courts', including new family court documents and other resources.

A consolidated version of the FPR is available here.

And then we have all of the other original source materials, including the statutes...

Crime and Courts Act 2013, s.17 - Which establishes the family court.

Children and Families Act 2014 - Which includes compulsory MIAMs (s.10), presumption of parental involvement (s.11), child arrangements orders (s.12) and the 26-week limit (s.14).

...and the statutory instruments (which I will leave to explain themselves):

The Children and Families Act 2014 (Transitional Provisions) Order 2014 - This Order makes transitional provisions in connection with the coming into force of provisions in Part 1 and Part 2 of the Children and Families Act 2014.

The Crime and Courts Act 2013 (Family Court: Transitional and Saving Provision) Order 2014 - These Rules make transitional and savings provision in relation to the establishment of the single family court. The single family court is established by section 17(3) of the Crime and Courts Act 2013.

The Crime and Courts Act 2013 (Commencement No. 10 and Transitional Provision) Order 2014 - This Order is the tenth commencement order made under the Crime and Courts Act 2013. It brings into force sections 17 and 28 of and Schedules 9, 10 and 11 to the Act.

The Family Procedure (Amendment No. 3) Rules 2014 - These Rules amend the Family Procedure Rules. The amendments made to the FPR 2010 by these Rules are made under or in consequence of and to support certain provisions of the Children and Families Act 2014. The amendments also adjust service rules applicable to certain private law children proceedings.

The Children and Families Act 2014 (Commencement No. 2) Order 2014 - This Order brings into force certain provisions of the Children and Families Act 2014 on 1st April, 22nd April, 13th May, 25th July and 1st September 2014.

The Family Proceedings Fees (Amendment) Order 2014 - This Order amends the Family Proceedings Fees Order 2008.

The Family Court (Composition and Distribution of Business) Rules 2014 - These Rules make provision for the composition of the family court and for the distribution of business of the family court among judges of the court.

The Family Court (Constitution of Committees: Family Panels) Rules 2014 - These Rules make provision for the formation of family panels and for their meetings, chairmen and deputy chairmen and functions.

The Justices’ Clerks and Assistants (Amendment) Rules 2014 - These Rules amend the Justices’ Clerks and Assistants Rules 2014 by replacing the table in the Schedule in those Rules, which lists the functions of the new single family court or of a judge of the court which those Rules authorise justices’ clerks and assistants to justices’ clerks to carry out.

The Crime and Courts Act 2013 (Family Court: Consequential Provision) (No.2) Order 2014 - This Order makes amendments to secondary legislation in consequence of the establishment of the family court as provided for in section 17 of the Crime and Courts Act.

The Child Arrangements Order (Consequential Amendments to Subordinate Legislation) Order 2014 - This Order makes amendments to secondary legislation in consequence of section 12 of the Children and Families Act 2014, which removes the definition of “residence order” and “contact order” in section 8(1) of the Children Act 1989 and replaces it with a new order, the “child arrangements order”.

The Family Court (Contempt of Court) (Powers) Regulations 2014 - These Regulations limit the powers exercisable by certain judges of the family court when dealing with an individual for certain types of contempt of court in the family court.

The Family Court Warrants (Specification of Orders) Order 2014 - This Order specifies orders of the family court for the purposes of section 125A(3) of the Magistrates’ Courts Act 1980 with the effect that civilian enforcement officers may execute warrants of arrest, commitment, detention or distress issued by a justice of the peace (who will for the purposes of the family court be District Judges (Magistrates’ Courts) or justices of the peace who are not District Judges (Magistrates’ Courts)) for the enforcement of an order of the family court.

The Children and Families Act 2014 (Commencement No. 1) Order 2014 - This Order brings sections 10 (Family mediation information and assessment meetings), 13 (Control of expert evidence, and of assessments, in children proceedings) and 17 (Repeal of restrictions on divorce and dissolution etc where there are children) of the Children and Families Act 2014 into force on 22nd April 2014.

The Family Procedure (Amendment No. 2) Rules 2014 - These Rules amend the Family Procedure Rules 2010. The amendments made to the FPR 2010 by rules 3 to 44 of these Rules are made to reflect the creation of the family court, to insert a new Part 37, and to make some adjustments to the appeals rules in Part 30.

The Justices’ Clerks and Assistants Rules 2014 - These Rules authorise justices’ clerks and assistants to justices’ clerks to carry out certain functions of the new single family court.

The Crime and Courts Act 2013 (Family Court: Consequential Provision) Order 2014 - This Order makes amendments to primary legislation which are consequential upon the establishment of the family court, as provided for in section 17(3) of, and Schedules 10 and 11 to, the Crime and Courts Act 2013.

The Access to Justice Act 1999 (Destination of Appeals) (Family Proceedings) Order 2014 - This Order provides for the routes of appeal from decisions of certain types of judges or other office holders sitting in the family court.

For more on the SIs coming into force on 22 April, see this article on Family Law Week.

And if you weren't confused before reading all of those, I'm sure you are now.

Family Lore Clinic: How can a contact order be enforced following 22 April 2014 family law changes?

I assume that this is referring to the introduction of child arrangements orders on the 22nd of April, and their effect upon contact enforcement orders under section 11J of the Children Act. Under s.11J(2) if the court is satisfied beyond reasonable doubt that a person has failed to comply with a contact order it may make an enforcement order, imposing on that person an unpaid work requirement, i.e. community service.

Child arrangement orders are being introduced by s.12 of the Children and Families Act 2014, and will replace residence and contact orders. So, if contact orders no longer exist, what will happen to contact enforcement orders?

The answer is that they will continue as before, save that the references in s.11J are now to child arrangements orders, rather than contact orders. Accordingly, the court will now be able to make them if a person fails to comply with a provision of the child arrangements order.

For the full amendments to s.11J see Schedule 2 of the Children and Families Act.

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Divide and Rule

J-M (Child): Fair and thorough treatment

Lady Justice Black

A summary of J-M (Child) [2014] EWCA Civ 434, a father's appeal against an order that he should have no direct contact with his son.

The case concerned a 14 year-old boy named in the judgment as 'MX', who lives with his mother ('M') and has not seen his father ('F') since October 2010. The leading judgment in the Court of Appeal is given by Lady Justice Black, who sets the scene thus:

"The matter has a long history. Proceedings began when MX was just a baby and there have been a number of orders since then. Prior to 2009, there was a period of about four years when there was no contact between F and MX. In F's view, this was attributable to the malign intervention of M and her family who set out to alienate MX from him and to a conspiracy or conspiracies involving M's lawyers, his own lawyers, and a district judge."

Contact orders were made in 2009 and 2010, but contact broke down shortly after that second order, and F applied to enforce it. On the 7th of December 2012, the district judge refused F's application for direct contact, setting aside the existing contact order. He ordered that there be indirect contact by F sending MX a card and a present at Easter, Christmas and on MX's birthday, and M ensuring that F was sent a recent photograph of MX twice a year.

F's appeal was refused by his Honour judge John and F appealed again to the Court of Appeal. The grounds of appeal were that the district judge:

(i) wrongly failed to accede to a request for a further psychological report on the question of MX's wishes in relation to contact;

(ii) failed to analyse whether MX's reported wishes were his genuine wishes;

(iii) failed to analyse whether the temporary harm that would be caused in pursuing contact outweighed the harm that would be caused by the permanent separation of MX from his father;

(iv) gave too much weight to MX's wishes and feelings and failed to take account of his inability to understand M's influence upon him;

(v) was wrong to conclude that all reasonable steps had been taken to facilitate contact when there had been no attempt to test MX's reluctance to see F since contact broke down;

(vi) wrongly allowed the implacable hostility of M to frustrate the contact order without sufficient reason to do so.

A further issue, identified by the Lord Justice giving permission for the appeal to the Court of Appeal, was whether, in the light of the decision of the Supreme Court in Re B (A Child) [2013] UKSC 33, Judge John adopted an incorrect approach to the appeal before him by asking whether the decision of the district judge was "plainly wrong".

Lady Justice Black considered the grounds of appeal, commencing with the Re B point. As to that, she found that:

"By the conclusion of his judgment ... whatever Judge John's formulation of his approach to the appeal, his scrutiny of the district judge's determination had covered the ground contemplated by the Supreme Court in Re B."

Moving on to the other grounds of appeal:

(i) The district judge's approach to to the question as to whether there should be a further report was entirely proper, having regard to the restrictions on the use of expert evidence.

(ii) to (vi) Lady Justice Black considered the balance of harm and found that the district judge:

"... was well aware that it is likely to be detrimental to a child not to have some sort of direct contact with the parent with whom they do not live and that the court should not cease from striving to achieve this except when the end of the road has been reached, all reasonably available measures having been tried."

However:

"... he was faced with an adolescent boy who had not the slightest wish to have a relationship with F and who, having had correspondence from F which demeaned his family, did not wish, for understandable reasons, even to continue to receive letters from him."

She continued:

"The advice of the guardian was that there should be no more attempts at contact. In accepting that advice, the district judge knew that the guardian was criticised by F for taking MX's views at face value. It can be seen from his judgment that he evaluated the guardian's evidence critically, together with all the other evidence that he had read and seen. He demonstrated that he did not adopt an unquestioning approach to her advice by his reasoned rejection of her opinion that there should not even be indirect contact and that there should be a section 91(14) order. However, overall he clearly found her an impressive witness and he was entitled to conclude, as he did, that she had the expertise to assess the situation accurately and had done so."

As for the possibility that there should be some observed contact:

"... the district judge recollected that this had been successful in years past but, having considered the matter with the guardian, he was persuaded that it would be pointless to try again because there was no reasonable prospect of observed contact being possible."

Lady Justice Black went on:

"[The district judge] concluded that "without this 13 year old child supporting and co-operating", direct contact could not be pursued further. He took the view that in the circumstances of this case, it would be harmful to MX to force him to see F against his clearly stated wishes. This view represented his final balance, after considering the whole picture including the harm that MX would suffer from not seeing F. I do not consider that there can be any valid criticism of his conclusion or of the route by which he reached it."

In short, Lady Justice Black could not find any errors in the two judgments of the courts below, and accordingly she dismissed F's appeal.

Lord Justice Lewison and Lord Justice Maurice Kay gave concurring judgments, the latter stating:

"In the difficult circumstances of this case I am entirely satisfied that [the district judge] was entitled and, indeed, correct to conclude that the best interests of this sensitive but battle-weary teenager required the cessation of direct contact at this stage. I should also add that all three members of this Court were favourably impressed by the way that [the district judge] and Judge John (who cannot be blamed for not anticipating Re B (A Child)) dealt with the complex dynamics of this case. It received the conspicuously fair and thorough treatment which it merited."

Not listening...

This is what you're up against, Sir James

Sir James Munby,
Chambers With A View,
First Avenue House,
High Holborn,
London WC1V 6NP

7th April 2014

Dear Sir James,

Re: Transparency, etc.

I thought I would send to you a comment I received for publication on my blog this morning, as an example of the level of 'anti family justice system' feeling out there. The comment was on my post 'New Family Court opens today' (unfortunately the commenter does not seem to have noticed the date of that post), and I reproduce it here without amendment:

"little to late wont change all forced adoptions them parents majority have been given 18 year sentences for no crime but punishment for majority of the parents even a muder gets a fare trial an most get a lesser sentence but great for familys whos children have been stolen by the system at least they can speak out now about these court cases were the judges bow down to social services and family law are lineing there pockets daily at the expence of ripping families apart daily"

I know you are already aware how strong the 'anti family justice system' sentiment is in some quarters and that you are making great efforts to address the problem. However, I felt that I should bring this to your attention, as a reminder of the enormity of the task ahead.

Yours, etc. etc.,

John Bolch

Thursday Review: Statutory instrument overload

The race to have the single family court up and running by the 22nd of April continues apace. In the last couple of weeks I have counted no fewer than fourteen statutory instruments made in connection with the new court.

Like many family lawyers, I used to dream about a Family Court. In my dream it would be a building with just the words '[Someplace] Family Court' on the outside, not sharing the facility with other civil or, worse still, criminal courts, and the one court dealing with all family matters in the area. Inside, it would be a pleasant place, much more inviting and friendly than any other type of court. All the staff and judges would be family law experts, dealing with nothing else. And the judges would all be professionals - no lay justices here. There would be an in-court mediation service, and perhaps Cafcass would also have its local office within the building.

Alas, much of that will remain in the land of fantasy after the 22nd of April. Still, I suppose we should be thankful for what we are going to get.

One of the new statutory instruments is The Family Proceedings Fees (Amendment) Order 2014, which increases fees payable in family proceedings from the 22nd of April, as set out in the Explanatory Memorandum. A quick glance at Annex A to the Memorandum will show the changes. In fact, so far as private law is concerned we haven't done too badly, with most fees remaining the same, especially the 'main' ones (application for divorce, s.8 applications and financial remedies application). There is even one fee that has been scrapped: the £75 fee on applications for domestic violence injunctions. That was not mentioned in the Order, but the Ministry of Justice didn't miss the opportunity to tell us how it "will help thousands of women seeking non-molestation and occupation orders". Clearly, men never apply for such orders.

If I don't post again tomorrow, have a good weekend. In fact, even if I do post again tomorrow, have a good weekend.

Family Lore Clinic: I have remarried but can I still make a claim on my ex-husband if I think my consent order is unfair?

As usual, I will assume that the term 'consent order' refers to the order setting out an agreed financial/property settlement on divorce.

Remarriage prevents you from applying to a court for a financial remedy against your previous spouse. It does not, however, prevent a court from making a financial order in respect of the first marriage. Accordingly, if your application has already been made before the remarriage, you can still get an order.

Please note, however, that you cannot get maintenance from your previous spouse after you remarry, and that any maintenance order in your favour will end upon your remarriage.

If you want to claim more from your ex-husband you will need to get the court to set aside the consent order and make a fresh financial/property order.

Remarriage does not affect whether a consent order can be set aside. If there are good reasons to set aside the order, then this can still be done even if one of the parties has remarried. Please note, however, that it is very rare for a consent order to be set aside. Accordingly, you should seek the advice of a specialist family lawyer as to whether you have grounds to ask the court to set aside the order.

If the order is set aside, then you should be able to ask the court to make a different order. Again, you should seek specific advice on this, and upon what sort of new order you can expect the court to make.