A few words about the private law draft legislation on Family Justice

Further to my post on Monday announcing the publication of draft legislation introducing changes to the operation of the family justice system as recommended by the Family Justice Review, I thought I would make a few comments upon the private law provisions (not having done any public law work for many years, I don't feel qualified to comment upon the public law provisions - in any case, suesspiciousminds has done that already).

As mentioned in my previous post, there are four private law provisions:

1. Family mediation information and assessment meetings
Since the 6th of April 2011 anyone contemplating applying for an order in 'relevant family proceedings', has been required by Practice Direction 3A to attend a 'Mediation Information and Assessment Meeting’ ('MIAM'), subject to the exceptions set out in Annex C to the PD. "Relevant family proceedings" is defined in Annex B. I find it somewhat odd that this 'pre-application protocol' only got mentioned in a footnote in the Family Justice Review Final Report, which recommended that: "Attendance at a Mediation Information and Assessment Meeting and Separated Parent Information Programme should be required of anyone wishing to make a court application."

The recommendation is implemented by Clause 1(1) of the draft legislation, which states:
"Before making a relevant family application, a person must attend a family mediation information and assessment meeting."
"Relevant family application" is defined by Clause 1(4) as "a family application of a description specified in Family Procedure Rules", which pretty well takes us back to PD 3A.

In short, this provision does not seem to me to add anything to the PD (although I would be happy to be corrected upon this).

2. Child arrangements orders
Clause 2 replaces the definitions of "contact order" and "residence order" in s.8(1) of the Children Act with a "child arrangements order" which:
"...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, and
(b) when a child is to live, spend time or otherwise have contact with any person".
Notice that the word "contact" is still used, but the word "residence" is not.

The rationale for the new order was to "focus all discussions on resolving issues related to [the child's] care, rather than on labels such as residence and contact" (see FJR Final Report, para 4.60). Hopefully, this might reduce conflict between parents, but I can't see it making much difference to the arrangements that will be ordered by the courts, which I anticipate will be very similar to present residence and contact orders.

(Note that there is an extension to the entitlement in respect of s.8 orders - see para 24 of the explanatory notes to the draft legislation.)

3. Repeal of restrictions on divorce and dissolution etc where there are children
S.41 (and its Civil  Partnership equivalent, s.63 of the Civil Partnership Act 2004) are repealed by Clause 7(1). Any dispute about the arrangements for a child resulting from divorce, dissolution etc. will in future be dealt with by way of a free-standing application to the court under the Children Act.

This provision is part of the drive to simplify the procedure for uncontested divorces, and to be welcomed - in most cases a s.41 certificate is little more than a 'rubber stamp job' in any event.

4. Repeal of uncommenced provisions of Part 2 of the Family Law Act 1996
Two words: About time!


  1. Perhaps I’m missing something but I too really wonder what the change in terminology will achieve. If it is meant to change perception, it will fail. The public still haven’t caught up with the CA ’89. I invariably get asked about “custody” and “access;” even “visitation rights.”
    I think residence orders are made too frequently for no good reason but that is more an argument for reinforcing the No Order principle.
    I suppose the re-branding will use funds that might better have been used elsewhere; perhaps on something that might actually have made a difference.

    1. Yes, you wonder whether the change is simply to placate those who criticise the system, rather than to make any real difference.

  2. Yes, the change (if you can call it that) is simply about placating.

    That's why Matt O'Connor lambasted it on father's day and produced the Children4Justice video, which you can find on Youtube.

    It's good to have a no order principle on the issue of residency, but that won't change much either.

    What would change things in a very big way is if the CB42 (Child Benefit for Two) campaign was listened to. And before anyone objects, this has nothing to do with money. It has everything to do with the fact that the parent with Child Benefit is basically the resident parent.


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