Caroline Wright, of law firm Boodle Hatfield, writes about the sensitive and important issue of how reforms to the family courts system in England and Wales will affect separating couples and their children.

Caroline Wright, a solicitor at the family team of the law firm Boodle Hatfield, writes about the sensitive and important issue of how reforms to the family courts system in England and Wales will affect separating couples and their children. The editors of this publication are pleased to share these insights with readers from an expert; as always, it does not necessarily endorse all of the views expressed.

As of 22 April 2014, extensive family law reforms have been instituted by the Children and Families Act 2014.  The government’s aim is to restore confidence in the family court system and to reduce court applications by encouraging alternate methods of dispute resolution.

The Child Arrangements Programme 2014 (the Programme) concerns the arrangements for children where a dispute arises following relationship breakdown. Previously, if parents wanted the court to decide with whom the child should live and when the child would see the other parent, they would apply to the court for a contact and/or a residence order. Now these orders are no more and the label of “residence” has disappeared.  

What are the new rules?
In their place we have the child arrangement order (CAO). This is an order which will regulate with whom a child is to live, spend time or have contact. The aspiration is that the change in terminology and in particular the dropping of the “residence” label will encourage a less confrontational relationship between parents.

From autumn 2014 a new presumption will be introduced that both parents should be involved in their child’s life furthering their welfare “unless the contrary is shown” or there is evidence to show that the child is at a risk of suffering harm. It is specifically stated that this does not create a right to any particular amount of time with a child.  

The Programme places great emphasis on out-of-court dispute resolution.  Parents are being encouraged to come to an agreement, rather than letting the court decide for them. Mediation is encouraged and the court has the power to adjourn proceedings to allow mediation to take place.  A Mediation information meeting (MIAM) is compulsory before either parent can apply to the court for a CAO unless a specified exception applies (such as domestic violence concerns).

Parents are encouraged to work together to devise a parenting plan to use in mediation and in any proceedings and there is a section in the Programme dedicated to signposting a range of various services to help families. Where disputes cannot be settled out of court, the process aims to deal with the issues swiftly and effectively. There are two hearings within the structure of the Programme giving the parties the chance to resolve the dispute without a contested hearing, namely the First Hearing Dispute Resolution Appointment which will take place five to six weeks after an application to court is made and the case will then proceed to either a Dispute Resolution Appointment (DRA) after the completion of any necessary expert reports, or be set down for a final hearing.

It is a criminal offence to take a child under 16 out of the UK without appropriate consent.  However, a person who has a residence order may take a child overseas for a period of up to one month. With residence orders now consigned to history, it is the person “named in a CAO as a person with whom the child is to live” who will have this benefit.  Some parents are likely to be as keen to have a CAO stating the child should live with them as they would have been to have a residence order.

What is the best advice for separating parents?
Parents are being encouraged to recognise the need to develop a cooperative parenting relationship going forward. For many, the first and most helpful step will be to start a Parenting Plan. These aim to help parents work out the best possible arrangements for their children and to try and ensure that these plans are clear, consistent and reliable. It is likely that the court will expect parents to have started a parenting plan if an application is made.  

What is the position for international families?
For families living overseas and one parent relocates to England and Wales with the children leaving the other parent abroad, by living here the children will come under the jurisdiction of the English courts. The Programme applies for these international families in the same way save that prior attendance at a MIAM is not needed if the parent applying to court lives overseas.  

If one parent living in England and Wales wishes to relocate abroad and the other parent refuses consent, the parent wishing to leave must apply for permission from the court.  A person named in a CAO as a person with whom the child is to live does not require permission to relocate within the UK but if the other parent wishes to prevent the move he may apply to the Court. In both cases, attendance at a MIAM before making an application will be compulsory and the Programme will apply.