This was first published in the Wigan Observer on May 6th.
Q: I have heard something about changes to the family courts and mediation? What does this mean for separating couples?
A: From April 22nd 2014, the Family Law system has undertaken what some see as a major, and perhaps generational overhaul with the bringing into law of The Children and Families Act 2014.
Since the Government’s still controversial removal of Legal Aid in April 2013 for most areas of family law cases not involving issues of evidenced domestic abuse or children at risk of harm, the family courts have seen a significant increase in the amount of unrepresented Litigants in Person, which evidence suggests is having a knock on effect on court waiting times due to increased “contests”. This has been matched by a dramatic fall in persons attending mediation as parents resort to issuing there own applications rather than attempt to resolve disagreements through Alternative Dispute Resolution as previously recommended by family lawyers.
The new act and other legislation which brings into effect The Family Court is an attempt by the government to redress the balance and perhaps right some of the previous mistakes. The newly unified Family Court, which will continue to sit it the “old” buildings, now brings together the various branches of the courts that dealt with family cases, and it is hoped this will achieve improvements in management of family cases and provide consistency of decision making where perhaps it might have been lacking previously.
The Children and Families Act 2014 brings about the Child Arrangement Programme (CAP) which is intended to prioritise and re-emphasise the needs and best interests of children in family disputes and offer alternative routes in resolving cases. Although the legislation stops short of imposing the compulsory sharing of specific amounts of time of a child between it’s parents that many family groups demanded, it does nonetheless insert a new provision into the “welfare test” of The Children Act 1989 which is used to determine what is in a child’s best interests, which states that a court in appropriate circumstances is to “presume, unless the contrary is shown, that involvement of that parent in the life of the child concerned will further the child’s welfare.” Nice words perhaps but ones which will need to be tested for their effectiveness.
Other changes to the wording now used means that there are no longer “Residence” or “Contact” Orders but rather that orders will be made about “where a child will live” or “who a child will spend, or otherwise have contact with”. It is hoped this change of emphasis will show that such orders are for a child’s benefit than it’s parents.
It is suggested that the combination of the new Family Court and the CAP will mean less delay and quicker resolutions of cases at less cost to the government and parents in legal costs. It is hoped the benefits will also mean better outcomes for children.
One of the most significant changes to the system is the implication of compulsory Mediation Information Assessment Meeting (MIAM) which requires potential Applicants to court to first attend such a meeting. Exemptions exist for those who have experienced Domestic Abuse but the fact a Respondent is not obliged to attend, or the fact mediation itself is not obligatory, may impact upon its effectiveness. Courts can make later orders for parties to a children application to attend during the course of proceedings if it is believed this would benefit the case.
Following the MIAM the other parent may be invited to an initial mediation meeting with a certified mediator who will try to help the couple to understand their options and assess if mediation is right for them to resolve any differences which are preventing an agreement being reached.
A mediator will listen to both sides of the dispute and work towards a fair solution in how to deal with the problems. Although the decisions made in the sessions are not legally binding themselves, if both parties are happy with the solutions discussed they can apply to the court for an Order by agreement. Parties still have the option to apply to court if their dispute cannot be solved through mediation.
While Legal Aid has been abolished for most divorce and custody cases, people can still receive public funding for mediation and receiving advice upon mediation from a solicitor. Couples can check if they qualify for Legal Aid by speaking with a mediator or taking the online legal aid calculator at www.gov.uk/check-legal-aid.
Once both parties have agreed and signed the final Statement of Outcome, a solicitor can help you to prepare an agreed Order to send to court, which will make the agreements legally binding.
To find out more about mediation visit www.gov.uk/familymediation
Media information: Lianne Tracey and Chloe Kendall
Stephensons Solicitors LLP
Tel: 01616 966 229 or 01616 966 229
Email: email@example.com or firstname.lastname@example.org