Will the Cap Fit?~A Summary.
The draft Child Arrangement Programme (CAP), which is due to come into force on 22nd April 2014 sees radical changes to the family justice system in private law cases. At the same time, the old divisions of magistrates, County and High Court will be removed and there will be a Single Family Court.
Under the CAP, there will be a greater emphasis on mediation and out-of-court dispute resolution and there will be reinforcement of the rules that the applicant should attend a MIAM (Mediation Information and Assessment Meeting). Also, due to the increased numbers of litigants in person, it is hoped that the new system will assist litigants in person and also help navigate them through the system and avoid delay wherever possible. The CAP also aims to ensure that lengthy children’s disputes are kept out of court.
Out-of-court dispute resolution is to be considered at every stage of the process and there will be an emphasis on trying to achieve a settlement of the issues at the first hearings dispute resolution appointment (FHDRA). There will be a move away from interim contact orders and there is an expectation that contact will be phased in in increases without the need for the parties returning to court, in the hope that there will be no further hearings and also there will be greater emphasis on ensuring that orders are stuck to. CAFCASS will monitor cases and there will be more family assistance orders.
There has been concern from the private law working group that there is no co-ordinated resource for litigants in person (LiPs) to help them find assistance. Therefore, there will be proper signposting to mediation and dispute resolution services and a proposal that there should be printed materials widely available at court and in other venues.
Attendance at the MIAM will be required unless the current exemptions apply as on the FM1 form. Attendance at the MIAM is obligatory for the applicant only and an FM1 form must be filed with any application and there is a possibility that the FM1 form would be incorporated into the C100 form which is the form that applicants use in Children Act proceedings. The allocation judge can direct the applicant to attend the MIAM if the form is incomplete or the judge is not satisfied with the reasons given for non-attendance. The proposal is that the judges or magistrates will not consider the case at the first hearing unless they are satisfied that the requirements are fulfilled and could indeed order direct both parties or one party to attend the MIAM.
Parents will be urged to work together to develop a parenting plan.
Court staff are to be proactive in ensuring that the forms are fully complete at the time of issue and that they are scanned and emailed to CAFCASS. Safeguarding checks are to be completed by day seventeen and the safeguarding letter will only outline issues of safety. CAFCASS will not contact the child before the FH DRA and can also do a section 16A risk assessment if required. Allocation of the case to the appropriate court will be reconsidered upon receipt of the safeguarding letter. The CAFCASS officer will not be able to discuss with either party before the FH DRA any matter other than one which relates to safety. The parties will not be invited to talk about other issues and if they tried, they will be advised that such matters are to be kept on hold until the FH DRA when both parties are there to discuss matters further.
It is proposed that without notice orders should only be made exceptionally and where if the applicant were to give notice to the respondent this would enable the respondent to take steps to defeat the purpose of the injunction cases where the application is brought without notice in order to conceal the step from the respondent are very rare indeed; the case is one of exceptional urgency; that is to say, there has been literally no time to give notice (either by telephone, text or email or otherwise) before the injunction is required to prevent the threatened wrongful act; if the applicant gives notice to the respondent, this would be likely to expose the applicant or relevant child to unnecessary risk of physical or emotional harm.
Urgent and without notice applications have increased recently as more people represent themselves and the working group have recommended a short and simple guide to without notice applications.
The FH DRA will usually take place between 4 to 6 weeks following the issue of the application, ordinarily during week five. The respondent shall have at least 14 days notice and the CAFCASS officer shall attend the hearing and speak to each party separately at court before the hearing. In court mediation will be available where possible and judges, magistrates and CAFCASS officers are to assist the parties in conciliation or resolution of all of any or the issues to between them.
The issues to be covered will be the MIAM, referral to dispute resolution, safeguarding, consent orders, reports, wishes and feelings of the child and case management. The court will Christmas at the consider whether a section 7 report is required from CAFCASS or the local authority and this should specifically be directed towards and limited to the relevant issues. The order should state the specific factual issues to be addressed. Consideration will also be given as to whether a section 37 investigation is required. This hearing is the latest point at which the requirement for expert evidence should be considered and ordered.
At dispute resolution appointment, this will only be listed following a section 7 report, expert report and the author of the report would attend if directed by the court. This hearing will consider whether the issues can be resolved or narrows and hear evidence and uses as a final hearing if possible. Otherwise, final case management directions will be given and listed for a final hearing.
Final hearing proceedings are to be timetabled and made to make final order as soon as possible in the interests of the child. In a section 7 report, CAFCASS or the local authority is encouraged to make recommendations to the stepped phasing in of child arrangements i.e. recommendations for the medium and longer term future for the children in so far as they are able to do so safely in the interests of the child (ren) concerned. If monitoring is needed, the court may consider making an order that CAFCASS monitor the case under section 11H CA 1989 or a family assistance order under section 16 CA 1989. The proposal is to remove the continued oversight of contact arrangements from the remit of the court.
The PL WG (working group) has recommended publication of clearer guidance for parties in relation to enforcement. Any hearing to be listed with a fixed number of days and resolved as a single hearing. After 12 months of possibly breach of an order, the parties should attempt to resolve independently and consider a MIAM. An enforcement parenting information programme is to be developed and judicial require guidance will be required on suspended residence order shipped to primary care under a child arrangements order full stop
Points to note:
• the welfare of the child is still the paramount consideration and local practices may still be implemented where they are consistent with the letter and spirit of the CAP. 16.4 guardians may still be required in their appointment should be considered at the FH DR. There is also local practice guidance on this dated 1 September 2013 from His Honour Judge Bellamy and Jason Dent, CAFCASS.
• Orders should be in plain language e.g. send to the other party and the court instead of file and serve.
• Work outstanding involves development of the information for separating parents, preparation of a guide for LiPs, preparation of a guide on the making of without notice applications, preparation of standard form witness statement templates consideration of domestic violence and harm, review of communication and consideration of enforcement issues.
Potential problems already identified are:
1. Burden on Court staff to scrutinise applications advise on signposts LiPs
2. Plethora of issues to be addressed at FH DRA impossible for litigants in person
3. Procedure still complex for LiPs and McKenzie friends
4. Significant burden on the court, CAFCASS and lawyers of represented parties to cover all issues and draft requisite order at FH DRA whilst also making time to attempt mediation/conciliation
5. Cases may be adjourned to mediation were not appropriate
6. Considering 16.4 Guardian at FH DRA not realistic
7. Is a shortened process realistic in private law disputes?
8. Due to come into force with much work outstanding
9. Additional judicial training and guidance not yet completed or published
10. Still potentially no source of funding for expert reports when required
11. Question marks over how complicit capacity of litigants can be addressed
12. Still refers to contact orders which is not reflective of the change to child arrangement orders.
The emphasis on the CAP is to place more emphasis on what children need, rather than what parents want. Residence and contact orders will go and be replaced with child arrangement orders, prohibited steps orders and specific issue orders will remain.
Flowchart of how the proposed changes will work in practice is attached.
These are notes made by Janet L Flawith and I accept no responsibility for action taken as a result of these notes which are for assistance and update only. For a full understanding of the CAP, please go to http://www.judiciary.gov.uk/Resources/JCO/Documents/family-court-guide/private-law/draft-child-arrangements-plan.pdf
Janet L Flawith
AIM Mediation Ltd.
Child maintenance-what are your options?
Around the country there may have been loud sighs of relief from frustrated parents that the CSA is going. Cases will be closed over the next 3-4 years and the new Child Maintenance Service (CMS) will take over.
But will this be any better than the CSA?
First, to make an application, a parent will have to pay a fee of £20. Victims of domestic violence/abuse will be exempt, the same proof of DV as is required by legal aid agency is to be used . Those parents under 18 will also be exempt.
If the CMS has to step in to collect the money, the parent who is to pay will also be charged an extra 20% of the calculation as a collection fee. This means that the child(ren) for whom the money is intended, will lose out. Also, the parent receiving the money, receives the maintenance less 4%. How many parents on benefits or low incomes can afford £20 at the moment? How can the paying parent who does want the money to go to his/her child(ren) afford to make up the difference if the 20% collection fee in charged and what is left for the receiving parent when another 4% is deducted?
It seems that the Government’s reasoning in imposing these fees is to try and encourage parents to make arrangements for child support between themselves, because these are free!!! We all know that separated parents can work amicably together in the best interests of their child(ren), don’t we? No, sometimes they can’t and that is why there are lawyers, mediators and the courts.
The CMS will try and persuade the paying parent to pay directly to avoid the fees, but I can see this being used as another stick to beat by an angry, non paying parent. Some parents will decide to pay the charges, knowing that the receiving parent will lose 4%, because this will be about the other parent and not about the children. The CMS collection service can be ended if the parents agree. Enforcement procedures will include attachment of earnings orders, freezing of bank accounts and costs recoupment from the paying parent.
Child Benefit and who is in receipt of it will be irrelevant and the key deciding factor will be in whose care are the children perceived to be.
Certainly, coming to mediation can reduce the conflict between separated parents and often in cases involving children, child support is discussed. The terms are incorporated into the Co-Parenting Plan that is drawn up at the end of mediation.
Already, we have started pointing clients to the Child Maintenance Options website, which includes a calculator (because, of course, separated parents know what the other parent is grossing each month!!). There is free telephone and face to face advice offered. The telephone number is 08009880988 and the website address is www.cmoptions.org
There is also a new web app : help and support for separated families and there is a link to this on our home page.
The calculation will also change. It will be the paying parents’ gross income that is used and the payments will be:
12% of gross income for 1 child,
16% of gross income for 2 children and
19% of gross income for 3+ children.
There will be an annual review on the anniversary of the determining application.
The risk is that with the extra fees for applying and collection, that relationships between separated parents will get worse, rather than better. Some single parents will decide to use the CMS collection service rather than lose out altogether.
If the parents do want to try and work things out together, our mediators can discuss the CMS and how it works during the mediaton, can suggest before coming to mediation that separated parents contact Child Maintenance Options and help the parents reach child support arrangements that are fair without the charges incurred by the CMS.
International parental child abduction continues to be a growing global problem. If you are in fear that your child/ren may be abducted then please consider the following action to help reduce the risk.
1) Ensure the child’s passport, birth certificate are in a safe place.
2) Is your child a dual national? If yes, has a foreign passport been issued in the child’s name? If yes, where is that passport?
3) Take specialist legal advice on what court orders could be put into place to help prevent an abduction occurring.
4) Speak with all carers of your child so they are aware of your fear.
5) Speak with your local Police and make them aware of your concerns.
6) Is your fear of abduction affecting contact between the other parent and the child? If yes, consider specialist mediation, where you can work with the other parent and a specialist mediator.
AIM Mediation has an internationally renowned international mediator who will be able to help. Call on 01162620610 and ask for Denise Carter, OBE.
COMMUNICATION with children
v Talking to the children separately
v Talking to the children together
v Supporting each other when talking to the children
v Explaining the arrangements/situation
v Reassurance
v Using language that doesn’t use blame
v Remembering each child is different
Between parents
v When, how, where, and what for?
v How often?
v Respecting each other’s views
v Keeping past relationship separate from issues to do with the children
CONTACT
v Contact days, places, times, transport
v Overnight stays
v Long school holidays
v Short school holidays
v Birthdays
v Special Occasions
v Contact with other family members
v Contact by telephone and/or letters
v Changes of arrangements
v Arrangements in case of emergency
CHILD’S ACTIVITIES
v Extra lessons – SatSchool, coaching etc.
v Sports
v Clubs, Church
v Time at home (homework, watching TV, friends etc.
v Social events
DAY-TO-DAY ACTIVITIES
v Sharing knowledge of other carers – school, childminder, neighbours etc.
v Pocket money
v Presents
v Discipline – house rules, allowed freedom etc.
v Road safety and supervision
v Health needs -GP details, emergency contact numbers, details of medication, special diet, hospital visits.
SCHOOL
v Attendance at school events
v Attendance at parent evenings
v Choice of schools
v Availability of school reports
v Notice of school trips
v Special needs – educational, behavioural etc.
AIM Mediation Ltd 