Care proceedings reforms

The statutory guidance to assist local authorities in preparing and commencing applications for care applications to the court has been revised. The new guidance came into force in England and Wales on 1 April 2008. There is also a new Public Law Outline which aims to reduce unnecessary delay and is designed to promote better co-operation between all the parties involved in care and supervision cases.

The documents are available from the Ministry of Justice website.

April 2008

family courts

Family justice review

Ministry of Justice

Views on how the family justice system can do its best to protect children and help families to work through their disagreements are being sought by a panel of experts. The Family Justice Review Panel, appointed by the Ministry of Justice, the Department for Education, and the Welsh Assembly Government, today launched a 'Call for Evidence' so that anyone with an interest in the family justice system can contribute their views on how it can work better in the future. This is part of a fundamental review of the system announced by the Government in the coalition agreement. The Review will be comprehensive in scope including looking at how to improve use of mediation and provide better access rights to non-resident parents and grandparents. The 'Call for Evidence' is seeking views on key areas of the family justice system including how to have a more user-friendly and child-focused system; the best methods of resolving family disputes, using alternatives to legal process, and how the system is governed, managed, and funded.

Questions the Panel is seeking views on include:

• How can the justice system focus more on helping family members to reach agreement rather than pitting them against each other?
• How best can the courts working with other agencies support children involved in the care system?
• How best can the system provide greater contact rights to non-resident parents and grandparents?
• The evidence will be carefully considered and used to inform the Review's recommendations on how to improve the system.

Further details can be found on the Ministry of Justice website.

June 2010

family courts

Review of the family justice system

Ministry of Justice

The Ministry of Justice has announced that an expert panel will examine reform of the current family justice system in England and Wales so that it better supports children and parents. The review will look at the best methods for avoiding confrontational court hearings, and encouraging the use of mediation to deliver fairer and less acrimonious settlements that place the needs and interests of children at the heart of the system. The announcement is part of the cross-government Families and Relationships Green Paper, published by the Department for Children, Schools and Families, which looks at how to reduce conflict when relationships break down as part of wider government support for the family.

Further details can be found on the Ministry of Justice website.

January 2010

family courts

Every family matters: An in-depth review of family law in Britain

Centre for Social Justice

The recommendations from this review include:

• a three-month 'cooling-off' period before divorce
• more information provision for cohabiting couples about their rights rather than changing the legal basis of the relationship
• encouragement of marriage preparation courses
• Family Relationship Hubs, similar to Family Relationship Centres in Australia.
• mandatory attendance at an information provision meeting, to include a full explanation of Alternative Dispute Resolution, before commencing any form of family law proceedings
• more consideration of the role of grandparents, for example early

mediation between the parent with residence and a grandparent seeking contact

The report can be downloaded from the Centre for Social Justice
website.

July 2009

couple relationships, family break-up, family courts

Family legal aid reform

House of Commons Justice Committee

This select committee report criticises the government's approach to legal aid reform, arguing that the Legal Services Commission's proposals for reform are not evidence-based. The Committee has recognised the need to control legal aid costs but note the Government has made little effort to address directly the reasons for rising case costs in family law. The Committee heard that the proposed fixed fees would over-reward simple cases and under-reward the more complex and serious cases (under the level at which special fees for 'very high cost' cases apply).

The report is available from the Committee website.

July 2009

family courts, safeguarding children

European family law: Faster divorce and foreign law

Centre for Social Justice

This report makes four main recommendations:

• Remove lis pendens, the principle of first to issue, from European Family Law which encourages international couples to rush the divorce court to gain financial advantage over each other
• Keep individual countries' own family law rather than a universal law imposed by Brussels
• The country with the closest connection to the international couple should deal with the proceedings
• Encourage Brussels to slow down its programme of European Family Law reform to take in to account traditions of family life and law around Europe.

The report can be downloaded from the Centre for Social Justice website.

April 2009

family break-up, family courts

After domestic abuse: children's perspectives on contact with fathers

F Morrison; Centre for Research on Families and Relationships

The aim of this research was to get the views of children who have experienced domestic abuse about contact with their fathers following parental separation. This qualitative study involved 11 children aged between 8 and 14 years from Women's Aid refuge support services, who had experienced domestic abuse in which their fathers were the perpetrators and had had contact with their fathers following parental separation. Children felt that they should make a significant contribution to decisions relating to contact with their fathers. They felt their opinions were important, as it was their lives about which decisions were being made.

The report is available from the CRFR website.

March 2009

domestic abuse, separated parenting, family courts

Family courts to be opened to the media

The document 'Family Justice in View' sets out the government's plans for the media to be able to attend all levels of family courts,. The court will be able to restrict attendance if the welfare of the child requires it, or for the safety and protection of parties or witnesses. Responses to the most recent consultation on increasing openness in the family courts have also been published.

More information is available from the Ministry of Justice website

December 2008

family courts

Family Law Review: interim report

Centre for Social Justice

This is the interim report of the Family Law Review from the Centre for Social Justice. As such it sets out areas for further investigation rather than firm conclusions. These include the desire to encourage marriage rather than give more rights to cohabiting couples; fair financial distribution after divorce; the 'need for a father' in assisted reproduction; pre- and post-separation family support; and possible rights for grandparents in adoption procedures or contact after parents separate.

The report can be downloaded from the Centre for Social Justice website.

November 2008

couple relationships, family break-up, family courts, separated parenting

Outcomes of applications to court for contact orders after parental separation or divorce

J Hunt and A Macleod; Ministry of Justice

When parents separate or divorce, less than one in 10 seek the assistance of the family courts in making decisions about contact arrangements for their children. This study found no evidence that non resident parents as a group are systematically unreasonably treated by the family courts. On the contrary, the study shows that the courts start from the position that contact is generally in the interests of the child. Non-resident parents were usually successful in getting the type of contact sought. Serious welfare issues were raised in 54 per cent of cases, but 60 per cent of these still ended with staying or unsupervised visiting contact.

The report can be downloaded from the Ministry of Justice website.

September 2008

family courts, separated parenting

The longer term outcomes of in court conciliation

L Trinder and J Kellett; Ministry of Justice

This study looks at the longer-term impact of in-court conciliation. This typically consists of a brief meeting at court where divorcing or separating parents are encouraged to negotiate arrangements. The authors concluded that although this helped parents to negotiate an agreement, it did not improve their relationship.

Two years following conciliation the great majority (79%) of cases had an agreement about contact and were closed. However, the majority of parents had required further professional intervention and 40% had been involved in further litigation. Around 60% of agreements made at the original conciliation meeting had been changed or had broken down.

The wellbeing of parents had improved significantly, but that of the children had not. The majority of parents' relationship with their ex-partner had not improved. The report recommends the development of more relationship-based or therapeutically-orientated interventions.

The report is available from the Ministry of Justice website.

November 2007

family break-up, family courts, separated parenting

Legal Services Commission: Legal aid and mediation for people involved in family breakdown

Public Accounts Committee

This report focuses on the reasons for the low take-up of mediation in this country. Family disputes that are resolved through mediation can be cheaper, quicker and, according to academic research, less acrimonious than those that are settled through the courts. It can be paid for by legal aid for those on low incomes. The committee found that a major shortcoming in the Commission's effort to increase the use of mediation has been the absence of a financial incentive for solicitors and other advisers to promote mediation to clients who might otherwise choose a court-based route. It advised the Legal Services Commission on the measures necessary to promote mediation.

The report can be downloaded from the Public Accounts Committee website.

October 2007

family break-up, family courts

Child inclusion as a principle and as evidence-based practice: Applications to family law services and related sectors

J McIntosh; Australian Institute of Family Studies

This paper discusses the evidence base around the potential benefits to many separated parents of engaging in a focused dispute resolution forum that assists them to hear and consider their children's experiences and needs within a brief, therapeutic mediation process. Two successful applications of the child-inclusive model are outlined, with their data confirming the potential of "children's voices" to realign parental states of mind and elicit higher levels of cooperation and shared decision-making.

This paper is available from the AIFS website

August 2007

family break-up, family courts

Law Commission proposes measures to protect cohabiting couples on separation

The Law Commission, following its review of cohabitation, has concluded that cohabiting couples should be given certain rights on separation which are less than those given to married couples. The recommended scheme would apply only to cohabitants who had had a child together or who had lived together for a specified number of years (between two and five recommended). Couples would be able to disapply the statute by means of an opt-out agreement.

In order to obtain a remedy, the applicant would have to show the court that they would be at economic disadvantage in the future, or that the respondent would retain a benefit, as a result of contributions made to the relationship. The court would be required to give first consideration to the welfare of any dependent children.

More information is available from the Law Commission website.

July 2007

family break-up, family courts

New consultation withdraws plans for opening up family courts

The Secretary of State for Justice, Lord Falconer, has announced that plans for opening the family courts to the media will not go ahead because of concerns raised that this would breach children's rights to privacy.

The consultation 'Confidence and confidentiality: Openness in family courts a new approach' sets out proposals to:

• allow the media to attend family court proceedings not as of right, but by application on a case by case basis
• increase information provision about how the court has reached its decision for the people involved in proceedings
• make available to the public an anonymised transcript or an anonymised decision summary where there is a clear public interest, for example where a child is permanently removed from one or both parents

The consultation is available from the Ministry of Justice website and the closing date for responses is 1 October 2007.

June 2007

family courts

Legal Services Commission: Legal aid and mediation for people involved in family breakdown

National Audit Office

This National Audit Office report says that there is scope to increase the proportion of family disputes that are resolved through mediation, which is cheaper, quicker and less acrimonious than those that are settled through the courts. Despite this, only some 20 per cent of people who are funded by legal aid for family breakdown cases (excluding those involving domestic violence) currently opt for mediation. A survey of recipients of legal aid found that one third had not been told about mediation by their legal adviser, who has a financial disincentive to do so as it will result in the loss of potential fees.

The report recommends that mediation should be more widely promoted, and that contracts between solicitors and the Commission should reflect a presumption that mediation should normally be attempted before other remedies are tried.

The report can be downloaded from the National Audit Office website.

March 2007

family break-up, family courts

Responses to consultation on opening up family courts

The Department for Constitutional Affairs has published the summary of responses to the consultation paper, 'Confidence and confidentiality: Improving transparency and privacy in family courts'.

Concerns were expressed about the impact on children and young people of making family courts more open to others, especially the press.

More information is available from the DCA website.

March 2007

family courts

Legal Services Commission's Strategy for Family Legal Aid

The strategy document, Making Legal Rights a Reality for Children and Families, sets out the Legal Services Commission's five-year strategy for legal aid, prioritising cases involving domestic abuse.

More information is available from the Legal Services Commission website.

March 2007

family courts

Children and Adoption Act 2006

The Children and Adoption Act received Royal Assent on 21 June 2006

The Act provides the courts with new powers to promote contact and enforce contact orders made under section 8 of the Children Act 1989 ('the 1989 Act'). It also includes provision to reform the courts' existing power to make family assistance orders and imposes a duty on CAFCASS and Welsh family proceedings officers to carry out risk assessments where they suspect a child is at risk of harm.

The Act also makes a number of provisions about intercountry adoption, including a statutory framework for the suspension of intercountry adoption from specified countries where there are concerns about practices in connection with the adoption of children.

This Act is intended to assist in the implementation of the Green Paper Parental Separation: Children's Needs and Parents' Responsibilities, published in July 2004.

Explanatory Note to the Act

November 2006

family courts, family break-up

A best practice guide for use by all professionals involved with children and families pre-proceedings and in preparation for applications made under section 31 of the Children Act 1989

Ministry of Justice

The Ministry of Justice has published a practice guide for professionals involved with children and their families before proceedings and in preparation for applications for a care or supervision order made under section 31 of the Children Act 1989. The guide is written for all professionals who work with or for children and families where s.31 CA 1989 care proceedings are being considered or applied for. In particular it is aimed at:: LA social workers, LA managers, lawyers for the LA and for parents, Children's Guardians, lawyers for children, HMCS court staff and legal advisers, the judiciary and expert assessors who may be instructed pre-proceedings and within proceedings.

The practice guide is available from the Ministry of Justice website.

October 2009

family courts, family break up, safeguarding children

Access to justice - new fee structures for family legal aid

Ministry of Justice, Legal Services Commission

The Ministry of Justice and the Legal Services Commission have published new fee structures for family legal aid that replace hourly rates with fixed fees. The new structure is the latest phase in the government's legal aid reform programme, the stated aim of which is to put legal aid expenditure on a sustainable level to help ensure that resources are prioritised effectively to help those most in need. The scheme introduces more graduation into the fee structure with the aim of ensuring that those advocates who take on more difficult cases are better rewarded than those who take on less complex cases.

The consultation response is available from the the Legal Services Commission website.

October 2009

family courts, safeguarding children

Family courts to be opened to the media

Accredited media are now able to attend all levels of family courts, removing the inconsistency of access between magistrates' courts and the county and high courts. Existing reporting restrictions will still apply. A pilot project will start later this year including placing anonymised judgments online from some family cases so that the public can see how family courts work and how decisions were reached and looking at the practicalities of retaining judgments so that children involved in proceedings can access them when they are older.

More information is available from the Ministry of Justice website.

April 2009

family courts

Reforming the legal aid family barrister fee scheme

This paper sets out proposals for reforming the Family Graduated Fee Scheme under which barristers are paid for legal aid advocacy work in family cases. Currently barristers in family cases are paid significantly more than solicitors for the same advocacy work, and the department wants to move towards a system where we pay the same for the same service to the client, regardless of whether the advocate has a background as a solicitor or barrister.

The paper is available from the Ministry of Justice website.

June 2008

family courts

Care profiling study

J Masson, J Pearce and K Bader; Ministry of Justice

The study provides baseline data on care proceedings brought under the Children Act 1989, as a basis against which reforms to the care proceedings system could be evaluated. It profiles characteristics of the children and families involved in care proceedings, the concerns and actions of local authorities and plans for the child's care. The authors conclude that there is no evidence that the local authorities brought care proceedings without good reason. Neglect was the basis for concern in three-quarters of cases; fewer than 10 per cent involved major injuries to children but 40 per cent of cases resulted from a crisis.

The report is available from the Ministry of Justice website.

April 2008

safeguarding children, family courts

Revised Children Act guidance on court orders

This guidance replaces the 1991 guidance and features a number of key changes including: the expectation that core assessments will have been carried out prior to section 31 applications being made; that as part of this, careful consideration will have been given to the possibility of the placement of children with relatives and friends; and the sending a 'Letter before Proceedings' to parents as part of improving communications with families and to enable parents to gain access to legal help.

The guidance can be downloaded from the DCSF website.

February 2008

family courts; safeguarding children

New Family Drug and Alcohol Court in London

The central London-based pilot Family Drug and Alcohol Court aims to stop children being taken into care by putting families with drink and drug problems on rigorous support programmes. The court will bring together Camden Council, Westminster Council, Islington Council. The Department for Education and Skills has committed £1.35 million to the three-year project and the three London boroughs involved are providing a further £1.6 million.

The same judge will deal with a case at each hearing and there will be a court-based team with all the relevant agencies or departments represented. They will be able to make same-day referrals for help, advice and support in cases where children are exposed to substance misuse in the home.

More information is available from Westminster Council website.

April 2007

safeguarding children, substance misuse, alcohol, family courts

Children, Schools and Families Act 2010

The Act makes provision about children with disabilities or special educational needs, school and other education, and governing bodies' powers; about Local Safeguarding Children Boards and in relation to publication of information relating to family proceedings. A number of provisions from the Bill were dropped to enable the Act to be passed before dissolution of Parliament for the general election. Provisions which were dropped included:

• Registration and monitoring of home education (following the review by Graham Badman)
• Introduction of compulsory Personal Social Health and Economic (PSHE) education - requiring that all children receive at least one year of compulsory sex and relationship education and lowering the age at which parents can withdraw their children from PSHE from 19 to 15 years old.
• Home School Agreements - making them more personalised for each pupil and new powers to enforce parents' responsibilities in supporting the school in maintaining good behaviour.
• Parental satisfaction surveys - which would have required local authorities proactively to seek parents' views on the range and quality of secondary school places.
• The Pupil and Parent Guarantees - guaranteeing entitlements for pupils and parents, including catch-up lessons, 1-2-1 tuition and small group support for pupils needing extra support.

The Act can be downloaded from the Office of Public Sector Information (OPSI) website.

April 2010

parents and schools, disabled children, family courts