Revolution or Evolution?

Over recent months we have been highlighting proposed changes to the family law system in England and Wales.  Now those changes are very much with us, having come into force on 22nd April 2014, and they can be seen in all their glory, for better or for worse.  They represent a considerable change to the way family work is administered, and they affect every person using the court system, with or without a solicitor.

The changes can broadly be summarised as follows:-

The previous complex system of multiple courts dealing with family law cases, for example divorce, related finance disputes or children issues, has been completely replaced by one single Family Court, making it easier for the public to access.  The aim is to ensure that the right level of Judge is appointed to a particular case, in the right geographical location.  Overall, it is envisaged that this will streamline cases, reducing the delays that have dogged family cases over the years.

However, no family dispute can reach the new Family Court without the parties first embarking upon mediation (now to be called ‘Non-Court Dispute Resolution’) to attempt to settle their differences.  It is now a rule, backed by an Act of Parliament, that court proceedings cannot be issued in almost any family case without mediation being undertaken first.  If mediation fails at that stage, only then can court action be taken.

In children cases involving separating or divorcing parents, the previous naming conventions for the orders addressing where a child will reside (Residence Order) and the arrangements for the other parent to see that child (Contact Order) have been abolished and replaced with one term governing both, namely a ‘Child Arrangement Order’.  Accordingly, any court dealing with such disputes must use only this term, although in practice it will still define the living arrangements for a child in exactly the same way.  So, why the change?  It could be said that this is just a new label for the same thing.  However, the reasoning behind the change is to avoid causing further tension between parents, as it is felt that the term ‘Residence Order’ could denote a victory for the parent acquiring one, which could fuel future parental resentment.

All children cases proceeding through the courts will follow a Child Arrangements Programme as they progress.  The aim of this procedure is to promote settlement at all stages, and indeed the court may actively consider referring cases to mediation at any stage of the action.

The use by the court of standard form court orders has been implemented, catered to fit all cases.  They are edited and tailored to fit the order made by the court in any particular case.

It is not yet possible to say accurately how these new rules have impacted the administration of family law cases, although we have already noticed an increased delay in the listing of hearing dates, problems with the court processing and issuing of paperwork, and teething problems with the use of what are clearly impractical and very lengthy standard court orders.

The changes are undoubtedly aimed at promoting a swift, fair settlement of disputes and minimising bad feeling between the parties.  The question is: are we seeing a genuine, wise and radical rethink of an old and tired system, a natural progression of existing rules with no practical benefit, or merely change for the sake of change?

Over the years many attempts have been made to speed up the family law system, to promote compromise without fanning the flames of family tensions.  They have not always worked.  The question of whether this latest raft of changes will provide the answer lies in how they work in practice. In these very early days, the jury is out as to whether they will bear fruit.

Tanya Jamal, Associate Solicitor
taj@blasermills.co.uk
01923 725 015