The government has this week responded formally to the Family Justice Review recommendations issued in November last year. In a wide ranging document, the Ministry of Justice and Department for Education have issued a number of commitments and proposals which adopt the vast majority of the Review recommendations. Marisa Allman, barrister at Zenith Chambers, summarises the response and provides some essential reading for all family law practitioners.
The Family Justice Review itself emphasised key changes which need to be made in the areas of;
- Reducing delay for children in both public and private law proceedings
- Greater sharing of information with children and parents about the process and parental and court roles
- Greater opportunity for children to be heard
- Improving leadership and coordination in the family justice system
Whilst the detailed legislative changes which the government will propose in order to implement the plans will not become clear until April 2012, a number of significant commitments are made by the government in this document, and steps have already been taken to implement some of the recommendations, in particular the establishment of a Family Justice Board is in progress, and Mr Justice Ryder has been appointed the Judge in Charge of Modernisation.
Structural changes which will affect family justice across the board will include the establishment of a single family court with a single point of entry, and the government are considering a ‘track’ allocation system. There will be increased emphasis on electronic communication and resources.
It is also clear that there will be increased emphasis on what takes place pre-proceedings for both public and private law arenas. Alternative Dispute Resolution is to be re-branded a ‘Dispute Resolution Service’, and the starting point will be that it is not right to seek court intervention until dispute resolution has been tried. A number of proposals are being explored including;
- Involving a guardian pre-proceedings in public law cases
- The possibility of mediation in private law cases
- Statutory reform to reinforce the requirements for dispute resolution to be attempted pre-issue
- Establishing an improved dispute resolution service outside the court.
- Making parenting information programmes available pre-issue of proceedings
The most significant driving factor in the arena of public law is undoubtedly the reduction of delay for the children concerned. The government has indicated that it will introduce legislative changes intended to reduce delay, backed by a raft of other changes intended to address the various components of proceedings which currently elongate timetables. Proposals include;
- Increased judicial role and continuity in deciding and giving effect to the court timetable, including the length of interim orders
- Reduced court scrutiny of care plans
- Reduced use of expert evidence, in particular the government intends to legislate to provide that permission will only be given for expert evidence where it is necessary to resolve the issues and where the information is not already available from other sources
- The requirement for adoption panel approval prior to a placement order will be removed
- Work to improve court skills for social workers, and greater emphasis on evidence based social work to ensure ‘more credible evidence’.
In the field of private law, the government has crucially made a proposal to go beyond the recommendation of the Family Justice Review and reinforce in legislation the principle that where there are no significant welfare issues it is in the best interests of children to have a full and continuing relationship with both parents.
The government have also indicated that it will look at replacing the current framework of contact and residence orders with child arrangement orders, intended to reinforce the equal significance of both parents for the child.
Parenting Agreements for separating couples will be encouraged, and the indicators suggest that they will be given significant weight if arrangements break down.
The progress of the government’s proposals will be reviewed in April 2013. In the meantime, in respect of financial remedies, the law commission project looking at pre-nuptial agreements is to be extended to include a limited reform on the substantive law on Financial Orders relating to needs and non matrimonial property. The project will take around 18 months to complete. The Law Commission will then undertake a separate project to make recommendations for improving the enforcement of Financial Orders.