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06 FEB 2012

Hayley Trim's Analysis: The Government's response to the Family Justice Review – What happens now?

Hayley Trim, Family Law PSL The Government has accepted most of the proposals put forward in the Family Justice Review (FJR), although unsurprisingly there is a degree of caution where the proposals have major cost consequences. There is an expressed commitment is to implement change as quickly as possible and to table legislation and put in place preparatory measures for more long terms aims. The full response can be found here. I have drawn out a few observations below.

Private law

The headline as far as the papers are concerned is the Government's departure from the recommendation of the FJR that there should not be a statutory presumption of shared parenting. The Government is explicit that the child's needs will remain paramount, but its terminology varies at different parts of the response. At one stage it says "the Government believes that there should be a legislative statement of the importance of children having an ongoing relationship with both their parents after family separation, where that is safe, and in the child's best interests," and stresses that there will need to be careful consideration of how legislation is framed to make it clear "that a meaningful relationship is not about equal division of time, but the quality of parenting received by the child." It goes on "the changes will make it clear that the court should consider an ongoing relationship with both parents as something that in most cases will contribute to the child's welfare - and should look at the question through this lens, of what is best for the child - rather than as a ‘right' for the parents." That is difficult to argue with, but is different from the reference to a "presumption of shared parenting" which follows. I am reserving judgment until I have seen what is actually proposed. It feels as though two different forms of words are being used - one to excite the public and grab headlines, and another to appease the lawyers.

There will be online support for separating parents which is to be their first port of call, the web service being commissioned later this year and a telephone service in 2013. Parents will be encouraged to enter Parenting Agreements, and, if they cannot agree, to MIAMs, PIPs and Dispute Resolution Services, and failing which to the court (single point of entry, allocated to an appropriate track, judicial continuity and rigorous case management). Statutory reform is proposed to reinforce the requirement to attend a MIAM.

The terms "residence" and "contact" will be abolished to be replaced with a Parenting Arrangements Order. The Government goes further than the FJR saying it will look at other enforcement methods and that a strong warning should be sent out at the outset of proceedings.

Public law

Here the focus is on reducing delay. Legislation will be tabled for a six month time limit on care proceedings which can be extended in exceptional cases if the judge considers it appropriate. Legislation is proposed to require courts to consider if expert evidence is really necessary. The Government will develop quality standards for expert witnesses and there will be a fresh pilot of the multidisciplinary team approach.  The court will be able to make interim care orders for longer periods of up to six months. The proposal to abolish issue fees for care proceedings was rejected.

Sadly (despite acknowledging that it shows promise) there is no firm commitment to a national roll out of the Family Drug and Alcohol Court - there will be evaluation of the London pilot and funding needs to be found.

Divorce and finances

As envisaged by the FJR, the Government proposes that undefended divorces be dealt with administratively rather than judicially. It is not clear how quickly the facility to deal with the process online could be put in place, but it is accepted in principle that the process should start with the new information hub.

The Law Commission's remit of looking at nuptial agreements has been broadened marginally to take into account the definition of needs and the treatment of pre-acquired/inherited/gifted property, and further consultation questions will be sent out later this year. I wonder how much this sort of piecemeal approach can achieve for the vast majority of divorcing couples.

Hayley Trim is a Family Law PSL at Jordan Publishing and was formerly a family solicitor practising in London.

She works on the Family Law online major works providing updating notes on cases and other relevant developments as they happen for The Family Court Practice, Children Law and Practice and Matrimonial Property and Finance online.

Contact Hayley on Twitter: @HayleyTrim

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