Rupert Chapman

A revolution in private law proceedings? New Private Law regime introduced

As of the 22nd of April a new regime for private law children applications has come into force, replacing the previous Pre-Application Protocol and Private Law Programme. The key features of the new regime, which is brought into effect by the Children and Families Act 2014 are:

  1. Mediation Information and Assessment meetings are to be made compulsory before any party may issue an application.
  2. Parents are to be encouraged to devise a parenting plan to use in mediation and in any proceedings.
  3. The introduction of a Child Arrangements Programme (CAP), which governs the process and procedure for resolving such issues.
  4. There will be an initial First Hearing Dispute Resolution Appointment (FHDRA) 5 to 6 weeks after issue at which the court will assist the parties (with CAFCASS and possibly a mediator) to resolve the issues. The respondent should have 10 working days notice.
  5. If the issues are not resolved then the case will either;
    1. Be adjourned for mediation or other alternative dispute resolution or to seek information about such resources,
    2. Be listed for a Dispute Resolution Appointment (DRA) after the completion of any CAFCASS/Expert report or the SPIP, or
    3. Be listed for a fact-finding hearing where appropriate, or
    4. Be listed for a final hearing,
  6. Where resolution is not achieved a case management order should be prepared, including on its face;
    1. The issues which are agreed,
    2. The issues which are not agreed,
    3. The steps planned to resolve those issues,
    4. Any interim arrangements being made,
    5. The timetable including dates for hearings, which must be obtained before the parties leave the court,
    6. A statement as to any facts relating to risk or safety including whether those facts are in dispute,
    7. Any directions or conditions imposed by the court,
    8. The date, time and venue of the next hearing, and
    9. Whether the author of any s.7 report is to attend the hearing,
  7. At a DRA the court will;
    1. Identify the issues,
    2. Consider whether the DRA can be used as a final hearing,
    3. Resolve or narrow the issues by hearing evidence,
    4. Identify the evidence to be heard on any remaining issues,
    5. Give final case management directions.
  8. A presumption of continued parental involvement has been introduced to s.1 of the Children Act 1989 and is applicable to applications for s.8 orders, parental responsibility and special guardianship. Such involvement, whether direct or indirect, will be presumed (unless shown otherwise) to be in the best interests of the child. Each parent is entitled to such involvement if it does not put the child at risk of harm.
  9. Residence orders and Contact orders are removed from s.8 and replaced by ‘Child Arrangement Orders’ which will define with whom a child is to live or have contact with and for what period of time.
  10. When a CAO is made stating that the child will live with an unmarried father without PR the court must make a separate parental responsibility order in his favour.
  11. When a CAO is made stating that the child will spend time with an unmarried father without PR the court must consider whether to make a separate parental responsibility order in his favour.
  12. Cases should not be adjourned for review unless the hearing has a clear purpose, is necessary and to do is consistent with the child’s timetable.

The new regime is supported by guidance in a series of practice directions, particularly a new PD 12(B) issued on 22nd April 2014. CAFCASS safeguarding procedures immediately after issue continue to apply. If a safeguarding letter is unavailable the court may adjourn for no longer than 28 days. Revised versions of PD 12J (Domestic Violence and fact-finding hearings) and 27A (Bundles) have also been provided, as well as guidance on allocation. New forms will be provided for use by the court and practitioners in preparing court orders, as well as new application forms.

Rupert Chapman

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