From 22 April 2014, it will be compulsory for any person seeking to make a ‘relevant family application’ to attend a MIAM before commencing proceedings.
During the MIAM, the mediator will explain what mediation is, how it works, the likely costs and the benefits of mediation and other appropriate forms of resolving disputes,
A ‘relevant family application’ includes most applications in respect of children or financial remedy, with limited exceptions.
This provision is designed to encourage separating couples to consider mediation as an alternative to litigation.
2. Parental Involvement
CFA 2014 introduces a presumption into the Welfare Checklist of the Children’s Act 1989 (CA 1989) that, unless there is evidence to the contrary, the involvement of each parent in a child’s life will further the welfare of that child. Here ‘involvement’ is defined as “involvement of some kind, either direct or indirect, but not any particular division of a child’s time.” In addition the definition of ‘parent’ excludes parents who would “put the child at risk of suffering harm.”
The Court will need to have regard to this presumption whenever it is considering one of the following applications:
- For a Child Arrangement Order or for the variation / discharge of such orders;
- For a Special Guardianship Order or for variation / discharge of such orders;
- For Parental Responsibility Orders;
- For an order to remove Parental Responsibility.
The Government have explained the rationale behind this amendment namely that it is hoped it will “send an important message to parents about the valuable role which they both play in their child’s life” and “….encourage separated parents to adopt less rigid and confrontational positions with regard to arrangements for their children.”
Despite much discussion in the media to this affect, the amendment does not provide for the a presumption of a shared parenting arrangement and the definition of “involvement” was specifically amended in order to make it clear that continued parental involvement does not require a particular division of a child’s time.
This provision is not yet in force.
3. Child Arrangements Orders
Going forward Residence and Contact Orders have been replaced by Child Arrangements Orders. These set out the arrangements as to where a child will live and who a child will spend time/ have contact with. This is a single order as opposed to the previously separate Residence and Contact Orders.
Contact Orders and Residence Orders made before the 22 April 2014 will be deemed to be child arrangements orders in respect of either:
a) with whom and when a child is to spend with or otherwise have contact with a person (for contact orders); or
b) with whom and when a child is to live with a person (for residence orders).
Other than the change in terminology, which will result in a wealth of amendments needing to be made to existing legislation and Court documents, the practical impact of this change remains to be seen.
4. Expert evidence
The CFA 2014 provides that the permission of the Court must be obtained in order to instruct an expert in private proceedings relating to children. Any application to instruct an expert must show that this evidence is ‘necessary’ to assist the court to resolve the proceedings justly.
These changes mirror and provide a statutory basis for the changes to Part 25 of the Family Proceedings Rules 2010 which were bought in on 31 January 2013.
The CFA 2014 removes the requirement of the Court to consider whether to exercise its powers under the CA 1989 on the divorce/dissolution of a couple with children.
Prior to the commencement of this Act the Court was be required in every case to send out a certificate confirming whether or not there was a need to exercise its powers under the CA 1989. Under this these certificates will no longer be sent out and statements of arrangements for children will no longer need to be filed either.
These changes have been bought in in order to save Court time and resources as it was noted that in the vast majority of cases the Court did not consider it necessary to exercise its powers in respect of the children.