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Waiting for the Children and Families Bill

By Sarah Hogarth -

The current law governing children proceedings is the Children Act 1989, which came into force in 1991. It has previously been described by Lord Mackay as “the most comprehensive and far-reaching form of child law.”

They key principles set out in the act are:

  • That the welfare of the child is to be the paramount consideration
  • That wherever possible, the courts should ensure to avoid delay and may only make an order if doing so is in the best interests of the child
  • The importance and implications of parental responsibility, whether the parent is living with the child or not.

Currently, new legislation entitled ‘The Children and Families Bill’ is being reviewed in the House of Lords. The Bill will reform policy for the family justice system, adoption and special education needs. Further, it will introduce a new system of shared parental leave and flexible working for parents.

In respect of the family justice system, the main changes to be made to improve the way the system operates are as follows.

Mediation

The new legislation will make it a requirement for parties to attend a family mediation, information and assessment meeting (MIAM), before issuing certain types of family proceedings. Mediation will facilitate a neutral environment for parties to attempt to reach amicable agreements and avoid court proceedings. It is a much more informal, cost effective and less emotionally draining way of resolving matters compared to litigation.

Child Arrangements Order

The existing Section 8 Residence and Contact Orders of the Children Act 1989 will be replaced by a single Child Arrangements Order. The Act defines a Child Arrangements Order as 'an order regulating arrangements relating to any of the following:

(a)    With whom a child is to live, spend time or otherwise have contact, and

(b)   When a child is to live, spend time or otherwise have contact with any person.'

In essence, this new order aims to focus parents on the needs of their child, rather than their own rights.

Shared parenting

The Bill aims to send a clear message to separated parents to start with the assumption that both parents should be involved in their child’s life. This, however, did cause initial confusion about whether the intention was that both parents should be entitled to equal time with their child. Parliament have now revised this heading to ‘Welfare of the child: Parental Involvement’, in order to send a clearer message of its objectives that both parents be involved in their child’s life, unless it would be inconsistent with the child’s welfare.

The Bill will reach the next stage of the process, the Report Stage, on 17 December 2013. It is anticipated to receive Royal Assent in early 2014.

Update 14/11/2016: The Bill got Royal Assent in March 2014, click here to read more

If you would like to know more about the issues covered in this article, Vardags offers a free consultation to qualifying individuals.

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Sarah Hogarth

As a senior associate, Sarah manages a caseload of her own, whilst also separately working as part of a larger team on some of the firm’s most complex...