Friday, 14 December 2012

Justice Committee Pre-Legislative Scrutiny - Private family law matters

My thanks to Ross Jones of Families Need Fathers for having waded through this today and picked out the salient points, saving the rest of us from going cross-eyed!

Justice Committee Pre-Legislative Scrutiny of The Children and Families Bill: Shared Parenting Section Summary (pages 35-67)

  • The Committee heard evidence that expressed concerns about the role of mediators in filtering out domestic violence cases from mediation at the Mediation Information Assessment Meeting (MIAM) stage. 
  •  The Government has clarified to the Committee that they will ask the President of the Family Division to agree to amend the current definition of domestic abuse in the Pre-Action Protocol to mirror that in the Legal Aid, Sentencing and Punishment of Offenders Act 2012 in the provision for exemptions from MIAMs (paragraph 96)
  • The Committee recommends that the Government should work with mediation organisations to consider how the child’s voice could be heard within MIAMs (paragraph 101).
  • Concerns were expressed about training and national standards for privately-funded mediators. The committee recommends that privately-funded mediators should have to meet the current requirements for mediators undertaking legal aid work set by the Legal Services Commission. (paragraphs 102-104) 
  • Clarification is needed on the role of court officers in deciding whether the MIAM process has been complied with. The Government needs to clarify that decisions about the merits of compliance should lie with a judge (paragraph 107) 
  • The Government has confirmed that legal aid funding will be available to cover MIAMs, as well as mediation (paragraph 115)
  • The Committee recommends that where agreements made in mediation have broken down within 6 months, parents should be exempt from undertaking (and paying for) the MIAM process again before applying to court (paragraph 119) 
  • The Committee requests clarification on the policies and practical measures to be put in place to assist litigants in person who are not entitled to legal aid nor considered suitable for mediation (for reasons unrelated to domestic violence). 
  •  The intention of the proposed replacement of Contact and Residence Orders with Child Arrangements Orders (CAOs) is to removed the perception of ‘winners and losers’ in family proceedings, which exacerbates the adversarial nature of these cases. 
  • The Committee believes that shared residence orders are a better way of removing the perception of winners and losers than CAOs (paragraph 130) 
  • To avoid difficulties in cross-jurisdiction cases (where interpretation of CAOs are initially unclear or ambiguous to foreign jurisdictions, creating delays in proceedings), the Committee recommend s that the individual elements of CAOs be separately set out within the draft clause, leaving one order but with clearer contents (who the child lives with, when they see the other parent, etc) (paragraphs 131-139) 
  • The draft Clause should set out that the person with whom the child is to live has rights of custody for purposes of the Hague Convention and other relevant international family law treaties (paragraph 138).
  • The Committee, examining Edward Timpson’s evidence, consider the Government’s goal to be to tackle the perception of bias in the system (which the Committee considers to have no basis in fact) and encourage parents to make private shared parenting arrangements, rather than change the content of final orders (paragraph 153) They want the Government to make clear whether they intend the legislation to change the content of Orders or not.
  • The Committee considers the problems with enforcement are a greater factor in perception of the courts than legislation on shared parenting, and that a shared parenting clause is unlikely to change perceptions on its own (paragraph 154, 187, 188) 
  • Regarding perception of the Courts, the Committee is keen to hear whether the Government plans to legislate to increase transparency and openness in the family courts (paragraph 155) 
  • They believe that the clause would operate as a double rebuttal, whereby first a judge must consider whether the parent can be involved without posing a risk of harm, and then (even if they can be so involved), whether that involvement is consistent with the child’s welfare. The Committee do not have concerns about a double rebuttal in theory, but worry about impact on litigants in person (paragraph 171)
  • The Committee agrees that the legislation does not give or imply equal time, but are concerned that parents will misunderstand this as ‘involvement’ is left undefined (paragraph 178)
  • The Committee believes that to avoid this, the name should be changed from ‘shared parenting’ to ‘parental involvement’, and ‘involvement’ defined in legislation. “If ‘involvement’ is not defined, we expect the Appeal Courts will be required to define it” (paragraph 179) 
  • They believe that the amount of cases will increase in the short term as parents, lawyers and courts work out how the clause operates in practice. They draw no conclusions on future affects as they believe other changes (increasing number of litigants-in-person, encouragement of mediation etc) make the UK context very different to jurisdictions where research on the impact on the number of cases has been carried out (paragraph 184) 
  • They worry that the impact of the legislation would create a perception amongst those entering the system that there is a right to equal time, and that those outside the system would consider this to be the case (thereby discouraging those suffering abuse from using the family justice system (paragraph 189)
  • Change name from ‘shared parenting’ to ‘parental involvement’ 
  • Introduce following sections to clarify meanings of harm and involvement (page 69-70): (7) In subsection (2A) “unless the contrary is shown” means that the presumption contained in subsection (2A) is rebutted on one or both of these grounds - (a) that the involvement of the child’s parent would put the child at risk of suffering harm; or (b) that the involvement of the child’s parent would not further the welfare of the child. (8) In subsection (2A) “involvement” - (a) means, where the presumption applies, a relationship between child and parent; (b) does not mean or indicate any right of either parent to any specific quantity of time with the child.