1 Contact with children: the Hertfordshire perspective post 22 nd April 2014 Back to basics for private children law: the courts and government stripping.

1

Contact with children:

• the Hertfordshire perspective post 22nd April 2014

• Back to basics for private children law: the courts and government stripping out legal terms and changing procedures to encourage mediation

• Mediation in the context of court proceedings

2

My perspective

• Zen Thompson• Family Solicitor• Family Mediator• Professional Practice

Consultant• Direct Child

Consultant• In Court Mediator

3

The starting point

• Where there are no safety concerns, the parents are the best people to work out arrangements for their children

• Both parents have equal parental responsibility: they are the people who have the rights, duties, powers, and responsibilities in relation to their child (one of the few things that didn’t change on 22nd April 2014)

• The welfare of the child is paramount, not what the parents want

4

No Order Principle

• The Court will not make an order unless it considers that making an order would be better than making no order at all (Children Act 1989 s1(5))

5

Before Court

• Round the kitchen table• Negotiation between solicitors

(but since April 2013 not possible to get legal aid for legal advice or representation even on low income/capital unless person applying for legal aid can prove domestic violence, e.g. caution or conviction)

• Collaborative Law (no legal aid)

• Arbitration (no legal aid)• Mediation: still legal aid if on a

low income/capital

6

If that doesn’t work…• Apply to court if:• Urgent• Social services investigation ongoing• Social services child protection plan in

place• the applicant parent has been a victim

of domestic violence (very similar to criteria for legal aid):

• Not enough to say the police were called but no action taken. Have to show:

• Unspent conviction• Caution• Ongoing criminal proceedings• Injunction• Letter from social services or GP or

Refuge

7

If you can’t show one of those…

• The applicant (not the other parent) has to go to a MIAM

• Mediation Information and Assessment Meeting

• Has to be with an accredited mediator

8

What is a Mediation Information and Assessment Meeting (MIAM)?

• Confidential• Separate• To identify the issues• To explore the different

ways of resolving issues• For the mediator to

assess if mediation is suitable and safe

• For the mediator to assess how open the parent is to look at options

9

After the MIAM

• Mediator invites the other parent to a MIAM, then mediation can start

• Or• The Mediator can sign

the application form to confirm the applicant has been to a MIAM, and then the applicant can apply to court about their child

10

Up to 22nd April 2014: the Orders a Court could make

• Children Act 1989 s.8• A Contact Order: an order

requiring the person with whom a child lives to allow the child to visit or stay with the person named in the order, or for that person and the child otherwise to have contact with each other

• A Residence Order: an order settling the arrangements to be made as to the person with

whom a child is to live

11

The change

• Children and Families Act 2014 s.12:

• s.8(1) of the Children Act 1989 is amended as follows:

• Omit the definitions of Contact and Residence

• Insert Child Arrangements Order:

• An Order regulating arrangements relating to with whom a child is to live, spend time or otherwise have contact

12

Why change?• To make the wording of

arrangements for children more neutral

• To stop parents arguing about Shared or Joint Residence

• To simplify the law so that parents can resolve issues themselves: back to basics: s.11: a Court is to presume, unless the contrary is shown, that involvement of each parent in the life of the child concerned will further the child’s welfare, bringing the importance of parental responsibility back to the forefront

• But: still problem that only one parent can claim Child Benefit and Child Tax Credit and Child Maintenance, so labels still important

13

Also new: Child Arrangements Programme

• Court will consider suitability of mediation at every stage of the case

• Court will try to reduce delay as much as possible

• Court will try to have less hearings, particularly review hearings

• Court will try to have less CAFCASS reports

• Still very confusing and stressful and uncertain process for parents to go to Court: very high expectations for first hearing

14

Also New: Single Family Court

• No longer County Court, Magistrates Court, High Court, just Family Court Sitting at…

• Magistrates are now Lay Judges

• Single point of entry for applications, the Gatekeeper allocates the cases, in Hertfordshire not issue unless there has been a MIAM or an exception applies

• Aim in Hertfordshire: share private family cases between Judges and Lay Judges

15

First Hearing: Dispute Resolution Appointment

• CAFCASS will do safeguarding first

• If no safeguarding issues, then Court will encourage both parents to have a MIAM with the in court mediator

• It may be possible to progress issues through mediation at court or further mediation out of court, either in stead of or parallel to court proceedings

• Still confusing for the parent at Court: who is the Judge? Who is the CAFCASS Officer? Who is the Mediator?

16

How does mediation differ from other forms of negotiation?

• Parents in the same room• Parents have control of the

outcome• Parents can make proposals in

confidence and without prejudice• Parents can talk about their

issues in a safe and structured way

• Parents can get legal advice before making binding decisions

• Time between meetings is often as important as the meetings themselves

17

Child Inclusive Mediation / Direct Child Consultation

• Where parents consent, a specially trained mediator can meet their child to:

• Give their child a voice (but not for the child to make the decisions for the parents)

• Give the child a change to speak in confidence and feed back to the parents if the child consents

• This could be suitable in cases where the court only needs to assess a child’s wishes and feelings, would be quicker than CAFCASS report

18

What does the Mediator do?

• Normalises• Levels the playing field• Helps each parent listen to the

other and be listened to• Models positive

communication• Helps parents to find ways to

trust each other again• Manages the negotiation

process• Reality test options• Helps parents understand the

alternatives to mediation

19

How does mediation help children?

• Children can know that their parents are trying to sort out issues between themselves rather than going to Court

• Children can have a voice in mediation

• Mediation encourages constructive communication between parents

• Mediation looks at ways for parents to resolve issues in the future by themselves

20

What is happening in Hertfordshire?

• In Court Mediation is being expanded for hearings before (County Court) Judges and Lay Judges (Magistrates) in the same building

• Court and CAFCASS considering mediation more in stead of reviews, and use of Direct Child Consultation where only wishes and feelings need to be considered

• Around 40 mediators in Hertfordshire, different backgrounds and training, Pathway (Hertfordshire) set up this year to bring mediators together for the first time and promote mediation as a serious, professional service.

• www.brethertonlaw.co.uk