Key points from this report include:
“The draft clauses on family justice cover a wide range of public and private family law, and largely follow the recommendations of the Norgrove Report. We broadly welcome the draft clauses, but we have significant concerns about the clause on shared parenting.
We are less positive about the private law clauses. As regards the family mediation,information and assessment meeting (MIAM), we welcome the focus on mediation and the compulsory nature of the MIAM for applicants; but are disappointed that the Government has not addressed quality standards for mediators, a matter that we raised in our 2011 Report, Operation of the Family Courts. We also remain sceptical about the likely effect of the draft clause on Child Arrangements Orders, and recommend that the Government reconsider the cross-jurisdictional implications of the proposed changes. The draft clauses on divorce are necessary and proportionate.
We maintain significant concerns about any legislative statement, be it a presumption or otherwise, that might detract from the principle that the best interests of the child are paramount. If the Government decides to introduce the draft clause on shared parenting, we recommend that the revisions we have suggested are considered and adopted. We believe that the absence of enforcement of Court orders is a bigger factor in the perception problem than the content of those orders. It is regrettable that the Government has not brought forward draft legislation on enforcement for us to consider as part of this prelegislative scrutiny.
This is a period of great change for all involved in the family justice system, and it is important to consider the draft clauses in the light of other proposed changes. Of equal importance is the establishment of comprehensive data collection processes, in order that the effect of individual clauses and the combined clauses can be recorded and analysed.
Changes to Family Procedure Rules laid before Parliament
As you may be aware, the Family Justice Review made a number of recommendations to improve the use of experts in family proceedings.
The intention is to make changes to ensure expert evidence is used only where it is necessary, in the opinion of the court, to assist the court in resolve the proceedings. Changes are also intended to address the culture identified by the Review of over-use of expert reports in care proceedings, even when they add little value.
As part of this process of change, the Family Procedure Rule Committee (FPRC) has developed a number of amendments to Part 25 of the Family Procedure Rules (FPR), which deal with experts and assessors. The Family Procedure Rules govern the procedures used in family courts in England and Wales.
Today the amendments to these rules were laid before Parliament and they will be available shortly on the legislation website. The rules insert a new Part 25 (Experts and Assessors) into the Family Procedure Rules 2010.
The changes to the existing Part 25 include the following:
• a change to the test for permission to put expert evidence before the court from 'reasonably required' to 'necessary'. In proceedings relating to children, the new test also applies to permission to instruct an expert and for a child to be examined or assessed to obtain expert evidence for use in the proceedings;
• the inclusion of specific factors which the court should consider when deciding whether to give permission for expert evidence, including the impact on the timetable and conduct of the proceeding and the cost. Additional factors are included for proceedings relating to children. These include what other expert evidence is available (including any obtained before the start of proceedings) and whether the evidence could be obtained from another source such as one of the parties;
• in proceedings relating to children, an application for permission to instruct an expert should state the questions which the expert is required to answer which the court needs to approve.
The rules will come into force on 31 January 2013 and will apply to existing proceedings as well as proceedings started after that date. New Practice Directions (which provide supplementary guidance to support the FPR) will also take effect on 31 January 2013.
Once in force, the rules and Practice Directions will be available on the Family Procedure Rules section of the Ministry of Justice website.
This is a first step in a comprehensive programme to tackle the current delays in care proceedings which are unacceptable and not in children's interests.
The Government's proposed family justice legislation, which includes provisions on expert evidence, will, if passed, eventually supersede parts of the amended FPR. This Bill is currently undergoing pre-legislative scrutiny. We will keep you updated with progress.