Family Justice Reforms 2014: The Impact On Case Law One Year On

Family lawyers have been held to account by the upper court for compliance with new and existing Practice Directions resulting from Family Justice Reforms implemented on 22 April 2014. Yet the new terminology for Child Arrangements Orders (s12 Children and Families Act 2014) has yet to become a feature of case law, Resolution members heard from a case law update at their 2015 conference.

In the Children Case Law update by Elspeth Thomson (David Grey Solicitors) and Samantha Little (Russell-Cooke Solicitors), Elspeth had assumed that one year on, she would be reviewing private law cases relating to the court’s interpretation of the Child Arrangement Orders (s12 Children and Families Act 2014). She had expected cases to be discussing points such as the meaning of ‘spending time with’ and ‘living with’ and from October 2014, ‘continued parental involvement’ (s11). She had found no cases.

Elspeth offered a number of reasons for this:

• it might be too soon for cases to have reached court
• private law applications have dropped,
• matters are resolved out of court
• the rise in litigants in person as a result of cuts in legal aid mean that legal points that could be employed as a result of the new Act are not well understood
• The introduction of ‘gate-keeping’ means more cases are being dealt with further down the judicial tree or
• That legislative changes have not impacted to a significant degree because the principles introduced in the Act such as ‘parental involvement’ (Section 11, amendment to section 1 of the Children Act 1989) were already being followed by practitioners.

Compliance, or rather non-compliance, with new Practice Directions however, did arise in a number of upper court appeals; in one case President of the Family Law Courts, Lord Justice Munby warned that non-compliant practitioners will risk being named and shamed and that practitioners must comply with Practice Direction 27A on the format of bundles (Re L (A CHILD) [2015] EWFC 15), Seagrove re Sullivan [2014] EWHC 4110 reiterated that bundles need to be fewer than 350 pages; and finally practitioners cannot change the court timetable without involving the courts (Re W (CHILDREN [2014] EWFC 22).

In terms of case law, therefore the message to practitioners is to know and act on new and changed Practice Directions – the courts are leading the way in holding family lawyers to account.