5 Schedule of draft clauses with our
proposed revisions
200. Our proposed deletions are marked with a strike-through,
our proposed insertions are marked with underlining.
1 Family mediation information and assessment
meetings
(1) Before making a relevant family application,
a person must attend a family mediation information and assessment
meeting.
(2) Family Procedure Rules.
(a) may provide for subsection (1) not to apply
in circumstances specified
in the Rules,
(b) may make provision about convening a family
mediation information
and assessment meeting, or about the conduct
of such a meeting,
(c) may, in relation to cases where a person
makes or seeks to make a relevant
family application, make provision about
the determination by the
court, or by an officer of the court,
of.
(i) whether subsection (1) applies, and
(ii) if subsection (1) does apply, whether it
has been complied with, and
(d) may make provision for the court, or an officer
of the court, to refuse to
deal with any
issue a relevant family application in relation to which
it is
the court has determined that, in contravention of subsection
(1), the applicant has not attended a family mediation information
and assessment meeting.
(3) Provision as mentioned in paragraph (c) of
subsection (2) may, in particular,
include provision for the court, or an
officer of the court, to make a
determination mentioned in that paragraph
after considering only evidence of
a description specified in Family Procedure
Rules.
(4) In this section.
"approved mediator" means
a mediator who satisfies such training and quality assurance standards
as the Lord Chancellor may by regulations specify;
"the court" means the High Court
or the family court;
"family application"
means an application made to the court in, or to
initiate, family proceedings;
"family mediation information and
assessment meeting", in relation to a
relevant family application, means a
meeting held with an approved mediator for the purpose
of
enabling information to be provided about.
(a) mediation of disputes of the kinds to which
relevant family
applications relate,
(b) ways in which disputes of those kinds may
be resolved
otherwise than by the court, and
(c) the suitability of mediation, or of any such
other way of
resolving disputes, for trying to resolve
any dispute to which
the particular application relates;
"family proceedings" has the
same meaning as in section 75 of the Courts
Act 2003;
"relevant family application"
means a family application of a description specified in Family
Procedure Rules.
(5) This section is without prejudice to sections
75 and 76 of the Courts Act 2003 (power to make Family Procedure
Rules).
1A Shared parenting
Parental involvement
(1) Section 1 of the Children Act 1989 (welfare of
the child) is amended as follows:
(2) After subsection (2) insert -
"(2A) A court, in the circumstances mentioned
in subsection (4)(a) or (7)(9),
is as respects each parent within subsection (6)(a) to presume,
unless the contrary is shown, that involvement of that parent
in the life of the child concerned will further the child's welfare."
(3) After subsection (5) insert:
"(6) In subsection (2A) "parent"
means parent of the child concerned; and, for the purposes of
that subsection, a parent of the child concerned -
(a) is within this paragraph if that parent can
be involved in the child's life in a way that does not put the
child at risk of suffering harm; and
(b) is to be treated as being within paragraph (a)
unless there is some evidence before the court in the particular
proceedings to suggest that involvement of that parent in the
child's life would put the child at risk of suffering harm whatever
the form of the involvement.
(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.
(9) The circumstances referred to are that the
court is considering whether to make an order under section 4(1)(c)
or (2A) or 4ZA(1)(c) or (5) (parental responsibility of parent
other than mother)."
2 Child arrangements orders
(1) Section 8(1) of the Children Act 1989 is
amended as follows.
(2) Omit the definitions of "contact order"
and "residence order".
(3) After "In this Act—" Insert—
" "child arrangements order"
means an order regulating
arrangements relating to any of the following—
(c) with whom a child is to live, spend
time or otherwise
have contact, and
(d) when a child is to live, spend time
or otherwise have
contact with any person;".
(a) with whom a child is to -
(i) live,
(ii) spend time, or
(iii) otherwise have contact; and
(b) when, with any person, a child
is to -
(i) live,
(ii) spend time, or
(iii) otherwise have contact.
(4) Schedule 1 (amendments relating to child
arrangements orders) has effect.
(5) "rights of custody" under the
Hague Convention [and other relevant treaties, legislation
etc. to be inserted here] are determined by an order made
under subsection (3)(a)(i).
3 Control of expert evidence, and of assessments,
in children proceedings
(1) A person may not without the permission of
the court instruct a person to provide expert evidence for use
in children proceedings.
(2) Where in contravention of subsection (1)
a person is instructed to provide expert evidence, evidence resulting
from the instructions is inadmissible in children proceedings
unless the court rules that it is admissible.
(3) A person may not without the permission of
the court cause a child to be medically or psychiatrically examined
or otherwise assessed for the purposes of the provision of expert
evidence in children proceedings.
(4) Where in contravention of subsection (3)
a child is medically or psychiatrically examined or otherwise
assessed, evidence resulting from the examination or other assessment
is inadmissible in children proceedings unless the court rules
that it is admissible.
(5) In children proceedings, a person
may not without the permission of the court put expert evidence
(in any form) before the court.
(6) The court may give permission as mentioned
in subsection (1), (3) or (5) only if the court is of the opinion
that the expert evidence is necessary to assist
enable the court to resolve the proceedings justly.
(7) When deciding whether to give permission
as mentioned in subsection (1), (3) or (5) the court is to have
regard in particular to.
(a) any impact which giving permission
would be likely to have on the welfare of the children concerned,
including in the case of permission as mentioned in subsection
(3) any impact which any examination or other assessment would
be likely to have on the welfare of the child who would be examined
or otherwise assessed,
(b) the issues to which the expert evidence
would relate,
(c) the questions which the court would
require the expert to answer,
(d) what other expert evidence is available
(whether obtained before or after the start of proceedings),
(e) whether evidence could be given by
another person on the matters on which the expert would give evidence,
(f) the impact which giving permission
would be likely to have on the timetable, duration and conduct
of the proceedings,
(g) the cost of the expert evidence, and
(h) any matters prescribed by Family Procedure
Rules.
(8) References in this section to providing expert
evidence, or to putting expert evidence before a court, do not
include references to.
(a) the provision or giving of evidence.
(i) by a person who is a member of the
staff of a local authority or of an authorised applicant,
(ii) in proceedings to which the authority
or authorised applicant is a party, and
(iii) in the course of the person's work
for the authority or authorised applicant,
(b) the provision or giving of evidence.
(i) about the matters mentioned in subsection
(1) of section 94 of the Adoption and Children Act 2002 (suitability
for adoption etc.), and
(ii) by a person within a description
prescribed for the purposes of that subsection,
(c) the provision or giving of evidence
by an officer of the Children and Family Court Advisory and Support
Service in that capacity, or
(d) the provision or giving of evidence
by a Welsh family proceedings officer (as defined by section 35(4)
of the Children Act 2004) in that capacity.
(9) In this section.
"authorised applicant" means.
(a) the National Society for the Prevention
of Cruelty to Children,
or
(b) a person authorised by an order under
section 31 of the Children Act 1989 to bring proceedings under
that section;
"child" means a person under the
age of 18;
"children proceedings" has such meaning
as may be prescribed by Family Procedure Rules;
"the court", in relation to any children
proceedings, means the court in which the proceedings are taking
place;
"local authority" -
(a) in relation to England means.
(i) a county council,
(ii) a district council for an area for which
there is no county council,
(iii) a London borough council,
(iv) the Common Council of the City of London,
or
(v) the Council of the Isles of Scilly, and
(b) in relation to Wales means a county council
or a county borough council.
(10) The preceding provisions of this section
are without prejudice to sections 75 and 76 of the Courts Act
2003 (power to make Family Procedure Rules).
(11) In section 38 of the Children Act 1989 (court's
power to make interim care and supervision orders, and to give
directions as to medical examination etc. of children) after subsection
(7) insert.
"(7A) A direction under subsection
(6) to the effect that there is to be a medical or psychiatric
examination or other assessment of the child may be given only
if the court is of the opinion that the examination or other assessment
is necessary to assist the court to resolve the proceedings justly.
(7B) When deciding whether to give a direction
under subsection (6) to that effect the court is to have regard
in particular to.
(a) any impact which any examination or
other assessment would be likely to have on the welfare of the
child, and any other impact which giving the direction would be
likely to have on the welfare of the child,
(b) the issues with which the examination
or other assessment would assist the court,
(c) the questions which the examination
or other assessment would enable the court to answer,
(d) the evidence otherwise available,
(e) the impact which the direction would
be likely to have on the timetable, duration and conduct of the
proceedings,
(f) the cost of the examination or other
assessment, and
(g) any matters prescribed by Family Procedure
Rules."
201. As to draft clause 4, we recommend that the
clause is redrafted to follow the Norgrove Report recommendation
that the power to set a time limit is introduced in primary legislation,
with secondary legislation to specify the actual time limit and
provide operational detail. If the Government does not follow
our recommendation we recommend the following revisions to the
existing draft clause.
4 Time limits in proceedings for care or supervision
orders
(1) Section
32 of the Children Act 1989 (disposal of application for care
or supervision order) is amended as follows.
(2) In
subsection (1)(a) (timetable to dispose of application without
delay) for
"application without delay; and"
substitute "application—
(i) without delay, and
(ii) in any event within twenty-six weeks beginning
with on the day on which the application was issued; and."
(3) After
subsection (2) insert.
(3) A court, when drawing up a timetable under
subsection (1)(a), must in particular have regard to.
(a) the impact which the timetable would have
on the welfare of the child to whom the application relates; and
(b) the impact which the timetable would have
on the conduct of the proceedings.
(4) A court, when revising a timetable drawn
up under subsection (1)(a) or when making any decision which may
give rise to a need to revise such a timetable (which does not
include a decision under subsection (5)), must in particular have
regard to.
(a) the impact which any revision would have
on the welfare of the child to whom the application relates; and
(b) the impact which any revision would have
on the duration and conduct of the proceedings.
(5) A court in which an application under this
Part is proceeding may extend the period that is for the time
being allowed under subsection (1)(a)(ii) in the case of the application,
but may do so only if the court considers that the extension is
necessary to enable the court to resolve the proceedings justly.
(6) When deciding whether to grant an extension
under subsection (5), a court is to take account of the following
guidance: extensions are not to be granted routinely, but
are to be seen as exceptional and as requiring
and require specific justification.
(7) Each separate extension under subsection
(5) is to end no more than eight weeks
after the later of.
(a) the end of the period being extended;
and
(b) the end of the
day on which the extension is granted.
(a) except as regards applications where subsection
(7)(b) applies, no more than eight weeks after the later of.
(i) the end of the period being extended;
and
(ii) the end of the day on which the extension
is granted.
(b) for applications where the court decides
that additional time beyond that set out in subsection (1)(a)
or (7)(a) is or will be required for completion of court approved
intervention programmes, treatments, training or similar activities
for the parent or child's benefit, on such date as the court orders.
(8) The Lord Chancellor may by regulations amend
subsection (1)(a)(ii), or the opening words of subsection (7),
for the purpose of varying the period for the time being specified
in that provision.
(9) Rules of court may provide that a court.
(a) when deciding whether to exercise the power
under subsection
(5), or
(b) when deciding how to exercise that power,
must, or may or may not, have regard to
matters specified in the rules, or must take account of any guidance
set out in the rules.."
(4) In
subsection (1) (court's duty, in the light of rules made by virtue
of subsection (2), to draw up timetable and give directions to
implement it).
(a) for "hearing an application for an order
under this Part. substitute "in which an application for
an order under this Part is proceeding", and
(b) for "rules made by virtue of subsection
(2))" substitute "provision in rules of court that is
of the kind mentioned in subsection (2)(a) or (b))".
(5) In
section 38 of the Children Act 1989 (interim care and supervision
orders).
(a) in subsection (4) (duration of interim order)
omit.
(i) paragraph (a) (order may not last longer
than 8 weeks), and
(ii) paragraph (b) (subsequent order generally
may not last longer than 4 weeks),
(b) in that subsection after paragraph (d) insert.
"(da) in a case which falls within subsection
(1)(b) and in which—
(i) no direction has been given under section
37(4), and
(ii) no application for a care order or supervision
order has been made with respect to the
child,
the expiry of the period of eight weeks beginning
with the date on which the order is made;", and
(c) omit subsection (5) (interpretation of subsection
(4)(b)).
5 Care plans
(1) For section 31(3A) of the Children Act 1989 (no
care order to be made until court has considered section 31A care
plan) substitute.
"(3A) A court deciding whether to make a care
order -
(a) is required to consider the permanence provisions
of the section 31A plan for the child concerned, but
(b) is not required to consider the remainder of
the section 31A plan.
(3B) For the purposes of subsection (3A), the permanence
provisions of a section 31A plan are such of the plan's provisions
setting out the long-term plan for the upbringing of the child
concerned as provide for any of the following -
(a) the child to live with any parent of the child's
or with any other member of, or any friend of, the child's family;
(b) adoption;
(c) long-term care not within paragraph (a) or (b);
(d) contact with the birth family
(3C) The Secretary of State may by regulations amend
this section for the purpose of altering what for the purposes
of subsection (3A) are the permanence provisions of a section
31A plan."
(2) In section 31A of the Children Act 1989 (care
plans).
(a) in subsection (1) (where application made for
care order, care plan to be prepared within such time as the court
may direct) for "the court may direct" substitute "may
be prescribed", and
(b) after subsection (4) insert -
"(4A) In this section "prescribed"
-
(a) in relation to a care plan whose preparation
is the responsibility of a local authority for an area in England,
means prescribed by the Secretary of State; and
(b) in relation to a care plan whose preparation
is the responsibility of a local authority in Wales, means prescribed
by the Welsh Ministers."
(3) In consequence of subsection (1), section 121(1)
of the Adoption and Children Act 2002 is repealed.
6 Care proceedings and care plans: regulations:
procedural requirements
(1) In section 104 of the Children Act 1989 (regulations
and orders).
(a) in subsections (2) and (3A) (regulations within
subsection (3B) or (3C) not subject to annulment but to be approved
in draft) after "(3B)" insert ", (3BA)", and
(b) after subsection (3B) insert -
"(3BA) Regulations fall within this subsection
if they are regulations made in the exercise of the power conferred
by section 31(3C) or 32(8)."
(2) In section 104A(1) of the Children Act 1989 (regulations
made by the Welsh Ministers to be made by statutory instrument)
after "Part 3," insert "section 31A,".
7 Repeal of restrictions on divorce and dissolution
etc where there are children
(1) The following are repealed -
(a) section 41 of the Matrimonial Causes Act 1973
(in proceedings for divorce etc. court is to consider whether
to exercise powers under Children Act 1989);
(b) section 63 of the Civil Partnership Act 2004
(in proceedings for dissolution etc. court is to consider whether
to exercise powers under Children Act 1989).
(2) The following amendments and repeals are in consequence
of the repeals made
by subsection (1).
(3) In section 9(1)(a) of the Matrimonial Causes
Act 1973 (proceedings after decree
of divorce: power to make decree absolute is subject
to section 41).
(a) for "sections" substitute "section",
and
(b) omit "and 41".
(4) In section 17(2) of that Act (grant of decree
of judicial separation is subject to
section 41) omit ", subject to section 41 below,".
(5) Omit section 36B(1)(a)(i) of the Matrimonial
and Family Proceedings Act 1984 (civil partnership proceedings
county court to have jurisdiction under section 63 of the Civil
Partnership Act 2004) including the "or" following it.
(6) Omit paragraph 31 of Schedule 12 to the Children
Act 1989 (which substitutes
section 41 of the Matrimonial Causes Act 1973).
(7) In section 40(4)(b) of the Civil Partnership
Act 2004 (proceedings after conditional order: power to make order
final is subject to section 63) omit the
words from "and section 63" to the end.
(8) In section 56(3) of that Act (making of separation
order is subject to section 63)
omit ", subject to section 63,".
8 Repeal of uncommenced provisions of Part 2 of
the Family Law Act 1996
(1) Part 2 of the Family Law Act 1996 (divorce and
separation), except section 22
(the only provision of Part 2 which is in force),
is repealed.
(2) In consequence of subsection (1), the following
provisions of the Family Law
Act 1996 (which relate to provisions of Part 2) are
repealed.
(a) section 1(c) and (d),
(b) section 63(2)(a),
(c) section 64(1)(a),
(d) in section 65(3), the words "5(8) or",
(e) section 65(4),
(f) in section 65(5) the words "to rules made
under section 12 or",
(g) Part 1 of Schedule 8, except -
(i) paragraph 16(5)(a), (6)(b) and (7) (which have
been brought into
force), and
(ii) paragraphs 4 and 16(1) (which relate to those
provisions),
(h) in Schedule 9, paragraphs 1 and 2 and, in paragraph
4, the definitions
of "decree", "instrument" and
"petition", and
(j) in Schedule 10, the entries relating to -
(i) the Matrimonial Causes Act 1973,
(ii) the Domicile and Matrimonial Proceedings Act
1973,
(iii) sections 1, 7 and 63 of, and paragraph 38 of
Schedule 2 to, the Domestic Proceedings and Magistrates. Courts
Act 1978,
(iv) the Senior Courts Act 1981,
(v) the Administration of Justice Act 1982,
(vi) the Matrimonial and Family Proceedings Act 1984,
(vii) the Family Law Act 1986, and
(viii) Schedule 13 to the Children Act 1989.
(3) In consequence of subsections (1) and (2), the
following provisions are
Repealed -
(a) paragraphs 50 to 52 of Schedule 4 to the Access
to Justice Act 1999,
(b) the following provisions of the Welfare Reform
and Pensions Act 1999.
(i) section 28(1)(b) and (c), (2), (4) and (5),
(ii) section 48(1)(b) and (c), (2), (4) and (5),
and
(iii) in Schedule 12, paragraphs 64 to 66,
(c) paragraphs 22 to 25 of Schedule 1 to the Constitutional
Reform Act 2005, and
(d) paragraph 12 of Schedule 2 to the Children and
Adoption Act 2006.
(4) In consequence of subsection (1), in section
1 of the Family Law Act 1996 (general principles underlying Part
2), in the words before paragraph (a) and in the title, for "Parts
II and III" substitute "section 22".
(5) In consequence of subsection (3)(b)(i), in section
28(11) of the Welfare Reform and Pensions Act 1999 (interpretation
of subsections (4)(b), (5)(c) and (6)) for "subsections (4)(b),
(5)(c) and" substitute "subsection".
(6) The modifications set out in subsection (7),
which were originally made by article 3(2) of the No. 2 Order
and article 4 of the No. 3 Order, are to continue to have effect
but as amendments of the provisions concerned (rather than as
modifications having effect until the coming into force of provisions
of the Family Law Act 1996 repealed by this section without having
come into force).
(7) The modifications are -
(a) in section 22(2) of the Matrimonial and Family
Proceedings Act 1984 for
the words from "if" to "granted"
substitute "if a decree of divorce, a
decree of nullity of marriage or a decree of judicial
separation has been
granted", and
(b) in section 31 of the Matrimonial Causes Act 1973.
(i) in subsection (7D) for "Subsections (7)
and (8) of section 22A"
substitute "Section 23(6)",
(ii) in subsection (7D) for "section 22A"
substitute "section 23", and
(iii) in subsection (7F) for "section 23A"
substitute "section 24".
(8) In section 31(7D) of the Matrimonial Causes Act
1973 -
(a) for "apply", in the first place, substitute
"applies", and
(b) for "they apply where it" substitute
"it applies where the court".
(9) Articles 3(2) and 4 of the No. 2 Order, and article
4 of the No. 3 Order, are revoked; and in subsection (6) and this
subsection -
"the No. 2 Order" means the Family Law
Act 1996 (Commencement
No. 2) Order 1997 (S.I. 1997/1892), and
"the No. 3 Order" means the Family Law
Act 1996 (Commencement
No. 3) Order 1998 (S.I. 1998/2572).
9 Commencement and extent
(1) Sections 1, 3 and 7 come into force on such day
as the Lord Chancellor appoints
by order made by statutory instrument.
(2) Sections 2 and 4 to 6 come into force on such
day as the Secretary of State
appoints by order made by statutory instrument.
(3) Section 8 comes into force at the end of the
period of two months beginning
with the day on which this Act is passed.
(4) An order under subsection (1) or (2) may.
(a) appoint different days for different purposes,
and
(b) contain transitional, transitory or saving provision.
(5) Sections 1 to 8 extend to England and Wales only,
subject to subsection (6).
(6) An amendment or repeal made by sections 1 to
8 has the same extent as the
provision to which it relates (ignoring extent by
virtue of an Order in Council).
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