2.1. The previous chapter outlined the principles of the Family Law Act and the remit of the Advisory Board to advise the Lord Chancellor on the application of these principles and on issues arising from the implementation and operation of the Act. This chapter looks in more detail at the considerable progress that has already been made on implementation of the Act and the work that is required in the coming year.
2.2. Under the new law, which is contained in Part II of the Act, the following order of events will apply to a person wishing to divorce:
2.3. Part II also makes additional provision for the welfare of children in divorce proceedings (see paragraphs 2.12-2.14).
Information Meetings
2.4. Under the Act the party making a statement of marital breakdown must (except in prescribed circumstances) have attended an information meeting not less than three months before filing the statement. (endnote 1)
2.5. Where only one party makes a statement, the other party must also attend the meeting (except in prescribed circumstances) before making any application to the court in respect of any children of the family or prescribed financial or property matters or before contesting such child, finance or property applications.
2.6. An information meeting under the Act is described as a meeting organised for the purpose of providing information about:
| (a) | marriage counselling and other marriage support services; |
| (b) | the importance to be attached to the welfare, wishes and feelings of the children; |
| (c) | how the parties may acquire a better understanding of the ways in which children can be helped to cope with the breakdown of a marriage; |
| (d) | the nature of the financial questions that may arise on divorce or separation, and services which are available to help the parties; |
| (e) | protection available against violence, and how to obtain support and assistance; |
| (f) | mediation; |
| (g) | the availability to each of the parties of independent legal advice and representation; |
| (h) | the principles of legal aid and where the parties can get advice without obtaining legal aid; and |
| (i) | the divorce and separation process. (endnote 2) |
2.7. The Advisory Board over the last year has spent a considerable amount of time considering the issues which have arisen from the information meeting pilot projects. These projects are designed to enable decisions to be made relating to the following matters:
the categories of people who should be exempted from attendance at information meetings;
the arrangements for organisation and delivery of information meetings throughout England and Wales, including the number and location of information meeting outlets and the frequency of meetings; and
the likely form of regulations relating to:
2.8. Three models of information meeting have been piloted during the year and two further models are being developed. Model A consists of a one-to-one information meeting lasting one hour covering all aspects of the information required by the Act (endnote 3). Model B splits the meeting into two parts with an introductory individual meeting lasting half an hour which introduces all the information, followed by a group information presentation lasting up to one hour. Model C also consists of two parts: a short individual information meeting lasting 15/20 minutes covering marriage support and domestic violence and, once attendees have filed for divorce, a group presentation lasting up to one and a quarter hours covering all other aspects of the Family Law Act. The South West pilot to be launched at the end of March, will test group presentations giving the full range of information required by the Act (Model D). In the summer, two further pilots will test the use of an interactive CD ROM as a medium for the delivery of information at meetings. The opportunity to meet with a marriage counsellor will be included in the pilots from the spring of 1998 (see paragraph 2.16 below).
2.9. The following table lists the pilot projects.
| Pilot | Lead agency | Launch date | Completion date | Model(s) |
|---|---|---|---|---|
| Birmingham & Coventry | Birmingham Relate | June 1997 | March 1998 | A&B |
| East Anglia | Cambridge Family and Divorce Centre | June 1997 | March 1998 | A&B |
| Leicestershire & East Midlands | Relate Leicestershire | June 1997 | March 1998 | A&B |
| South Wales | Family Mediation Cardiff | June 1997 | March 1998 | A&B |
| South Yorkshire & NE Derbyshire | South Yorkshire Family Mediation | June 1997 | March 1998 | A&B |
| North East | Relate Northumberland & Tyneside | October 1997 | July 1998 | A&B |
| London | NCH Action for Children | January 1998 | October 1998 | C |
| Greater Manchester | Greater Manchester Probation Service | January 1998 | October 1998 | C |
| South West | Wiltshire Probation Services | April 1998 | December 1998 | D |
2.10. The use of each of the models is being evaluated by a team of researchers led by Professor Janet Walker from the Centre for Family Studies at the University of Newcastle. The team comprises specialists in family law, domestic violence, mediation, divorce and children, econometricians and also geographers who are conducting spatial mapping exercises in order to inform decision making relating to the number of information meeting outlets which will be required and their location.
2.11. The research team has provided updates for the consideration of the Advisory Board on a regular basis and emerging issues have been discussed. In addition, individual Board members have visited information meeting pilot sites. They have been impressed by the energy and enthusiasm of everyone involved in the pilots, and have gained useful insights into the operation of the pilots that has informed their contribution to the work of the Advisory Board.
Research into the operation of the existing provisions regarding the welfare of children
2.12. Part II of the Act (endnote 4) strengthens the section of the Matrimonial Causes Act 1973 (endnote 5) that allows the court in divorce proceedings to decide whether it should exercise its powers under the Children Act 1989. In deciding whether to use its powers, the court is required to treat the welfare of the child as paramount.
2.13. There has been no published research on the operation of this provision since the implementation of the Children Act or into whether it provides an adequate mechanism for dealing with the statement of arrangements for children put forward by a parent or parents at the time of divorce.
2.14. The Cardiff Centre for Family Research Studies and the Cardiff Law School, under the direction of Professor Mervyn Murch, commenced a study (Safeguarding children's welfare in non-contentious divorce) in May 1997. The aim of this study is to produce a picture of the current working of the Matrimonial Causes Act and provide valuable information so as to inform implementation of the Family Law Act. The Advisory Board has been informed of the progress of the Research Team on a regular basis and will consider the findings in the coming year.
Future work on implementation of Part II
2.15. Although much progress has been made, there is a great deal of work still to be completed before implementation of Part II of the Act. After the Advisory Board considered this subject at its January meeting, the Chairman wrote to the Lord Chancellor to convey the advice of the Board that, on the evidence so far available, implementation should not be before October 1999 and that it would be desirable for an announcement to be made to this effect in the near future. The Lord Chancellor's reply confirmed that he would not be in a position to commence Part II until at least the end of 1999 or even early 2000. These timings were announced in both Houses in answer to a written Parliamentary Question on 2 April 1998. The answer also re-affirmed the Government's commitment to implementing Part II.
2.16. The major tasks, relating to information meetings, court procedures and training, to be completed before implementation of Part II are set out below.
Information Meetings
Testing of models. Research results will need to be available from all models of information meeting being tested before a final decision can be made on the model which is likely best to meet the principles of the Act.
Marriage counselling provisions. The Act encourages and enables parties attending information meetings to have a meeting with a marriage counsellor (endnote 6). It also provides, for those who are eligible, state funding for ongoing marriage counselling during the period for reflection and consideration (after filing a statement of marital breakdown) (endnote 7). The operation of these provisions, including the form of the meeting and eligibility criteria, needs to be piloted before implementation.
Exemptions from attendance at information meetings. The Act enables regulations to be made which will provide for exemptions from attendance at information meetings, and alternative forms of information provision for such persons. The question of need for exemption is being looked at alongside the research into the use of information meetings.
Procurement exercise. Before a national system of information meetings can be implemented, it will be necessary to carry out a major procurement exercise to identify an appropriate provider to cover the whole of England and Wales or a number of regional providers who can do so.
Implementation of new information meeting system. When selected, the provider or providers will need to make all necessary arrangements for the delivery of meetings, preparation of a standard set of information materials (such as, leaflets, videos and CD ROMs), and identify a sufficient number of venues with appropriate facilities (in the light of the spatial mapping exercise conducted by the Centre for Urban and Regional Development Studies at the University of Newcastle).
Court Procedures
Preparation of the rules and regulations. When the new procedures have been agreed lawyers within the Lord Chancellor's Department will prepare draft court rules and Lord Chancellor's regulations. Consultation will need to take place on these rules with all relevant professions and organisations, before the Family Proceedings Rule Committee can consider and agree the drafts for approval by the Lord Chancellor.
Computer support. Computer support will be essential for the smooth introduction and running of Part II of the Act. This will require the design of a new computer system by the Court Service.
Training
Training for the judiciary and court staff. Training of judiciary and court staff cannot effectively take place until the form of new rules and regulations has been agreed, new court forms designed and the new computer system in place.
2.17. Part III of the Family Law Act gives the Legal Aid Board the power to pay for eligible people to attend mediation (endnote 8). It also requires those people seeking legal aid for family law matters, including representation in divorce proceedings, to attend a meeting with a mediator to assess their suitability for mediation (endnote 9).
2.18. Part III was brought into force on 25 March 1997 to allow the arrangements provided for in the Act to be piloted by the Legal Aid Board. The aim of the pilots is to ensure that there are sufficient quality assured services in place to meet the, as yet unknown, demand for mediation services.
2.19. 33 suppliers in 12 selected areas across England and Wales are contracted to provide legally aided mediation services in Phase I of the mediation pilot which commenced in May 1997. The Phase I pilot areas offering services contracted to the Legal Aid Board are Birmingham, Bristol, Cambridge, Cardiff, Coventry, Durham, London (certain locations), Manchester, Middlesbrough, Newcastle upon Tyne, Northampton and Peterborough.
2.20. Applications are currently being considered by the Legal Aid Board for Phase II of the pilot which will increase the number of suppliers and the geographical areas in which mediation is available.
2.21. The section of the Act requiring legal aid applicants to attend mediation assessments is to be introduced on an area by area basis once the Legal Aid Board is satisfied that there is sufficient access to quality assured family mediation services. Following extensive local and national consultation, it was implemented within a one kilometre radius around Northampton, Kettering, Wellingborough and Bristol at the end of March 1998.
2.22. The Legal Aid Board and their research team, led by Professor Gwynn Davis of the University of Bristol, provided regular updates to the Advisory Board on the mediation pilots. Individual Board members also visited the pilot sites to identify any issues the Board needed to address. As with the information meeting pilots, visiting Board members have been impressed by the enthusiasm of those involved.
2.23. Part IV of the Family Law Act 1996 was implemented on 1 October 1997. It provides a single set of civil remedies to deal with domestic violence and to regulate occupation of the family home, through two specific types of order: the occupation order and the non-molestation order.
2.24. An occupation order decides who is allowed to occupy the home, and can direct another party to leave the home. A non-molestation order prevents the respondent from molesting the applicant or a relevant child. It can prohibit particular actions and behaviour or molestation in general. These orders are now available at all levels of court with jurisdiction in family matters.
2.25. A wide range of people are able to apply for orders under Part IV. Under the previous law, only current spouses and cohabitants could apply for non-molestation orders. Under the new Act, a number of different categories of "associated person" are able to apply for such an order, including current and former spouses, current and former cohabitants, those who have agreed to marry one another, and certain relatives. An associated person other than a spouse, former spouse, cohabitant, or former cohabitant may only apply for an occupation order on a property where they are already entitled to occupy it.
2.26. The police have additional powers under Part IV. In order to provide for better protection, the powers of arrest in relation to non-molestation and occupation orders have been strengthened. Where the court makes an occupation order or non-molestation order and it appears to the court that the respondent has used or threatened violence against the applicant or a relevant child, then the court must attach a power of arrest unless it is satisfied that the applicant or child will be adequately protected without it.
2.27. The Lord Chancellor's Department has published a range of publicity and guidance on Part IV. This includes a leaflet and poster addressed to victims of domestic violence, and booklets giving information on the new law for solicitors and barristers and for agencies and professionals involved in helping those suffering domestic violence. The Advisory Board on Family Law considered and advised on the contents of this material, and also took part in the consultation on the court rules and forms to be used in Part IV proceedings.
| 1 | Family Law Act 1996, s. 8. |
| 2 | s. 8(9). |
| 3 | ibid. |
| 4 | s. 11. |
| 5 | Matrimonial Causes Act 1973, s. 41. |
| 6 | Family Law Act 1996, s. 8(6)(b). |
| 7 | s. 23. |
| 8 | Family Law Act 1996, s. 28. |
| 9 | Pt III. |