Same children, same family breakdown: why different hearings?

I have been asked: why do family courts often list children arrangements hearings and financial provision for, or involving, the same children before different judges – sometimes even on different files. It is the same children. It is and similar children law welfare principles – money or child arrangements – which guide the courts.

The children issues and whether their carer parent can keep their home involves the same children and often similar facts; so why not all before the same judge? Does not separate hearings and different judges offend against the overriding objective in FPR 2010 r 1.1, namely:


1.1 The overriding objective

(1)    These rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly, having regard to any welfare issues involved.

(2) Dealing with a case justly includes, so far as is practicable –

(a)ensuring that it is dealt with expeditiously and fairly;

(b)dealing with the case in ways which are proportionate to the nature, importance and complexity of the issues;

(c)ensuring that the parties are on an equal footing;

(d)saving expense; and

(e)allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases.

I will try to answer these questions by first setting out what the statutory underlay for all this is; for this area of law is heavily geared to Acts of Parliament. (The exception to this (ie (5) below) is where a couple were not married or in a civil partnership and their property is in issue (cohabitation law). Here, by contrast, Parliament has been unable to work out what – in law – to do about such families.) Then I shall deal with case management and the definition of issues, so critical to progress with family proceedings.

Statutory provision

Parliament says:

  • Children Act 1989 (CA 1989) s 1:

(1)  When a court determines any question with respect to –

(a)the upbringing of a child; or

(b)the administration of a child’s property or the application of any income arising from it,

the child’s welfare shall be the court’s paramount consideration.

  • Child Support Act 1991 (CSA 1991) s 1:

(1) For the purposes of this Act, each parent of a qualifying child [ie of which they are both the natural parent, or an adopted child] is responsible for maintaining him.

  • Matrimonial Causes Act 1973 (‘MCA 1973’) s 25(1), and Civil Partnership Act 2004 (which for our purposes mirror one another, so reference will be made only to MCA 1973):

(1) It shall be the duty of the court in deciding whether to exercise its powers [to adjust family property (eg the parties home), award lump sum payment or maintenance (called periodical payments) and pension adjustment orders] and, if so, in what manner, to have regard to all the circumstances of the case, first consideration being given to the welfare while a minor of any child of the family who has not attained the age of eighteen.

  • Children Act 1989 Schedule 1 (‘Sch 1’): provides money only for children, but not where parents are getting divorced or they were never married, but on similar principles to MCA 1973. Since CA 1989, by definition, deals with welfare of children the welfare-first rubric in MCA 1973 s 25(1) is not necessary.

 Exception: equity and a the single parent

  • Parents not married to each other: cohabitation law is not statutory and makes no specific provision for children. Capital of married couples can be adjusted under MCA 1973 (and this may include for a home for a child); but the same child, if his/her parents are unmarried, will depend on a scramble of laws (called ‘equity’) (‘equitable’) which may or may not leave him with a home: more likely yes, whilst the child is dependant, but often not once the last child has left home.

But, but, but: on a relationship breakdown the couple’s children will be the same children under each set of statutory provisions. So, why do we have different judges and the Child Support Agency for those same child(ren)? Why not one relationship breakdown file for all, and one judge to dispose of trial issues? ‘Why’ indeed.

One relationship breakdown – and one set of proceedings?

This article will look at (1) what is likely to happen now under the present procedural rules; (2) what could happen under the same rules to make relationship breakdown easier for children and their parents; and (3) – a bit of law reform dreaming: what should happen, so that the law and its practitioners can try to make an already bad situation as little worse as possible. This will be in Part 2 (to follow).

Broadly speaking the law relating to children is the same whether parents are married or not. CSA 1991 applies to a parent with care and a non-resident parent. CA 1989 Parts 1 and 2 (what family lawyers call ‘private law’: ie child arrangements) is concerned with parents and others with parental responsibility. And CA 1989 Sch 1 deals with finances as between parents (married or otherwise). MCA 1973, so far as it deals with finance for children, can only provide if their parents are married.

Child support

CSA 1991 skews the whole family finance set up. Mrs Thatcher felt that too many men were getting away with not paying for their children; and that lawyers had failed to fix sensible amounts to be paid and to enforce what was due (if not paid). ‘Something must be done’ she said; and it was – but what a mess….

The scheme is run by Department of Work and Pensions and is based on administrative, not family, law. Its enforcement is partially based on 1980s poll tax enforcement. And, truly wild to tell: the same parents can be involved in four first instance courts/tribunals; and that still does not allow for divorce and other cases in the Family Court. There is no way, as the law now stands, that DWP will permit their case (as they see it) to be argued alongside other family proceedings; or even in the same court. And most district judges are too frightened – because mostly ignorant on the subject – to take on the DWP and their lawyers (proof of this statement is available).

The law, family breakdown and child arrangements

Child arrangement proceedings (formerly custody and access, then residence and contact: Children Act 1989 Parts 1 and 2) are likely to be dealt with in an individual set of proceedings, and only exceptionally before the same judge on the same day.

Later a district judge – almost certainly a different judge – will deal with money. Maintenance cannot be dealt with on a contested basis by this judge (CSA has a monopoly on this), unless the parties agree.

Family Procedure Rules 2010 (‘FPR 2010’) – the rules which cover family proceedings – put nothing in the way of one court dealing with all issues concerning children (other than for child support under CSA 1991: CSA 1991 s 8(3)). There is no reason therefore why all children proceedings couldn’t be in one court and dealt with throughout by one judge. That judge would be in a position then to say that, for example, children proceedings should be separated off, perhaps be dealt with first. It all depends on the procedural needs of each family, with welfare issues (mostly of children: r 1.1(1): set out above) coming first.

Definition of issues: agree what you disagree

It truly is as simple as that. A family judge defines the issues (FPR 2010 r 1.4(2)(b)). It is a duty, says FPR 2010 r 1.4, yet the judges rarely define properly what is in issue. The one thing which parties to court proceedings must be able to agree is what they do not agree (eg about children or who should have the family home). These are then the structure of what the court is being asked to do (‘the issues list’). In many simpler cases, the list will probably fit on a side of A4.

If a dispute remains about arrangements for a child (where s/he is to live; when to be seen by the non-carer parent), then properly case managed the judge can consider listing all issues on one day before one judge; or on different days – but still, with the same judge (if available). Often it may be better to take money and children issues separately; but at least the court and the parties should consider whether one trial will work (and see FPR 2010 r 1.4(2)(j) (below)).

Overriding objective

The overriding objective is a ‘code’, a set of principles analogous (say) to a person’s manners or a ‘code of honour’. Manners guide the way you behave but are not rules in themselves. The overriding objective here is closely based on aspects the jurisprudence of European Convention 1950 Art 6(1) (which requires courts to provide a fair trial (dealing with a case justly: FPR 2010 r 1.1(2)). Ensuring parties are on an ‘equal footing’ is called ‘equality of arms’ in Convention jurisprudence; and so on.

Allotting a sensible share of ‘the court’s resources’ drives the one session-for- children-of-one-family-breakdown-and-their-money hearing demands a single judge for the same family, surely? The parties (a) they must help the court to further the overriding objective (FPR 2010 r 1.3) and (b) the court ‘must… actively’ manage cases. The judge must identify issues (as already mentioned) and, says FPR 2010 r 1.4(2)(j), s/he must deal ‘with as many cases as [the court is able to] on the same occasion’.

These are judge’s ‘duties’. They are like doing the washing up when it’s your turn, or not being late for work: they are things that the judge ‘must’ do. If I ruled the family law world, I’d make all family judges learn r 1.4(2) by heart; and the rule (italics refer to the two paragraphs mentioned in this article) says:

1.4 Court’s duty to manage cases

(1)  The court must further the overriding objective by actively managing cases.

(2)  Active case management includes –

(a)setting timetables or otherwise controlling the progress of the case;

(b)identifying at an early stage –

(i)the issues; and

(ii)who should be a party to the proceedings;

(c)deciding promptly –

(i)which issues need full investigation and hearing and which do not; and

(ii)the procedure to be followed in the case;

(d)deciding the order in which issues are to be resolved;

(e)controlling the use of expert evidence;

(f)encouraging the parties to use a non-court dispute resolution procedure if the court considers that appropriate and facilitating the use of such procedure;

(g)helping the parties to settle the whole or part of the case;

(h)encouraging the parties to co-operate with each other in the conduct of proceedings;

(i)considering whether the likely benefits of taking a particular step justify the cost of taking it;

(j)dealing with as many aspects of the case as it can on the same occasion;

(k)dealing with the case without the parties needing to attend at court;

(l)making use of technology; and

(m)giving directions to ensure that the case proceeds quickly and efficiently.

I’d test the judges on their knowledge at least once per month. Any judge who failed… Yes, well – I won’t ever rule the family law world…




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