How do lawyers know what advice to give clients going through private family law proceedings? And what considerations do courts take into account when making decisions? This article looks at what sources are considered.
This is the second article in a series that aims to break the myths and misconceptions surrounding private family law proceedings. The first article looked at the most common question, “What are Private Family Law proceedings?” This series is based off of 30 years of experience, providing advice and representation to families, dealing with a number of regular queries.
There are a number of sources considered by lawyers and courts when advising on and deciding the outcomes of children’s proceedings. This article touches on each of them.
What sources are considered in Private Family Law proceedings?
Acts of Parliament
This is primary source legislation enacted by the Government. The most famous and still most fundamental Act as it applies to private law children proceedings is the Children Act of 1989.
Subsequent or varying Acts
Additionally Government may enact further legislation which can have an impact and change the primary legislation, for example the Children Act of 1989 amended by the Children and Families Act of 2014, which changed the concepts of residence and contact (see later article) to Child Arrangements Orders.
These are a form of legislation which allows the provisions of an act of Parliament to be subsequently brought into force or altered without Parliament having to pass a new Act.
Family proceedings rules
These are again a series of statutory documents which are often to be read in conjunction with the varying acts of Parliament to identify how the provisions in say the Children Act of 1989 are to be implemented and acted upon.
These are widely promulgated and reported documents created by senior judges which set out a series of guidance and recommendations (expected to be followed) by courts in reaching decisions.
The most widely known of these would be Practice Direction 12J, which sets out a series of guidance notes as to how courts should approach issues of domestic violence if raised within children proceedings. For example, whether there should be a “fact finding hearing” to determine any disputed facts before reaching final decisions for the children.
In certain circumstances, some cases which have a wider interest outside that of the individual case itself are held within the higher level courts. The outcomes (judgements) are then published with the aim of providing further assistance and guidance as to how a number of specific matters should be considered by courts, and how courts should approach varying issues.
In children proceedings these are normally identified with an initial (to prevent disclosure of the identity of children to whom these cases refer and their year of determination).
A good example would be a series of cases which were dealt with by the Court of Appeal known as “Re: L”, where the Court of Appeal brought together a series of cases within which domestic violence was an issue and secured an expert report from Drs. Sturge and Glaser as to what the impact of found domestic violence would have on the provision of subsequent contact to a parent.
Fact specific issues
Once all of the above have been taken into account, of course the individual circumstances and facts of every case are different and whilst all the above provide a framework and guidance as to how these matters should be addressed, each case is determined by the individual facts of that particular case.
It is in knowing the statutory requirements, provisions and guidance that allows lawyers to provide advice to clients as to the possible and probable outcomes of cases and for the courts to use to aid them in determining the best outcomes for children in cases where they take into account the separate facts of the particular case.
This article is part of a series on Private Family Law and Children Law proceedings. If you would like to learn more about the rules around parental responsibility, contact, holidays and arrangements for separated parents, please click here for the full series.
The next article in the series will explore which Courts deal with children proceedings and how to apply.
If you would like to understand more about how lawyers know what advice to provide, and how courts make decisions, please get in touch and we’d be happy to assist you.