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Lucy Rodgers discusses if divorce law is all the same

The New Single Family Court and “Gatekeeping”

On 22nd April 2014, a single family Court was introduced to take over the functions of the three different family Courts: the Family Proceedings Court (The Magistrates’ Court), the County Court and the High Court.

Up until the changes, when we applied for an Order in respect of children, we sent the papers to a particular Court.  The papers are then “issued” which means they are sealed and placed within the Court system.  For many years as family Solicitors, we had a tendency to send the papers to the County Court to be dealt with by a Judge rather than a Bench of Magistrates.  The reason for this has been that Judges deal with matters more quickly and efficiently than a Bench of Magistrates.  Magistrates are not legally qualified and are assisted by a legal adviser.  In view of this, they do tend to take longer to make decisions.

Over the last couple of years, even if we made an application to the County Court more straight forward matters have been transferred to the Magistrates Court at the start of the case, or even whilst it is ongoing.  This is because Judges, for some time, judges have been actively managing cases to ensure that they are dealt with at the correct level.

The new single Family Court means that all issued applications are dealt with in the one Court.   There is no longer a distinction between the three levels of Court.  Any application in relation to children is considered now by a “gatekeeper”.  These are Judges or legally qualified advisers who will decide who is the best Judge to deal with the case.  This could be a non-qualified “lay Magistrate”, a District Judge, a Circuit Judge or even a High Court Judge.

When looking at the application, the gatekeepers consider a number of issues.  These include whether there are any allegations of domestic or other abuse, issues relating to the physical or mental health of the adults involved or the children, the level of complexity, whether substance or alcohol misuse is a factor and whether there is an international element.  In cases where there are no safeguarding or other issues, the case will be allocated to be dealt with by a bench of lay Magistrates and other cases will be allocated to the correct level of Judge in accordance with detailed guidance.

The gatekeepers will also check whether the Applicant has attended a Mediation Information & Assessment Meeting (a MIAM) or if they are exempt from the requirement to attend mediation.  In the majority of cases therefore, if the person wishing to apply for an Order in respect of children has not attempted mediation, the application will be returned.

In practice, not much has changed.  For a long time in Sheffield, we have been referring cases to mediation with the hope that Court proceedings would not become necessary.  One hope of the new Family Court is that cases will be allocated to the correct level of Judge at the outset, especially so that the more complicated cases are dealt with at the correct level.

At Hallam Mediation we offer mediation for both for legal aid and private paying clients, in the hope that court proceedings can be avoided.

If mediation is not appropriate, our specialist family solicitors at Taylor & Emmett will take into account the new gatekeeping guidelines when preparing an application to court to ensure that it is dealt with by the right level of judge.

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