Disputes Concerning Children - Differences Between The Family Courts In England And Australia
I have been fortunate in my career to have worked extensively in both England and Australia. Since my return to practise in England almost nine years ago, I am often asked to compare the two systems – what are the main differences?
England and Wales – the ‘No Order’ principle
The Family court will not intervene and make an order concerning children unless it would be in the child’s best interests to do so. This is known as the ‘no order’ principle.
Section 1 (5) of the Children Act 1989 (“CA 1989”) says, “a judge must not make an order concerning a child if they consider that to do so would be better for the child than to make no order”, and this means that the Family court should adopt the ‘least interventionist approach’.
If parents can reach an agreement, then one option is for them to draw up a ‘parenting plan’. This is a written agreement which the parents prepare together to set out how they will co-parent their children and details the arrangements which they have agreed upon. A parenting plan is not ‘enforceable’ by the Family court, but there are many benefits to having one in place, including giving everyone involved clarity so that they understand what is expected of them.
Some parents prefer to have a ‘consent order’ in place. This is a document which is approved by a Family court judge, and sets out the arrangements which have been agreed between the parents. This differs from a parenting plan as the Family court is involved and must approve the terms of the order. The Court will usually schedule a hearing which the parents must attend. Even with parents, (who have reached an agreement between them, attending Court can still be a stressful experience which they may prefer to avoid.
Once an application has been made, CAFCASS (Children and Family Court Advisory and Support Service), (the equivalent in Australia would be a family consultant / family report writer) prepare an initial letter to the Court about the application, having spoken to both parents about the order sought, and carried out safeguarding checks. These are checks with the police and the local authority to find out whether there are any concerns about the welfare and safety of the child/ren concerned and must be carried out before any orders in relation to children can be made. Finally, there is sometimes the additional hurdle of persuading a court that it should ‘intervene’ and make an order.
Where parents have perhaps had a challenging relationship, or perhaps one parent’s time with the child has been stopped and started over the course of a number of months, the Court might agree an order will give the child (and parents) the certainty that the arrangements will take place. And an order might be made. It’s important to explain clearly to the Court why an order is necessary, whist being careful not to damage what might already be delicate parental relations.
The position is different in Australia, and there is no such thing as a ‘no order’ principle. If parents agree the terms of an order in relation to children, an application form and draft order is sent to the Court. The Court will consider if the parenting orders proposed are in the best interests of the child/ren, and if they are, will routinely make parenting orders.
There is no need for either parent to attend court, or for a family consultant (the Australian equivalent of CAFCASS) to become involved. In terms of safeguarding, there is a requirement for the parties applying for parenting orders to complete a ‘Notice of child abuse, family violence or risk’ form before parenting orders can be made, so safeguarding issues can be considered. This perhaps requires self-reporting by those applying for a parenting order.
There are currently a number of changes being implemented in the area of Family Law in Australia – the Family Law Amendment Bill 2023 and the Family Law (Information Sharing) Bill 2023. The changes have been made for a number of reasons, including with respect to children who are at risk of family violence. Crucially, there are changes in relation to information sharing orders, to enable courts to quickly seek information from police, child protection and firearms agencies about family violence, child abuse and neglect that may place children at risk.
I will be visiting Australia later this year to speak to Australian solicitors about the differences in our two systems and about the changes being implemented in family law in Australia, and look forward to sharing more about this when I return.
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