Law - UK Family Law
3 Feeble excuses for no change
How the courts' struggle to deal with divorce
might be helped by an initiative that will give parents and
children a voice
THE family justice system, according to Lord
Justice Thorpe, one of its most senior judges, has never been
under such attack. He says that many of those working in this
field feel besieged or undervalued, lawyers are dropping out
because of severe cuts in fees for publicly funded cases,
and judges and medical experts are villified and sometimes
Although much of the abuse is characterised by “ignorance
and disturbed emotion”, he says: “We are fallible
and where we fail we merit criticism, to which we must respond
positively. Two recent judgments have soundly critcised the
system for failing fathers by not enforcing contact. But,
whatever the system’s shortcomings or problems, they
will never be solved unless family justice is truly recognised
to be an interdisciplinary system.”
Both he and the President of the Family Division, Dame Elizabeth
Butler-Sloss, believe passionately in the need for an overarching
body to draw together the enormous range of expertise that
is involved in these most sensitive of family issues, and
they are pinning their hopes for significant change on the
new family justice council that is being set up by the Department
for Constitutional Affairs next month. Its unpaid membership
will be extensive, although there have been delays caused
by dissention over the exacting requirements of the public
Alongside representatives of government departments and a
senior serving police officer, there will be family judges,
lawyers, child-health specialists, a mediator, an academic
and a senior social worker. There will also be two people
representing the view of the “consumers” —
one representing parental views and the other children’s
views, both of whom have at least five years’ experience
in family work. This has raised eyebrows among some fathers’
groups, which say that the council will be effective only
if it includes the voices of “real people” who
have been through the system. “The other members may
not agree with their views but they need to hear them,”
Tony Coe, of the Equal Parenting Council, says.
The council will be chaired by Dame Elizabeth with Lord Justice
Thorpe as deputy chairman. It will meet four times a year,
and will incorporate existing inter-disciplinary committees
covering education, training, ancillary relief, adoption and
international issues as “vital” sub-committees.
It will have a staff of three and a “substantial”
budget. It will set up working parties, commission research
and recommend reforms.
Among its many challenges, Lord Justice Thorpe says, will
be playing an important part in the Government’s attempts
to reduce delays in care proceedings and to resolve the most
difficult contact disputes. Other issues will include whether
family cases in the County Court and High Court should be
conducted more openly.
Lord Justice Thorpe says: “It is perhaps difficult to
make the creation of the council seem relevant to the general
public. But we live in a society of rapidly changing attitudes,
values and relationships, but where we only get a major family
statute once ever ten years or so. When it comes to divorce
and the division of money, we are still operating under a
statute which is now 35 years old. In order to react to this
rapid pace of social change, we need a forum which can debate
its impact on law and practice and which can accommodate change
without having to resort to Parliament.”
For Dame Elizabeth, who has had to increase her staff from
two to six to cope with the “inundation” of letters
on the way the courts are run, the council is a hugely important
development. “I want to see it have a voice that the
Government listens to, a voice that I hope the profession
will listen to.”
While emphasising that the judiciary will not be dictating
the council’s agenda, she believes that a key topic
is likely to be the relationship between the family justice
system and the European Commission. “We have to be careful
not to cross the line between judicial and legal matters and
policy matters but we need to have a voice in this area because
the Commission is consistently producing directives which
have an immediate and enormous impact on family law.
“Another area I hope it will look at is the extent to
which children are listened to. Are we giving sufficient space
to their voices?”
Expert witness are also a concern. The Government’s
Chief Medical Officer was asked last week to consider the
role of expert medical witnesses in family law cases after
concerns raised by the Angela Cannings appeal.
Dame Elizabeth says that adverse publicity is discouraging
doctors from becoming expert witness and the shortage is causing
delays in proceedings. “We are in quite a dangerous
situation that a small group of serious cases within the criminal
courts is having a disproportionate effect on child protection.
You will notice that very few civil cases have come up so
far where the medical evidence has been said to have had an
unfair impact on the outcome of a child case. You would have
thought that if this was a broad issue we would have seen
countless cases coming through, but there have been almost
More and more divorcing couples are asking
the courts to decide where their children should live. Kim
Beatson on practical steps to co-parenting
NEARLY one in four children in England and
Wales live in oneparent families. Thankfully, most parents
who separate make arrangements that meet the needs of the
children without involving the courts at all. But a growing
number make applications to the courts for orders regulating
where their child should live and the pattern of contact with
their non-resident parent.
Between 1992 and 2002 the number of residence orders made
in England and Wales rose from 16,424 to 30,006 and the number
of contact orders increased from 17,470 to 61,356. This is
a disturbing trend.
The Solicitors Family Law Association
has been committed to minimising conflict between separating
parents for more than 20 years. We played a leading role in
developing mediation to settle family disputes and, through
our code of practice, we promote a constructive approach that
encourages parents to resolve their differences outside the
court system wherever possible.
Many of these applications, we believe, could be avoided.
Our report, Practical Steps to Co-parenting, makes a number
of recommendations that we hope will help to improve the legal
framework for dealing with parental disputes. There is no
magic solution to some of the difficulties faced by families
caught up in legal disputes over children. The challenge of
solving many of the toughest problems often falls outside
the scope of the courts and relates more to continuing bitterness
between couples after their relationship has broken down rather
than to issues capable of judicial resolution.
Only a small number of difficult and intractable disputes
come to the public’s attention. The cases are not representative
of the vast majority but are at the extreme end of the spectrum.
Media coverage and campaigns based around them have resulted
in an unbalanced debate on parental “rights” rather
than the wellbeing of the children.
However, there are a number of reforms that would help to
resolve disputes quickly and, we hope, prevent many arising
in the first place.
• There should be a statutory presumption that children
should have a continuing relationship with both parents unless
there is a clear reason why this would not be in their interests.
This addition, with a change to the legal language of “contact”
and “residence”, would help to make it clear to
parents what is expected of them.
• Co-parenting, where both parents offer physical, emotional
and financial support to the children, must be in the best
interests of the child other things being equal. The reality
of a situation where one parent is effectively the main day-to-day
carer of the child should be taken into account in resolving
disputes over where a child should live. No one form of parenting
arrangement should be seen as superior to any other.
• The child should not be seen as a “timeshare”
but an ideal co-parenting arrangement should result in the
child feeling comfortable in both parents’ homes. A
typical arrangement might be for children to live at one parent’s
home and to spend alternate weekends, a midweek visit, alternating
festive occasions and extended time during the school holidays
with the other parent. In the absence of unusual factors,
it is difficult to envisage less than this being appropriate.
This arrangement may, however, be unsuitable for very young
children, teenagers and for parents who live some distance
from one another.
• A range of information should be available to separating
parents early on to equip them with information on what a
court would decide in the event of a dispute. Parenting plans
should be agreed and should replace the statement of arrangements
for divorcing couples.
• For couples who cannot reach agreement on their own,
there should be a swift and effective dispute resolution process.
• An application to court should trigger a compulsory
intervention appointment. To ensure that this is taken seriously
and used to its fullest extent, this should be a court-based
service. If disputes can not be resolved, there should be
a report to the court explaining the reasons. All disputes
should be resolved through a defined process lasting no longer
than 17 weeks. There must be a consistent approach to handling
cases, with the same judge hearing all stages to promote continuity
and to avoid delay.
• There should be an early method of identifying safety
issues. The courts should apply a mandatory risk-assessment
checklist. An allegation of domestic abuse or an application
to suspend time with the other parent should lead to an accelerated
hearing so that the facts can be established quickly.
• Children should not be dragged into their parents’
dispute and should not attend court. There should be a separate
process to ascertain the child’s wishes and feelings
without him or her becoming directly involved. It is the parents’
responsibility to resolve their disagreements, not the child’s.
• Where the court has made an order for the benefit
of the child, there is no excuse for either parent refusing
to comply with the order. Breaches of a court order are extremely
serious and must be dealt with speedily.
The enforcement of court orders should be through a staged
process that starts with a therapeutic approach that enables
the parents to understand the value to the child of a relationship
with both parents. The stages should become increasingly punitive
in order to enforce compliance. A wider range of orders should
be available including fines, community service orders and
imprisonment. Moving the child to live with the other parent
or instituting care proceedings should be a final resort where
other attempts have failed.
The author is chairwoman of the Solicitors Family Law Association
On October 8 last year an independent judicially
led committee put forward proposals, known as Early Interventions,
designed to resolve most contact disputes before a couple’s
first court appearance. The initiative builds on a framework,
developed by experts, which sets out what sort of arrangement
is generally in the best interests of the children. It had
endorsements from the Constitutional Affairs Minister, the
President of the Family Division, the High Court judiciary,
the Family Law Bar Association, a chairman of the Solicitors
Family Law Association, the Coalition for Equal Parenting
and leading child development experts.
On May 25 this year a team of civil servants at the Department
for Education and Skills (DfES) established by Margaret Hodge,
the Children and Families Minister, rejected the proposal
without discussion. Instead, the DfES wants a substitute that
fails to address the basic issue of every contact dispute:
time. The DfES will make “quality of contact rather
than simple quantum the more important issue”.
Under the DfES scheme, applications for more contact will
merely elicit ruminations on quality. It is a green light
to withhold any increase even where — as often happens
— contact is just two hours a fortnight. Applications
for more access can be dismissed because the “quality”
of the applicant’s existing contact is held to be good,
and hence sufficient, or bad, and thus too much.
DfES thinking has not been discussed or reviewed. By contrast,
the Early Interventions project arose from long consultation.
Six years of preliminary research and development culminated
in an international conference on March 27, 2002, chaired
by Dame Margaret Booth, a distinguished former High Court
family judge. Delegates heard that in many other countries
contact was founded on a mental health perspective on what
was best for the child. The conference suggested a comparable
approach for Britain’s children. On April 10 last year
the Early Interventions project was presented at a multidisciplinary
conference led by Mrs Justice Bracewell, of the High Court
Family Division. She concluded: “This is the way forward.
It would be incomprehensible if the pilot project did not
receive official sanction from the DfES and the Department
for Constitutional Affairs.”
The project’s nuts and bolts are readily grasped. Is
child welfare generally improved by the exclusion of one parent?
Or by near-exclusion? Or by generous contact? If the objective
is — as experts say — “generous” contact,
the next step is a rough framework outlining what this means.
Is it two hours a fortnight? Alternate weekends? 50/50? Or
somewhere in between?
Child development specialists believe that “frequent
and continuous contact”, promotes good child-parent
relations, decent parenting and improved long-term outcomes.
Children who keep both parents tend to be better adjusted,
do better at school, form stable relationships and keep out
of trouble. So the vexed issue of contact boils down to this:
what is “frequent and continuous” contact? Most
parents, judges, experts and professionals already agree.
An ideal model of alternate weekends, half the holidays and
midweek visits is hardly controversial.
Once a general framework for negotiation is in place, parents
no longer need to litigate to find out what the child’s
best interests are. They can be told in advance. Parents can
reach arrangements based on their circumstances, but informed
by the child-focused knowledge, backed by the courts, that
proper contact means substantial overnights not two hours
The DfES intends to replace the finished Early Interventions
project with an unworkable programme preventing proper contact
from being started. Nine years of consensual professional
development was discarded in order for a group of civil servants
to start again from scratch.
The author is a former solicitor and founder of New Approaches
(020-8748 1081; email@example.com)