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Law - UK Family Law

3 Feeble excuses for no change

Family justice system under siege

June 22, 2004

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 threatened.
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 appointments system.
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 none.”

How can we stop parents scrapping over the children?
June 22, 2004

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

June 22, 2004

Contact: a question of time

HOW much contact should divorced parents have with their children?

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 a fortnight.
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.
Oliver Cyriax
The author is a former solicitor and founder of New Approaches to Contact
(020-8748 1081; mail@cyriax.freeserve.co.uk)

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