10 Conclusion
149. The evidence which we took during the course
of our inquiry showed that the court system was not best suited
to deal with many of the complex and difficult matters relating
to the break-up of families. This is not a criticism of the judges
or of the many dedicated public servants who work within the courts'
system. There are limitations to the court process itself. A clear
example of the difficulties associated with a traditional court
approach to these problems is shown by the frequent failure of
the current enforcement system of court orders.
150. We support the Government's proposals contained
in the Draft Children (Contact) and Adoption Bill (Cm 6462)
relating to extension of the courts' powers of enforcement. On
the wider issue of use of the courts, the Government's plans rely
heavily on a new role for CAFCASS and would involve a completely
new approach for the agency. Case workers would no longer simply
prepare long reports but would have a much closer continuing relationship
with these families. This ambitious change may well require considerable
extra resources in terms of numbers of officials and the development
of new skills. Without the provision of extra resources, this
potentially revolutionary initiative is unlikely to succeed.
151. There is a widespread perception that non-resident
parents (often fathers) are not treated fairly. We conclude that,
although the courts rigorously avoid conscious bias, there are
considerable grounds for accepting that non-resident parents are
frequently disadvantaged by the system as it is administered at
present. Delay is a major factor. The resident parent who is involved
in the contact dispute will be advantaged by any delay, even if
the resident parent is behaving unreasonably.
152. This situation will continue until solutions
are found to the following problems:
- delay;
- lack of judicial continuity;
- inability to come back to the judge promptly;
- ability of the courts to make orders that
are obeyed.
The combination of these factors have produced
a situation that allows a new 'status quo' arrangement for the
children to become established by default.
153. One of our key recommendations is an amendment
of the 'welfare checklist' in the Children Act 1989 to ensure
that the courts have regard to the importance of sustaining a
relationship between the children and a non-resident parent. Such
an amendment would send a clear message to the courts, to parents
and to their professional advisers about the importance of maintaining
links between both parents and their children. Although this will
not satisfy those who believe that there should be an absolute
rule about the extent to which parents share responsibility for
their children, it will reassert the rights of non-resident parents
to contact with their children, as well as the rights of children
to contact with both their parents, while maintaining sufficient
flexibility to cope with issues of safety.
154. Lack of transparency has been a major factor
in creating dissatisfaction with the current Family Justice system
on the part of those involved in cases. In our view, the current
rules relating to communication of the details of particular cases
are too strict. The restrictions on communicating details of family
cases to those not involved (which may apply to Members of Parliament
handling constituency cases) have served to fuel the perception
of bias and unfairness. Some of the evidence we received was that
the lack of openness prevented proper scrutiny of the work done
by family judges or court officials, and made it impossible to
prove or disprove perceived unfairness.
155. While there is disagreement as to whether
all the criticism of the system of Family Justice is justified,
it is widely agreed that reform is needed. There is some divergence
of opinion about whether the proposals contained in the Government's
Green Paper are an evolution of previous policy rather than a
major change. We welcome the Government's acceptance of the general
need to remove as many cases as possible from the court system.
It is not clear that the Green Paper proposals will by themselves
achieve this. A coherent statement of the Government's overall
strategy is needed combining established initiatives, such as
mediation, with experimental approaches. The system at present
is focused on the resolution of disputes between adults: the interests
of children should be paramount.
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