Conclusions and recommendations
The Court Process
The adversarial system
1. The
courts are not the best place to attempt to resolve complex family
disputes. While their involvement will be required in some cases,
particularly where there is evidence of domestic violence or abuse
or where a consensual approach (including mediation) has failed,
the use of the courts should be a matter of last resort. (Paragraph
39)
A presumption of contact and the issue of bias
2. The
United Nations Convention on the Rights of the Child declares
the right of a child to have direct contact with both parents
on a regular basis, except if it is contrary to the child's best
interests. We note that the present law already regards it to
be in a child's best interests to sustain a full relationship
with both parents, unless there are good reasons to the contrary.
We consider that a clear statutory statement of this principle
would encourage resident parents to assume in most cases that
contact should be taking place. (Paragraph 46)
3. We understand the
problems which would be caused by conflicting legal presumptions.
(Paragraph 47)
4. We recommend the
insertion of a statement in s 1(3) of the Children Act 1989
(the welfare checklist) indicating that the courts should have
regard to the importance of sustaining a relationship between
the children and a non-residential parent. (Paragraph 47)
5. There is a perception
that non-resident parents are not fairly treated by the court
system. We do not believe that the court system is consciously
biased against either fathers or non-resident parents. Significant
problems remain in a minority of cases following parental separation,
often exacerbated by delays in the court process. We recommend
the following: first, there should be a clear and unequivocal
commitment to move as many cases as possible from the court system
altogether; second, parents who do apply to the court should be
given every encouragement and opportunity to resolve their differences
through negotiation; and third, when there is no viable alternative
to court resolution, the courts should be responsible for ensuring
that the case is effectively managed and that delays are kept
to a minimum. (Paragraph 54)
Shared Parenting and the views of children
6. Many
agreements settled outside the court amount, in effect, to shared
parenting arrangements; these are usually the best course. We
support agreements in which parents spell out how they will share
parental responsibility. (Paragraph 59)
7. The concept of
a pre-determined statutory template for the division of time a
child is to spend with each parent is not one that we favour.
The welfare of the individual child should be the paramount consideration
in each case. The application of the welfare principle means that
a whole range of factors (not least the wishes and feelings of
the child) must be taken into account. We have already recommended
that the importance of sustaining a relationship between the child
and the non-resident parent should be expressly considered as
part of the welfare process. An arbitrary 'template' imposed on
all families, whatever the needs of the child, would relegate
the welfare of individual children to a secondary position. (Paragraph
60)
8. There are significant
practical objections to an automatic sharing of the time which
children spend with one parent or another. In particular, an arbitrary
apportionment of time does not take account of the views of children.
The amount of contact a child will want with its parents will
depend on a number of factors and is likely to change over the
course of its childhood. Whatever arrangements are made, there
has to be provision for the views of children to be taken into
account, especially as they grow older. (Paragraph 61)
The position of grandparents
9. A
change should be made in the law so that grandparents are granted
the right to apply to the court for contact with their grandchildren,
without having to apply for permission. (Paragraph 64)
Tactical delays
10. On
the use of delay as a tactic against non-resident parents there
is a clear conflict of view between aggrieved parents who report
experience of the use of delay and the professionals who argue
that neither the court nor practitioners would countenance unnecessary
delay. Given the strong animosity between the parties which is
common in contested family cases, we find it hard to believe that
tactical delay is not sometimes used to the advantage of resident
parents. We would welcome research to clarify the situation, but
such research is at present inhibited by the lack of transparency
in court proceedings to which we refer in Section 9. (Paragraph
70)
11. The courts themselves
have a continuing duty to ensure that parties and their legal
advisers do not unnecessarily delay proceedings. Children's interests
are frequently harmed by such delay. Legal advisers have a professional
obligation to avoid unnecessary delay. (Paragraph 71)
Resources
12. The
Family Courts need judges whose style of work suits the difficult
cases which come before them. This includes having the confidence
to involve themselves in finding solutions to very difficult problems.
We think that more effort should be made to recruit specialist
judges who actively want to do family work; family work should
not simply be an extra burden for those who wish to become judges.
(Paragraph 77)
Case management
13. Delay
is a major factor in breakdowns in contact since it allows positions
to become entrenched and for contact arrangements to fail. We
are pleased that the judiciary has clearly recognised the need
for proactive case management. We welcome the President's 'Private
Law Programme' as a valuable attempt to achieve early dispute
resolution and, if there is no resolution, to improve the judicial
case management of private law cases thereafter. It is essential
that the Government provides sufficient resources to enable the
Private Law Programme to succeed. (Paragraph 82)
14. One major cause
of delay is reliance on long reports from CAFCASS in too many
cases. This may often be the result of an automatic resort to
a welfare report when attempts at preliminary negotiation by the
parties' lawyers and CAFCASS have failed. This report takes several
months to prepare. Even after it has been submitted there can
be further delay in fixing a hearing date. Then the matter is
usually settled on the basis of the CAFCASS officer's recommendation.
There is scope for a much more focused CAFCASS investigation which
need not culminate in an over-detailed report. Judges and CAFCASS,
together, need to consider more effective and less cumbersome
alternatives to the full-blown enquiry. For example, there is
scope for oral presentation of the results of the CAFCASS officer's
enquiries. The time taken to prepare such reports also leaves
a way open for abuse of the system by legal advisers, who may
encourage the preparation of such reports in circumstances where
they are not strictly necessary. (Paragraph 83)
Mediation and other methods of dispute resolution
Mediation
15. The
Government has recognised that mediation may be a good way to
steer people out of the court system, but there remains an inconsistency
whereby those who wish to claim legal aid are required to consider
mediation first, but those who are privately funded can ignore
this process. Where it is safe to do so (and subject to the court's
discretion), we believe that all parties should be required to
attend a preliminary meeting with a mediator on the basis described
in section 13(1) of the Family Law Act 1996. (Paragraph 94)
The Family Resolutions Pilot Project
16. Various
groups told us that the Family Resolutions Pilot Project is not
being operated as the originators of the project envisaged. The
Government says that it is impossible to pilot a scheme based
on the 'Florida Model', since any form of compulsion would require
primary legislation. There is no current evidence as to the success
or otherwise of the pilot project currently being tested in the
UK. Nonetheless, the Committee has received evidence from the
judiciary that they are broadly content with this pilot project.
We emphasise the need for adequate resources to be dedicated to
the pilot project and that the results be published at the earliest
opportunity. It is disappointing that the potential of the 'Florida
Model' remains untested in the UK. (Paragraph 103)
Enforcement
Problems in enforcing court orders
17. Disobedience
of court orders and the flouting of the rule of law is unacceptable.
Nevertheless, forcing parents to do things which they do not consider
to be in their child's best interests may not work. We believe
the emphasis should be placed on overcoming problems through CAFCASS
intervention and education programmes, rather than by the traditional
means of enforcing court orders through a system of punishments.
This will involve CAFCASS monitoring the way in which court orders
are carried out and fully engaging in questions of enforcement
where necessary. This will require a whole new approach for CAFCASS,
which up to now has not had a role in supporting court orders.
CAFCASS case workers will need to take a much more proactive role
as the first point of appeal where arrangements under the court
order have failed. (Paragraph 111)
18. The new role for
CAFCASS was a major element in the Government's plans, set out
in the Green Paper. Potentially, this is a revolutionary change.
If this major new responsibility for CAFCASS is to be carried
out successfully, the Government will need to ensure that sufficient
resources are placed at its disposal. CAFCASS will need enough
caseworkers with the relevant skills to carry out this ambitious
new work. The organisation will need to accept that its former
tradition of service will no longer apply, as the nature of its
role will be radically different. (Paragraph 112)
19. The range of enforcement
methods to be used should not harm the interests of the children
involved in the case: for example, imprisonment of a parent would
generally harm the interests of children, whereas the imposition
of a community service order might not. We would expect that punishment
would only be appropriate in cases of wilful refusal to obey the
court and as a last resort in exceptional cases. (Paragraph 113)
20. The power of the
court system is not in itself sufficient to resolve all child
contact related issues. We note the efforts made by the Government
to broaden the enforcement regime and we welcome a more inventive
approach to this problem. Courts will only be in a position to
enforce orders if they continue to engage with a case when it
is obvious that orders which they have made are failing and where
they are given adequate support by CAFCASS. (Paragraph 114)
The work of CAFCASS
Proposals to change the role of CAFCASS
21. The
proposals to transform the work of CAFCASS are ambitious and are
also likely to be resource-intensive. CAFCASS and many of our
witnesses welcomed the proposed changes. Given the problems suffered
by CAFCASS, on which we reported in 2003, it is essential that
strong leadership is displayed during this transitional period,
and it is also essential that the Government provides CAFCASS
with sufficient resources to ensure the success of its new role.
Government needs to define that role and set a timetable for implementation.
If the Government intends that CAFCASS is to become a problem-solving
agency it should publish guidelines to ensure that consumers understand
what service levels they can expect. Such guidelines would also
allow monitoring of the agency's performance. (Paragraph 122)
Safety issues
22. There
is little accurate or credible research on the extent to which
problems relating to domestic violence have a bearing on contact
applications, although we accept that domestic violence is generally
underreported. The Department is proposing to introduce 'Gateway
forms' to identify whether domestic violence is an issue at the
earliest possible stage. These will have to be closely monitored,
both to assess the safety issues and to ensure that they do not
give rise to additional legal argument. It is essential that where
safety is an issue this is reported. Nevertheless, the Government
will have to be careful to ensure that the use of these forms
in every case does not provide parents with another weapon to
use against each other, leading to more delay in deciding cases.
(Paragraph 128)
23. It is vital that
important safety issues such as domestic violence and other forms
of abuse are effectively addressed. Enforcement action by the
courts should not occur while there are unresolved safety concerns.
Equally, false accusations raised by parents as a mechanism to
frustrate contact should not succeed. The Department should follow
up the introduction of 'Gateway forms' by examining the proportion
of cases where the courts conclude that violent or abusive conduct
has actually occurred. (Paragraph 129)
Contact centres
24. We
welcome the extra funding which has been found for the provision
of additional contact centres. Referral of cases to such centres
should be a matter of last resort where there is no other safe
way to facilitate contact. A wider range of options such as children's
centres and extended schools would provide more opportunities
for contact and supervised contact. There should be greater focus
on creative and cost effective solutions, such as those involving
grandparents. (Paragraph 131)
Transparency
Media coverage of the family courts
25. A
greater degree of transparency is required in the family courts.
An obvious move would be to allow the press and public into the
family courts under appropriate reporting restrictions, and subject
to the judge's discretion to exclude the public. Anonymised judgments
should normally be delivered in public unless the judge in question
specifically chooses to make an order to the contrary. This would
make it possible for the public to have a more informed picture
of what happens in the family courts, and would give the courts
the 'open justice' which characterises our judicial system, while
protecting the parties. (Paragraph 144)
Children Act 2004
26. We
welcome the proposed amendments foreshadowed by s 62 of the
Children Act 2004. Parents must be able to seek advice from constituency
Members of Parliament and make complaints to the relevant supervisory
bodies. We think that this reform should go further. The current
rules relating to publication also hinder legitimate research.
For example, even parents who wished to respond to the Government's
Green Paper consultation exercise may have inadvertently broken
the law. We think that the simplest approach is that the restriction
on the discussion of their cases by parents should be removed
entirely (unless a specific order is made to the contrary). The
press should continue to be restricted to publishing those matters
which have been made public by the court. (Paragraph 148)
Conclusion
27. 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. (Paragraph 149)
28. 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. (Paragraph 150)
29. 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. (Paragraph 151)
30. 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. (Paragraph 152)
31. 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. (Paragraph 153)
32. 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.
(Paragraph 154)
33. 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. (Paragraph 155)
| 
