Evidence submitted by Hon Judge Meston
QC
THE LEGAL
FRAMEWORK
The existing legal framework for determination
of private family law questions derives from the Children Act
1989. The Act replaced the concept of parental rights with "parental
responsibility". It replaced the old terminology of "custody"
and "access" with "residence" and "contact".
It provided a rational and useful checklist of considerations
to which regard must be had when deciding the outcome of any question
based on the welfare of the child. It provided a range of orders
which can be made to meet the requirements of the individual case.
It introduced what has come to be known as the "no order
principle" which requires the court not to make any order
unless it considers that doing so would be better for the child
than making no order at all. It specifically provided for the
court to have regard to the general principle that any delay in
determining the question before it was likely to prejudice the
welfare of the child. The Children Act 1989 introduced substantial
changes to the law and practice which have worked well, and certainly
improved on what went before. The Act has allowed for continuing
developments through decisions of the higher courts. Recent developments
in case law have allowed the courts to make "shared residence"
orders without there necessarily having to be a history of parental
co-operation or exceptional circumstances.
In contact cases the well-established case law
principles are as follows:
(i) It is almost always in the interests
of a child whose parents are separated to maintain personal relations,
and to have regular direct contact, with the parent with whom
he or she is not living. To deny a child contact with a parent
is to deny that child important part of his or her upbringing.
(ii) The court is concerned with the interests
of the individual child and not with those of the parents except
insofar as they bear on the interests of the child.
(iii) Wherever practicable the court should
maintain and encourage contact, and short4erm problems should
not be given undue weight.
(iv) Contact should only be denied or restricted
if there are cogent reasons for so deciding, reasons which would
make contact or a less restricted form of contact detrimental
to the child.
Those principles are now reinforced by the application
of the European Convention on Human Rights.
The operation of these principles by the courts
ensure that the great majority of cases are settled with little
or no involvement of the court process, and also that only a very
small minority of parents are prevented from having direct contact.
Circuit judges, like family judges at all other
levels, have long understood and supported the proposition in
the 2004 Green Paper that the damaging effects and risks of parental
conflict can and should be reduced by swift resolution of disputes
or potential disputes between parents. The judiciary strive to
encourage and assist the parties to reach agreed resolutions as
amicably as the parties' circumstances and personalities permit.
The task of the court in almost all cases is to try to provide
the parties with a pragmatic and workable solution, providing
arrangements which will last. If such arrangements can be achieved
by negotiation and agreement they have a better prospect of success.
It should be emphasised that whatever the perceived
weaknesses of the existing court processes, the present system
does operate to ensure that cases involving disputes about children
which have to come before a judge for decision involve only a
very small proportion of separating parents. The present system
is already geared at every stage to encouraging co-operation,
negotiation and agreement, intended to spare all concerned the
distress of court proceedings and to minimise the burden on children
who have already suffered parental conflict and separation. Contested
cases will only reach a judge for decision because the parents
have been unable to agree between themselves arrangements for
the children, and have then still been unable to reach agreement
after whatever conciliation procedures are available in the area
and then after the further efforts and recommendations of CAFCASS
officers. If lawyers have been instructed then almost certainly
they too will have tried to negotiate a settlement. However, it
is inescapable that some parents are resistant to efforts to attempts
to conciliate and mediate and do not appreciate or accept the
approach adopted by the professionals that there are no winners
or losers apart from the children. It has to be recognised that
some estranged parents do not find co-operation or communication
easy, and that some find the continuation of conflict to be preferable.
It is also inescapable that there are certain cases in which a
judicial decision is essential to resolve important factual issues
relevant to the future arrangements for the children, particularly
where violence, sexual abuse, neglect or a threat of abduction
is alleged. In an increasing number of cases now issues are raised
about the risks to children because of alleged drug misuse by
one or more adult. To try to avoid or suppress important factual
disputes in an attempt to produce a compromise can, in some cases
be a disservice to the parties, particularly if those issues continue
to fester or are likely to re-surface.
There are other cases where a judicial decision
is still required to decide unresolved disputes as to the arrangements
for residence of the children (with too many still referring to
"custody" despite the changes in terminology introduced
by the Children Act 1989), or as to the nature and extent of contact.
In these cases the court has to try hard to look realistically
at the competing proposals and at the other possible options and
to consider the possible consequences of all such options, particularly
the effects on the child or children. Sometimes even agreed contact
arrangements can impose considerable demands on children however
resilient.
In the small proportion of contested cases the
adversarial process is used to test evidence, but the court's
function remains investigative, which enables the court to control
the conduct of the hearing including the content and manner of
the cross-examination of parties and witnesses. The specialist
advocates who usually appear in these cases act with restraint.
All judges are careful to try to keep the "temperature"
down without allowing hearings to become too informal, remembering
that the parties and children have to live with the decision of
the court.
CONCILIATION
Court based conciliation schemes as a mandatory
first stage of proceedings seem to have a high rate of success.
Such schemes provide early intervention with professional help
from CAFCASS in a privileged setting. Although the feelings of
the parties may still be running high, particularly if a volatile
relationship has just ended, experience of conciliation schemes
shows that in many cases they can be encouraged to think through
the realities of the situation for the children and to reach sensible
agreements before positions become more entrenched. The availability
of a neutral CAFCASS officer is of particular value when one of
the parents is without legal representation. When agreement is
reached the court can record it, and if appropriate underpin it
by converting it into a consent order. If agreement is not reached
the court can make properly focused case management directions.
There is no national model for court based conciliation
schemes, and so the nature and the availability of such schemes
still vary from area to area. These variations seem to be largely
the result of differing demand and differing local court and CAFCASS
resources. There is a long established and well-regarded scheme
at the Principal Registry of the Family Division (see article
in Family Law, October 2004 "Conciliation is Working")
and there must be a strong case for bringing together the best
practices operated throughout the country to provide a national
model at least at County Court level.
CASE MANAGEMENT
AND DELAY
There has been firm and proactive case management
since the implementation of the Children Act 1989, underpinned
by the Family Proceedings Rules 1991 and Practice Directions and
most recently by the President's Private Law Programme Framework
Document. The major causes of delay, including unexpected adjournments,
continue to be the difficulties in obtaining CAFCASS reports (even
when the court has tried to confine the focus of a requested report
to the essential issues) and difficulties with expert witnesses
(in the small number of private law cases when outside experts
are required). In these and other cases where the timetable fixed
by the court starts to slip the court can only act and regain
control if the slippage is brought to its attention. Many responsible
practitioners will inform the court if a problem arises, giving
the court the opportunity to adjust the timetable usually without
delaying the overall progress to final hearing. There is otherwise
a limit to the control which the court can exercise between hearings
(as distinct from at hearings) in the absence of mechanisms and
manpower to monitor the progress of individual cases and to chase
up failures to adhere to court directions and timetables.
JUDICIAL CONTINUITY
Judicial continuity is now increasingly recognised
as important to ensure effective and efficient control of cases,
as well as public confidence. It can be obviously disconcerting
for the parties when another (or yet another) judge becomes involved
once the case has been allocated to the appropriate level of judiciary.
Most judges prefer to have dealt with a case throughout so that
they can gain proper familiarity with the issues and personalities
and understanding of how the case has developed over time. In
practice the difficulties with maintaining continuity have been
and will continue to be the result of the other work commitments
of full-time circuit judges, most of whom are expected to work
at several court locations and in several jurisdictional fields
(criminal and civil as well as family). Even those judges who
concentrate mainly or wholly on family law are already heavily
committed to public law cases where the new Protocol governing
care cases also places a strong emphasis on judicial continuity
and on early completion of legal proceedings (with a 40 week target).
Continuity is also difficult to maintain when cases are allocated
to Recorders (part-time judges). Given existing resources there
is a continuing tension between judicial continuity and the avoidance
of delay.
CONTACT CENTRES
Contact centres are an invaluable facility,
particularly as a short-term measure to allow (typically) the
mother to regain confidence in the father's behaviour and attitude,
to test the reliability of both parents and to allow contact to
continue or resume where there have been real difficulties. The
use of contact centres has certain limitations. They will normally
not accept families where there is a significant history of alleged
violence or abuse. With the exception of a very few specialist
centres they "support" rather than supervise contact.
They are staffed by volunteers who are not expected or allowed
to provide reports or other evidence for court proceedings; and
so any supervision or observation of contact has to involve CAFCASS
workers who are not often available at weekends.
FAMILY ASSISTANCE
ORDERS
This is one aspect of the Children Act 1989
which has not really lived up to expectations, mainly because
of the other demands on CAFCASS and local authorities to whom
such orders are addressed, and perhaps also because of uncertainty
about what such orders are supposed to achieve. They can be used
to try to support children who are upset or bewildered by the
conflict surrounding them, or in cases where there remain unresolved
problems and as a means of maintaining communication between the
family, CAFCASS/the local authority and the court. However, there
is quite often delay in allocating orders to the responsible officer
which reduces the value of such an order which is limited by statute
to six months duration.
ENFORCEMENT POWERS
This topic was fully considered by the report
of Mr Justice Wall "Making Contact Work". Effective
and flexible enforcement powers are a necessary part of the court's
armoury in those very few cases where the court's orders are deliberately
flouted. There are some cases in which the court gets involved
in a form of brinkmanship with defiant parents and the court needs
to be able to make meaningful threats to secure compliance with
orders. The limited range of powers presently available under
the Contempt of Court Act 1981 can make it really difficult to
exert the authority of the court and can lead the court to prefer
not to make threats which may sound empty. Committal of a parent
to prison or a change of a child's residence are plainly remedies
of very last resort. The only advantage the civil court has over
the criminal court at present is in the power to impose a suspended
prison sentence without there having to be "exceptional circumstances".
The lack of powers to enforce the orders of civil courts by the
type of community punishments which are available to the criminal
courts has been noted for a long time, (see R v Palmer [1992]
1 WLR 568). The ability to impose suitable programmes of treatment
on parties in contempt would be a useful addition to the court's
powers, not just in cases involving children. In cases involving
children such a power would provide a potentially useful vehicle
for positive therapeutic work, as an alternative to merely coercive
punishment.
James Meston
Circuit Judge
Bournemouth County Court
4 November 2004
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