Evidence submitted by The Family Law Bar
Association
1. It is now well over 2½ years since
Wall J (as he then was), the Chairman of the Children Act Sub-Committee
of the Lord Chancellor's Advisory Group on Family Law, produced
a report called "Making Contact Work". The report received
a warm welcome from practitioners, the judiciary and, notably,
parents deprived of contact with their children for no good reason.
2. The Government, through the then Minister
with responsibility for family law, Rosie Winterton MP, promised
that the recommendations, few of which attracted any real controversy,
would be "carefully considered". The Government was,
she said, committed to increasing contact between children and
non-resident parents where it was safe to do so. From April 2003
we were told that this was to be a "strategic objective"
of the Lord Chancellor's Department.
3. Not until 21 July 2004 did the Government
finally publish the Green Paper "Parental Separation:
Children's Needs and Parents' Responsibilities" (Cm 6273).
It is no secret that in the intervening period some members of
the Children Act Sub-Committee were disappointed, if not inwardly
seething, that the urgent need for change identified in the report
had, seemingly, been over-looked.
4. The members of this Association welcome
the proposals for change outlined in the Green Paper. We have
said so in a written response to the Government and we have conveyed
those views orally to the Minister, Baroness Ashton, on several
occasions.
5. WHERE THINGS
HAVE GONE
WRONG
Court orders for contact are made in the expectation
that they will be obeyed. All members of this Association who
practise in this field can call to mind cases where the parent
with care (invariably the mother) determines that he/she knows
best and treats the order with impunity (or lip service, which
is equally bad), seemingly secure in the knowledge that there
is perhaps little that the court can do about it.
The reluctance on the part of the other parent
(invariably the father) to pursue applications for penal notices
or for committal for contempt is entirely understandable, given
the fear that the child may be told "you will not believe
what your father is trying to do to us now". An application
for a change of residence is no solution for a father who cannot
provide full-time care for the child and wants no more than that
the contact order be obeyed: a perfectly respectable position.
It is remarkable that, as the law presently
stands, the court should possess so many weapons to enforce residence
orders, and yet so few when it comes to the enforcement of contact
orders. Both, after all, regulate the amount of time that the
child is to spend with each of his parents.
6. SECTION 14
OF THE
CHILDREN ACT
1989 IS IN
THESE TERMS
1. Where:
(a) a residence order is in force with respect
to a child in favour of any person; and
(b) any other person . . . is in breach of
the arrangements settled by that order,
the person mentioned in paragraph (a) may, as soon
as the requirement in subsection (2) is complied with, enforce
the order under Section 63(3) of the Magistrates' Courts Act 1980
as if it were an order requiring the other person to produce the
child to him.
2. The requirement is that a copy of the
residence order has been served on the other person.
3. Subsection (1) is without prejudice to
any other remedy open to the person in whose favour the residence
order is in force.
The penalty here facing the father who wrongfully
retains the child at the conclusion of a period of contact is
a finding of contempt, coupled with a fine of up to £5,000
or committal to prison for a period of up to two months.
Relevant parts of Section 34 of the Family Law
Act 1986 (applicable to proceedings in courts at all levels) are
as follows:
1. Where:
(a) a person is required by a Part I order,
or an order for the enforcement of a Part I order, to give up
a child to another person ("the person concerned"),
and
(b) the court which made the order imposing
the requirement is satisfied that the child has not been given
up in accordance with the order:
the court may make an order authorising an officer
of the court or a constable to take charge of the child and deliver
him to the person concerned.
2. The authority conferred by subsection
(1) above includes authority:
(a) to enter and search any premises where
the person acting in pursuance of the order has reason to believe
the child may be found, and
(b) to use such force as may be necessary
to give effect to the purpose of the order.
Whilst this legislation is apt to enforce the
recovery of a child who is wrongfully retained at the conclusion
of a period of contact, in terms of the enforcement of a contact
order the moment will almost invariably have been missed. The
court will need to be satisfied that the chid has not been given
up in accordance with the order. All too often the court only
learns of the default after the event where, for example, weekend
staying contact has not taken place. It may be more apposite to
enforce a longer period of holiday contact, provided, that is,
that it is possible to obtain fresh travel documents and, if needs
be, fresh accommodation.
Sections 29 and 50 of the Children Act 1989
provide a composite code for the speedy recovery of children in
care and for the prosecution of those who, for example, retain
them at the conclusion of a period of contact. That kind of behaviour
is not tolerated.
7. SO WHAT
IS THE
PARENT TO
DO?
As Bracewell J said in the case of V-v-V [2004]
EWHC 1215 (Fam) at para 10:
Currently, there are only four options available
to the court and each is unsatisfactory: one, send the parent
who refuses or frustrates contact to prison or make a suspended
order of imprisonment. This option may well not achieve the object
of re-instating contact. The child may blame the parent who applied
to commit the carer to prison. The child's life may be disrupted
if there is no one capable of or willing to care for the child
when the parent is in prison. It cannot be anything other than
emotionally damaging for a child to be suddenly removed into foster
care by social services from a parent, usually a mother, who in
all respects except contact is a good parent. Two, impose a fine
on the parent. This option is rarely possible because it is not
consistent with the welfare of a child to deprive a parent on
a limited budget. Three, transfer residence. This option is not
necessarily available to the court, because the other parent may
not have the facilities or capacity to care for the child full-time,
and may not even know the child. The current case is one in which
this is a real option. Four, give up. Make either an order for
indirect contact or no order at all. This is the worst option
of all and sometimes the only one available. This is the option
that gives rise to the public blaming the judges for refusing
to deal with recalcitrant parents. This option results in a perception
fostered by the press that family courts are failing in private
law cases and that family judges are anti-father. The truth, however,
is that without the weapons to use against what is in essence
a small group of obdurate mothers, the ability of judges to do
better for fathers is strictly limited. It is not commonly recognised
by the public that, in order to have enforcement procedures which
are effective, legislation by Parliament is necessary. [Emphasis
supplied]
Bracewell J spelled out very clearly in her
judgment the perceived need for legislative reform in three areas:
MEDIATION
Judges and magistrates should have the power
to refer parties to mediation at any stage of the proceedings.
THE FAMILY
ASSISTANCE ORDER
Orders should henceforth be directed to CAFCASS
and not to local authorities. The time limit of six months should
be removed. The requirement for the circumstance of the case to
be "exceptional" should go and the parties should not
have the option of refusing to be named in such an order. There
must, she said, be a commitment on the part of the Government
to proper funding.
ADDITIONAL ENFORCEMENT
POWERS
She identified the need for a clear commitment
to legislate to provide the court with the following additional
powers:
— the referral of a defaulting
parent to information meetings, meetings with a counsellor, parenting
programmes and classes designed to deal with contact disputed;
— the referral of a parent to
a psychiatrist or a psychologist;
— the referral of a "non-resident"
parent who is violent or in breach of an order to an education
for perpetrators programme;
— a probation order with a condition
of treatment or attendance at a given class or programme;
— a community service order with
programmes specially designed to address the default in contact;
and
— financial compensation, for
example where the cost of a holiday has been lost.
These proposals have, in large measure, been
taken up by the Government in the Green Paper. They receive the
full support of members of this Association.
8. DELAY
Delay has been described as the scourge of the
family justice system. It is inimical to the welfare of children
and should be avoided in almost all the cases that come before
the courts. Planned and purposeful delay is a different matter
altogether.
Munby J in the case of Re D (Intractable Contact
Dispute: Publicity) [2004] EWHC 727 (Fam) identified five areas
of concern, common hallmarks of intractable opposition cases,
and all features of a system that was failing parents and children
alike:
— the appalling delays of the
court system, exacerbated by the absence of any meaningful judicial
continuity, seemingly endless directions hearing, the lack of
an overall timetable, and the failure of the court to adhere to
such timetable as has been set;
— the court's failure to get to
grips with the mother's (groundless) allegations;
— the court's failure to get to
grips with the mother's defiance of its orders and the court's
failure to enforce its own orders;
— the all too frequent response
to any significant problem with contact: list the matter for further
directions; reduce contact in the meantime; obtain experts reports;
direct the filing of further evidence—all of which produces
only further delay which, in turn, exacerbates the difficulties
and leads eventually to a situation which may be irretrievable;
and
— the fact that too often in such
cases we only wake up to the fact that the case is intractable
when it is too late for any effective intervention.
As he observed at paragraph 36 of his judgment:
. . . the two great vices of our present system
are:
(i) that the system is, for all practical
purposes, still almost exclusively court based; and
(ii) that the court's procedures are not
working, and not working as speedily and efficiently as they could
be and, therefore, as they should be.
In terms of improving the present system he
advocated the adoption of a protocol (not dissimilar to the existing
protocol in public law children cases) to address the key principles
of judicial continuity, case management and, crucially, time-tabling.
Bracewell J in the case of V-v-V (above) associated herself with
these observations in terms of improving the system. On the importance
of judicial continuity she had this to say (paragraph 8):
Judicial continuity is essential. For a succession
of judges to have to read a case for the first time, often consisting
of many bundles, is not only wasteful of judicial time, but risks
inconsistency of approach and adds to delay and dissatisfaction
of the parties.
There are undoubtedly difficulties in achieving
continuity, particularly in the county courts and the family proceedings
courts. In the former jurisdiction full-time judges have other
duties in criminal and civil courts which may removed them from
family work for months at a time; and part-time recorders, by
definition, sit for limited periods in the year. In the family
proceedings courts it is by no means easy to convene the same
bench of magistrates at short notice. However, these problems
are capable of solution and must be addressed by the Court Service.
The President's new Framework for the conduct
of private law disputes before the courts should go a considerable
way towards overcoming avoidable delay in terms of active case
management and timetabling. The members of this Association support
this important new initiative.
It is no exaggeration to say that the current
system is currently creaking under the burden of cases waiting
to take their turn to be heard in lists which are jammed to capacity.
We do not have sufficient judges allocated to hear these cases
nor are sufficient courtrooms made available to enable them to
be heard. This is frustrating for all and detrimental to the children
who are the subject matter of these disputes.
Part of the solution must lie in deflecting
as many cases away from the courtroom to other means of dispute
resolution. That said, family courts are still seriously under-manned
and this, too, needs to be addressed.
The members of this Association support the
initiatives contained in the Green Paper. We look forward to their
speedy implementation and hope that sufficient by way of resources
will be made available for them to achieve their stated aims.
We have long advocated the speedy resolution of all family disputes
by means other than a lengthy, fully-contested hearing. Members
of this Association were the architects of a "pilot scheme"
for the swift determination of cases involving the division of
assets on divorce or separation. That scheme (which was to become
law under the Family Proceedings Rules 1991) has been in operation
nationwide for many years now. Members were likewise the principal
architects of the public law protocol in children cases, designed
to reduce delay by a greater concentration of the issues in the
case and active case management. We were likewise consulted with
regard to the President's new Framework in private law cases and
we will continue to offer her every assistance as structures are
gradually put in place.
We hope that these outline submissions will
assist members of the Committee.
The Family Law Bar Council
November 2004
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