Evidence submitted by the Solicitors Family
Law Association
INTRODUCTION
The Solicitors Family Law Association (SFLA)
is an association of 5,000 family solicitors. SFLA was established
by lawyers concerned that the practice of family law was too adversarial
and who sought to develop a more conciliatory approach. Since
its inception in 1982, SFLA has contributed to a significant change
in the practice of family law. SFLA's members are committed to
a Code of Practice that is designed to promote a constructive
and non-adversarial approach to resolving family disputes. This
Code of Practice has been widely adopted and has been incorporated
into the Law Society's Family Law Protocol, which applies to all
solicitors practising family law.
SFLA advocates a constructive approach to family
disputes and promotes the use of alternative dispute resolution.
SFLA members were involved in the development of mediation for
family matters and SFLA trains and accredits lawyer mediators.
SFLA has recently brought the Collaborative Family Law Group under
its umbrella and will be providing training programmes on collaborative
law and working to develop appropriate accreditation systems.
SFLA's Collaborative Law Committee aims to develop collaborative
lawyering as another resource for lawyers and their clients to
resolve family disputes.
Legal aid is a vital resource to SFLA members
and their clients. Over two thirds of SFLA's members provide publicly
funded services, including publicly funded mediation.
THE CONTEXT
The operation of the Family Justice System has
been an issue of concern for some time now. The problems with
the establishment of CAFCASS have been well rehearsed, and SFLA
contributed to the Constitutional Affairs Committee's earlier
enquiry into CAFCASS. SFLA is encouraged by the appointment of
a new Board for CAFCASS as well as a new Chief Executive and by
the increased emphasis on front line services.
Delays in the family courts are a matter of serious
concern. It is a clear principle in the Children Act that delay
is inimical to the interests of the child and this applies in
both public and private law cases. The need to deal with delays
is urgent.
For example, the President of the Family Division
recently issued a framework document in which she said that first
appointments should be issued within four to six weeks. However,
delays in first appointments are currently taking 10 to 12 weeks.
We are told that this is due to a lack of CAFCASS Officers and
a shortage of conciliation appointments.
Another practitioner has reported to us an international
contact case which was listed for final hearing on 21 July 2004
at the High Court. It was set down on 24 March and a CAFCASS report
ordered. Various delays have ensued and the final hearing is now
24 November "at risk". The delay is particularly detrimental
as the non resident parent lives in the US and is having very
limited contact with his seven year old daughter in the UK.
We are concerned that delays are being caused
by lack of resources in CAFCASS in the first instance, but are
not convinced that if the CAFCASS problem is solved, that further
delays in court listing will not ensue. We note that CAFCASS has
dealt with the issue of delay in public law cases, but that there
is still serious delay in private law cases. Delay in both aspects
of children cases must be tackled—there should be no "cinderellas"
in these vital services.
The operation of the Family Justice system in
private law cases has been the focus of much media attention in
the past 18 months due to the activities of Fathers 4 Justice.
While it must be acknowledged that these activities have probably
pushed the issue of resolving contact disputes up the political
agenda, SFLA is deeply concerned about the climate of that debate,
which has become highly polarized and, it must be said, highly
genderised. The heightened language of the current debate on contact
has exaggerated differences about how to resolve difficult family
cases, rather than encouraging consensus and a positive way forward.
It must now be the job of responsible commentators,
the media and politicians to bring that debate back into the middle
ground in the interests of the children of families which separate.
SFLA is concerned that this issue is becoming a party political
issue. We believe that this is not helpful to finding real solutions.
SFLA believes that how private family law disputes are handled
should be a matter of cross party agreement and urges the main
parties to form a consensus.
The following represents SFLA's views on how
best to approach the resolution of family disputes involving children.
PRINCIPLES AND
LANGUAGE
The existing presumption that arrangements for
post-separation parenting arrangements should be based on the
interests of the child should remain in force. However SFLA believes
that there should also be a statutory presumption that children
should have contact with both parents post-separation, unless
there are reasons that militate against this, such as safety concerns.
Such a presumption would reinforce the message that contact with
both parents is for the benefit of the child and is not a "gift"
that one parent makes to another. It would also emphasise that
contact is about the well-being of the child and not about parent's
"rights".
The current language used in disputes about
children is unhelpful and contributes to the feeling of alienation
that parents can experience on relationship breakdown. SFLA believes
that the emphasis should be on co-parenting, where both parents
offer physical, emotional and financial support for their children
in a co-operative framework. We prefer to adopt the terms "parenting
time" and "orders for parenting time" rather than
the terms "contact" and "contact orders",
which many non-resident parents feel removes their status as parents
and demotes them to the status of visitors in their children's
lives.
Parents should have a clear idea of what the
Court is likely to order in a typical dispute about parenting
time. Various forms of information should be available to separating
parents early in the process, such as website information, information
from healthcare providers, via solicitors, advice agencies and
relationship counselors amongst others. The information should
set out the likely orders a Court may make, but should make clear
that there is not a one size fits all approach. It should also
make clear that most parents arrive at suitable arrangements by
themselves and do not use the courts.
SFLA believes that the aim should be for children
to feel comfortable in two homes. In our experience, a typical
division of parenting time post-separation is for children to
have a main residence in one parent's home and to spend alternate
weekends, a midweek visit, alternating festive occasions and extended
time during the school holidays (including an opportunity to take
the child away) with the other parent. In the absence of unusual
factors, it is difficult to envisage less than this amount of
parenting time being appropriate. However, such an arrangement
may be unsuitable for very young children, teenagers and for parents
who live a distance from one another.
THE DISPUTE
RESOLUTION PROCESS
Most separating couples manage to make their
own arrangements for parenting post-separation without any intervention
from the Courts. For those parents who cannot, there should be
a swift and effective dispute resolution process, starting with
early information, advice and help with resolving disputes and
only moving into the Court procedure when disputes cannot be resolved
through an early intervention. These cases should be identified
early referred quickly to the Court, and should be managed throughout
the lifetime of the case by the same judge.
SFLA believes that before any Court application
can be issued, parents must attend an early intervention appointment
for information, advice and help with forming an agreement. This
should be a Court based service. All parents should be required
to submit and agree a parenting plan in the preliminary session
or in subsequent intervention sessions. Parenting plans will replace
the statement of arrangements for divorcing couples. If agreement
is reached through the intervention appointments, a Court order
would not normally be necessary.
There must be early means of identifying safety
issues by a check box provision on the C1 or acknowledgement form
and intervention appointments are not suitable for the dispute,
the matter should move promptly into the Court process.
WE SUGGEST
THE FOLLOWING
TIMEFRAME FOR
CASES:
| Stage in process |
Function of stage | Week
|
| 1 | Preliminary session Information/advice/
Help with agreement
| | 2 |
| 2 | Issue of application |
| |
| 3 | | (1) Interim hearing and interim order
(2) Referral for further intervention
(3) Directions
(4) Court reporter involved
| 2 |
| 4 | Second appointment |
(1) Final hearing
(2) Directions for hearing
(3) Court reporter report
(4) Other evidence
| 10 |
| 5 | Final hearing |
| 15-17 |
| | |
|
There should be two clear separate tracks, with interventions
for cases that can settle. Intractable disputes or cases where
there are safety issues should be diverted swiftly to the Court
process. If intervention appointments are not suitable, a report
from the service which provides the intervention appointments
will be attached to the application to the Court, identifying
this and explaining why.
There must be a consistent response in the handling of cases
with continuity of input from CAFCASS officers and judges. The
same CAFCASS officer should deal with each case through all appropriate
stages. In the same way, each case should be assigned to a Judge,
who would deal with the case through its lifetime. In our view,
it is vital that there should be this consistency from those dealing
with the case. This will help to reduce delay, as Judges and CAFCASS
officers will not have to revisit issues and will be familiar
with the case. Such continuity will also help to increase the
family's confidence in the Family Justice system. We believe that
these changes would help the parents, knowing that they will be
dealing with officers of the court who are familiar with their
circumstances, saving them from repeating their stories, and also
bringing pressure to bear on the parents, who will know that they
will face the same judge who made the original order. This could
help to promote a more timely determination of the issues in dispute.
SPECIAL CONSIDERATIONS
REPRESENTATION OF
CHILDREN
Where it is desirable to ascertain the wishes and feelings
of children, the children could be involved in a subsequent session,
with a separate representative (a CAFCASS officer), avoiding the
direct involvement of children in the parental dispute resolution
process.
The CAFCASS officer should flag up where a child wants a
voice in proceedings or where expert evidence may be required.
At the conclusion of the report, the CAFCASS officer should meet
with the child again and explain his/her reasons for any recommendations
made. The CAFCASS officer should indicate to the Court where the
child supports or opposes his/her recommendations, and flag up
the need for the judge to consider whether the child should be
heard by way of separate representation.
At further hearings, the child can be represented separately
either if the judge so directs or as a result of the child's application.
The child should be represented by a lawyer with special accreditation
to represent children. Where the child is not separately represented,
the judge should be able to appoint a guardian.
DOMESTIC ABUSE
SFLA welcomes the introduction of a means for early identification
of domestic abuse by a check box provision on the C1 form. There
should be a further check box to indicate whether parenting time
should be suspended, whether or not domestic abuse is alleged.
An allegation of domestic violence or an application to suspend
parenting time should lead to an accelerated first hearing, where
findings of fact should be made as to domestic abuse. The Courts
should also apply a mandatory risk assessment checklist, which
should consider—
— the nature of the abuse and its impact on children;
— whether the abuse is likely to recur;
— the perpetrator's motive(s) for wanting parenting
time;
— the perpetrator's capacity to change and comply
with any conditions attached to the parenting order;
— how to address the sufferer's fears about the
parenting arrangements;
— the children's wishes; and
— what safety issues might arise from any order
for parenting time made at that stage.
ENFORCEMENT
More effective sanctions to deal with breaches of orders
are now crucial to restore public confidence in the Family Justice
system. Breaches of orders for parenting time are extremely serious
and must be dealt with quickly. If the Court has undertaken a
full fact finding process, there is no justification for parenting
time not taking place. Ideally enforcement should be dealt with
by the same judge throughout the case.
The Courts should explore the possibility of using other
methods of supervising compliance with orders for parenting time,
for example, using family assistance orders. Where children refuse
to comply with an order, there should be careful consideration
of the reasons, with provision for a "children's friend",
ie a CAFCASS officer, specifically designated to listen to and
help deal with concerns raised by children direct.
Where there is a failure to comply with a Court order, the first
steps should be preventative. In the first instance, it should
be established whether a breach has occurred and an assessment
made as to whether it is sufficiently serious to require immediate
Court action. Once the investigative stage has been undertaken,
the Court should consider a treatment model, if appropriate, including
parenting classes, anger management or therapy.
In some cases, it might be necessary to move to the punitive
stage, but only in intractable cases or in cases of repeated non-compliance.
A range of orders should be available to the Court, including
fines, community service orders and imprisonment. Change of residence
and instituting care proceedings would be a final resort.
SFLA also believes that there should be educative enforcement
for parents who do not apply for parenting time or who do not
keep up their parenting time obligations. A frequent complaint
heard by practitioners is that the non-resident parent is not
meeting his or her obligations to spend time as agreed with the
child. In Germany, we believe that the Courts have powers to fine
absent parents. We do not believe that this approach would be
helpful, but it would be useful if the Court had powers to order
the non-resident parent to attend parenting classes or a similar
educative programme to impress on him or her the importance of
staying in regular contact (if circumstances allow) with the children
of the family.
LEGAL AID
Legal aid must continue to be available to those who need
financial help to support them through the process of resolving
family disputes. Legal aid underpins the family justice system.
Many families would not have the resources or ability to resolve
their disputes without the support and help of solicitors. However,
many families do not have the means to pay solicitors. Increasingly
SFLA is concerned that there are both insufficient numbers of
solicitors prepared to undertake publicly funded family work and
that the pressure on the legal aid budget is eroding the legal
aid scheme with dire consequences for those who depend on it to
help resolve their disputes. The lack of legal aid has resulted
in many more litigants in person appearing in court and handling
their own cases. This can lead to the use of valuable court resources
in supporting the litigant in person; it can also run up the costs
for the other side, as the other party's solicitor has to take
greater time dealing with the litigant in person.
SFLA is therefore strongly opposed to the current proposals
to further erode financial eligibility levels. This would leave
too many people without the help that they need to resolve their
family disputes, leading to longer drawn out disputes that become
more difficult to settle.
However, SFLA believes there should be incentives in the
legal aid scheme, as elsewhere, for cases to settle early and
that perverse incentives to litigate should be removed from the
legal aid scheme. Broadly we support the Legal Services Commission's
intention to encourage early settlement by removing the incentives
to move onto a legal aid certificate and to issue proceedings.
The legal aid scheme needs to support government policy.
We have a concern that where early court intervention services
exist, the appropriate level of legal aid should also be available
to support ready access to those interventions, to enable legally
aided parties to make use of those schemes. We would hope that
the LSC's intention to make certificated legal aid more difficult
to access would not create unnecessary barriers to court based
conciliation and intervention services.
SFLA also supports the LSC's intentions to reduce legal aid
support for repeat and multiple applications to court in contact
cases. However, it is often difficult to second guess the reasons
for multiple applications. SFLA recommends that the LSC profiles
firms to identify those with an apparently high rate of court
proceedings and multiple applications and to then look into the
reasons for any discrepancy from the norm.
Legal aid policy needs to be truly "joined up"
with any changes to and developments in the operation of the family
justice system and attempts to improve the resolution of family
disputes. This means retaining a level of flexibility in funding
decisions that would allow legal aid to be used appropriately
according to the services available. SFLA believes that early
access to good legal advice and other forms of intervention can
help families resolve their disputes in an ordered and lasting
fashion. We strongly support the FAInS initiative which puts an
experienced solicitor in the role of early diagnoser and case
manager.
CONCLUSION
SFLA broadly supports the thrust of the Government's proposals
for the reform of the Family Justice system. We believe that these
proposals are traveling in the right direction. We hope that the
other political parties will give these proposals their support
and not make family disputes and the interests of children into
a political football.
Solicitors Family Law Association
October 2004
Annex
SFLA CHILDREN COMMITTEE:
POLICY ON
PUBLICITY IN
CASES INVOLVING
CHILDREN
In the light of recent concerns about the perceived "secrecy"
of the family courts and the case of Sarah Harman being found
in contempt of court for passing case details to her sister, Harriet
Harman, the Solicitors General, the Children Committee were asked
to review the current SFLA policy on publicity in cases involving
children.
SFLA's current stance is to support the status quo. The Children
Committee reviewed this and formed the view that SFLA policy should
be to support more openness in family cases involving children.
Case reports should be anonymised. Cases should not be heard in
public, but judgements should be made in public, suitably anonymised.
Currently prohibitions are so tight that there can't be any sensible
debate and accusations that the family justice system favours
one party or another cannot be examined. The powers of the state
are so extensive in matters affecting children that cases should
not be in private behind closed doors. The CAFCASS report should
address the issue of whether publicity in a given case would be
harmful or not to the child(ren). The Committee felt that this
issue does have to be considered from the children's point of
view.
A further issue is that under the current prohibitions, experts
cannot be identified. This leads to a problem of identifying poor
quality experts' reports. There may be some difficulties with
experts not wishing to be identified, but the Committee felt that,
on balance, it was in the public interest for experts to be known.
November 2004
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