Evidence submitted by Celia Conrad, Freelance
Legal Consultant
MY BACKGROUND
1. I qualified as a solicitor in October
1994 and practised exclusively as a family law practitioner until
March 2001 when I left full-time private practice. I continued
to work part-time in private practice until April 2003 while I
researched and wrote Fathers Matter—A guide to contact on
separation and divorce (Creative Communications October 2003).
I no longer work in private practice but continue to research
and write and to work as a Freelance Legal Consultant on Family
law matters. I have appeared on BBC 1 and Channel 4 as a direct
consequence of my work. I am interested in all areas of Family
law reform, but have a particular interest in the field of Child
law.
BASIS OF
MY SUBMISSIONS
2. I am making these submissions in my capacity
as a family solicitor and from my experience of dealing with the
family courts in the course of my work and from my research on
the subject.
3. I note that the Committee welcomes additional
submissions from interested parties on the Government's own proposals
((Green Paper—Parental Separation: Children's Needs and
Parents' Responsibilities (Cm 6273)) and that this inquiry is
limited to the area of responsibility retained by the Department
of Constitutional Affairs DCA), namely the operation of the family
courts system. However, since the Department for Education &
Skills (DfES) is now co-ordinating a Family Resolutions Pilot
Project to run in the Brighton County Court, Sunderland County
Court and Inner London family Court which is to be evaluated to
enable the Government to decide whether or not to roll out the
project nationally in the Spring of 2006, an analysis of the Family
Resolutions Pilot Project (FRPP) is required when considering
reforms to be made to the operation of the family courts system.
4. Additionally such an analysis is relevant
to any investigation the Committee will make in relation to key
areas such as whether the family court system is being run effectively;
whether the family court judges have sufficient powers; issues
surrounding delays caused by the current system, and whether people
using family courts are getting the service they deserve. This
is because the FRPP contains elements which bear directly upon
those key areas.
THE CURRENT
GOVERNMENT PROPOSALS
FOR CHANGE
TO THE
OPERATION OF
THE FAMILY
COURT SYSTEM
5. I am not of the opinion that these proposals
are satisfactory. It is disappointing to note that although the
Green Paper highlights many of the problems with the current court
system namely:
— That the current way in which courts
intervene in disputed contact cases does not work well.
— That major changes are needed so
that where it is necessary for the state and the courts to intervene,
they are much more effective in helping to secure to effective
resolutions which are in the interests of the child.
— It is in the interests of the child
to have a meaningful ongoing relationship with both parents and
so the system needs to be much better at securing this outcome,
it does not advance the proposals of the Early Interventions Reform
Project, which are infinitely better geared to achieving those
goals.
THE EARLY
INTERVENTIONS PILOT
PROJECT (EEIP)
6. The EEIP is based on the Florida Early
Interventions model which was designed to resolve contact disputes
before they reach court through pre-emptive and pre-hearing parenting
plans, parent education and contact-focused compulsory mediation.
It has proved to be a success in reducing costs, delay and in
producing enhanced outcomes with enforcement being a rarity. These
are all areas the Green Paper seeks to address (Executive Summary,
paragraph 4; Chapter 2, paragraphs. 16 and 20-29; Chapter 3, paragraphs.
53-55, 58-85) which reinforce the need for such a model to be
piloted in our courts. Yet it has been rejected by the DfES. With
Early Interventions in Florida Judges demand minimum written contact
orders, contact is rarely litigated and their time is freed up
to deal with intransigent cases and cases involving domestic violence
and abuse. There is also a triage programme where cases are evaluated
so that cases which are high priority are dealt with first. It
therefore addresses those areas of concern as well.
7. In April 2003 New Approaches to Contact
(NATC) held a seminar Contact Dispute Resolution: Early Interventions—Towards
a Pilot Project chaired by Bracewell J. who gave a pilot scheme
her strong support. NATC proposed a system whereby:
— On issue of the proceedings the parents
will be diverted into a non-court process involving court issued
information, parent education and contact-focused mandatory mediation.
— In residual cases where agreement
has not been reached the parents re-enter the court system and
are streamed into one of two categories—either non-serious
cases which can be dealt with rapidly or serious cases which need
earlier attention. In this ways the cases requiring significant
judicial input will be reduced and more time can be given to those
cases which require it.
8. The NATC Early Interventions—Proposal
for a Pilot Project (The Best Interests of Children in Divorce
Cases. Section 8, The Children Act 1989) was submitted to
the DfES and DCA in final form on 8 October 2003 after eight years
development. This was fully specified, properly designed and costed,
and fully endorsed by the President of the Family Division, the
High Court Judiciary, child development specialists, the parenting
groups, the Family Law Bar Association and the Solicitors Family
Law Association. These proposals received ministerial support
from Lord Filkin on Newsnight on 21 October 2003 and Margaret
Hodge in Parliament on 23 October 2003. These proposals then disappeared.
9. The Pilot Project's aim is to reduce the
number of families litigating in Court by 75%. Having clearly
defined contact guidelines, to be implemented in the event that
the parents cannot agree a schedule of contact, and procedures
for resolving most normal contact disputes months before they
reach court would help achieve this. This is because if the parties
know what order is liable to be made by the Court there is less
point in litigating. These are all major plus points for such
a system.
WHAT HAS
HAPPENED TO
NATC'S EARLY
INTERVENTION PILOT
PROJECT?
10. Paragraph 68 of the Green Paper States
that "the development of the Family Resolutions Pilot Project
[FRPP] has been informed by the earlier work of an ad hoc group
which presented its early intervention proposals to the government
in Autumn 2003." However, FRPP is not the same as the NATC
EIPP. See Mr Justice Munby's comments In the matter of D, [2004]
EWCH 727 (Fam) in Open Court on 1 April 2004 where he referred
to the Early Interventions Pilot Project which Whitehall is now
refusing to implement; The Times Law Section page 7, 22 June 2004
"Contact: A question of time by Oliver Cyriax, former solicitor
and founder of NATC; Article in The Guardian, Monday 19 July 2004
by Clare Dyer, Legal Correspondent "Warring Parents to be
taught conflict management" refers to the disappearance of
the EI PP, The Folly of a Law that puts children last." by
Deborah Orr, Independent, 29 June 2004.
11. It has come to light that CAFCASS advised
those at Whitehall that the EIPP was broadly similar to a project
of theirs called Family Resolution. It is not the same. In November
2003 funding was then obtained for an EI/FR project on the basis
that the two were the same. Lord Filkin proceeded with a proper
evaluation of the original EI project after meetings on 3 November
2003, 4 December 2003 and 9 February 2004 and forwarded the EI
project to the DfES for implementation. But it has not been implemented.
The EIPP has been replaced with the FR project, a CAFCASS inspired
FR project with no judicial support.
12. It is a major cause of concern to anyone
within the legal profession and not least for all those families
that will be affected by these reforms that what has now been
recommended was not what was approved. An article by Mavis Maclean
in the September issue of Family Law September 2004 confirms that
the FRPP is:
— the opposite of the project announced
by the Government in the Green Paper;
— the opposite of the project announced
last year in Family law;
— the opposite of the project submitted
to Government; and
— the opposite of the project which
had across-the-board professional support.
13. An article in the November issue of
Family Law by family law barrister Caroline Willbourne entitled
Family Resolutions v Early Initiatives confirms that what was
recommended is not what has been approved.
14. Mr Justice Munby refers in his judgment
(see paragraph 10 above) to the fact that "Children's Minister
Hodge has opposed these reforms from the start, refusing to heed
the advice of Britain's highest ranking judges, politicians and
child-therapists." In my view there are no justifiable grounds
for her stance. It is also equally a matter of great concern that
CAFCASS could have such an influence or be considered to have
the requisite skills to advise on reforms of this import in the
first place.
HOW FAR
DOES THE
GREEN PAPER
TAKE US
IN TERMS
OF PROGRESS?
15. Paragraph 4, Chapter 1 of the Green
Paper reads "in the event of parental separation, a child's
welfare is best promoted by a continuing relationship with both
parents, as long as it is safe to do so." At paragraph 6,
Chapter 1 it reads that "both parents have a responsibility
to ensure their child has meaningful contact with the other parent."
The question is whether the proposals fully support those statements.
I do not believe they do for the reasons set out below.
16. FRPP is based upon a well-rehearsed
mantra that "every case is different" which is the antithesis
of EI. The DfES has decided that "quality" rather than
"time" should be the defining factor when considering
how much "contact" a child should have with a non-resident
parent. Paragraph 25, Chapter 2 of the Green Paper reads "most
parents who turn to courts for contact with their children are
given it. . . less than 1% of applications for contact are rejected."
The fact is that in 99% of the cases that come to court contact
is ordered but the statistic does not quantify specifically how
much contact is ordered.
QUANTITY V
QUALITY
17. The Government's model rejects the idea
that children should have the right to spend "time"
with a non-resident parent and instead suggests that it is the
quality of contact rather than the simple quantum that is the
more important issue. The aim is to make parents step back from
the adult conflict and to focus on quality ahead of quantity.
This will feature in the Planning sessions. What seems to have
been overlooked or ignored is that contact cases are about quantum.
It is not productive for a father who has two hours contact per
week, and who wants more, to be sent off to Planning Sessions
where he will be told that quantum does not matter and that he
should focus on the quality of the contact he has. How is "quality
contact" to be defined?
18. Since mediation will be voluntary in
practice this will mean that those implacably opposed to ensuring
their child has meaningful contact with the other parent (the
meaningful contact advocated by Paragraph 6, Chapter 1 of the
Green Paper) can go straight to court and make the other parent's
contact as difficult as possible. How therefore is the child's
welfare to be best promoted if it is next to impossible for that
child to have a continuing relationship with both parents? Ironically
these are disputes that end up in court and where mediation was
necessary but where voluntary participation is most unlikely.
RECOMMENDATIONS
19. I am disappointed that the FRPP has
not only lost the positive proposals contained in the EEIP but
also appears inconsistent with the Green Paper proposals. The
EIPP should be reinstated for all the reasons stated above.
20. It has already been confirmed that the
court and associated professional services could each play their
part in a revised procedure, where professional services solve
most cases before they reach court, guiding parents towards timely
parenting plans. The parenting courses in Florida provide families
with the information regarding the process by which the courts
make decisions on issues affecting their children and this does
not relate to how to bring them up, but to teach parents about
the process of restructuring their families after separation and
re-educating them as to what the courts expect from them. That
is what is important and should be the aim of policy reform in
this area.
Celia Conrad
25 October 2004
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