Supplementary evidence submitted by Celia
Conrad, Freelance Legal Consultant
1. I make these supplementary submissions
further to my original submissions dated 25 October 2004, and
at the request of the Constitutional Affairs Committee. I confirm
that these submissions should be read in conjunction with my original
submissions and that although these supplementary submissions
address other points in respect of the Family Courts there is
inevitably a degree of overlap between the two.
2. My original submission focused on Early
Interventions (as per the Early Interventions Pilot Project referred
to at paragraph 8 of those submissions). I believe that early
intervention in line with that project would enable the family
court system to be run more effectively. Judges would be able
to use the powers they already have to the full extent in a court
led process, thereby reducing delays, and the number of cases
proceeding through the courts, and the cases to be enforced. As
a result families would be given a better service.
BASIC PRINCIPLES
3. The Children Act 1989 states that the
welfare of the child shall be the paramount consideration of the
court when an application is made to it. The Government confirms
that it shall remain so in the Green Paper—Parental Separation:
Children's Needs and Parent's Responsibilities and that it "firmly
believes both parents should have responsibility for and a meaningful
relationship with their children after parental separation—with
the important proviso that it is safe" (Chapter 3, paragraph
40). This is further affirmed at Chapter 3 paragraph 41 in relation
to the courts "that the general principle to be applied by
the courts is that both parents have equal status as parents and
that the courts expectation is that both parents should continue
to have a meaningful relationship with the children following
separation, as long as it is safe and in the child's best interest."
4. How is it proposed that this "meaningful
relationship" between children and their parents post separation
is to be achieved? It is generally accepted that the current family
court process does not work for those cases where the parties
cannot reach an amicable agreement between themselves. Resorting
to the legal system to try to resolve what they cannot does not
produce desired results. The law only works for parties who are
able to act in the best interests of their children and reach
an amicable agreement, because in that situation the law does
not need to intervene at all! This is clearly demonstrated by
the non-intervention and no-order policy under the Children Act,
which assumes that parties will endeavour to make their own arrangements
and do their best to resolve differences by negotiation and co-operation.
The court will only intervene and make an order where it would
be better for the child to make an order than no order at all.
The problem is that obtaining a worthwhile order is in itself
beset with numerous obstacles as referred to below.
ACHIEVING A
"MEANINGFUL RELATIONSHIP"
5. In the Green Paper the Government has
put forward a raft of proposals which are supposed to assist the
facilitation of this "meaningful relationship" and to
divert parties away from the adversarial court process and to
help them to agree issues relating to contact and residence between
themselves. These include proposals in relation to collaborative
law, mediation, protection of children from harm, case management
(earlier listing of hearings, reducing delay, judicial continuity
etc), post order follow up, use of Family Assistance orders to
facilitate contact and enforcement along the lines of the CASC
report Making Contact Work. Any proposals to divert parties away
from an adversarial court process are to be welcomed and the intention
of the Green Paper is meritorious. But the question is whether
these proposals go far enough, and if their implementation will
achieve the desired result. There already seem to be problems
as demonstrated by the Family Resolutions Pilot Project (FRPP).
6. The FRPP aims to help separated/separating
parents to reach agreement about contact and residence without
the need for formal family court proceedings by providing information
to parents at the start of proceedings about, inter alia,
the negative impact of parental conflict on children, workshops
on conflict management and a planning session with CAFCASS where
they are given examples of parenting sessions that work. This
is positive BUT the premise from which FRPP starts is to say that
the welfare of the child is best promoted by quality of contact
between the child and the non-resident parent rather than quantum.
(I refer to the quality v quantity element at paragraph 17 of
my original submissions). Since contact applications are about
time I do not agree with this approach. Parents are given no guidance
as to how much time equates to a `meaningful relationship' in
their particular case. It takes time to build a quality relationship.
CONTACT AND
TIME
7. Contact applications are all about time,
for example:
— How much time it takes to obtain
an order and for a child's contact arrangements with the non-resident
parent to hang in the balance.
— How much time the child spends
with each parent.
— It should also be borne in mind
that delay is time related.
8. The intention of the Children Act is
to encourage both parents to continue to share in their children's
upbringing, even after separation and divorce. How is this to
be achieved unless the child has time with both parents? But how
much time should that be? To be precise, what apportionment of
the child's time with each parent represents the child's best
interest? By infrequent visits lasting a couple of hours? By a
50/50 split or a 30/70 split of the child's time? By overnight
stays? By alternate weekends and holidays with around 100 nights
contact per year or more or less? The argument against any definition
of time is that "every case is different" and so no
generalisations may be made. I deal with this below.
9. The Government states at paragraph 42,
Chapter 3 of the Green Paper that it does not believe "that
an automatic 50:50 division of the child's time between the two
parents would be in the best interests of most children"
and that the "best arrangements for them will depend on a
variety of issues particular to their circumstances: a one-size-fits-all
formula will not work." Consequently introducing a legal
presumption of contact to give parents equal rights to equal time
with their children after parental separation is not appropriate.
The problem is that currently there are no court backed time-linked
guidelines as to what is appropriate and so the apportionment
of time could be anything between 0% and 100%.
EXISTING APPROACH
10. The starting point is that the child
has a right to know both parents and should have contact with
the non-resident parent. The child has a right, where the parents
are separated, to know the non-residential parent and his brothers
or sisters. There is a normal assumption that a child will benefit
from continued contact with his parent, but that assumption can
always be displaced if the child's interests indicate otherwise.
The problem for a non-resident parent seeking contact is that
the onus is always on him/her to prove that more contact would
be in the best interest of the child, whereas the resident parent
is not obliged to show why contact should not take place. Because
of the "every case is different" approach and because
CAFCASS do not have any guidelines on how much contact to recommend,
it follows that any outcome can flow from any facts and contact
can be stopped for any reason. A "fit" parent has no
presumptive entitlement to any time with the children.
11. Further, where the contact has stopped
and there has been a period of no contact the test to be applied
is whether there are any cogent reasons why the child should be
denied the opportunity of contact with the non-resident parent.
Before ruling out the establishment or re-establishment of contact
the court will wish to be satisfied that all avenues have been
tested. So we venture into the realms of protracted litigation,
delay, CAFCASS reports, investigation of allegations of abuse,
violence etc.
REASONABLE CONTACT
12. There is no definition of reasonable
contact. It is argued that it cannot be defined because "every
case is different" and so we cannot legislate on it because
we do not have a consensus on what it is. That makes for dissatisfaction
all round so a less confrontational approach would be to develop
Parenting plans for various categories of case, based upon the
individual child's needs. What is key to this is that at the beginning
of the case when an application is made to the court guidance
is given to the parties on how much contact the court is likely
to order if they cannot agree (it may be appropriate to have default
guidelines which can only be departed from for very good reason),
frequent and continuous contact is in the child's interests and
that there is a clear presumption that the child is going to have
parenting time with both parents.
EARLIER INTERVENTION
AND PARENTING
PLANS
13. If the Court's expectations can be conveyed
in advance that creates predictability. Under the current process
parties have no idea of what level of contact the court expects
them to agree until they are well entrenched in the proceedings.
I have dealt with cases where no amount of pleading from one party
to the other to reach an agreement has worked, but where the judge
has intervened and clearly directed that he will make a certain
order if the parties do not agree by that direction he has promoted
agreement. It is unfortunate that his intervention could not be
earlier but that is down to the current process, not the judge.
So if we had judicially led/backed time-linked guidelines setting
out what sort of outcome is appropriate if the parties were to
litigate which are communicated to the parties at the time the
application to the court is made that will focus the parents'
minds.
14. How would this be achieved in practice?
There is a three stage non-court process:
— Court issued information is
given to the parties at the moment proceedings are issued. They
are provided with a video focusing on what is best for the child
and a leaflet setting out the court's expectations and guidelines
on proper parenting after separation. Early Interventions hinges
upon giving parents guidance before the case, on how much contact
there should be and leads to the development of parenting plans
which would set out norms of contact as a framework for negotiation.
— Parent education. A parent orientation
class for potential litigants is the next stage.
— Contact-focused mediation. One-off
mediation for those still struggling to agree which is compulsory.
15. So what happens to ensure that the safety
of the child is addressed? When an application is made the case
is immediately assessed to ascertain whether there are any concerns.
If there are it will be taken out of the non-court process and
placed into the court process. Because many more cases are kept
out of court, the court's time is freed up and valuable judicial
input can be given to the more urgent cases. In Florida they have
trained court managers to assess the cases when they come in to
recognize a case that needs to be fast-tracked in this way.
16. Time-linked parenting plans are crucial.
Without knowing what contact arrangement is likely to be in the
child's interests for various categories of case, it is not possible
to advise parents in advance of how much contact they should allow.
Parenting plans are open to infinite variation depending upon
the facts of the case, so deal with the problem that "every
case is different." By reviewing the information given to
them, attending the parent education and resorting to mediation
if necessary, parents can design a parenting plan which in the
best interests of the child.
17. The Early Interventions Pilot Project
fulfils the intentions of the Children Act to encourage both parents
to continue to share in their children's upbringing, even after
separation or divorce. Frequent and continuous contact is in the
child's interests and an affirmative obligation is to encourage
and nurture a relationship with the other parent. With Family
Resolutions reasonable contact is only an option.
CAFCASS
18. CAFCASS's role is very important as
a CAFCASS officer acts as the court's expert in contact disputes.
A Court reporter via a Welfare report makes a recommendation to
the court on what level of contact is appropriate, so how these
reports are produced is crucial. The problem is that CAFCASS does
not have guidelines in relation to the amount of time a child
should spend with a non-resident parent and what sort of contact
should be recommended in what sort of circumstances.
19. CAFCASS state that every case is different
so if there are no categories of case there can be no parenting
plans outlining what should happen in the various case categories
(Contact: Principles Practice and Procedures (CAFCASS 15 August
2004). Consequently CAFCASS does not keep records of how much
contact it recommends or why because if every case is different
then it is not necessary. Accordingly no training is given on
what to do on any case as each case is different.
20. CAFCASS receives a great deal of criticism
as it is alleged that some of the reports are based on idiosyncratic,
highly personal and often outrageous personal opinions and since
there are no guidelines for determining how much time children
should spend with both parents after separation, it is not surprising
that such criticism is made.
21. The power of CAFCASS is no more evident
than when a party is publicly funded. If the CAFCASS officer produces
an unfavourable report and states that the applicant has no reasonable
chance of success in his/her application and that it is unmeritorious
then it is possible for that party's legal aid certificate to
be revoked. Essentially the Court reporter's opinion, which may
not be well-founded, is depriving that party of legal representation
which may be desperately needed and essentially adjudicating on
the case.
DOMESTIC VIOLENCE
AND ABUSE
22. These are very serious issues and any
allegations rightly need to be assessed by the court, including
if the court considers, through a finding of fact. The problem
we have currently is that there is nothing to secure the children's
right to parenting time when it is being obstructed without there
being any safety issue at all. Also the process is too slow and
allegations which have to be investigated cause delay, which is
why cases need to be streamed as referred to above.
23. Allegations made in affidavits are often
unreliable and difficult to prove and if children are involved,
courts invariably favour the mother. Judges have to err on the
side of caution and grant injunctions. The problem is that making
allegations is all too easy. There seems to be no redress against
someone who has made false allegations. In other areas of the
law this would be seen as perjury.
24. Where there has been a misdiagnosis
of child abuse as per Angela Cannings, Sally Clark and Trupti
Patel for it to be sufficient for one expert to claim on the balance
of probabilities that the parent is guilty does not bode confidence
in the legal system.
25. A review of the Munchausen cases has
been carried out by social services scrutinising their own decisions.
The Court of Appeal has affirmed that non-medical evidence is
relevant and cogent and meets the threshold criteria. It is a
cause of major concern that circumstantial rather than direct
evidence will be sufficient to justify a decision that a parent
has deliberately harmed his/her child.
BIAS
26. The law may be gender neutral in intent.
However that is not the perception of many non-resident parents
who have been through the current court process. They have no
faith in it to produce an unbiased result.
27. Compared with the number of children
involved, it is true to say that the number of cases that reach
a final hearing are small because the majority of cases are compromised
along the way. However, this does not mean the parties are satisfied
with the compromise reached and that they feel they have been
well served by the legal system. Many give up because they feel
the system is too heavily weighted against them. The fact that
a case is compromised is definitely not an indication of a positive
outcome for either the non-resident parent or the children.
28. I believe that this is not so much gender
issue but a parent issue. It is a balance between the "resident
parent" and the "non-resident parent" irrespective
of gender. This is because the non-resident parent is always on
the back foot. The non-resident parent, usually the father has
to show why contact which has been stopped should be restarted.
The burden of proof is on the non-resident parent to show why
reasonable contact should be ordered.
29. The term "non-resident parent"
is seen as discriminatory. The Children Act provides for shared
residence. If we had a presumption of shared residence that can
only be departed from if there are strong and clear reasons for
doing so, then at least the non-resident parent would not be disadvantaged
from the outset. The distinction between the non-resident and
resident parent would disappear and so would a lot of the resentment
and the applications to court.
SECRECY
30. I believe that there should be more
openness in the courts. One argument put forward when the fathers'
groups stated that the courts are biased to them is that this
is because cases are held in private and full details are not
released to the public, so decisions are being misinterpreted.
The problem for parents is that they feel they have no "voice"
if they are deemed in contempt of court by talking about their
case.
31. Section12 Administration of Justice
Act 1960 stipulates that it will be a contempt of court to publish
any information relating to the proceedings if the proceedings
relate to children. (There is specific reference in that Act to
proceedings issued under Children Act brought under High Court's
inherent jurisdiction and generally where there is an issue relating
"wholly or mainly to the maintenance or upbringing of a minor."
In such cases no publication is allowed.) The reasoning behind
the confidentiality of family court proceedings is that the child's
welfare must come first and that the child must not be put at
risk of being identified. Vital first judgments at first instance
are made in private and they are unavailable for scrutiny. However,
once the case goes to appeal, although anonymised, public reporting
of judgments that reveal many identifying features is permitted.
ENFORCEMENT
32. The primary difficulty is not in enforcing
orders but in obtaining an order worth enforcing in the first
place. Currently it takes years to obtain an order for reasonable
contact. There is no point in having a system that does not work
coupled with punishments when contact orders are breached for
whatever reason. What is crucial is a legal system which enables
parents to obtain contact with their children in the first place.
33. Financial punishments are not always
satisfactory as the resident parent, generally the mother, does
not have the money to pay, although that is no compensation to
a parent who has expended money on a holiday only to have that
trip thwarted. Punishment in terms of giving more time to the
other parent would work in line with the aim of the contact order
in the first place.
GRANDPARENTS
34. Research repeatedly records the level
of childcare provision by grandparents at a steady 60% plus. Under
the current law before a grandparent can apply for a residence
or contact order the Children Act 1989 requires them to obtain
leave of the court. In deciding whether or not to grant leave
the court must take into consideration the grandparents relationship
with the child and the risks and disruption to the child's life.
35. Should grandparents require leave? Given
that grandparents are currently providing the majority of non-parental
childcare in this country, there should be much more discussion
on the matter.
Celia Conrad
December 2004
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