Evidence submitted by Tony Coe, President,
Equal Parenting Council
SUMMARY OF
PEOPLE/ORGANISATIONS
REPRESENTED
1. EPC represents parents—primarily
separated mothers and fathers, also grandparents whose role
in their children's lives has been terminated or limited by the
family courts, simply because the de facto custodial parent
wants rid of them. Our leadership team have had direct, personal
experience of the workings of the family justice system. Many
of us have effectively been stripped of our parental status and
have lost our relationships with our children for no good reason.
2. As a consequence of our experiences,
we studied our family justice system as it pertains to private
law cases and have, over the past four years, been comparing it
with Best Practice jurisdictions in the USA. We have found that
the UK system is at least 20 years behind such jurisdictions.
3. EPC also speaks for our children—and
all the children of separated parents—whose welfare
suffers as a consequence of our defective system—a system
that falsely purports to hold as paramount the welfare needs of
these children. These children suffer in silence while the State
fails to help them keep their relationship with their other parent.
They suffer now and they suffer in the future, as universal research
has proven. EPC is the UK Branch of the Children's Rights Council
(CRC) headquartered in Washington, DC. I was introduced to CRC
by Lady Catherine Meyer, a past Honorary President of CRC and
wife to the former British Ambassador, Sir Christopher Meyer.
4. EPC is a key member of the Coalition
for Equal Parenting (CEP). CEP is a collective of like-minded
parenting organizations who have all united behind the campaign
for an introduction of a legal presumption of "contact"
(which we prefer to call "parenting time" in line with
Best Practice jurisdictions) for all fit separated parents. For
further information on EPC please visit our website at: www.EqualParenting.org
ABOUT THE
WITNESS/AUTHOR
OF THIS
SUBMISSION
5. My name is Tony Coe. I am President of
EPC. My bio can be found at: www.equalparenting.org/tonycoebio.htm
KEY AREAS
OF COMMITTEE'S
INVESTIGATION
6. I understand the key areas to be investigated
are:
— whether the family court
system is being run effectively;
— whether 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.
7. EPC has already submitted to this Committee
our response (entitled Reform Proposal 2004) to the Government's
Green Paper which sets out our position generally. That document
should be considered as part of this submission (not printed).
It can be found at: www.EqualParenting.org
8. I will therefore not repeat here the
contents of our response to the Government's Green Paper. Rather
I will use this opportunity to briefly comment on the 4 key areas
of investigation which the Committee is specifically addressing.
Is the Family Court System being run effectively?
9. It is not. The system is entirely discretion-based.
Personal opinions and biases (of family judges, CAFCASS officers
and other so-called "experts") take the place of
clear laws. Judges are told in effect,
Decide whatever YOU think is in the best interests
of the children of the families that come before you, and whatever
you decide will be right!
10. Worse, there is the "no order principle"
which says that courts should not make any order until the court
has investigated what would be in the children's best interests.
By the time the investigation has been carried out it is usually
thought by the court to be too late to disturb the status quo.
That means the court squarely puts its weight behind the parent
"with possession" of the children—that is to say
the de facto custodial parent. The other parent ceases to have
any importance, except when it comes to providing financial support.
Delay, not the best interests of the children, thus determines
the outcome.
11. The children's parenting time with both
parents needs to be secured by the court at the earliest possible
point in time. Unless a parent is unfit*, this should be by way
of a temporary or interim order made at the first hearing. Of
course, an order is needed! The fact that a fit* parent has had
to apply for contact means that parenting time is being blocked!
At this vital time in the family's transition, the children must
not be starved of the oxygen of parenting time, otherwise the
child/parent relationship may wither and die.
[*A parent should be presumed fit until proven unfit.
The test of fitness should be this: is there a reason why this
parent's role in his/her child's upbringing should be limited
or restricted by the State that would apply even if the parents
were still together?]
12. The case for a burning need for a legal
presumption is argued in my July 2004 Westminster presentation,
which please consider as part of this submission (not printed).
It can be found at: www.EqualParenting.org
13. The lack of a legal presumption of contact
(for all fit parents) and the existence of the no order
principle are aggravated by the bias that exists in the system
(especially within CAFCASS) against so-called non-resident
(ie non-custodial) parents. Because most non-resident parents
are fathers, this is often perceived as gender-bias. However,
EPC is well aware that the system is broadly just as oppressive
when the non-resident parent is the mother.
(Non-resident parents are separated parents
who no longer can live with their children. In my submission,
in the majority of cases, neither parent should be so characterized,
because both parents should be considered resident parents. This
is because Parliament's clear intention behind the Children Act
1989 was that shared residence should be the normal form of order.
This wise intention has been ignored by judges and by CAFCASS).
14. In order for this Committee to gain
an objective understanding of just how badly our private law family
justice system is failing children and families it is essential,
in my respectful submission, to examine the performance of the
courts and CAFCASS in actual cases. There is no doubt in my mind
that the Honourable Members of this Committee would be shocked
and horrified to compare the reality of what is happening in cases
and to measure it against the testimony before this Inquiry of
judges, CAFCASS representatives and others.
[Why this submission has been amended]
15. But I do not expect this Committee to
take my word for it. This Inquiry, naturally, will expect evidence.
On that basis, EPC prepared for Honourable Members of this Committee
in time line format an actual, real life case study ("FAMILY
X") that vividly demonstrates (among other things)
just how ineffectively the family court system is being run. Further
it shows that there is nobody (including very senior, key people
in the family court system) who is willing to take overall
responsibility for a proper outcome that truly serves the children's
best interests; nor indeed for systemic failures, no matter how
catastrophic. The case of FAMILY X is typical of what EPC (and
similar parenting organizations) see day in/day out.
16. Of particular interest to this Committee
will be the fact it can be seen that gross negligence, incompetence
and corruption rise to the highest levels within CAFCASS: and
yet there is no redress available to the injured parties and children
that suffer as a consequence. This is an actual case study and
I can personally vouch for the accuracy of this time line and
for the facts asserted.
17. This case proves that not even our top
family judge, the President of the Family Division herself, was
able (or prepared) to take responsibility for making certain
that this case was placed on a proper course (even when she
knew full well that it had already gone badly wrong) or to
hold CAFCASS accountable for its abject failures in this and so
many similar cases.
18. I would add that it is one thing for
the President to tell this Committee in general and anecdotal
terms about how she views the widespread user dissatisfaction
with the private law system. It is quite another for Dame Elizabeth
Butler-Sloss to be required to account for such a lamentable performance
by the system over which she presides.
19. Therefore, in my original submission
I respectfully asked the Committee to study the THE FAMILY "X"
CASE STUDY TIME LINE which demonstrates the realities on the ground
which non-resident parents are faced with every day. I believed
it would give this Committee a better insight into the anger and
despair that exists across the country—anger and despair
that drives some to embark on colourful, sometimes dangerous and
inappropriate forms of protest.
20. I have noted in our research of Best
Practice jurisdictions across North America that when their legislatures
have in the past been considering changes in the law in the direction
of shared parenting, they have been especially moved by testimony
and/or impact statements from affected parents and family members.
21. That said, on receipt of my original
submission to this Committee, I was told that the THE FAMILY "X"
CASE STUDY TIME LINE could not be given to the Committee members
because it might be a contempt of court and it should be removed
from the submission. Hence this amended submission. However, I
should like to respectfully suggest that the FAMILY "X"
CASE STUDY document can be reviewed by the Committee Members without
there being any contempt of court for the following reasons:
— Neither the parents nor the
children are identified in the document.
— It is not a court document.
— The information is already firmly
in the public domain.
— The case was covered in a BBC
One TV programme that was advertised on BBC's web site as follows:
Britain's Secret Shame, Friday 5 Nov, 12:30 pm—1:00
pm 30 mins
The Family Courts operate in secret, so can
we trust them to treat parents fairly and put our children first
when families break up? Whistle-blowers say thousands of youngsters
are growing up deprived of their fathers because the courts are
failing. Jan says the family law system encouraged her to give
her ex-husband only minimal access to their daughter. The pair
eventually abandoned the courts and made their own peaceful agreement
to share bringing up their daughter. Steve hasn't had access to
his son for four years. He says the courts have refused to enforce
their own order giving him access. He's one of thousands of angry
fathers waging a campaign of civil disobedience. Some have even
lobbed purple powder at the Prime Minister. They claim it's the
only way they can get their voices heard on what they say is one
the greatest social injustices in Britain today.
— In the above TV documentary,
one of the children (now 17) spoke out about how she felt the
system had let her down and adversely impacted her life.
— The case is the subject of two
successful (but practically fruitless) appeals to the Court of
Appeal conducted in open court.
— The first of these was extensively
reported in Family Law Journal.
— The document is publicly available
to all on the EPC web site.
22. I submit that it is entirely appropriate
that the Committee Members have access to this document and I
would invite the Honourable Members to review it and to be fearless
in pursuing answers to the questions that will inevitably arise
in the minds of Committee Members.
23. On the other hand, if it is true, that
for the Inquiry to have access to this information would be unlawful,
then I respectfully submit that this Committee is impossibly hampered
in its work by secrecy laws that are patently contrary to the
public interest. I reject the notion that these secrecy laws are
there to protect children. EPC has researched jurisdictions across
USA and Canada where these cases are open to public scrutiny,
where the openness of court proceedings is treasured. At no time
have we heard anyone complain that a child has suffered harm as
a result of court openness. It is, however, clear to me that secrecy
in British family courts is damaging to the interests of children,
parents and grandparents.
24. I refer to the words of Lord Denning,
who said this on court secrecy:
Every court should be open to every subject
of the Queen. I think it is one of the essentials of justice being
done in the community. Every judge, in a sense, is on trial to
see that he does his job properly.
Reporters are there, representing the public,
to see that magistrates and judges behave themselves. Children's
courts should also be open. Names should be kept out but the public
should know what happens to the child and proceedings should never
be conducted behind closed doors . . . Somehow I believe, in the
words of Jeremy Bentham, that in the darkness of secrecy all sorts
of things can go wrong. And if things are really done in public
you can see that the judge does behave himself, the newspapers
can comment on it if he misbehaves—it keeps everyone in
order. It is of first importance that all proceedings should be
held in public and this includes the delivery of judgments together
with the reasons for them. This is so that everyone who wishes
to do so can come into court and hear what takes place; and also
that the reported cases can be taken down by reporters for their
own use.
25. The realities of what the system is
doing to children and families are simply not understood by judges,
Government Ministers or CAFCASS Board Members; that is unless/until
they are unlucky enough to be subjected in their personal lives
to the indignities and injustices imposed by this seriously flawed
system. In short, they simply don't get it! They can't see the
wood for the trees; just as nobody could see the wood for the
trees at any time during the FAMILY "X" CASE. So nothing
effective was done until it was too late!
[Why this submission has been re-amended]
26. I think it is important that I state
for the record why this submission has had to be re-amended. Having
submitted the amended version (which disposed of the objection
to the inclusion of the FAMILY "X" CASE TIME LINE document
on the basis that it might constitute a contempt of court)
I was then given a new and different reason why this anonymized
case study could not go to the Committee. The new reason was that
the Committee had decided not to look at individual cases. With
all due respect to Honourable Members of this Committee, I believe
this decision to be a serious mistake.
27. The proof of the pudding is in the eating
and this case study demonstrates beyond any doubt that the system,
at all levels, is not putting children's welfare first. Failure
to analyze what went wrong in this case allows the culpable people
involved (some of whom occupy most senior positions within
our family justice system) to continue to hide behind the
lie that they are acting in the best interests of children.
28. For the President of the Family Division
to come before this Committee and state that she has (or her
senior judicial colleagues have) been prepared to meet with
EPC leaders and to listen to our point of view is disingenuous.
EPC has repeatedly asked Dame Elizabeth (and other senior members
of the judiciary) to meet with us. We have requested that
they attend educational events and conferences that we have scheduled.
These requests have fallen on deaf ears. The President operates
at an altitude from which she cannot see the realities of what
is happening to children, parents and grandparents in her family
courts across the land. Yet these family courts are her ultimate
responsibility.
29. The President has not even been prepared
to listen to one of the UK's most pre-eminent mental health professionals
and court experts—one who she tells me she thinks highly
of. Indeed, because he has been prepared to work with parenting
organizations like EPC to achieve positive reforms, she told him
at a function that she did not like the company he was keeping.
He therefore does not feel that he can speak out for fear that
he will be stigmatized by our top family judges. This is a most
unhealthy situation and the President should know better than
to impose her anachronistic and wrong-headed views on experts
who should feel free to advise courts and make recommendations
according to what they know is truly best for children.
30. The family courts are ineffective because
they start (just as the Government starts) from the premise
that they can only help those parents who don't need them! They
are like the bank that will only offer you a loan when you don't
need one! We are constantly told most parents agree their children's
arrangements outside court. What is the relevance of this fact?
Is this any justification for oppressing the minority of parents
(and their children) who do need assistance from the courts
in order to stop their fundamental Human Rights being trampled
over?
31. The Children Minister, Margaret Hodge,
has looked my colleagues and me straight in the eye and told us
that if a custodial parent is determined enough to exclude the
other parent there is nothing a court can do about it. With that
sort of leadership on this issue, the Government is beaten before
it starts! What of the children's and the excluded parents' individual
legal and human rights to a family life together?
32. These cases represent 100% of the cases
that EPC, and all the other member-organizations of CEP, are concerned
about. They are the reason we need an effective, fair and balanced
family justice system.
33. The reforms that EPC have proposed would
go a long way towards ensuring that children maintain a full and
meaningful relationship with both their fit parents. The Government's
proposals, as set out in the Green Paper, will not.
Do family court judges have sufficient powers?
34. They already have formidable powers
that they could deploy (but rarely do) to protect the children's
right to keep both parents, including (but not limited to) the
power to:
— grant shared residence, thereby
equalizing the status of parents who should be treated equally
before the Law (as Parliament intended) thereby removing the need
for a battle over the most emotionally charged component—ie
who gets custody and who loses their children!;
— transfer residence* away from
a parent who is blocking the other parent's role in their children's
upbringing;
— order "make up" time
when a parent has lost time due to the other parent's lack of
cooperation;
— order that contact travelling/costs
be shared fairly;
— order the involvement of mental
health professionals to facilitate contact**;
— refuse to finalize finance orders
until a proper shared parenting plan has been established;
— award costs against a blocking
parent; and
— impose the ultimate punishment
of a spell in prison***.
[*Only recently have a tiny number of (mainly very
senior) judges started to transfer residence largely because we
have been pointing out that judges in Best Practice jurisdictions
have been successfully applying these sanctions for years.
**Trained professionals are rarely brought in early
enough or at all—see FAMILY X.
***Experience from Best Practice jurisdictions shows
that the threat of prison is often enough to correct the problem.
UK judges won't even do that!]
35. It all comes back to the need for the
law to have a clear objective and a clear definition of what is
in the best interests of children. Under our current law (like
beauty) the concept of the best interests of the children
is in the eyes of the beholder! Unclear law is ineffective law.
36. It is common ground (see the Green
Paper) that children should be having a full and meaningful
relationship (including normal contact) with both parents. Judges
need the powers to make that happen and they must use those powers
and use them early in a case. Those powers should not be compromised
by the ill-conceived no order principle.
37. An additional power that judges need
is the power to order parents into Parent Education Classes and
mandatory mediation.
38. Judges should apply the Law as Parliament
intended; they should not be free to make it up as they go along!
What are the issues surrounding delays caused
by the current system?
39. Delays are caused (among other things)
by courts routinely commissioning "investigations" even
when there is no safety issue. What is the investigation supposed
to be achieving? Not only does it cause delays, but it actually
fuels hostilities between the parties. The blocking parent becomes
more determined. A status quo sets in (ie contact does not
happen or there is paltry contact) and the court will not
disturb it for fear of acting against what it perceives as the
child's best interests. Thus delay determines the outcome, which
is plainly wrong.
40. Where there is no issue of safety there
should be contact as the Government's Green Paper asserts. The
court should be under a positive duty to:
(a) order contact quickly; and
(b) enforce its orders promptly and
with determination. Delays should not be tolerated.
41. Best Practice jurisdictions use mandatory
mediation to help the parents agree a parenting plan that then
is enshrined in a court order. Mediation requires a tough, determined,
fair and balanced court system working in the background to motivate
parties to settle on a basis that is best for the children and
the family as a whole.
42. Delays are primarily caused by:
— the lack of clear law, rules
and procedures;
— Incompetence/negligence;
All these elements are evident in the FAMILY
"X" CASE STUDY.
Are people using family courts getting the service
they deserve?
43. Clearly they are not. Non-resident parents
(mostly fathers, but increasingly mothers too) are being driven
out of their children's lives. Children are losing one of their
parents (and extended family, such as one set of their grandparents)
for no good reason. These children are suffering now and into
their futures. Their adult relationships suffer and their own
children's lives are negatively impacted. The damage to our society
grows exponentially as parental separations become the norm, rather
than the exception. Dysfunction breeds dysfunction, breed dysfunction.
I look forward to appearing before the Committee,
as arranged on 11 January 2005, to elaborate on this submission
and to assist this Inquiry to the best of my ability.
Tony Coe
President
Equal Parenting Council
18 November 2004 [re-amended 3 December 2004]
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