Evidence submitted by NCH
NCH is a leading children's charity that runs
more than 500 services for children, young people and families
across the UK. Every year in our family support projects we work
with thousands of children and parents who are going through the
process of separation and divorce. NCH also operates eight mediation
projects for separating parents and their children in England
and Wales—projects for which, ironically, we are finding
it increasingly difficult to secure Government funding, despite
the significant public and political interest in this area. Finally,
NCH has developed a website to help children whose parents are
separating, which can be accessed at www.itsnotyourfault.org.uk
THE KEY
AREAS THE
INQUIRY IS
INVESTIGATING ARE:
— Whether the family courts are being
run effectively.
— Whether family court judges have
sufficient powers.
— Issues surrounding delays caused
by the current system.
— Whether people using the family courts
are getting the service they need.
These four issues are closely related so our
views about them similarly overlap to some extent. We are confining
our responses to private law issues, though obviously NCH also
has extensive practice experience of working with the courts in
the context of public law (eg care proceedings).
Are the Family Courts being run effectively?
In NCH's experience there is no simple answer
to the question of whether the family courts are being run effectively.
Performance seems to vary significantly from one area to another.
However, the following is a description from an NCH mediation
project of practice in a city court where things seem to be running
ineffectively:
The long delays caused by the Court process
means 12 weeks or more go by when a Court Report is ordered. Often
parents end up seeing a different judge with each application.
Staff shortages and a lack of financial resources have seen CAFCASS
officers taking on both public and private law cases, with public
law taking precedence.
The Courts are very old and space is very tight.
Often there are no separate waiting areas, and this causes endless
problems and distress to those waiting to go in. Parents in conflict
are forced to hang around for up to one and a half hours in a
very small area, which causes animosity even before they see the
Judge. While parents wait to see the Judge, the two solicitors
often try and talk to each other to negotiate a settlement before
they are called. However a lack of space precludes this from happening
appropriately.
The Court Clerks organise listings inefficiently.
We saw four or five cases listed for the same time. This means
the other four cases have to hang around waiting for their turn.
We saw many cases where one party failed to attend, which meant
that the case could not actually proceed and the Judge was forced
to postpone.
I would suggest that all first directions are lumped
together on one day—this is a short appointment. The Judge
hears the situation and if the parties agree then an Order is
made. If they can't agree the case should go on for a report.
Other NCH projects also commented specifically
on the difficulties caused by the lack of appropriate waiting
areas in family courts.
Do family judges have sufficient powers?
NCH feels that others are better placed than
us to respond to this question. However, it is our experience
that when one parent is being obstructive, Judges understandably
tend to give them many opportunities to comply. There may be a
six week gap between hearings and a different Judge often seems
to hear the case on each occasion.
For us the problem isn't really that Judges
lack sufficient powers to enforce orders: as a children's charity
we endorse the view that it would be wrong for Judges to "punish"
obstructive parents if this resulted in adverse consequences for
the children, as it invariably would. The problems that come to
court reflect the complexities of people's lives and there are
no simple solutions to the conflicts between parents. An order
for contact or residence alone cannot remove the animosity between
the parents. The quality of the relationships between family members
is something the courts cannot remedy with force or punishment,
and so all too often family members are left to deal with the
problems arising from difficult relationships on their own.
For NCH, the real policy challenge is to help
parents to overcome the conflicts between them, in the best interests
both of themselves and their children. We set out some ideas about
how this can best be done in our answer to the fourth question.
What are the issues surrounding delays caused
by the current system?
Delay is undoubtedly a major problem in the
family courts, as we have already explained. Delay increases the
acrimony between the parties and can also lead to great distress
for the parent who is seeking redress, and for the children. In
particular, we are concerned that in some cases the delays can
result in contact arrangements which have clearly become inappropriate
for the child being continued, because social workers are reluctant
to alter them without the court's approval.
SOME OF
THE FACTORS
THAT CAUSE
DELAY ARE:
Inefficiency in organising Court lists. We think
Court Clerks should allot cases a set time, not just lump all
cases together.
Delays are also caused by one or both parties
failing to attend the Court hearing.
A delay of 12 weeks or more is not unusual while
a CAFCASS Officer prepares and then files their report. The time
set aside for the preparation of these reports should be much
shorter, in our view.
In our view the same Judge should, wherever
possible, see the parties for the duration of the Court process.
Early intervention should also be encouraged.
All Court applicants should be given information about mediation,
relationship counselling etc. At the moment this clearly doesn't
happen.
We think it would be helpful if Magistrates
Clerks and Judges were proactive in ensuring mediation is considered,
perhaps even requiring CAFCASS to give reasons when this is deemed
not to be appropriate. One of our mediation projects reports that
while it works quite closely with CAFCASS, it rarely receives
a direct referral from the Court.
We believe that a significant proportion of
parents attending a First Directions Hearing could be referred
to mediation. This especially applies to those who are not entitled
to public funding, since it is possible their solicitor has never
told them about mediation, as they are not required to attended
mediation appointments in the same way as are those seeking public
funding. If more cases were referred to mediation then this might
reduce delays.
It seems as if referrals for mediation are often
dependent on whether the CAFCASS officer at Court is "mediation
minded", since certain officers refer regularly, whereas
others never do. CAFCASS managers need to be more proactive in
keeping mediation in the forefront of Court Duty Officers' minds.
Another NCH mediation projects reports that it periodically attends
CAFCASS staff meetings and that this leads to mediation referrals
increasing in the period after their visit. The same project reports
a good rate of success with court referred cases. 75% of cases
referred to it from court do not require a welfare report, with
the parents either agreeing while in mediation or subsequently.
Are people who use the Family Courts getting the
service they need?
It is clear to us that a significant number
of people who use the family courts are frustrated by the delays
and other problems in the system discussed above, and are ultimately
disappointed by the service they receive. NCH believes there is
a danger, however, of us having unrealistic expectations of what
the courts can deliver: they are rarely able to resolve the deep-seated
conflicts that underlie the difficulties that lead parents to
come to court in the first place. We need to engineer a cultural
shift away from seeing courts as the places where such disputes
are resolved—something that is hard to do at a time when
we seem as a society to be becoming more, rather than less litigious.
The Government has, to some extent, recognised
this problem and in its recent Parental Separation Green Paper
it proposes an increase in in-court mediation to help divert parents
in dispute away from polarising court processes, so they can agree
their own solutions. The draw back to this proposal is that by
the time such parents reach court they are often already in entrenched
positions, and "forcing" them to agree at the door of
the court is probably unlikely to produce enduring agreements.
Many organisations that work in this field,
including NCH, believe that what is needed is a far more systematic
set of support services to help intact families, families that
are breaking down and families that have separated, in recognition
of the fact that separation is a process, not an event. We regret
that the Government's Green Paper does not offer this strategic
response. As we have outlined above, as part of this strategic
approach more early intervention is required, to help prevent
a cycle of unproductive court cases developing, with much more
proactive use of mediation.
Last but by no means least, there is a crying
need for more child-focused support services to help children
whose welfare is being seriously jeopardised by the conflict between
their parents. The extent to which children's voices are heard
in key decisions about residence and contact is unclear. However,
neither mediators nor solicitors routinely see children.[2]
Moreover, the new Legal Services Commission
contract for mediation does not pay for child consultation or
liaison with Social Services! The research shows that both professionals
and parents are struggling to adjust to the relatively new concept
of children as citizens, with rights to have their views taken
into account.[3]
It has been suggested that this has particular relevance in the
context of contact: some argue that children who say they want
contact are taken seriously, but those who refuse are not,[4]
even if there are issues about their safety.[5]
At present, children have limited opportunities
to participate in contested court proceedings, generally via a
report from a CAFCASS Children and Family Reporter. However, representation
by a children's guardian or solicitor will hopefully become more
common once the power to order it becomes law following the implementation
of section 122 Adoption and Children Act 2002, planned for the
end of 2004. NCH does not want to see cases needlessly going to
court, but we strongly support the view that children should have
the right of representation in those court cases where their best
interests are at risk of being lost.
In the UK NCH has helped to pioneer models of
mediation that are supportive of parents and appropriately inclusive
of children. We believe more Government support is needed to help
spread this good practice throughout the country.
Caroline Abrahams
Director of Public Policy
NCH
October 2004
2 Discussed in Hunt J and Roberts C, (2004), Child
contact with non-resident parents, Family Policy Briefing
3, University of Oxford Dept. of Social Policy and Social Work Back
3
Lowe N and Murch M, (2001), Children's participation in the family
justice system-translating principles into practice, Child
and Family Law Quarterly, 13(2) Back
4
Smart C et al, (2001), Residence and contact disputes
in court, volume 1, (Research series 6/03), Department for
Constitutional Affairs Back
5
Saunders H, (2003), Failure to protect? Domestic violence and
the experiences of abused women and family courts, Women's
Aid Federation Back
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