Evidence submitted by Mavis Maclean CBE,
Joint Director, Oxford Centre for Family Law and Family Policy
FAMILY JUSTICE
AND THE
CHALLENGE OF
DISPUTED CONTACT;
THE CONTRIBUTION
OF EMPIRICAL
RESEARCH
In an area where feelings run high, and individual
cases have been the focus of media attention, it is important
to make full use of the information produced by rigorous empirical
research.
1. CHANGING FAMILIES
In the UK couple relationships have become more
fragile, while the relationships between parents and children
have become more enduring. Current estimates suggest 28% of children
in England and Wales will experience parental divorce before the
age of 16 and an increasing proportion of children are being affected
by the separation of cohabiting parents, (Hunt 2004). Children
living in lone parent families in England and Wales in nine cases
out of 10 live with their mothers (Census 2001) and stay in contact
with their non resident parents (Attwood et al 2003).
"Work Life Balance" is changing, as
fathers are gradually becoming more involved with the care of
their children, while mothers become more involved with paid work.
But although changes in family relationships and parental separation
are now numerically "normal," they are not anticipated
nor sought by the children (Pryor and Rodgers, 2001).
2. WHO ARE
THE FAMILIES
WHO COME
TO COURT
OVER CONTACT?
Most parents (90% Blackwood and Dawe, 2003)
who separate make their own arrangements for taking care of their
children. This accords with the presumption in the Children Act
that the court should not intervene by making an order about residence
or contact unless it is in the best interests of the child to
do so. We know little about how these private arrangements are
made or how they affect the children. Research has concentrated
on the difficult cases where parents are unable to reach agreement
either by themselves, or with advice from family, friends, advisers,
mediators, or solicitors. Recent research for DCA (Smart, May
and Wade, 2003) found that parents who initiated court proceedings
had done so often out of a sense of insecurity or a desire to
have clear boundaries imposed on a problem they could no longer
handle, and many found the courts helpful. Current research for
DCA (Trinder, in press) has found a high incidence of multiple
problems in these families, including debt, housing, employment
and health. Only a small number of cases become drawn out and
intractable, returning to court over a number of years. But even
parents approaching court for the first time are highly conflicted
and unable to communicate with each other (Trinder, in press)
Children involved in these cases have been found to experience
high levels of distress comparable with those found in children
involved in public law care proceedings (Buchanan et al
2001).
Research carried out by the Court Service in
New Zealand sought to identify at an early stage those contact
cases which became highly conflicted, by looking back at completed
cases. They found high conflict to be associated with untreated
mental health problems, and lack of or changes in legal representation
(Barwick et al 2003).
3. WHAT HAPPENS
IN OTHER
JURISDICTIONS?
There has been some confusion in popular debate
in the UK about the legal position in other jurisdictions. For
example in the Nordic countries joint legal custody is the norm,
but this is different from either joint parental decision making
or shared physical residence (Ryrstedt 2003). The "shared
parenting" advocated by the Australian Parliamentary Commission
in "Every Picture tells a Story" for cases where there
is neither a history of entrenched conflict nor any risk to the
child closely resembles our own formulation of parental responsibility
under the Children Act 1989.
There is pressure from fathers' groups for reform
of the law relating to contact to give fathers greater access
to their children in a number of other jurisdictions, for example,
Australia, Canada, France, Italy, and many parts of the United
States. Canada and Australia have recently set up commissions
to examine the question (Rhoades and Boyd 2004). Both commissions
began their work with strong but often anecdotal representations
from fathers groups. But as the objective empirical research data
came into play, the commissions in both countries chose to reject
the proposals for a contact formula, arguing that there should
be respect for the diversity of family life, and that there can
be no "one size fits all" solution if the interests
of the children are to be given priority. This approach also underpins
many of the Parenting Guidelines adopted in a number of American
states which look to developmental criteria to suggest suitable
contact patterns but emphasise that these are not prescriptive
in individual cases (Kelly, Warshak, 2000,Gould 2001).
No other jurisdiction has yet found a comprehensive
solution to the problem of conflict over parenting after separation
4. WHAT IS
THE RESEARCH
EVIDENCE ON
THE VALUE
OF CONTACT
FOR CHILDREN?
Contact with both parents after separation is
widely assumed to be in the best interests of the child. Few would
argue with the assumption that loss of contact with a caring parent
and experience of parental conflict are detrimental to a child's
welfare and development. The difficulties arise when maintaining
a relationship with a non resident parent is associated with parental
conflict as in the cases which come before the courts. Research
findings reflect the complexity of the situation (Hunt 2004).
Parental conflict is clearly associated with poor outcomes for
children (Pryor and Rodgers 2001, Reynolds 2001) But the association
between contact and outcomes for children is more complex. In
the UK Dunn (Dunn 2003) reported that more contact was unequivocally
associated with fewer adjustment problems for children .But a
recent study of step families found that the quality of relationships
in the primary home was a stronger predictor of a child's well
being than continuing contact with a non resident parent. (Smith
2001) .An American review of child well being in motherheaded
households (Amato 1993) found the two elements consistently associated
with child well being were the economic contribution of the father
and the closeness of the mother-child relationship. Pryor and
Rodgers in their overview of the research literature found that
"the mere presence of fathers is not enough . . . it is the
. . . aspects of parenting encompassing monitoring, encouragement,
love and warmth that are consistently linked with well being"
(Pryor and Rodgers 2001). The current Green Paper refers to the
benefits to children of a "meaningful on going relationship
with both parents".
IMPACT ON
CHILDREN OF
CONFLICTED CONTACT
The risks to children of contact in situations
where domestic violence is an issue are well established. Recent
research has raised concerns about the need for safeguards to
deal with the risk of abuse or abduction in contact centres (Aris,
Humphreys and Harrison, 2002).
Even where conflict is not acute, moving from
one parent to another is stressful for children and needs to be
carefully managed. While separation from a non resident parent
impedes the development of a parent-child relationship, the negative
effect of absence must be balanced against the stress for the
child of experiencing frequent changeovers (Kelly, Warshak, 2004).
Research is not yet able to answer questions
about the balance between the impact of short term stress for
children and the long-term benefit of sustaining the parental
relationship, or of how a stressful relationship may be helped
to settle down.
5. WHAT DO
PARENTS ARGUE
ABOUT?
Trinder found that mothers and fathers raised
different issues, with welfare issues being raised by mothers,
and power or control issues being raised by fathers (Tinder 2004
in press).
The mothers were anxious about the children
being upset by contact, and the quality of parenting provided
by the father. Concerns included safety in traffic, in the home,
exposure to risk related behaviour by the father or a new partner
such as alcohol or substance abuse, and the provision of a suitable
domestic routine. The fathers were anxious about contact being
stopped or interrupted, and about being excluded especially where
there was a new partner in the former family home.
6. WHAT DO
CHILDREN WANT?
Most children want contact with their parents
and continue to see both parents as part of their family (Dunn
2003). Frequency and regularity of contact are often important
to younger children, while older children put greater value on
flexibility as they have social activities of their own (Tinder
2002). Children usually enjoy contact, though it can be distressing.
Problems include parents who fail to turn up as expected, being
exposed to conflict and feeling torn loyalties, harassment or
abuse, being used as a go between and managing relationships with
a parent's new partner or children (O'Quigley 1999).
Shared physical residence (50/50 parenting)
can be successful for some children. But a recent study of families
who had chosen this arrangement found that although the children
were reasonably satisfied when first interviewed at follow up
three years later a number of the children were looking forward
to a time when they could "stop living like nomads"
(Neale, Flowerdexv and Smart 2003).
7. WHAT CAN
RESEARCH TELL
US ABOUT
WHAT KINDS
OF INTERVENTION
HELP PARENTS
TO MANAGE
IF NOT
RESOLVE THEIR
CONFLICT, AND
ACHIEVE COLLABORATIVE
POST SEPARATION
PARENTING?
EARLY INTERVENTION
Advice and support for parents with relationship
problems is thought to be helpful as early as possible. In Australia
this has resulted in the recent development of Family Relationship
Centres, which are located in the high street and can be approached
at any stage in a family problem. Access is not restricted to
those using the justice system (Parkinson, 2004). These centres
are very new, and have not yet been evaluated.
PATHWAYS TO
ADVICE, SUPPORT
AND CONFLICT
RESOLUTION
When conflict goes beyond the stage of being
resolvable by the parties themselves the parents may need help
with mediation and negotiation. A recent survey of access to justice
(Genn 1999) showed how often divorcing couples sought the help
of solicitors for child related issues at divorce, and subsequently
entered the legal system.
In Scandinavia and Germany contact is seen as
a child welfare issue, not as an adult dispute, and routes to
help come through mediation in a family welfare setting (Moxnes,
Maclean and Mueller-Johnson 2003). In Denmark, for example, where
divorce has long been an administrative procedure, a contact dispute
cannot be taken to court.
In Australia there have been recent moves to
make the family court procedures less adversarial, by restricting
the use of expert witnesses and examination of past behaviour,
and focussing on the future of the family. (Family Court of Australia,
The Children's Cases Programm, Practice Direction 2004/227 February
is sued by the Hon Chief Justice, Alistair Nicholson. Nicholson).
INTERVENTION PROGRAMMES
FOR MANAGING
PARENTAL CONFLICT
Finding ways to assist families who bring their
disputes to court is a problem exercising many other jurisdictions,
and some innovative approaches are being developed particularly
in the United States, Canada and Australia ( Hunt, forthcoming).
Educational classes are the most widespread and are typically
aimed at parents who have a dispute but are not yet in entrenched
conflict. Evaluation of these projects, understandably at this
stage in their development, is not yet conclusive. There is evidence
that they can have an impact on parental behaviour and attitudes,
and on children's exposure to conflict Some programmes report
reduced litigation However there is little evidence as yet on
their impact on the well being of the children
An overview of interventions including parent
education programmes is being conducted by Joan Hunt for the Nuffleld
Foundation. This indicates that there are two key elements common
to the well regarded programmes: firstly raising awareness of
the child's point of viexv, and secondly teaching conflict management
skills. This review has informed the development of the FRPP which
it is hoped may address the issue arising in relation to In Court
Conciliation schemes currently run by CAFCASS which are achieving
high rates of out of court agreement but not as yet having any
measurable impact on the levels of underlying conflict between
the parents (Tinder, work in progress for DCA).
In Australia, when parent education was used
as a mandatory remedy after breach of contact, the programmes
used were not sufficient to deal with parents in entrenched conflict.
Programmes targeting parents who breach orders have been developed,
for example, Parents Without Conflict, a six week programme in
Los Angeles. There are also alternative approaches which appear
promising, such as the intensive group based therapeutic mediation
practised in the Alameda project in California.
In Australia agencies involved in the government
funded Contact Orders Pilot provide a range of services including
mediation, children's groups, parent education, counselling, supervised
contact, case management and telephone support during and after
the programme.
Finally there are a number of programmes to
assist parents after an order has been made. In the United States
a new initiative is that of Parenting Coordinators, who support
contact, and to whom the parents turn to mediate or arbitrate
when a difficulty arises rather than return to court. The parents
agree to abide by the decision of the coordinator on entering
the programme. There is some evidence that this results in reduced
litigation.
8. CONCLUDING
OBSERVATIONS
In my view, it is unhelpful to regard contact
as either an object to be given or withheld, or a right to be
claimed or exercised. The American term "Parenting Time"
provides a more constructive formulation. Parenting is never easy.
and "Contact" after separation is parenting in particularly
difficult circumstances. There is a need for ongoing support and
advice for parents who are committed to their children's welfare
but have difficulty in working together while still coping with
the ending of their own relationship as partners. We are unlikely
to find a single solution, given the variation in families and
their problems. The most constructive way forward in my view is
to respect this diversity, and to look to a variety of forms of
support and intervention. The Green Paper, in my view, offers
a number of helpful proposals which will support families at different
stages and with different issues to resolve in working out their
parenting time, while maintaining a clear focus on Children's
Needs and Parents' Responsibilities.
Mavis Maclean CBE
Joint Director, Oxford Centre for Family Law and
Family Policy
Senior Research Fellow, Faculty of Law
University of Oxford
4 December 2004
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