Evidence submitted by John Eekelaar, Oxford
Centre for Law, Policy and the Family
1. My interest is in the appropriateness of
the use of law in regulating family relationships.
2. While people live together, legal mechanisms
are generally considered unsuitable and ineffective for regulating
the way people deal with one another in their personal relationships
or organise their time with their children. This is because these
matters involve intimacies of family living which are hard to
assess by legal methods, are very fluid, raise deep emotions and
very sensitive in their implications for children. (See the analogous
case of regulating health and diet).
3. While the fact of separation creates
a new situation which may require legal involvement, most of the
reasons why legal mechanisms are inappropriate remain. It should
be remembered that only a tiny proportion of separations lead
to legal conflict.
4. Desirable patterns of post-separation
parenting therefore need to be promoted through non-legal means
(eg education, mediation, counselling). Government policy can
appropriately promote recommended patterns.
5. Legal presumptions are likely to be of
limited value, or even counter-productive, for the following reasons:
(a) How would they be framed? If: "the
court should order contact unless satisfied this would not be
in the child's interests", this presumes that contact in
legally conflicted cases (which, by definition, these would be)
is beneficial to children unless shown otherwise, whereas the
research evidence shows that this is not so. If: "the court
should order contact if beneficial to children", this is
unnecessary, since the welfare principle requires the court to
do what is best for children anyway.
(b) The degree of contact "presumed"
might need to be specified (would the presumption be interpreted
as referring to all types of contact from minimal to "equal
sharing"?).
(c) It might be necessary to frame counter-presumptions,
such as: "the court should not order contact in favour of
a parent who has behaved in a violent way unless satisfied that
this would be in the child's interests". Such conflicting
presumptions would encourage forensic dispute and polarise attitudes.
There is evidence from New Zealand (which has such a presumption)
that it causes delay because judges will not hear the main issues
until allegations of violence are resolved.
(d) In any event the courts operate on a
number of "assumptions of fact" about where children's
interests lie: eg that mothers can deal with very young babies
better than fathers, that violent situations are bad for children,
that children will normally benefit from contact. These are different
from presumptions in that a presumption points to an outcome unless
sufficient positive evidence to the contrary is accepted, whereas
a fact which is assumed to benefit a child simply takes its place
alongside other facts about the child's interests so the court
can decide on the preponderance of evidence where the child's
best interests lie.
6. Enforcement: whether or not the welfare
principle technically applies to the enforcement of orders, the
fundamental basis of the order would be subverted if enforcing
it operated against the child's interests.
7. This dilemma influences my preferred
solution. This is that, if non-legal interventions fail, coercive
legal measures should only be taken where necessary to protect
a child from clear harm.
8. Thus the procedure would be that, in
a disputed case, the last non-coercive step would be a recommendation
which could go to compulsory mediation. If that failed to produce
an agreed outcome, or if an agreed outcome failed to work, a formal
order would only be made if:
(a) investigation showed that the lack of
contact is causing the child clear harm (eg by damaging a relationship
which the child values); and
(b) the court considered that the prospective
harm likely to be inflicted on the child by the legal conflict
was less than the harm currently suffered by the child by the
lack of contact.
9. If the child is not suffering clear harm,
the court would not impose orders on unwilling parties, thus creating
the known harms of legal conflict, in the hope of speculative
benefits in the future. There is room, of course, for interpretation
of "clear harm", in which I would include deliberate
deception of the child about the absent parent.
10. This approach could mean that in some
cases a parent (usually the father) would not be able to "build"
a hoped-for relationship in the future with the child if this
could not be established by agreement. However, this would be
justified for the following reasons:
(a) The state will have fulfilled its duty
under human rights law to support the fathers' legitimate interests
by its efforts to procure an agreed arrangement.
(b) It would still be possible to intervene
coercively if the child is shown to be suffering clear harm, either
through deprivation of a valued relationship or deception about
the father.
(c) If all this fails, it is necessary to
face the fact that, although the father's legitimate interest
may be frustrated, this is only so because preventing the harm
likely to be inflicted on the child by coercive intervention in
such a case is given priority over satisfying the father's wishes.
This is acceptable under human rights law, and should be so in
policy too, because no child should suffer preventable harms as
a result of the failures of the adult world, of which the child
is the innocent victim.
John Eekelaar
Reader
Oxford Centre for Law, Policy and the Family
December 2004
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