Select Committee on Constitutional Affairs Written Evidence

Evidence submitted by the Department for Constitutional Affairs

Department for Constitutional Affairs 1.1
The Department's role in Family Justice 1.2
Inter-Agency & Inter-Departmental Partners in Family Justice 1.3

2.Overview of the Family Courts
Legislation, applications and volumes 2.2
Court and case costs2.3
The role of the Legal Services Commission 2.4
The role of CAFCASS in private law 2.5
Alternative Dispute Resolution (including Mediation) 2.6

3.Relationship Breakdown: Focusing on the Needs of the Changing Shape of Families
Contact arrangements3.2
Needs of parents3.3
Continuing contact3.4
The Government's proposals3.5
The changing role of CAFCASS 3.6
Disclosure and privacy3.8
The International Dimension3.9



  1.1.1  The Department's responsibilities are justice, rights and democracy. Its objectives are to provide effective and accessible justice for all to ensure people's rights and responsibilities, and to enhance democratic freedoms by modernising the law and the constitution.

  1.1.2  In order to serve the public more effectively, we are driving forward improvements to the justice system, and modernising and safeguarding the constitution. We aim to empower citizens to obtain justice, safeguard their rights, and participate in a transparent and accountable democratic process.

  1.1.3  The Department supports the Secretary of State, in his capacity as Lord Chancellor, in the appointment of members of the judiciary, Queen's Counsel, lay justices and justices' clerks. It also supports him in the appointment of the chairs and members of a number of tribunals and other Non-Departmental Public Bodies and Executive Agencies that it sponsors. These include the Court Service, Legal Services Commission, the Public Guardianship Office and the Official Solicitor.


  1.2.1  The Department's prime responsibilities in family justice are the operational delivery of the administration of the courts (see 1.3.1-1.3.3); the appointment of the judiciary; and sponsorship of the Legal Services Commission, which is responsible for the administration of the Community Legal Service.

  1.2.2  The Department continues to have a joint responsibility for a number of key legislative policy areas including adoption, domestic violence and civil partnership. The Department, in partnership with the Department for Education and Skills, and the Department for Trade and Industry issued a Consultation Paper entitled Parental Separation: Children's Needs and Parents' Responsibilities[60] in July 2004.


  1.3.1  The Court Service is an Executive Agency of the Department for Constitutional Affairs, charged with the delivery of justice. The Agency is currently responsible for the administration of the court system, with the exception of magistrates' courts (see 1.3.2), in England and Wales. It provides the necessary services to the judiciary and court users to ensure impartial and efficient operation.

  1.3.2  The magistrates' courts are currently administered by 42 regional semi-autonomous Magistrates' Courts Committees (MCCs). These Committees are responsible for all aspects of the daily operation of magistrates' courts falling within their area, including strategic planning and overall policy as well as employment of staff.

  1.3.3  From April 2005, the administration of all courts will be unified in a single body as Her Majesty's Courts Service (HMCS), following a comprehensive restructuring of the current organisation of the Court Service and MCCs.

  1.3.4  The Legal Services Commission (LSC) is an executive Non Departmental Public Body created under the Access to Justice Act 1999 to replace the Legal Aid Board. It is responsible for the Community Legal Service (CLS), which replaced the old system of legal aid, and brings together networks of funders, such as local authorities, into local partnerships, to provide the widest possible access to information and advice.

  1.3.5  Responsibility for the Children Act 1989 was transferred from the Department to the Department for Education and Skills (DfES) in June 2003 as part of the machinery of Government changes. Responsibility for the Children and Family Court Advisory and Support Service (CAFCASS), a statutory Non Departmental Public Body, was also transferred to DfES in January 2004. Transferred responsibilities include Child Contact Centres, parental responsibility and providing services that support children and families in family court proceedings in England and Wales. Responsibility for the family courts remains with this Department. The Department and DfES work closely together on policy development and implementation (see 1.2.2).

  1.3.6  New legislation on civil partnership is the responsibility of the Department for Trade and Industry (DTI) in conjunction with this Department. The Minister responsible for women's issues is based at DTI, as is the Women and Equality Policy Unit.



  2.1.1  The family courts deal with matrimonial proceedings and proceedings relating to children including Children Act 1989[61] matters (eg care proceedings), domestic violence and adoption applications (see section 2.2). The Act introduced the Children (Allocation of Proceedings) Order, which came into force in October 1991, establishing for the first time a single family jurisdiction across all tiers of court, including the family proceedings courts (in magistrates' courts). The type of cases that the courts hear depends on their jurisdiction.

  2.1.2  The Family Division of the High Court has jurisdiction to hear all cases relating to children and exercises an exclusive jurisdiction in wardship and matters relating to the Hague Convention on child abduction. The High Court also hears applications for declarations in relation to children and vulnerable adults (including life and death issues). The High Court hears appeals from family proceedings courts and cases transferred from the county courts or family proceedings courts. In addition, the Family Division (along with the Chancery Division) deals with all probate cases.

  2.1.3  The Family Division of the High Court sits at the Royal Courts of Justice in London and consists of the President of the Family Division and 18 High Court Judges. High Court work is also dealt with at the Principal Registry of the Family Division (PRFD) in London and, outside London, by those district registries which have divorce jurisdiction.

  2.1.4  Family county courts are a discrete cohort of county courts that have been designated by the Lord Chancellor to determine any matrimonial cause (ie divorce proceedings or matters concerning the annulment of a marriage). These courts can issue all private law family proceedings.[62] In addition to this general jurisdiction in matrimonial matters, a number of these family county courts also have more specialised jurisdiction in other aspects of family business. For example, a Family Hearing Centre can issue and hear all private law family matters, whether or not they are contested, and a Care Centre has full jurisdiction in private and public family law[63] proceedings (both contested and uncontested). The President of the Family Division has also developed the concept of specialised adoption centres with jurisdiction to issue, process and hear applications to free a child for adoption and make an adoption order.[64]

  2.1.5  Family proceedings courts' work is dealt with by lay magistrates and sometimes by district judges (magistrates' courts) sitting with lay colleagues. The lay magistrates sitting at these courts are drawn from a specially selected family panel and have to undergo specialist, continuing training. The district judges (magistrates' courts) are also specially trained. Family proceedings courts have full private and public law jurisdiction as well as jurisdiction to hear and determine adoption proceedings. These courts are not able to hear divorce proceedings, but are able to make various orders related to separation (such as maintenance).

  2.1.6  In order to hear family matters, particularly those detailed in the Children Act (see 2.2.17), district and circuit judges in county courts must receive special family work training and guidance and be nominated for such work by the President of the Family Division. This is sometimes referred to as "family ticketing of judges". Training of judges is undertaken by the Judicial Studies Board (JSB). Judges who have not been nominated may still hear matrimonial and domestic violence injunctions.

Key agencies and other relevant bodies

  2.1.7  There are a number of key agencies and other relevant bodies involved in the administration and delivery of justice in the family courts. Some of these are part of the Department and others are independent of the Department, although they work closely with it.

  2.1.8  The Court Service is an executive agency of the Department with the purpose of supporting the delivery of justice. It is responsible for the administration of the court system in England and Wales (other than magistrates' courts), and provides the necessary services to the judiciary and court users to ensure impartial and efficient operation. The Crown and county courts are located in six regional circuits, each headed by a Circuit Director. The Supreme Court (including the Royal Courts of Justice) operates as a circuit or region in its own right. The Court Service will cease to exist in April 2005, on the establishment of Her Majesty's Court Service (HMCS).

  2.1.9  The Magistrates' Courts Committees are semi-autonomous bodies statutorily charged with ensuring the efficient and effective administration of the magistrates' courts within their jurisdiction. Each MCC is a body corporate and compromises approximately 12 magistrate members, selected by a statutory selection panel for each MCC area. MCCs must produce a strategic plan, which details matters such as resource management, organisation of petty session areas and justices' training. The MCCs will be abolished in April 2005, again on the establishment of HMCS.

  2.1.10  In April 2005, Her Majesty's Courts Service will become responsible for delivering an efficient and effective system of administration for all courts.

  2.1.11  The Department works closely with the judiciary on family matters. The President of the Family Division has overall responsibility for all judges who hear family cases other than magistrates. The President issues Practice Directions, which provide general guidance to be followed in particular circumstances or cases, in conjunction with the Lord Chancellor. The President also issues guidance and protocols to family judges on the handling of family cases.

  2.1.12  The Children and Family Court Advisory and Support Service (CAFCASS) has over 1,400 front-line practitioners and is now a responsibility of the Department for Education and Skills. CAFCASS operates across England and Wales (CAFCASS Cymru). It has a statutory duty to promote the welfare of children involved in family court proceedings.

  2.1.13  In all public law cases, CAFCASS practitioners are appointed as Children's Guardian to advise the courts on issues such as care and supervision applications. In private law cases (for example, section 8 applications), a judge may direct that a Child and Family Reporter (from CAFCASS) prepare a report setting out recommendations as to the order to be made. In public and private law, the report will base its recommendations on the "welfare checklist" set out in the Children Act (see 2.2.17 below).


  2.2.1  In general terms, matters dealt with by the family courts fall into one of the following categories: matrimonial (divorce and ancillary relief), domestic violence, adoption, wardship, care, supervision, residence and contact.

  2.2.2  The majority of family proceedings, particularly those heard under Children Act arrangements, are started by application in the manner prescribed in the rules of court[66].

  2.2.3  All family proceedings are usually heard by the courts in private, other than divorce proceedings, which are conducted in open court.

Dissolution of a marriage

  2.2.4  Marriages are ended either by decree absolute of divorce, which ends a marriage or by decree of nullity, which declares that the marriage is void (ie no marriage ever existed) or voidable (the marriage ceased to exist from a particular date). No petition for divorce may be made in the first year of marriage, other than for annulment.

  2.2.5  A circuit judge must deal with a contested petition for divorce and all hearings in relation to a petition for annulment. A district judge will usually hear uncontested divorce petitions. If the ground is proven, a decree nisi (the first decree of divorce) will be granted with the final decree absolute granted usually after there is a final order in relation to finances. Once the court has issued the decree absolute, both parties are free to remarry. Where cases are of sufficient complexity, difficulty or gravity they can be transferred to the High Court.

  2.2.6  Where the couple has children, the court has to be satisfied with the arrangements for their welfare. These have to be submitted in writing and will, if possible, have been agreed with both parties. If the judge is dissatisfied in any way with the arrangements made for the child because of, for example, conflict in counter proposals between the parties, he or she may order the parents to appear before him, although this happens very rarely.

  2.2.7  During 2003 petitions for divorce fell by 2% while petitions for nullity also decreased, by more than 51%. Divorce decrees nisi rose by 1% while the number of decrees absolute rose by 3%. Separation decrees granted decreased by 56%.

19381958 19681978 198819982001 20022003
Dissolution of marriage
Petitions filed9,97025,584 54,036162,450182,804 165,870161,580171,054 167,591
Decrees nisi7,62112,456 47,959151,533154,788 144,231146,932160,943 162,503
Decrees absolute6,092 22,19545,036142,726 152,139141,543137,270 143,865148,164
Nullity of marriage
Petitions filed263655 9711,117604 505657758 368
Decrees nisi170496 819959389 281297158 137
Decrees absolute158459 758941494 267241212 167
Judicial separation
Petitions filed71158 2332,6112,925 916513499 359
Decrees granted2588 1051,2281,917 519310331 145

  2.2.8  The Matrimonial Causes Act 1973 contains the main provisions relating to divorce and ancillary relief (the division of any assets owned by the spouses upon divorce). In respect of divorce, section 1 of the Act sets out the ground for divorce, ie the irretrievable breakdown of the marriage, and the five "facts" that may be relied upon to prove that the marriage has irretrievably broken down. The court must find that the petitioner has proved that the marriage has irretrievably broken down, with reference to one of the "facts", before granting a decree nisi (the first decree of divorce).

  2.2.9 To obtain a decree of nullity, the marriage must be proved to be legally invalid where the marriage was void[68] or voidable.[69]

  2.2.10  A decree of judicial separation is sometimes granted as an alternative to divorce. This does not dissolve the marriage, but absolves the parties from the obligation to live together. This procedure might, for instance, be used if religious beliefs forbid or discourage the use of divorce.

Ancillary Relief

  2.2.11  The Act also contains provision for the division of assets between married couples where a decree nisi has been granted. The court must give first consideration to any children of the family. Thereafter, section 25 contains a list of factors that the court must take into account when deciding how assets are to be divided. In most cases the main exercise of the court is to balance the needs and the responsibilities of the parties (especially the need of any child to be housed and the responsibility of the primary carer to meet the child's material needs) against the available resources. The court has the power to transfer the legal ownership of assets from one spouse to another and/or to order that one spouse make monthly maintenance payments to the other spouse for a set duration or for the parties' joint lives.

  2.2.12  Orders for the sale or transfer of ownership of capital assets may be enforced by requesting a judge to sign the necessary documentation on behalf of the defaulting party. Orders for maintenance may be enforced by securing the payments against a property, thereby providing the payee with a charge over a property belonging to the payer, or by an "attachment of earnings" order. This means that the payer's employer deducts the maintenance payments from the payer's salary.

  2.2.13  Child maintenance, ie maintenance payable for the benefit of a child by the parent with whom the child does not live to the child's primary carer, is governed by the Child Support Agency (CSA), an agency of the Department for Work and Pensions, save in limited specified circumstances[70]. The family courts therefore do not have jurisdiction over child maintenance. However, they can approve agreements between married parents for the payment of child maintenance[71] as part of an overall settlement regarding finances. Agreements approved by the family courts in respect of child maintenance are only legally binding on the parties for one year, after which either party may refer the matter to the CSA.

  2.2.14  The court has the power under Schedule 1 of the Children Act 1989 to make financial provision for children. Applications under Schedule 1 of the Children Act are usually made between unmarried parents, as married parents rely on the Matrimonial Causes Act.

  2.2.15  In relation to capital, the court may order that a sum be paid to the parent with care for a specific purpose connected with the child (such as buying a car for transport). The court can also order that the absent parent pay the primary carer a capital sum with which to purchase a property for the benefit of the child. The property is then usually held in trust for the absent parent until the child no longer requires the use of the property.

  2.2.16  The parent who has primary care of a child may apply for income payments (for the benefit of the child) payable by the child's absent parent. It is immaterial whether the child's parents are, or were, married. The CSA normally deals with child maintenance. However, where the absent parent has an income higher than the ceiling imposed by the CSA, the parent with care may apply for "top up" maintenance to be paid in addition. The parent with care may also apply for income where there is a requirement for additional child maintenance; for example the child is disabled. When deciding applications under Schedule 1 of the Children Act the court must take into account the financial positions of both parties.

Nature of proceedings
Periodical payments:
Orders made for maintenance pending suit[73] 3,845
For spouse:
Applications dismissed6,692
Orders made for fixed term5,989
Orders made pending further order11,751
Orders made for child24,508
Lump sum and/or property orders made30,883
Total Orders Made83,668
Ancillary relief orders above made by consent (76.8% of total) 64,203

  2.2.17  The law relating to the upbringing of children is set out in the Children Act 1989. Some provisions of the Children Act have been amended by the Adoption and Children Act 2002, although the amendments mainly relate to public law. Section 1(1) of the Children Act states that the welfare of the child is paramount. The Act also contains a "welfare checklist" at section 1(3) which sets out a list of factors that the court must take into account when deciding what, if any, order to make under section 8 or Part IV of the Act. The Act states that the court should not make an order unless it would be better for the child than making no order at all.

  2.2.18  Public law cases always start in the family proceedings court. The Children (Allocation of Proceedings) Order 1991 does allow for cases to be commenced elsewhere where there are existing proceedings in respect of the same child already taking place. Where they begin in the family proceedings court, they may be transferred to the High Court or county court to minimise delay, to consolidate with other family proceedings or where the matter is exceptionally serious, complex or important. Public law cases are usually brought by local authorities.

  2.2.19  Private law cases can commence at any family proceedings court or county court and can be transferred laterally between courts. Private law cases are those brought by private individuals, generally in connection with divorce or the parents' separation.

  2.2.20  During 2003, a total of 22,725 public law applications were made to the family courts (a decrease of nearly 4% from 2002), and a further 115,944 private law applications (an increase of 4%) were made.

  Public Law
    Private Law
Midland2,6751,189 273,8916,189 14,7541320,956
North Eastern1,585 1,425183,028 2,84715,13022 17,999
Northern1,6041,370 293,0033,220 11,2801614,516
South Eastern:
London2,939 2,939 2,5385,0797,617
Provinces2,123 1,96254,090 2,04724,55517 26,619
RCJ1,429 361,4654,8122415,053
Wales & Chester708 929341,671 9028,23234 9,168
Western1,5481,062 282,6381,754 12,2273514,016
Total13,182 9,36617722,725 19,49796,069378 115,944

  2.2.21  There are four ways in which public and private law applications can be dealt with: order made, order of no order (where the court applies the principle of non-intervention), application dismissed (where the grounds are not proved) and application withdrawn (in some cases withdrawn by order of the court).

  2.2.22  During 2003, a total of 111,809 section 8 orders (see 2.2.24) were made in private law, an increase of 8% against 2002 (Section 8 can also apply to public law cases).

Orders of no

Orders made
Nature of application:
Parental responsibility1,002 2672159,524
Section 8.[79]
Residence1,654202 65231,966
Contact2,753601 1,52267,184
Prohibited steps380 601019,487
Specific issue28424 823,142


Orders refused
Orders of no

Orders made
Nature of application:
Care43326 2577,387
Contact with a child in care121 5038798
Discharge of care149 3613941
Refusal of contact84 111251,955
Emergency protection order228 25362,061
Secure accommodation76 613641
Supervision711 502,383
Supervision order—discharge4 7646
Section 8:[82]
Residence9530 92,866
Contact7519 632,027
Prohibited steps21 5223
Specific issue122 3103

  2.2.23  In private law proceedings, some applications are orders under Section 8 (see below). Either parent of a child may make an application to the court, irrespective of whether they are, or were, married. People who are not parents of a child may apply although generally they will first need to obtain the leave of the court to make the application.

    —  A father who is not married to the mother of his child may apply to the court for a Parental Responsibility Order. Parental responsibility is governed by sections 2-4 Children Act 1989. Essentially, parental responsibility confers legal status on a parent of a child. This means that people with parental responsibility should confer when making important decisions about the child's upbringing. If agreement cannot be reached, one parent may apply to the court for a Specific Issue Order under section 8, to enable the judge to determine the issue. Mothers automatically have parental responsibility for their child, but unmarried fathers must acquire it. They may acquire it in a number of ways—for example, by court order, by entering into a parental responsibility agreement with the child's mother, by jointly registering the child (if the child's birth was registered on or after 1 December 2003), or by marrying the child's mother.

    —  Orders under section 8 are as follows:

      (a)  Residence Order. This determines with whom the child will live.

      (b)  Contact Order. This sets out the contact that a child is to have with a given party. The Order may be as specific in terms of the time, duration and venue of contact, or as general as is required.

      (c)  Specific Issue Order. This is an order made in respect of a particular aspect of the child's upbringing, such as which school he or she should attend or whether he or she should receive certain medical treatment.

      (d)  Prohibited Steps Order. This is an order prohibiting a party from acting in a certain way in respect of a child. For example, a party may be prohibited from removing a child from the jurisdiction without the consent of the other party.

  2.2.24  The starting point of the court will be that it is in a child's best interest to have a relationship with both of his or her parents (if it is safe to do so) wherever possible. Therefore it is rare for the court to order that no contact should take place between a child and the parent with whom it does not live. The courts make such orders in fewer than 1% of applications. Similarly, it is rare for a court to refuse an application by the father of a child for parental responsibility.

  2.2.25  The court often utilises the services of CAFCASS by directing that a Child and Family Reporter prepare a report in which the factors under the statutory "welfare checklist" are addressed and a recommendation is made. Although the court is not bound by the recommendation of CAFCASS, the court will often follow the recommendation.

  2.2.26  To enforce a section 8 order, usually where an order has been ignored, a party must apply for a penal notice to be attached to the order. The court will require evidence that a penal notice is necessary, for example that the other party has been in breach of the order recently or has a history of breaching orders. If the other party breaches the section 8 order once the penal notice is attached, the court then has the power to commit the other party to prison for contempt of court. The court rarely uses this power especially if using it would necessitate imprisoning the primary carer of a child.

  2.2.27  The Children Act 1989[83] also sets out the law in relation to public law proceedings. The Act gives the local authority the ability to apply for an emergency protection order (EPO), which, if granted, allows the local authority to place a child in temporary care immediately. These orders are reserved for emergency situations. The court will order that the EPO last a number of days, the maximum being eight. The Act also gives the court the power to order a local authority to prepare a report and to consider whether care proceedings are necessary. The local authority commences care proceedings by applying for an interim care order, which gives it joint parental responsibility over the child with the child's parents.

  2.2.28  Care and Supervision Orders are made on application from a local authority in respect of children under 17 years of age, and the court must be satisfied that a child is suffering, or is likely to suffer, significant harm. The harm, or likelihood of harm, must be attributable to the care given to the child or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give him; or attributable to the child being beyond parental control. The court may make an order placing the child in the care of a designated local authority or under the supervision of a designated local authority or probation officer.

  2.2.29  The effect of a care order is to give parental responsibility to the local authority and recommend the extent to which a parent or guardian may meet their responsibility for the child. While a supervision order is in force, the supervisor must advise, assist and befriend the child and take necessary action to give effect to the order including whether or not to apply for its variation or discharge. Care orders and supervision orders may be made on an interim basis, so that local authority involvement with the child is ongoing throughout the proceedings.

Exclusion orders

  2.2.30  In October 1997, changes to the Children Act gave courts the power to order the exclusion of a suspected abuser from the child's home in cases where ill-treatment is alleged, and either an Interim Care Order or Emergency Protection Order is made. Previous to this amendment, the child would usually have been removed. The court can add a power of arrest to the "exclusion requirement" where appropriate. Where exclusion is ordered, there must be a responsible person remaining in the property with the child. That person must both agree to care for the child and consent to the exclusion requirement. In practice, this power is rarely used, and it is usually up to the primary carer of a child to apply to exclude a violent member of the household under the Family Law Act 1996 (see 2.2.33).

Domestic violence

  2.2.31  The Family Law Act 1996 gives the family courts the power to adjudicate over domestic violence cases. In order for the Family Law Act to apply, the parties must be "associated persons". This includes family members and parties who are, or have been, involved in a relationship including a same-sex relationship.

  2.2.32  A non-molestation order prohibits the respondent from using or threatening violence against the applicant or harassing, intimidating or pestering the applicant or instructing or encouraging any other person to do so. The court must be satisfied that the applicant is likely to have suffered violence or threats of violence or harassment. The court is usually willing to grant non-molestation orders, where there is such evidence.

  2.2.33  An occupation order regulates the occupation of a property. It may exclude the respondent from entering or attempting to enter a property. Alternatively, an occupation order may regulate the occupation of a property so that one party is forbidden to enter some of the rooms in the property. Occupation orders are harder to obtain than non-molestation orders as the court must be satisfied that the applicant (and/or any child) has suffered or is likely to suffer significant harm unless an occupation order is made. Case law has established that it is draconian to grant occupation orders without notice to the respondent and therefore the court rarely does so.

  2.2.34  The court may attach a "power of arrest" to injunctions, which gives the police the power to arrest the respondent for the civil offence of being in contempt of court by breaching the injunction. The court has the power to commit the respondent to prison for up to two years.

Nature of proceedings:
Non-molestation orders
Applications received without notice[85] 12,414
Applications received on notice4,612
Order with power of arrest attached19,112
Order without power of arrest attached 2,706
Occupation orders
Applications received without notice7,207
Applications received on notice3,372
Order with power of arrest attached7,826
Order without power of arrest attached 1,491
Number of cases where undertakings accepted 4,492
Warrants of arrest
Applications made81
Warrants issued133
Into custody515
On bail369
For medical report19
Wardship, special guardianship and inherent jurisdiction

  2.2.35  Wardship is where the court assumes responsibility for the welfare of a child and exercises parental responsibility. Section 100 of the Children Act states that only the High Court can order that a child be made, or cease to be, a ward of court. Under section 100, the use of wardship by local authorities is severely limited and the local authority must seek the permission of the court to make application for any exercise of the court's inherent jurisdiction. The Act does not affect applications made by private individuals although generally the same result could be achieved by obtaining a prohibited steps order or a specific issue order under section 8. Special Guardianship Proceedings are being introduced by way of the Children Act 1989, as amended by the Adoption and Children Act 2002, and will give long term carers of a child parental responsibility.


  2.2.36  An adoption order made by a court extinguishes the rights, duties and obligations of the natural parents or guardians and vests them in the adopters. Under the Adoption Act 1976, an adopted child is the child of its adoptive parents and has the same rights of inheritance as any biological child of the adoptive parents.

  2.2.37  Before making an adoption order, the court must be satisfied that the adoptive parents are suitable, and that the agreement of either or both biological parents has been obtained. The court may dispense with the biological parents' agreement where, for example, a parent lacks capacity to agree or is unreasonably withholding agreement. The court's first consideration is to safeguard and promote the welfare of the child, taking into account the child's views (as appropriate to their age and understanding), and the best interests of the child are paramount.



High Court

Nature of proceedings:
By step-parents699584 41,287
By others7522,793 383,583
Total1,451 3,37742 4,870
Orders made:
To step-parents568601 31,172
To others5542,866 1213,541
Total1,122 3,467124 4,713

  2.2.38  The Adoption and Children Act 2002 aims to increase the use of adoption so that more children in care can find a secure and permanent home. The Act therefore aims to improve the process of adoption and to allow a greater number of people to adopt by removing the bar on unmarried couples (including same sex couples) adopting a child in their joint names. Local authorities are placed under a duty to maintain an adoption service including an adoption support service. The provisions of the Act are in accordance with the principles of the Children Act 1989 and the best interests of the child remain paramount.

  2.2.39  In addition to its provisions relating to adoption, the Act also alters the Children Act 1989 in relation to, among other things, parental responsibility.[88] Unmarried fathers of children whose births were registered on or after 1 December 2003 can acquire parental responsibility by jointly registering the child. Fathers can acquire parental responsibility by marrying the mother of the child, and Step-parents can also acquire parental responsibility by agreement with both biological parents or order of the court.

2.3  Court and case costs

  2.3.1  The estimated total cost of family work in the Court Service for 2004-05 is £117 million. This is broken down into the following main areas:
Area of Expenditure£m
Judicial Costs20
Staff and Other Running Costs57

  2.3.2  Of this total, some £55 million is expected to be recovered in court fees. Although the Government's policy is that fees should generally be set to meet the full cost, for certain types of family proceedings it has been agreed that it would be wrong to set fees purely on the basis of the cost of the service provided by the courts. The issues at stake in Children Act applications, adoption and domestic violence applications warrant an element of public subsidy. Following a public consultation during the summer, fees will be increased in December 2004. The table below sets out the main areas of family work, the average or unit cost to the Court Service, the current fee, the revised fee, and the percentage of cost that the revised fee will cover.
Family Fees Court ServiceUnit
Divorce (divorce, judicial separate and nullity) 241210240 99.6
Domestic Violence Injunctions234 606025.6
Other Originating Proceedings164 13013079.3
Adoption390120 14035.9
Ancillary Relief379 12021055.4
Children Act Applications—Private Law 52190120 23.0
Children Act Applications—Public Law 1,17190150 12.8

  2.3.3  The effect of the fee increases will be to increase the proportion of costs recovered through fees from 45% to 55%.

  2.3.4  The percentage of cost recovered through fees includes the allowance for fees that are exempted or remitted. Litigants in receipt of a range of state benefits are exempt from paying court fees. Litigants on low income who would suffer undue financial hardship from paying court fees can apply to have the fees remitted in whole or in part. Of the £55 million projected fee income for 2004-05 exemptions and remissions are likely to account for about £18 million.

  2.3.5  The proportion of fees that are exempted or remitted for each of the main types of family work set out in the table above varies considerably. Approximately half of all fees for divorce are dealt with by way of exemption or remission. In subsequent proceedings for ancillary relief or Children Act applications the proportion fall considerably, mainly due to the availability of legal aid with court fees being met by the Legal Services Commission.

  2.3.6  In magistrates' courts the cost of family work is £51 million per annum. Funding for family work is included in the revenue grant made by the DCA to each of the 42 Magistrates Courts Committees. Fee income from magistrates courts amounts to some £5 million per annum exclusive of allowances for exemptions and remission.

  2.3.7  The table below sets out the average or unit cost for each of the main areas of family work undertaken in the magistrates' courts, the current fee level and the percentage of cost recovered through by fees.
Family Fees
Magistrates Courts
Domestic Violence Injunctions No Fee
Adoption (section 21 Placement orders only) 446204.5
Adoption44630 6.7
Applications for Financial Orders (excl. variation or discharge of orders and maintenance outside UK) 733041.1
Children Act Applications—Private Law 2063014.6
Children Act Applications—Public Law 4625010.8

  2.3.8  As part of harmonising family fees, the Department will shortly be issuing a consultation paper on fees in magistrate's courts.

2.4  The role of the Legal Services Commission

  2.4.1  The Legal Services Commission (LSC) is an executive Non Departmental Public Body sponsored by the Department for Constitutional Affairs. It is responsible for the delivery of the Community Legal Service (CLS), which provides legal advice and representation for people needing help on civil law matters, including family matters. The LSC replaced the former Legal Aid Board. During 2003-04, the LSC received a total of almost £2.1 billion in funding (which covers both criminal and civil) and provided almost one million "acts of help" within the CLS.

  2.4.2  Tackling the legal and advice challenges affecting children and families is a high priority area for the LSC. The LSC established a Children and Families Programme Board during 2003-04 to provide a central focus within the LSC for children and family matters and oversee and direct the development of the CLS in this area.

  2.4.3  The LSC maintains a system of paying guaranteed higher rates for members of the Law Society's Advanced Family Panel and its Children's Panel and to those accredited by the Solicitors Family Law Association (SFLA). The aim of the scheme is to provide additional remuneration to specialists who bring experience and expertise to legal aid work and to encourage other suppliers to develop and become accredited to these panels. The scheme provides for a guaranteed uplift of 15% for certificated work undertaken by these panel members.

  2.4.4  The number of publicly funded family proceedings showed a marginal decline from 2002-03 to 2003-04. However, as can be seen from the table of certificates issued in family proceedings below, certificates issued for Help with Mediation grew by 14.8% and those for financial provision, including ancillary relief, grew by 3.4%. Non-means, non-merit tested certificates in Children Act care proceedings fell by 6.3%. Numbers of certificates issued for domestic violence proceedings fell by 4%, and have fallen by nearly 20% in the last four years. Private law Children Act certificates for residence and contact cases showed almost no change and have been stable at approximately 47,000 certificates annually for more than three years.

    Level of help authorised
family help
Special Children Act proceedings0 25,38525,38527,084
Other public law Children Act proceedings 248,6738,697 8,804
Private law Children Act proceedings468 47,15747,62547,606
Domestic violence29 20,95520,98421,861
Financial provision14,320 10,86125,18124,355
Combined family proceedings[92] 8169177 116
Other family proceedings59 8308891,056
Help with Mediation4,530 04,5303,947
Total19,438 114,030133,468 134,829

2.5  The role of CAFCASS in private law

  2.5.1  For CAFCASS, the family courts proceedings relate principally to applications for parental responsibility, residence and contact, usually as a result of parental separation where the parents cannot agree arrangements for their children.

  2.5.2  Where parents or families have to go to court to settle arrangements for their children, a judge or magistrates may appoint a CAFCASS Children and Family Reporter (previously called "Court Welfare Officer" or "Reporting Officer").

  2.5.3  A CAFCASS Children and Family Reporter will usually be involved at directions hearings in providing assistance to parties to reach agreement about arrangements for their children and avoid contested hearings. Where agreements are not reached there are various steps that the court can take depending on local arrangements. The court may agree to further meetings between the Children and Family Reporter and the family, usually away from the court. It may direct a privileged mediation appointment to be made or, it may order a full report and clarify the specific areas for the report writer to cover.

  2.5.4  The report will address specific issues such as with whom the child should live, or how much contact should take place with the non-resident parent. The Children and Family Reporter will meet the parties and the child. They will also decide what other enquiries they need to make and may see other family members and people involved in the child's life such as teachers. The focus of their work is to make an assessment of what is in the child's best interests, and to inform the court of the child's wishes and feelings. Throughout their work with the family they will continue to seek resolutions and help the family to reach agreement about suitable arrangements for their child. The CAFCASS Children and Family Reporter will prepare a written report for the court and make recommendations about the best arrangements for the child, based on their enquiries and their work with the family. CAFCASS practitioners have a key role in ensuring that arrangements that are made for children are safe and in the child's best interests.

  2.5.5  Where mediation is ordered this can either be undertaken by a trained CAFCASS officer or, in some parts of the country the family may be referred to, an accredited mediator working for a mediation service in partnership with CAFCASS.

  2.5.6  Where the court orders CAFCASS to report on the welfare of the child in private law proceedings it does so under section 7 of the Children Act 1989.

  2.5.7  CAFCASS practitioners are also involved in post order work with families through family assistance orders. These orders are made at the end of the proceedings, in exceptional circumstances, usually following a recommendation in the Children and Family Reporter's report. They provide the opportunity to do further work with the family. Where parents are having continued difficulty in reaching or sustaining agreement over arrangements for their children, it is the only court order available in private law proceedings through which social work assistance can be provided, as a family assistance order may be directed at a local authority or at CAFCASS.

  2.5.8  For private law cases, CAFCASS has worked to a Government set Key Performance Indicator of at least 95% of private law requests to be allocated 10 weeks before the filing date. This ensures that the report preparation period starts on time. Nationally, CAFCASS has consistently achieved this but delay and extended filing dates remains an issue in some of the CAFCASS regions.

  2.5.9  A revised Key Performance Indicator for 2004-05 is that the number of private law reports unallocated less than 10 weeks before court filing date for the month should be no more than 4% of the workload. This indicator is intended to better measure the number of cases where there is a delay in CAFCASS completing the report.

  2.5.10  In 2003-04 the national average of private law cases unallocated at that date reduced from 4.7% in April 2003 to 3.2% in March 2004. At 31 August 2004 there were 369 unallocated cases requiring private law reports, representing 4.2% of the CAFCASS caseload. There has been a dip in performance over the summer of 2004, but the overall trend shows improvement. However, delay in private law is still an issue for CAFCASS to address, particularly in some parts of the country.

  2.5.11  The total number of requests in private law for 2003-04 was 33,803 (and 13,470 public law reports). The range of requests in a month varied across the year from 3,213 in July to 2,493 in December, with the average requests per month being 2,817.

  2.5.12  CAFCASS has developed a convergence strategy which provides for its practitioners to be trained to undertake the full range of roles in both public and private law work. This is supported by a comprehensive training package of modular courses, which have been developed by a leading academic institution. The Royal Holloway College, University of London has designed the modular training, has an established track record and excellent reputation in social work training. The convergence strategy, which will take five years to complete, underlines the CAFCASS function as a single unified organisation serving the family courts.

2.6  Alternative Dispute Resolution (including mediation)

  2.6.1  Alternative Dispute Resolution, usually referred to as ADR, but increasingly known as Effective Dispute Resolution (EDR), is the collective term for the ways that parties can settle disputes with the assistance of an independent third party away from a formal court arena. Some forms of ADR are well known and include methods such as the Parliamentary Ombudsman, Regulators such as Ofgen, arbitration such as the Association of British Travel Agents who intervene in travel disputes, and mediation (see 2.6.3).

  2.6.2  For some time it has been Government policy that disputes should be resolved at a proportionate level and that, wherever possible, the courts should be the dispute method of last resort. Although ADR is independent of the court system, a judge can recommend that the parties involved in litigation enter into it. The court may also impose costs sanctions if it decides that one or more of the parties has been unreasonable in refusing to attempt ADR. The courts will take into account behaviour during the pre-litigation period, including whether or not an attempt has been made to use ADR. For some types of dispute, specific pre-action protocols exist to set out the steps parties are expected to take before issuing court proceedings.

  2.6.3  Mediation has been used successfully to resolve a wide range of family disputes whether or not they involve money, including cases involving problems with child residence and contact. Mediation gives the party or parties in dispute the opportunity, with the assistance of an independent third party, the mediator, to reach a settlement outside of an adversarial court environment.

  2.6.4  The mediator's job is not to make a decision. Instead the parties explore the relative strengths and weaknesses of their cases, with the assistance of the mediator, and try to identify possible solutions, which in turn may help them to reach a solution between themselves. Agreeing to try mediation does not prevent the parties from being able to continue with court proceedings if they are unable to reach agreement. If parties refuse an offer to mediate without good reason then, even if they win their case, the judge can refuse to award them some or all of their legal costs.

  2.6.5  Mediation can provide opportunities to resolve matters in such a way as to maintain as good a relationship between the parties, and any children involved, as is possible in the circumstances. The Government is encouraging the use of mediation where appropriate, but also recognises that not all family cases are suitable for mediation, particularly where there are domestic violence issues.

  2.6.6  The Department's third Public Service Agreement target is to reduce the proportion of disputes resolved by the courts. The purpose behind the target is to ensure that disputes are resolved quickly, effectively and in a manner and at a cost proportionate to the issue at stake, without compromising access to justice. Additionally, the Legal Services Commission is actively encouraging the use of mediation in resolving family cases and has a key target: "to secure a year on year increase in the number of disputes resolved with funding from the Community Legal Service Fund through Alternative Dispute Resolution, including mediation".[93]
Target (by March 2006)Planned
(year to July 2004)
(year to July 2004)
Increase the proportion of contact and ancillary orders made by consent by 2.8% (from 70.6% to 73.4%) 71.4%69.3%
Composite target made up of:
(a)  Maintain Ancillary Relief Orders made by Consent at over 90% (90.7% in 2005-06) from a baseline of 91.2% 90.7%90.3%
(b)  Increase Contact Orders made by Consent by 1% to 32.2% from 31.2% 30.9%31.2%

  2.6.7  225 mediation services have now concluded contracts with the Legal Services Commission via the Community Legal Service to provide, for those who qualify for public funding, quality assured family mediation services in all parts of England and Wales. Additionally, the requirements of the CLS Funding Code now state that people seeking public funding for family cases must first consider the suitability of ADR.

  2.6.8  There are four key service providers, all of whom are affiliated to the UK College of Family Mediators, which assesses and registers mediators in the United Kingdom as well as producing post-qualifying training. Those service providers are the Solicitors' Family Law Association, Family Mediators Association, the ADR Group and National Family Mediation. NFM in turn has about 50 independent mediation charities affiliated to it, some of which specialise in specific areas such as disputes relating to children.

  2.6.9  The provision of publicly funded mediation through the CLS has been in force since 1997 and has now been implemented throughout England and Wales. This, together with the CLS Funding Code requirements (see 6.2.5) has meant that the number of cases going to mediation has increased dramatically since 1997:
Financial YearVolume of cases referred to Mediation Annual cost to CLS of Mediation[94]
2002-0313,841£16.9 million
2003-0414,290£14.8 million
2004-05 (to date)5,360 £5.9 million
Source: Legal Services Commission

  2.6.10  Although the volumes of mediation continue to rise year-on-year, the number of mediations as a proportion of the number of Legal Representation Certificates issued each year remains low. In 2003-04 there were 94,865 certificates issued in cases that were eligible for mediation.

  2.6.11  The average cost per eligible publicly funded mediation client was £733 in 2002-03 and £672 in 2003-04. These figures include the costs of all assessment meetings whether they led to mediation or not. There is a significant reduction on the average cost of a "legal aid" certificate. In 2003-04, the average bill paid for a private law children case was £2,635. This does not include the cost of "Help with Mediation," the legal advice associated with mediation. In 2003-04, there were 4,530 "Help with Mediation" certificates issued with 3,020 bills paid at an average cost of £354.

  2.6.12  Only legally aided parties are required to consider mediation as a way of resolving their disputes. There is no equal obligation on privately paying parties.


3.1  Introduction


  3.1.1  The shape of the family in England and Wales is a changing and complex one. The UK census found that, in 2001, 6.4 million (30%) of the 21.6 million households in England and Wales contained dependent children. Of the households with dependent children, 3.8 million (58%) were married couple households, 0.7 million (11%) were cohabiting couple households, 1.4 million (22%) were lone parent households and 0.5 million (8%) were "other households" (those with more than one family, where grandparents, lodgers etc. would be counted as additional to the main family).

  3.1.2  Between 1991 and 2001, there was a fall in married couple households and a rise in cohabiting couple households. These changes were particularly marked for households containing dependent children; married couple households with dependent children fell by 13% while cohabiting couple households with dependent children rose by 102%. The number of lone parent households rose by 21%. The graph below illustrates these changes.

  3.1.3  The 2001 census also shows that 23% of dependent children live in lone parent families, 65% of all dependent children live in married couple families and 11% live in co-habiting couple families. We are also told that 11% of dependent children live in either a married or cohabiting couple step-family. However the majority (65%) live in either married or cohabiting couple families with their birth parents.

Rate of breakdown of relationships

  3.1.4  We know from Court Service data that 148,000 decrees absolute were awarded in 2003, and that the number of divorces, after falling since the early 1990s, has risen in the past three years. We also know that around two thirds of divorces involve children, around 100,000 per year.

  3.1.5  Our current best estimate for the number of cohabiting couples with dependent children who separate each year is between 50,000-100,000 (or 7%-14% of cohabiting couples with dependent children based on numbers from the British Household Panel Survey). This means that we estimate that between 150,000 and 200,000 relationships involving children break down each year.

  3.1.6  Nine out of 10 separating parents do not seek the involvement of the courts about contact and residence issues. Of those who do, only a minority are involved in intractable disputes. We also know that the number of court applications relating to these disputes between parents is rising though up to half of these cases concern the variation or enforcement of orders.

Cases in the FPC and County Courts

  3.1.7  Only around 10% of parents experiencing relationship breakdown choose to resolve their contact issues with the help of the courts every year. In 2003 this resulted in 67,000 contact orders being made by the courts. This figure continues the rising trend that has been seen over the previous 10 years, between 1992 and 2002, the number of private law contact orders made by courts in England and Wales more than tripled from 17,470 to 61,356.

  3.1.8  There were 115,944 private law applications to all tiers of the courts in 2003. Data collected for the first six months of 2004 shows that the average duration of a private law contact case was around 45 weeks from initial application to final order. This is higher than the 36 weeks quoted in the Consultation Paper which came from the Family Justice Model, based on cases starting in 2001—this is likely to be because final orders had not been made in the longer cases when this analysis was done.

The legal framework for protecting children's interests

  3.1.9  In England and Wales if a question about the way a child is being looked after comes before a court, the Children Act 1989 requires that the welfare of the child is the most important issue. (Children Act 1989 "section 1 (1) When a court determines any question with respect to the upbringing of a child[. . . .] the child's welfare shall be the court's paramount consideration"). The Act sets out the framework within which parents meet their responsibilities to their children. The fact of parental separation does not of itself trigger court intervention, as the responsibilities of parents are not affected by where the parents live or the quality of their relationship. Those who have legal parental responsibility for the child(ren) continue to have that even after parental separation.

  3.1.10  The court will only consider an order for contact (under Section 8 of the Children Act) when the parents have a dispute which they cannot manage for themselves, and they, or one of them, ask the court to intervene. It has a "no order" principle which means it will make no order if that is in the child's best interests and only makes an order in those cases where those best interests indicate one is needed.

  3.1.11  The President of the Family Division recently wrote:

The courts naturally start with the view that in most cases contact between the child and the non -resident parent is desirable both for the child and for the parent.

  3.1.12  This is reinforced elsewhere in case law, thus establishing the assumption in law that contact with both parents is the best way to promote the child's welfare, where it is safe to do so. While courts may refuse to allow contact between a parent and his or her child, this is rare in practice (Judicial Statistics shows less than 1% of cases each year). Sometimes, indirect contact may be ordered, or contact that is supervised or supported. However, the most common form of contact order is for direct contact.

3.2  What the ONS Omnibus Survey[95] told us about contact arrangements

  3.2.1  The ONS Omnibus Survey asked a sample of resident and non-resident parents about the contact arrangements decided on for their children. According to ONS Marriage and Divorce Statistics, in 2001, 203,598 children experienced the divorce of their parents of which 146,914 (72%) were aged 16 or under. 79,277 divorces (55%) involved children aged 16 or under.

  3.2.2  The survey shows that around 10% of couples going through relationship breakdown resort to the courts to establish contact arrangements. The majority of children (around 85%) have the contact arrangements with their non-resident parent arranged informally. The other 5% of children have their contact arrangements negotiated formally either through mediators or lawyers.

Frequency and satisfaction of contact arrangements

  3.2.3  Results from the survey suggest that irrespective of whether they choose to agree contact arrangements between themselves or with the help of the courts, some parents end up dissatisfied with the outcomes they achieve. Greater satisfaction is, however, generally linked with out of court solutions, possibly because these allow parents greater control, thus enabling them to make their own decisions about what is best for the future of their family.

    —  43% of children in the resident parent sample and 59% of children in the non-resident parent sample had direct (face-to-face) contact with their non-resident parent at least once a week.

    —  A further 9% of children in the resident parent sample and 18% of children in the non-resident parent sample had indirect contact at least once a week.

    —  A quarter (24%) of children in the resident parent sample and 10% of children in the non-resident parent sample have no direct or indirect contact with their non-resident parent.

Satisfaction with arrangements

    —  Overall, the parents of children in both sample groups were satisfied with the contact arrangements with almost half saying that they were "very satisfied".

    —  On the whole, responding parents who had informally agreed the contact arrangements between themselves were mainly satisfied.

    —  Satisfaction with contact arrangements that had been ordered by a court was low.

Improvements to contact arrangements

    —  When asked how contact arrangements could be improved, the most popular contact improvement, in both sample groups, was that the non-resident parent should have more direct contact with their child.

A profile of applicants and respondents in contact cases

  3.2.4  Research commissioned by the Department from Dr Trinder of the University of East Anglia to evaluate the In Court Conciliation Schemes at First Appointment in contact cases, found worryingly high levels of distress among parents and children. Equally worrying was the presence of multiple risk factors associated with poorer outcomes for children, including economic hardship, parental conflict, and reports of child protection and domestic violence concerns.

  3.2.5  What the study suggests is that although involvement with the courts may exacerbate conflict and increase levels of stress, it is clear that the parents were already highly conflicted and polarised before they entered the court system. This may indicate, however, that the courts are only dealing with cases that do require external intervention. The report is being prepared by the Department for publication later this year, in the DCA Research Series.

3.3  What consumer research has told us about the needs of parents

  3.3.1  The DCA, with DfES involvement, has recently undertaken an extensive body of work to establish what its "consumers" in this case (children, parents and others with wider interests involved in parental separation) want. This was called the "DCA Consumer Strategy" and focused on listening to the views of parents experiencing family change as a result of a breakdown in their relationship with a partner. We asked them to tell us whether the help and support made available to them at such times adequately met their needs and where this was not the case, sought their views about ways in which these services could be improved in the future.

  3.3.2  Although evidence shows that some parents are happy with the help and support they receive at times of relationship breakdown, we know that the needs of many separating parents are not being adequately or consistently met.

  3.3.3  Many parents have told us that at the point of breakdown they feel:

    —  Ill-equipped to overcome the conflict between themselves and their ex-partner, such that they can reach an agreement that is in the best interests of their children.

    —  Many said that they faced the situation ahead of them unprepared, without an understanding of their rights and responsibilities or a basic knowledge of where to go for help.

  3.3.4  Limited emphasis is currently placed on educating parents prior to the point of relationship breakdown in order to prepare them for the emotional and practical issues associated with family change, although Sure Start and some Marriage and Relationship Support initiatives are now focused on addressing some of these issues.

  3.3.5  Once relationship breakdown occurs, parents have told us that the services they access must be respectful and considerate of their feelings, whilst also being practical, flexible and responsive enough to suit their own family's circumstances. No two families are exactly the same and therefore no two families require exactly the same help and support during the period of transition that follows a parental relationship breakdown.

  3.3.6  Each family must therefore have the freedom to access the services that they consider are most appropriate and beneficial to them at this time.

  3.3.7  Irrespective of their chosen resolution route, parents tell us that they want to:

    —  Reach agreement as quickly as possible and in a way that subjects both themselves and their family to the lowest possible levels of stress and upset.

  3.3.8  In order to do this, parents may need to be provided with tailored information and advice, which is easily accessible in the places where they look for it and which supports them to deal with their own emotional and practical issues appropriately and adequately.

  3.3.9  Our conversations with parents have made it clear to us that there is still much to be done in this area, since not everyone currently receives the advice and support they need at this difficult time.

  3.3.10  One key issue for parents is, they tell us, that the information they receive is too focused on legal and factual issues, rather than on meeting their individual emotional and practical needs. This often leads to feelings of frustration and bitterness and pushes many parents into increasingly polarised and emotional positions than they might otherwise be. The danger is that the system actually exacerbates the acrimony between separating parents and ends up making things worse rather than better.

3.4  Continuing contact

  3.4.1  There is good evidence that children continue to see both their parents when they no longer share a common home, though estimates of how much and how often vary. Most children live with their mothers after separation. The 2001 Census shows that 91% of the 2.7 million lone-parent families in England and Wales were headed by the mother. Resident parents (most often mothers) tend to report less contact than non-resident parents (usually fathers), and formerly married partners report more contact than formerly cohabiting parents[96]. The Office for National Statistics (ONS) Omnibus survey indicates that between 10% and 23% of children whose parents were questioned have no direct or indirect contact with their non-resident parents.[97] However, it is not clear if there ever was a meaningful parental relationship for those in this group. The Home Office Citizenship Survey found 9% had lost contact.[98] Research on a cohort in Bristol found that for the 82% where contact was taking place, for a third it was at least weekly and 90% at least monthly.[99]

How do children feel about seeing both parents?

  3.4.2  Most children want contact with their parents and continue to see both parents as part of their family. How the children have that contact, how much and how often and the quality of that contact, seem to be the crucial determinants of the child's experience of their contact. Their needs and wants may change over time and through circumstance. 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 to accommodate. Children usually enjoy contact, particularly if they are consulted about arrangements, but it can sometimes 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, managing relationships with a parent's new partner or children, and the stress of moving between two homes. Some children resist contact, and feel that their views are not taken into account.[100]

Is contact with both parents good for children?

  3.4.3  It is often assumed that research shows that contact with both parents is always good for children. In fact the research evidence is contradictory. One recent UK study reported unequivocally that more contact was associated with fewer adjustment problems for children.[101] Another study found that contact with a non-resident parent had no impact on the child's welfare and development, but that this could be predicted more accurately by the quality of relationships within the child's home.[102] The mere presence of contact is, another study suggests, not enough; it is the quality and nature of the parenting, monitoring, encouragement, love and warmth, which count.[103]

  3.4.4  Contact with both parents has potential value in developing the child's sense of identity, preserving links with the wider family, and providing additional support. In ordinary circumstances, where a parent has an established relationship, it seems clear that time spent with their child is beneficial to the child. Yet contact as such is clearly not always beneficial. Where there is no pre-existing relationship or where there are known risks of abuse or neglect, exposure to domestic violence, or severe parental conflict, contact can be extremely damaging to children. [104]

  3.4.5  The evidence therefore suggests that, whilst the ideal amount and type of contact for any given child will vary, a significant minority of children do not currently appear to be getting an optimal level of contact with their non-resident parent.

Encountering problems

  3.4.6  Some parents may separate acrimoniously and have disagreements about parenting arrangements from the outset. Others may encounter them later, perhaps due to the changed circumstances of one parent such as one having a new partner or moving location. Some parents may have other unresolved issues and disputes or wider problems and difficulties about, for example, money. These can sometimes create an environment of conflict that could have a knock-on effect to complicate discussions about childcare and parenting. These other issues need to be cleared to focus on the children.

  3.4.7  So whilst separating parents face similar problems their particular circumstances mean they have their own sets of issues to address. This suggests they may need different types and levels of help. No "one-size fits all" solution is likely to be effective.

3.5  The Government's proposals

Background to the consultation paper

  3.5.1  As part of the 2000 Spending Review, a Public Service Agreement target was set to "increase contact between children and the non-resident parent following family breakdown, where this is in the best interests of the child." Initial scoping work was carried out with key stakeholders and in June 2002 a major conference for stakeholders was held to consider how to meet the target. Various work streams were identified, including:

    —  Safety.

    —  Developing Contact Centres.

    —  Facilitation of contact and enforcement.

    —  Communication and Information.

  3.5.2  Officials worked closely with stakeholders assessing the issues and outlining the way forward. One of the first requirements was to understand more fully the nature and extent of contact arrangements (including establishing current levels of contact and satisfaction with those arrangements) since existing research focussed more on those who went to court. This led to the inclusion of relevant questions in the ONS Omnibus Survey. Data from that is used earlier in this memorandum.

  3.5.3  In 2002 the Children Act Sub-Committee published a report Making Contact Work which set out various proposals for change where the court had determined that contact was in the best interests of the child but this failed to take place.

  3.5.4  The Government published an initial response in August 2002 to Making Contact Work and a final response (in March 2004) which set out the action taken and identified those areas where further work was necessary. In addition, the Department built on all this earlier work, in one strand of its Consumer Strategy.

  3.5.5  The Consultation Paper, Children's Needs and Parents' Responsibilities was published on 21 July 2004 and pulls all these various strands together. It sets out the Government's proposals to address all the needs that this evidence suggested should be met. This evidence should be read in conjunction with the Consultation Paper.

  3.5.6  The proposals in the Paper are aimed at:

    —  Minimising conflict and supporting good outcomes both for children and their parents, preferably without recourse to the courts.

    —  Improving parental access to those services which will enable them to reach agreements.

    —  Improving legal processes and service delivery for those who do go to court.

  3.5.8  The proposals direct different help at different client needs. They are aimed at giving parents what they need to protect their child's welfare when they separate. They provide something practical for all parents at different stages in the separation process. They recognise that parental separation is a process that needs to be managed over time rather than an event that needs a single response. Consultation continues until 1st November 2004, following which the Government will publish its response. The consultation document made clear that this important agenda will be carried forward as quickly as possible, informed by the consultation.

Minimising conflict and supporting good outcomes both for children and their parents, preferably without recourse to the courts

  3.5.9  Those who currently do not turn to courts for an intervention, and also perhaps for a significant minority of those that do, the evidence suggests that better practical and emotional help and advice is needed. This may enable all, or at least more, parents to resolve future parenting issues for themselves. We know that this kind of agreement produces outcomes, which are more durable, flexible, with which the parents are more satisfied. With better help more parents could be enabled to achieve this kind of outcome.

  3.5.10  The Consultation Paper sets out the Government's intention to make improvements in the provision of this help, both in terms of content, focus and accessibility.

  3.5.11  One important specific example of proposed support to parents is the revision of the Parenting Plan material currently available. This will be revised to cover specific examples of contact arrangements that work. It will cover the various factors that might affect the best contact arrangements in different families—factors such as the different ages (and consequent needs of) the children involved; parents' new living arrangements (for example, distance between homes). It will also illustrate how the courts might view their particular case.

  3.5.12  Other measures include improvements in grant-aided help provision and piloting of new initiatives such as access to help and advice through dedicated, telephone helplines.

Improving parental access to those services which will enable them to reach agreements

  3.5.13  The research evidence and discussions with stakeholders identified areas where action was needed. Where possible this has now been taken and further steps are proposed in the consultation document. This includes:

    —  With Parentline Plus, in early 2002 we published the Parenting Plan. This provides a checklist for parents to use in order to help them work out contact arrangements.

    —  With the help of children, we published leaflets aimed at helping children understand what might happen when their parents were splitting up.

    —  With Parentline Plus we provided a phone help line to help get the message across about the value of children having contact and the responsibility of both parents to help make it happen.

    —  The definition of harm has been expanded and new forms will be used from 31 January 2005. This will speed up the identification and resolution of these important cases.

    —  On 21 July 2004 the President of the Family Division wrote—as did CAFCASS and the Court Service—setting out plans to bring forward a Private Law Framework. This will set out best practice in case management in order to improve the delivery of services.

  3.5.14  As has been said, mediation will be appropriate to a proportion of those involved in family conflicts. Considerable work has been undertaken by the Department, the Legal Services Commission and by the mediation profession itself to promote mediation more widely, to educate other professionals (including the judiciary) about the benefits of a mediated outcome for couples, parents and most particularly for children of the family.

  3.5.15  For those seeking a third party intervention in their dispute, the Consultation Paper proposes a further range of measures to facilitate agreements and minimise conflict. These include changes to the legal aid system to promote and reward resolution before courts rather than in them and extended use of mediation for those who might benefit. It is already the case that to qualify for continued legal aid funding the claimant must have considered mediation. Work in FAINs will build on this. It is proposed that courts should be given a power to direct parents to such mediation.

  3.5.16  For those who continue toward court some more direct interventions to avoid the conflicted court case are proposed: the Family Resolutions Pilot Project (FRPP); and nationwide availability of in-court conciliation services.

  3.5.17  The FRPP is currently being tested in three court areas. It involves a series of targeted interventions. All potential court cases are referred to project unless fears over safety are alleged. The aim of these interventions is to promote agreements through improving understanding of the children's point of view, and develop communications of the partners. This involves facilitated group work followed by a planning meeting involving the separated partners and a skilled CAFCASS officer.

  3.5.18  In-court conciliation is a service of direct facilitation of agreements between the ex-partners and a CAFCASS officer. It currently operates in many local courts in different ways. The success of this in avoiding the need for conflicted hearings is good and the Government proposes to facilitate its greater use. We will also establish best practice so that all local schemes are built on the firmest footing.

Improving legal processes and service delivery for those who do go to court

  3.5.19  For those that must or do pursue their case into court, the focus of the Government's proposals is to improve the delivery of the service there. Improved case management by the judiciary, facilitated by HMCS and CAFCASS, is being developed through a practice framework. Key elements will be speeding up the process and promoting consistency through, for example, greater judicial continuity. Other changes, such as focussing CAFCASS on dispute resolution, will also assist.

  3.5.20  Around 30% of contact cases that go to court involve issues of safety. It is vital that issues of domestic violence are fully and properly dealt with by the courts before contact cases are decided. From January 2005, section 120 of the Adoption and Children Act 2002 will be implemented, which means that courts will have to consider the harm a child might suffer by hearing or seeing the ill-treatment of another. From the same date, we will also be introducing new court forms known as "Gateway Forms" so that allegations of domestic violence can be raised at the outset of proceedings. This will mean that findings of fact will be made before the courts take decisions about contact. The Government will therefore put in place robust monitoring arrangements and will commission evaluation of the impact the changes have on the handling of cases where domestic violence or child abuse is an issue.

Collaborative law

  3.5.21  The Consultation Paper explains that the LSC will be piloting collaborative law, which is another dispute resolution route for clients to promote negotiated outcomes away from court.

  3.5.22  Collaborative law is a newly introduced ADR model for promoting resolution in family matters. It is currently growing in use and popularity in other international jurisdictions, notably Canada and the United States. Collaborative law is a process in which clients and their lawyers work together in "four-way" meetings to seek a resolution without recourse to litigation. A "participation agreement" is signed by all that commits all parties to a non-litigation route of resolution.

  3.5.23  The LSC will be piloting this model of working from January 2005. The pilot will initially be run in Nottingham and Mansfield and then extended to include comparative areas and models. The pilot will be researched with a particular emphasis on the outcomes achieved for clients.

  3.5.24  It is hoped that this model of working will be adopted by practitioners working in the private sphere, as well as for legally aided cases.

Public Funding

  3.5.25  The Legal Services Research Centre (LSRC) has recently conducted a follow-up to the Family Case Profiling Study conducted in the late 1990s to determine whether the profile of legal aid certificated private law family cases has changed over recent years. Based on a sample of 400 cases (plus a booster sample of an additional 261 ancillary relief cases) the follow-up study's findings indicate that legal aid certificated private law family cases are now longer, more likely to involve hearings, more likely to involve counsel and more likely to involve multiple issues. A univariate general linear costs model indicates that these four changes, along with remuneration increases, lie behind much or all of the increase in case costs since 1996-97.[105]

  3.5.26  While some of the change in the profile of legal aid certificated private law family cases may stem from the expansion of the Legal Help scheme—intended to increase the proportion of less complex cases concluded under the Legal Help scheme—qualitative data collected as part of the follow-up study suggests that there are other causes.

  3.5.27  There is evidence of supplier-induced demand within the family legal aid system, with some legal aid solicitors adopting strategies that prolong disputes. Disputes also seem to be being prolonged by increasing "juniorisation" within family legal aid. More junior staff are less likely to have the knowledge and skills to bring about early settlement.

  3.5.28  The two tables show legal aid spend on family cases. The first shows actual net in-year expenditure on family. The second table, which shows the gross value Very High Cost Cases (VHCC) cases closed in each year, rather than actual spend, because the cases will span previous years and have been part—paid in those previous years. This extraction is possible only from December 1998 onwards. There may be a number of reasons for the variations in expenditure. Receipts from statutory charges may be higher in one year than the next (receipts can vary quite sharply), there have been changes in the mixture of cases between Children Act and other family cases and eligibility will have fallen over the years (which would have the effect of slowing expenditure) as incomes have risen faster than eligibility upratings.

  3.5.29  One factor that is significant however, is the level of certificates issued. Trends in bills paid tend to lag about 18 months or more behind certificates issued and it is noticeable that between 1998-99 and 1999-2000, family certificates fell by 25,000 (as net expenditure between 2000-01 and 2001-02 fell by £44 million). Similarly certificates issued between 1999-2000 and 2000-01 increased by 8,000 (as expenditure between 2001-02 and 2002-03 increased by £51 million).

YearExpenditure (£m)

Cases (£m)
Very High Cost
Cases (£m)
Dec 98-Mar 9925768

  3.5.30  The follow-up study has also identified evidence of "cherry picking", with some legal aid solicitors now increasingly looking to move to certificates as quickly as possible to increase profitability. This seems to be countering the initial impact of the expansion of Legal Help. There is also evidence of cherry picking within certificated cases, which may be having the effect of making it difficult for clients to find solicitors to undertake certain family cases—such as those involving domestic violence.

  3.5.31  The follow-up study also confirms that most legally aided family disputes are concluded through legal process, that the parties to the great majority of legal aid ancillary relief cases have dependent children and that changes of solicitor can greatly increase case costs.

  3.5.32  In July 2004, in conjunction with the DCA, the LSC published its consultation paper entitled "A new focus for civil legal aid—encouraging early resolution; discouraging unnecessary litigation".

  3.5.33  Specifically, the proposals include:

    —  A restructure of the levels of service for private law family cases by replacing three existing levels with one new level of service, and stricter control of granting legal representation. The LSC proposes to commence a pilot of the new structure in January 2005, to research how cases are managed by solicitors under the new proposals, and the impact on costs and outcomes. This is closely linked with proposals set out in the Consultation Paper.

    —  In ancillary relief cases, it is proposed to give courts wider powers to refuse funding on the grounds that private funding measures may be available (the value of the assets in dispute, for example the matrimonial home or loans).

    —  Stricter controls over multiple and repeat applications in family cases, and to limit funding to one certificate per client.

    —  Removing some low priority categories of cases from scope, such as Legal Help for drafting divorce and judicial separation petitions, or for changes of name.

    —  Revising the eligibility limits to achieve uniform income limits across all levels of service; while it is proposed the rates are increased in line with inflation, the upper limit for qualifying for legal representation in court should be reduced.

    —  Removing the current rule which disregards £100k of equity in an applicant's home in assessing financial eligibility for legal aid.

    —  In clinical negligence cases and complaints against the police, a requirement that redress is initially pursued through the appropriate complaints procedure before funding for litigation can be considered.

  3.5.34  The proposals aim to amend the LSC's Funding Code, which sets out the merits and scope of the civil legal aid scheme. The consultation closed on 15 October 2004, and the DCA is currently analysing the responses. No decisions have yet been made.

3.6  The changing role of CAFCASS

  3.6.1  It is important to remember that the cases which come to court represent the minority of separating parents, and that they are often those with intractable problems, including those which may place a child at risk. [108]However it may be the case that conflict between mothers and fathers has increased for more positive reasons, in that fathers' attitudes have changed so that they now want to spend more time with their children.[109] Mothers, however, particularly in the case of younger children, sometimes have anxieties about the parenting skills of the father. [110]In these areas, the services provided by the 400 contact centres up and down the country may be especially valuable, by providing a safe and neutral venue in which both confidence and competence can improve. The current Government investment (2003-05) of £3.25 million demonstrates the value placed on the contribution of these services.

  3.6.2  CAFCASS Family Court Advisers provide welfare reports when requested to do so by a court. However, in many courts CAFCASS also provides a service at the first appointment with the court, when an officer sees the parents to explore the potential for reaching agreement.

  3.6.3  In-court conciliation is a service of direct facilitation of agreements between the ex-partners and a CAFCASS officer. It currently operates in many local courts in different ways. The success of this in avoiding the need for conflicted hearings is good and the Government proposes to facilitate its greater use. We will also establish the principle of best practice of the service so that all local schemes are built on the best footing.

  3.6.4  The proposals in the Consultation Paper will lead to changes in the current role of CAFCASS in contact and residence proceedings, away from report writing and towards a more problem-solving approach, creating capacity for CAFCASS to deliver conciliation and support services. The Court Service and the judiciary are committed to working with CAFCASS to deliver this aim.

  3.6.5  This will mean extending in court conciliation to make it available to all families in dispute prior to court hearing. In order to achieve this CAFCASS will be working with Her Majesty's Court Service and the judiciary to identify and evaluate existing arrangements and good practice in courts, and any gaps in provision. It is intended that improved arrangements, which meet criteria agreed in conjunction with the judiciary and the Court Service, will be rolled out thereafter.

  3.6.6  CAFCASS will also have a greater role in post order follow-up—to ensure that orders are being properly implemented and met.

  3.6.7  The extent and speed with which this programme of change is rolled out will be dependent upon CAFCASS' readiness, both within its existing resource and that flowing from the changes in working practice made by the judiciary and the other agencies involved in taking the Consultation Paper forward.

3.7  Compliance

  3.7.1  Where the resident parent disregards the terms of a contact order, an application may be made for the enforcement of the contact orders. Courts have measures available to them in response to non-compliance with contact order, which include imprisonment, fines or reversal of residence.

  3.7.2  Courts use these measures with caution because of the possible detrimental effect on the child. The court will have the child's welfare in mind when deciding what, if any, sanctions to impose.

  3.7.3  For those that have been to court the focus of the Government's proposals is on ensuring compliance with the court's decision, through better monitoring, facilitation and enforcement. An active role in ensuring compliance is proposed for CAFCASS whereby checks will be made to see if the order is being carried through. If not, and linked to the improved case management proposal, those cases will be brought quickly back to court. A wide range of new enforcement and facilitative measures is proposed and the Government has made clear these will be legislated for at the earliest possible opportunity.

3.8  Disclosure and privacy

  3.8.1  Proceedings in the family courts are normally held in private as this protects the children involved. The permission of the court is generally required if publication of information relating to such proceedings is contemplated. The restrictions on publication are set out in two pieces of legislation and supported by case law.

    —  Section 97 (2) of the Children Act 1989 prohibits and makes it a criminal offence for any person to publish any material which would identify, or is likely to identify, a child as being involved in family court proceedings (or the address or school of such a child) unless the court has decided that the welfare of the child requires disclosure.

    —  Section 12 (1) (a) of the Administration of Justice Act 1960 has the effect of making it potentially a contempt of court to publish information relating to proceedings before any court sitting in private where the proceedings "(i) relate to the exercise of the inherent jurisdiction of the High Court with respect to minors; (ii) are brought under the Children Act 1989; or (iii) otherwise relate wholly or mainly to the . . . upbringing of a minor."

  3.8.2  The judgment handed down in the high court by Mr Justice Munby on 19 March 2004 (Re B) has set out clearly the effect of these two pieces of legislation. The judgment confirmed that publication of any information about a children case whether or not it would identify the child concerned is almost always prohibited without the direct permission of the court. Munby J held that `publication' covered almost all forms of communication whether by word of mouth or in writing.

  3.8.3  This judgment raised a number of wider issues about disclosure of information. The judgment has implications for MPs dealing with constituency matters, the police, CPS, social services and others who are equally unclear about their ability to access, use and pass on information from family court proceedings and who, for example, may have day to day issues about the protection of children and vulnerable adults to consider.

  3.8.4  The Government has tabled an amendment to the Children Bill to:

    —  Amend the law in respect of the criminal offence created by section 97(2) of the Children Act 1989.

    —  Amend section 12(4) of the Administration of Justice Act 1960 to clarify that where Rules of Court specify the circumstances in which information from court proceedings can be disclosed, such disclosure would not be a contempt of court, unless anything else would make it so, such as a court order prohibiting publication.

    —  Allow a series of amendments to current rule making powers to make clear that court rules can be made specifying the circumstances in which disclosure may be authorised.

  3.8.5  The proposal would not allow the extension of disclosures of information from family proceedings to the media, nor are there proposals to alter courts' existing powers to restrict or allow disclosure of information in individual cases.

  3.8.6  In developing proposals for changes to the law relating to disclosure of information, policy development has been based on a primary principle of the welfare of the child, supported by four further subsidiary consideration, which are:

    —  The proper administration of justice in family law cases.

    —  The legitimacy of the law (the match between the law and what actually happens).

    —  Providing for the sharing of information between those with a legitimate need for that information.

    —  The proper functioning of Parliament and the facilitation of the discharge of MPs' and Peers' functions.

  3.8.7  The Government's main aim in considering amendments to court rules is that the welfare of the child must be the paramount concern. However, some parties to family proceedings and others may have a legitimate interest, in limited circumstances, in sharing information. Our broad policy intention is to permit the disclosure of information relating to family proceedings in order to allow:

    —  parties to a case to obtain appropriate advice and support;

    —  MPs and Peers to undertake their official duties and Ministers to exercise their statutory functions;

    —  statutory agencies, such as the police, the Crown Prosecution Service and Social Services, to obtain access to relevant information for child protection purposes;

    —  complaints to be made to supervisory bodies and investigations to be carried out;

    —  statutory bodies to undertake their regulatory and investigative functions; and

    —  approved research to be undertaken.

  3.8.8  These examples are not exhaustive and there will remain restrictions about what information can be disclosed in such circumstances; and what the recipient of such information is able to do with it.

  3.8.9  There is, of course, a balance to be struck between competing interests, to ensure that those who may have a legitimate interest in the information (for example, the police, CPS, MPs) should have access to it, and those who may give evidence or statements (the parties, family members and experts) are not discouraged from full and frank disclosures. These changes will be consulted on.

Expert witnesses

  3.8.10  Concern has been expressed about the quality and validity of evidence given by medical expert witnesses following recent appeals against convictions of mothers alleged to have been responsible for killing their children. Medical evidence from expert witnesses plays an important part in court proceedings.

  3.8.11  Proceedings in the criminal and family courts are different and do not follow the same process. Requirements differ between them on standards of proof, rules of evidence and admissibility of material. In civil and family proceedings, evidence is assessed against a threshold of proof that is based on the balance of probabilities, and the input of expert witnesses may be tested by the parties to a case and by the court, before judicial determinations are made. An expert in family proceedings has an overriding duty to the court.

  3.8.12  The expert must confine his/her opinion to questions that fall within their expertise (skill and experience). At the end of care and supervision proceedings, the solicitor who instructed the expert should provide feedback to the expert. This informs the expert of the outcome of the case and the use that the court made of the expert's opinion.

  3.8.13  If a party to any case believes that the expert evidence was flawed, and that this evidence was crucial to the decision of the court, it is open to them to take legal advice about the possibility of an appeal. It is also open to any party to make representations to the General Medical Council or other professional body, who may seek permission of the court for disclosures to enable them to investigate a complaint. If a judge is dissatisfied with the quality of medical evidence, the judge may also bring this to the attention of the professional bodies.

  3.8.14  The concerns around the credibility of expert witnesses are both complex and substantial and are worsening the already acute problem which the family courts are experiencing in finding experts of high standing to give medical evidence in proceedings, particularly where child abuse is suspected.

  3.8.15  In January 2004, the Attorney General commissioned a review of past criminal convictions where parents have been convicted of murder, manslaughter or infanticide of a child under two years of age. When the review is concluded, the findings will be published. In February 2004, the Minister for Children asked all local authorities to review the cases of children who are the subject of current care proceedings or where local authorities are exercising responsibility for children who are currently the subject of care and related orders. The results of the initial survey of this latter group, published on 17 June 2004, reveal that the number of cases in which disputed expert medical evidence features or is anticipated to feature is relatively small, arising in only 47 out of the 5,175 cases reported in the returns of 130 local authorities. The results of the second stage of the survey are expected to be published shortly.

3.9  The international dimension

  3.9.1  All countries face issues of parental separation and encounter similar problems but often start from different positions. Whilst families may have a great deal in common the world over, the social and legal contexts in which people live differ greatly. Identification of particular aspects of other countries' approaches and outcomes can often ignore crucial differences, including historical and cultural ones, that may materially affect any conclusions that can be drawn from the prospective application of those approaches here.

  3.9.2  It is also important to be clear about what is meant by the terms used in other jurisdictions. Issues of current interest in other jurisdictions include support for shared parenting, for alternative ways of dealing with disputes outside courts, and if as a last resort a court order is made but a parent does not abide by its terms, what could be done to support the court's decision. The paragraphs below review the approaches used elsewhere.

Shared parenting

  3.9.3  Some confusion can arise from the terms used in different countries to describe arrangements. For example, shared, joint or co-parenting can have different meanings and practical implications in different countries. In Scandinavia, for example, "joint legal custody" is the norm, but this is different from, "joint parental decision making", or "shared physical residence". In Sweden joint decision-making is required, but shared physical residence is impossible, as a child cannot be registered at more than one address. In Finland a court cannot order shared residence, and in Norway it can be ordered but only where both parents agree. In Denmark neither joint legal custody nor shared residence can be ordered unless both parents agree.[111] Shared parenting is the term used in the Australian Family Law Act of 1995 Part VII which replaced the former division of roles into custody and access with a scheme designed to encourage parents who lived apart to raise their children collaboratively.[112] This scheme closely resembles the provisions of our own Children Act.

  3.9.4  Last year the Australian Government set up a commission to consider the proposal that equal time should be spent with each parent. The Commission's report Every Picture tells a Story published in December 2003 rejected the idea of a joint custody presumption on the grounds that every family is different, and that the time a child spends with each parent should depend on the best interests of the child concerned. Instead the Commission recommended a rebuttable presumption of "equal shared parental responsibility" for separated parents which would require them to consult with each other about major decisions. But at the same time a presumption against such responsibility was recommended for families affected by entrenched conflict, family violence, substance abuse or established child abuse.

  3.9.5  In Canada also there has been recent discussion of legislative reform. But in Bill 22, an Act to Amend the Divorce Act, the approach as described by the Minister of Justice is not to presume that any one parenting arrangement is better than others.

    "We believe that such presumptions tend to focus on parental rights rather than on what is in the interests of the child"[113]

  3.9.6  Shared parenting, meaning for the child living in two places, has been studied in the UK. It was found that although such an arrangement can work well in the small group of parents where both parents are enthusiastic and put the children first, it was generally stressful for children particularly when there is conflict[114]. The term collaborative parenting is becoming more widely used in the UK, where the Children Act gives responsibility to both parents after separation and the courts are only involved when there is a dispute, in which case they will guided by the best interests of the child.

International approaches to alternatives to court for conflict management and resolution

  3.9.7  New Zealand is often perceived as a enjoying a low rate of court use in contact disputes. But is important to note that in New Zealand the population is generally reluctant to use the court for civil and family matters. There seems a cultural instinct to avoid court-based interventions. Those who experienced highly-conflicted court cases were found to be characterised by characteristics such as untreated mental illness and lack of representation in court. [115]

  3.9.8  In Australia, Victoria Legal Aid is currently setting up a new dispute management service called Roundtable Dispute Management, which combines legal advice and representation with the aim of a less adversarial mediation style approach. The UK Government will continue to monitor this, and other international developments, to see what further lessons can be learned and applied here from experience elsewhere.

What happens when courts make orders?

  3.9.9  A court order has a different meaning in different jurisdictions. In some countries the courts are required to make an order identifying responsibility for every child whose parents separate. In others, the making of an order may be a formal notice of an agreement worked out by the parents, or that a dispute between parents has proved intractable and required adjudication. It is the last group where problems may most likely continue after the making of the order if the child, mother or father is unhappy with the decision and unwilling to comply. All jurisdictions have provisions for dealing with those who fail to comply with the orders of the court and are in contempt of court, though approaches are different. These are commonly difficult to apply in the family setting, where attempts to intervene risk making matters worse for the child, whose welfare is the central concern.

  3.9.10  In Australia judges were given the power to order parents who breached contact orders to attend a parenting support programme before resorting to the imposition of penalties. The early experience of this scheme suggests that its effectiveness has been hampered partly by the resources needed to implement this but also by the attempt to combine a disciplinary approach with a scheme designed to support parents who are struggling with their post separation parenting relationship and ongoing conflict. Perhaps the most successful scheme to date is, "Keeping Contact Going" by Unifam. This is based on making children's views known to parents and providing individual sessions with a therapist for both parents and children.[116] This accords with developments in Germany, where a child involved in a conflicted contact case is given individual support and parents receive counselling.[117]

  3.9.11  The Australian Commission recommended a new system for dealing with parental disputes about children. This recommendation is for setting up a "Families Tribunal" staffed by lawyers and social welfare experts, which would have conciliation and decision making functions. All families where there were no issues of violence or abuse would use the Tribunal, and parents would be required to attempt mediation before applying. This proposal builds on recent developments in their family justice system which have attempted to move away from adversarial processes and practices, instead investigating and testing accounts of past events with reliance on expert reports, towards a more investigative approach. This approaches parental separation as being about relationships rather than the law. These new processes focus on the child, and the aim is to help parents manage their post separation parenting.[118] It now seems unlikely that the tribunal recommendations will be followed, but a new initiative known as Family Relationship Centres to provide early and continuing advice in the community has begun.

Annex B[119]

1.   In what proportion of divorce cases before the family courts is domestic violence cited?

  Information is not collected on the number of divorce cases in which domestic violence is cited as an issue. In 2003, the reasons given for the breakdown of marriage were adultery (22%), unreasonable behaviour (45%), two years living apart (24%), five years living apart (9%) and desertion two years prior (0.4%). Domestic violence could potentially be an issue in any of the grounds for divorce, but there is no evidence of proportions. It may be worth noting that nearly four times as many women (55,000) get divorces on the grounds of their husbands' unreasonable behaviour as do men (14,000) on the grounds of their wives' unreasonable behaviour. Clearly, however, unreasonable behaviour covers much more than domestic violence.

2.   In what proportion of divorce cases where the custody of children is an issue, is domestic violence or abuse cited?

  The Committee is referred to paragraph 3.5.20 of the Department's Memorandum of Evidence where we indicate that about 30% of contact cases that go to court involve issues of safety, which includes domestic violence and other allegations of harm. The clarification of the definition of harm (paragraph 8 below) may lead to an increase in these figures and should certainly mean that allegations of domestic violence are considered and decided much earlier in the court process. The Committee should also note that contact cases include both married couples who separate and unmarried couples.

  It is also worth noting that there is evidence that women and children are most at risk of violence post separation. Women are also at greater risk of homicide at the point of separation or after leaving a violent partner. [120][121]

  The Wade and Smart research reports that "mothers interviewed by Hester and Radford (1996) often felt coerced by court welfare officers into agreeing contact". Other studies have found that mothers can feel pressurised to agree contact arrangements that they feel puts their own safety at risk (Aris et al, 2002).[122] Following a six month public consultation on contact definitions and referrals by a DCA-led working group, new definitions on levels of contact services, making clear the minimum standards that contact centres should provide for supervised contact (in, for example, domestic violence cases) were launched in May 2003.

  There are difficulties in standardising the definitions of domestic violence, and the variation in patterns of abuse ranging from short-term problems associated with separation to long-term instances of sustained abusive behaviour.

3.   What follow-up mechanisms are there once domestic violence/abuse is cited? (ie does the court investigate? Are social services involved? Are the police and CPS involved at any stage?

  The Committee is referred to paragraph 3.5.20 of the Department's Memorandum of Evidence. Where there are allegations of domestic violence, the courts must make a finding of fact regarding those allegations and then decide whether the findings should have any impact on decisions about contact.

  If the court hearing family proceedings decide it is relevant, they can order disclosure of information held by the police, although certain undertakings of confidentiality and how the information can be used may need to be given.

  On 1 December 2004 a new procedure is to be introduced in five areas of the country (Cumbria, Greater Manchester, Lancashire, Merseyside and the Metropolitan Police Area) for seeking disclosure, for the purpose of family proceedings, of material gathered by the police in connection with a criminal investigation or criminal proceedings.

  The Protocol for the Disclosure of Police Information in Family Proceedings ("the Police and Family Disclosure Protocol"), which is to be operated as a pilot scheme in the five areas for a period of nine months from 1 December 2004, has been developed in extensive discussions between the Association of Chief Police Officers (ACPO), the Department for Constitutional Affairs (DCA), members of the judiciary and other interested parties, with the object of establishing a more effective and efficient way of dealing with the disclosure of relevant information held by the police.

4.   What evidence is there as to the veracity of claims of domestic violence?

  Data is not collected centrally on the number of cases where the courts make a finding of fact that domestic violence has occurred. Recent research undertaken for the DCA (Residence and Contact Disputes in Court, Smart, Wade and Furniss Research, Series 6/03) indicate that the key to whether domestic violence became a central issue in a case appeared to be whether or not the children had been either subject to, or witnesses to, violence. Allegations of violence between adults appeared to carry more weight if it could be proven that children had witnessed the violence between the parents and had been affected by this. Generally, this meant children being old enough to remember and recount their experiences. Where split findings of fact hearings were held the Wade and Smart research found that they usually concluded with findings in favour of the mother.

  In the cases considered as part of the Smart, Wade and Furniss research (see 4.1 above), one in two cases involving allegations domestic violence resulted in an order for direct contact and in only nine out of 98 resulted in a final order for indirect contact.

5.   Are there any mechanisms in place to discourage false claims of domestic violence or abuse?

  Findings of fact should be made as to whether or not any allegations are made out and those findings will be reflected in any decision made by the court regarding contact. The "Gateway Forms", mentioned in paragraph 3.5.20 of our Memorandum of Evidence, will work against the late introduction of false claims of domestic violence for tactical reasons, should such a problem exist. The new forms will require both parties to state at the outset whether there are any issues of domestic violence. However, as mentioned at paragraph 3.5.20 of our Memorandum, these forms do not come into use until January 2005. Giving false evidence on oath is the criminal offence of perjury.

6.   Parents are still currently entitled to see children, even where there have been claims of domestic violence. What safety mechanisms are there to protect parents and children, and monitor contact between them?

  In considering contact applications, as in all matters relating to the upbringing of a child, the court's paramount concern must be the welfare of the child. Case law has indicated that it is nearly always in the interests of the child to have contact with both parents. The Wade and Smart research says that "it is rare for a father to be refused all contact with his children". In the research seven percent of contact cases initiated by fathers were dismissed and only one case ended with the court ordering no contact before the father withdrew his case. The Children Act Sub-Committee's guidelines on contact say that the court should ensure that the safety of resident parents and children must be secured "before, during and after contact." Additionally, the courts can order either supervised or indirect contact. (The Committee may wish to note that the Consultation Paper on Parental Separation (CM 6273, July 2004) clearly states that "after separation, both parents should have responsibility for, and a meaningful relationship with, their children, so long as it is safe"). Ten percent of finalised contact cases initiated by fathers in the Wade and Smart research resulted in an order for indirect contact. These cases usually involved allegations of domestic violence or child sex abuse.

  A copy of the Children Act Sub-Committee "Guidelines for good practice on parental contact in cases where there is domestic violence" is attached.

7.   Has there been any long-term funding put in place for contact centres?

  The Department for Education and Skills has responsibility for contact centres, however the Committee's attention is drawn to the Consultation Paper on Parental Separation (as in paragraph 6 above).

8.   What evidence is there to demonstrate whether parents who commit domestic violence against each other also abuse children?

  Section 120 of the Children and Adoption Act 2002 clarifies that the definition of harm includes harm suffered from witnessing abuse as well as being a victim of abuse. Linked procedural changes will assist in identifying cases of abuse at the earliest possible stage. It is intended that these changes will come into force on or about 31 January 2005.

  It is known that women are more likely to be the victims of domestic violence and tend to be subjected to more sustained and severe violence. There is also evidence that children often witness domestic violence and are frequently victims of abuse where domestic violence takes place.

    —  In 90% of domestic violence incidents, the children are in the same or next room (Hughes, 1992).

    —  Nearly 75% of children on the "at risk register" live in households where domestic violence occurs (Department for Health, 2003).

    —  Reviews by Hughes et al (1989) of domestic violence studies have found child abuse and woman abuse occurring together in 40%-60% of cases.

    —  Domestic violence has the highest rate (44%) of repeat victimisation[123] out of all violent crime.

Annex C

Letter from Baroness Ashton of Upholland, Parliamentary Under-Secretary of State, Department for Constitutional Affairs

  I am writing to provide the additional information I offered during my recent appearance, accompanied by Margaret Hodge, before the Committee on 18 January.

  However, I should like to start by re-iterating to you and your fellow Committee members how extremely sorry I am that, as a result of a communications failure, you were unaware of the change in venue for the press launch of the Government's Report on the recent consultation exercise on parental separation. The decision to change the venue was taken late in the day as we were unable to obtain space of sufficient size in an area that could be considered secure other than in DfES' premises. The alteration was communicated to the invited members of the press by telephone but not, unfortunately, to yourself. Steps have now been taken by my officials to prevent this happening again. In particular, the Department's team that liaises with your Secretariat will now automatically be notified of details of all Departmental announcements and key events, and will ensure that information is made available to you and the Secretariat as a matter of course.

Q403—Compulsory referral to education programmes

  Ross Cranston raised the issue of referral of non-resident parents to specific education or perpetrator programmes. A draft Bill outlining plans to introduce new measures for enforcement of contact orders will be published for pre-legislative scrutiny shortly. The measures proposed in the Bill will include referral of a defaulting parent to a variety of relevant programmes designed to deal with contact disputes, including, where appropriate, perpetrator programmes.

Q406-Q408—Judicial resources

  Ross Cranston also mentioned the figures provided to the Committee by this Department that show the increase in the number of High Court Judges for each Division of the High Court for the period 1979-2004. I omitted to point out to you although this was mentioned in our original submission to the Select Committee that the majority of family cases are heard either in the county courts or the Family Poceedings Courts rather than the High Court. In addition, we recently forwarded figures to your Secretariat, which I feel bear repeating, showing that in the 10 years from 1994 to 2003 inclusive, there has been a 56% increase in the number of sitting days in the High Court and county courts.

YearHigh Court County Court
Family Law
Family Division PublicPrivate Total
20033,92214,965 32,76947,734
20023,57412,880 31,04743,927
20013,43412,196 30,02442,220
20003,35611,624 28,11939,743
19993,33710,254 29,96640,220
19983,82310,281 29,15739,438
19973,7468,947 29,32038,267
19963,4718,274 29,83938,113
19953,5568,069 26,04834,117
19943,4996,687 23,95030,637
% Increase 1994-2003




  I also mentioned that a review of judicial resources and needs is currently underway within the Department with the intention of advising the Lord Chancellor on what steps he may need to take on these issues. The matter of a possible increase in the number Family Division High Court Judges is part of the review and I will ensure that the Committee is advised of the outcome of that part of the review, along with any other decisions that might also be of interest.

Q421—Disclosure of information to MPs

  Peter Bottomley raised the issue of constituents involved in family cases discussing matters with their Member of Parliament. As Margaret mentioned to you, this department is currently consulting on the "Disclosure of information in family proceedings cases involving children" and this consultation is due to end on 23 March 2005. We will publish details of the responses received as soon after that date as we are able to do so and proposed draft Rules of Court will follow with the aim of effecting the proposed changes during the Summer.

  Currently, disclosure of such information by a constituent to a Member of Parliament is potentially a contempt of court and may, additionally, be a criminal offence. The Government tabled amendments to the Children Act 2004 to change the law surrounding disclosure, including by a constituent to their MP. However these amendments have not yet come into force.

  I believe that the above information covers all outstanding issues for me as Margaret will be writing to you direct regarding the funding figures for CAFCASS that she mentioned in response to Q366 from Hilton Dawson.

  As I mentioned above, I have asked my officials to ensure that you are kept informed of any developments on the issues surrounding the family court system. If we can be of any further assistance with this inquiry, please let me know. In the meantime, I understand that you anticipate publishing your report towards the end of February, and I look forward to reading what will, no doubt, be extremely constructive criticism of the current system.

Catherine Ashton

28 January 2005

Annex D

Letter from Margaret Hodge MP, Minister of State for Children, Young People and Families, to Ross Cranston MP

  During my appearance before the Constitutional Affairs Select Committee on 18 January, I offered to write to you to clarify the position around the application to non-resident parents of the new disposals that our forthcoming draft Bill on contact will make available to the courts.

  Specifically, you asked me about the proposal that was contained in the Making Contact Work report to refer a non-resident parent who was violent or in breach of an order to an education programme or perpetrator programme.

  It remains our intent, as set out in paragraph 100 of the Parental Separation—Children's Needs and Parents' responsibilities: Next Steps document published on 18 January, that the Bill will offer the courts power to refer parties, including both resident and non-resident parents, to a range of relevant courses or programmes which could include perpetrator programmes where they would be appropriate.

  It will be possible for a court to do this at any stage in proceedings, even before an order has been made, recognising that this power will be more a way of moving towards and facilitating positive contact arrangements than a sanction for breach of court orders.

  I am copying this letter to all members of the Constitutional Affairs Select Committee.

Margaret Hodge MP

24 January 2005

60   CMM 6273 (July 2004) Back

61   Some parts of which have been amended by the Adoption and Children Act 2002 Back

62   Private law cases are those brought by private individuals, generally in connection with divorce, the parents' separation or care arrangements for children following parental separation Back

63   Public law cases are those usually brought by local authorities or the NSPCC, and include matters such as care, supervision and emergency protection orders Back

64   At present, all family county courts are, by statute, able to process applications relating to the adoption of a child. However, it has long been recognised that increased specialism lends itself to improved case management and enhanced levels of customer service. To this end, in October 2001, the President issued new guidelines for dealing with adoption and freeing proceedings, `Adoption, A New Approach,' and supported these by establishing a network of specialised adoption centres. Feedback of court users, undertaken by the Department in 2002/03, found a significant shift in favour of this new approach to adoption Back

65   The legislation governing Family Law is supplemented by case law Back

66   Family proceedings Rules 1991; Family proceedings Courts (Matrimonial Proceedings etc) Rules 1991; Magistrates' Courts Rules 1981; Magistrates' Courts (Attachment of Earnings) Rules 1971; Magistrates' Courts (Family Law Act 1986) Rules 1998 Back

67   Judicial Statistics 2003 Back

68   For example, either party was under 16 years at the time of the marriage, either party was already married or the parties are legally prohibited from marrying Back

69   For example not consummated due to incapacity or wilful refusal (most nullities are on these grounds) or where one party was suffering from a communicable venereal disease or the woman was pregnant by someone else at the time of marriage Back

70   Section 8 Child Support Act 1991 Back

71   The courts can still make maintenance provision (i) by consent, (ii) for the costs relating to a disabled child, and (iii) to "top-up" maintenance under the Child Support Act 1991, or (iv) for education Back

72   Judicial Statistics 2003 Back

73   ie maintenance payable to one spouse by the other for the duration of the proceedings, until long term maintenance needs are decided upon Back

74   Some inconsequential applications have been excluded Back

75   Extracted from Judicial Statistics 2003 Back

76   Figures in italics are weighted estimates based on data received from a number of family proceedings courts, and may not add up due to rounding Back

77   Contains imputed data for family proceedings courts Back

78   Judicial Statistics 2003 Back

79   See 2.2.23 Back

80   Contains imputed data for family proceedings courts Back

81   Judicial Statistics 2003 Back

82   See 3.2.24 Back

83   Some parts of which have been amended by the Adoption and Children Act 2002 Back

84   Judicial Statistics 2003 Back

85   An application made by one party to start court proceedings in the absence of the other party (often applied for under the Family Law Act 1996 because of the urgency of the application and the need to protect the applicant) Back

86   Judicial Statistics 2003 Back

87   Contains imputed data Back

88   This provision is not yet in force Back

89   Certificates are classified according to the first or main proceedings authorised Back

90   Legal Services Commission Annual Report 2003-04 Back

91   These totals have been revised to include backdated certificates issued after the year-end. Further information has also led to the reclassification of a few certificates previously reported under "financial provision" or "other family proceedings" Back

92   May include two or more from: private law Children Act proceedings, domestic violence or financial provision Back

93   Legal Services Commission-SDA 13 Back

94   No figures available for 1997-2002 Back

95   Published January 2004 Back

96   Maclean and Eekelaar, 1997 Back

97   ONS Omnibus Survey Back

98   twood et al 2003 Back

99   Dunn 2003 Back

100   O'Quigley, 1999. Hunt, 2003 Back

101   Dunn 2003 Back

102   Smith et al, 2001 Back

103   Pryor and Rodgers Back

104   Buchanan et al 2001 Back

105   Details of the models will be reported in Family Law, December 2004 Back

106   Legal Services Commission Back

107   Legal Services Commission Back

108   Buchanan et al 2001, Trinder 2004 Back

109   Smart, May and Wade and Furniss 2003 Back

110   Trinder, 2003 Back

111   Ryrstadt 2003 Back

112   Rhoades and Nelson 2004 Back

113   Martin Cauchon, 2002 Back

114   Smart et al 2004 Back

115   Barwick et al 2003 Back

116   Rhoades 2004 Back

117   Mueller Johnson and Maclean 2003, Johnson in press Back

118   Attorney General's Department and Department of Family and Community Services, Government response to the Family Law Pathways Advisory Group Report, Canberra 2003, and The Children's Cases Program Back

119   This note should be read in conjunction with the Department's Memorandum of Evidence, in particular paragraphs 2.2.31-2.2.34 and 3.5.20 Back

120   Lees, S `Marital rape and marital murder', in Hanmer J et al Back

121   Mirrlees-Black, C. Domestic Violence: BCS Self-Completion Questionnaire. London: Home Office, 1999 Back

122   The Lord Chancellor's Department Research Programme Report: Safety and child contact: An analysis of the role of child contact centres in the context of domestic violence and child welfare concerns (December 2002, Research Series 10/02) contains further information on child contact where there has been a history of domestic violence Back

123   British Crime Survey, England and Wales 2000. Home Office, London 2000 Back

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