Evidence submitted by the Department for
|Department for Constitutional Affairs
|The Department's role in Family Justice
|Inter-Agency & Inter-Departmental Partners in Family Justice
|2.||Overview of the Family Courts
|Legislation, applications and volumes
|Court and case costs||2.3
|The role of the Legal Services Commission
|The role of CAFCASS in private law
|Alternative Dispute Resolution (including Mediation)
|3.||Relationship Breakdown: Focusing on the Needs of the Changing Shape of Families
|Needs of parents||3.3
|The Government's proposals||3.5
|The changing role of CAFCASS
|Disclosure and privacy||3.8
|The International Dimension||3.9
1.1 DEPARTMENT FOR
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
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 THE DEPARTMENT'S
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
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
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
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
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
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.
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
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
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.
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%.
MATRIMONIAL SUITS: SUMMARY OF PROCEEDINGS IN SELECTED
YEARS SINCE 1938
|Dissolution of marriage||
|Nullity of marriage||
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
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.
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.
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
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
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
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.
MATRIMONIAL SUITSORDERS MADE FOR ANCILLARY RELIEF,
UNDER THE MATRIMONIAL CAUSES ACT 1973, IN THE COUNTY COURTS2003
|Nature of proceedings||
|Orders made for maintenance pending suit
|Orders made for fixed term||5,989
|Orders made pending further order||11,751
|Orders made for child||24,508
|Lump sum and/or property orders made||30,883
|Total Orders Made||83,668
|Ancillary relief orders above made by consent (76.8% of total)
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 AND PRIVATE LAW APPLICATIONS
MADE IN EACH TIER OF COURT BY CIRCUIT, 2003
| Public Law|
| Private Law|
|Wales & Chester||708
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).
DISPOSAL OF SELECTED APPLICATIONS IN PRIVATE LAW FOR ALL
TIERS OF COURT2003
|Orders of no|
|Nature of application:||
DISPOSAL OF SELECTED APPLICATIONS IN PUBLIC LAW IN ALL
TIERS OF COURT2003
|Orders of no|
|Nature of application:||
|Contact with a child in care||121
|Discharge of care||149
|Refusal of contact||84
|Emergency protection order||228
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 waysfor 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
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.
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).
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
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.
FAMILY LAW ACT 1996PART IV: DOMESTIC VIOLENCE APPLICATIONS
AND ORDERS MADE IN THE COUNTY COURTS: 2003
| Nature of proceedings:||
|Applications received without notice
|Applications received on notice||4,612
|Order with power of arrest attached||19,112
|Order without power of arrest attached
|Applications received without notice||7,207
|Applications received on notice||3,372
|Order with power of arrest attached||7,826
|Order without power of arrest attached
|Number of cases where undertakings accepted
|Warrants of arrest|
|For medical report||19
|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
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.
ADOPTION OF CHILDREN: SUMMARY OF PROCEEDINGS2003
|Nature of proceedings:||
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.
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
|Staff and Other Running Costs||57
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 Service||Unit|
|Divorce (divorce, judicial separate and nullity)
|Domestic Violence Injunctions||234
|Other Originating Proceedings||164
|Children Act ApplicationsPrivate Law
|Children Act ApplicationsPublic Law
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.
|Domestic Violence Injunctions||
|Adoption (section 21 Placement orders only)
|Applications for Financial Orders (excl. variation or discharge of orders and maintenance outside UK)
|Children Act ApplicationsPrivate Law
|Children Act ApplicationsPublic Law
2.3.8 As part of harmonising family fees, the Department
will shortly be issuing a consultation paper on fees in magistrate's
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.
LEGAL AID CERTIFICATES ISSUED IN FAMILY PROCEEDINGS: 2003-04
| Level of help authorised|
|Special Children Act proceedings||0
|Other public law Children Act proceedings
|Private law Children Act proceedings||468
|Combined family proceedings
|Other family proceedings||59
|Help with Mediation||4,530
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
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
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
2.5.12 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
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
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
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
|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%)
|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%
|(b) Increase Contact Orders made by Consent by 1% to 32.2% from 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 Year||Volume of cases referred to Mediation
||Annual cost to CLS of Mediation
|2004-05 (to date)||5,360
|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.
3.1.1 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 2001this is likely to be because final
orders had not been made in the longer cases when this analysis
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
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
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
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
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
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
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
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
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.
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.
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.
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
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.
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
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.
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.
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. 
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
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
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:
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
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
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 familiesfactors
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
wroteas did CAFCASS and the Court Servicesetting
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.
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.
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.
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 schemeintended to increase the proportion
of less complex cases concluded under the Legal Help schemequalitative
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 partpaid
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).
NET EXPENDITURE ON FAMILY LEGAL AID
GROSS VALUE OF CASES CLOSED IN YEAR
|Very High Cost|
|Dec 98-Mar 99||257||68
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 casessuch 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 aidencouraging early resolution; discouraging
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. 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
however, particularly in the case of younger children, sometimes
have anxieties about the parenting skills of the father. 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
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
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-upto ensure that orders are being properly implemented
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.
3.7.1 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
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
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
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
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
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.
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.
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.
This scheme closely resembles the provisions of our own Children
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"
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. 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. 
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.
This accords with developments in Germany, where a child involved
in a conflicted contact case is given individual support and parents
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.
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.
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. 
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,
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
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
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
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
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
out of all violent crime.
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.
Q403Compulsory 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
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.
DAYS SAT (IN COURT AND CHAMBERS) SHOWING TYPE OF WORK
|% 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.
Q421Disclosure 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.
28 January 2005
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 SeparationChildren'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
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
I am copying this letter to all members of the Constitutional
Affairs Select Committee.
Margaret Hodge MP
24 January 2005
CMM 6273 (July 2004) Back
Some parts of which have been amended by the Adoption and Children
Act 2002 Back
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
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
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
The legislation governing Family Law is supplemented by case law Back
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
Judicial Statistics 2003 Back
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
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
Section 8 Child Support Act 1991 Back
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
Judicial Statistics 2003 Back
ie maintenance payable to one spouse by the other for the duration
of the proceedings, until long term maintenance needs are decided
Some inconsequential applications have been excluded Back
Extracted from Judicial Statistics 2003 Back
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
Contains imputed data for family proceedings courts Back
Judicial Statistics 2003 Back
See 2.2.23 Back
Contains imputed data for family proceedings courts Back
Judicial Statistics 2003 Back
See 3.2.24 Back
Some parts of which have been amended by the Adoption and Children
Act 2002 Back
Judicial Statistics 2003 Back
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
Judicial Statistics 2003 Back
Contains imputed data Back
This provision is not yet in force Back
Certificates are classified according to the first or main proceedings
Legal Services Commission Annual Report 2003-04 Back
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
May include two or more from: private law Children Act proceedings,
domestic violence or financial provision Back
Legal Services Commission-SDA 13 Back
No figures available for 1997-2002 Back
Published January 2004 Back
Maclean and Eekelaar, 1997 Back
ONS Omnibus Survey Back
twood et al 2003 Back
Dunn 2003 Back
O'Quigley, 1999. Hunt, 2003 Back
Dunn 2003 Back
Smith et al, 2001 Back
Pryor and Rodgers Back
Buchanan et al 2001 Back
Details of the models will be reported in Family Law, December
Legal Services Commission Back
Legal Services Commission Back
Buchanan et al 2001, Trinder 2004 Back
Smart, May and Wade and Furniss 2003 Back
Trinder, 2003 Back
Ryrstadt 2003 Back
Rhoades and Nelson 2004 Back
Martin Cauchon, 2002 Back
Smart et al 2004 Back
Barwick et al 2003 Back
Rhoades 2004 Back
Mueller Johnson and Maclean 2003, Johnson in press Back
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
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
Lees, S `Marital rape and marital murder', in Hanmer J et al Back
Mirrlees-Black, C. Domestic Violence: BCS Self-Completion Questionnaire.
London: Home Office, 1999 Back
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
British Crime Survey, England and Wales 2000. Home Office, London