Examination of Witnesses (Questions 303-319)
11 JANUARY 2005
TONY COE,
JOHN BAKER
AND CELIA
CONRAD
Chairman: Welcome, Mr Baker from Families
Need Fathers, Mr Coe from the Equal Parenting Council and Celia
Conrad, a solicitor experienced in this field. We look to you
to get some interesting evidence about the position of non-resident
parents, usually but not invariably fathers. Obviously we have
received a lot of representations on this from your own organisations
and from many other organisations and it is a major public issue,
so we are very grateful to have your help this morning.
Q303 Mrs Cryer: Celia, you have said
that, "The law may be gender-neutral in intent. However,
that is not the perception of many non-resident parents who have
been through the current court process. They have no faith in
it to produce an unbiased result". Why do you believe this,
that the court system is biased against the non-resident parent
and what empirical evidence do you have to sustain this?[1]
Celia Conrad: If I can take you
back just a couple of points in relation to the question, which
is that my experience is from the research I have done for the
book that I wrote and my actual experience of acting in the Family
Court process. Also I think the question is quite broad really
and is quite fundamental because really there is no inequality
between men and women, but in the system there is an inequality,
I believe, and as I have sort of said in my book and from the
research that I have done between a resident and non-resident
parent because the onus is on the non-resident parent always to
be the one to make the application for contact or to prove that
contact should take place. Now, the perception is that it looks
as if it is more biased towards fathers because generally more
fathers are the non-resident parent, so that is actually something
which is probably just the way it looks from the figures because
there are more fathers than mothers who are non-resident parents,
so one would say that it is prejudiced against the fathers, but
that is not so. My argument is that it is the non-resident parent
who is the one who is actually disadvantaged by the system.
Q304 Mrs Cryer: But in your research,
did you not come to some conclusion about the fact that resident
parents often do need a bit of help, so in addition to the children
needing the presence of the other parent, the actual parent who
has custody does need a bit of time off occasionally?
Celia Conrad: Of course. Obviously
the children need to have a meaningful relationship with both
parents, so I am not saying that the resident parent should not
have time off. Actually many resident parents would like sometimes
for the non-resident parent to have more time with the children
and I have come across that as well and unfortunately you cannot
make an order for someone to have more contact and that is often
something that people have complained about to me when I have
been in practice, so I do accept that, yes.
Q305 Mrs Cryer: To Tony Coe, given that
the case law already indicates that contact is almost always in
the interest of the child, what difference do you believe a statutory
legal presumption would make and how would a presumption interact
with the current presumption to act in the best interests of the
children and, in the case of dispute, which would take precedence?
Tony Coe: The first thing to say
in answer to the question which you put to Celia is that probably
the best evidence is the evidence from the President of the Family
Division herself when she says that 60% of fathers lose contact
with their children, so that is the first thing to say. Another
thing to say of course is that Mr Justice Munby in his judgment,
referenced in the representations we have made, made very clear
how defective the system is. The reason that a legal presumption
is essential is that we need to have a clear framework in place
so that we address both ends of this argument. The other side
of the argument is that we should not allow violent people to
have contact with their children and that is quite right and the
way that we deal with that is that we face up to it right at the
beginning and say, "Look, what's going on in this case?",
and if there is violence in the case, that is a criminal offence
and we deal with it as a crime, but if we are dealing with fit
parents, then both those parents ought to be having contact with
their children and the only way that you are going to make that
a reality, I suggest, is by having laws in place, as they do in
North America, where the judge has to follow a certain format.
When that happens, then the shared parenting, the both-parents
regime that we all want to see, actually becomes a reality.
Q306 Mrs Cryer: But would you accept
that 60% of non-custodial parents eventually lose contact with
their children?
Tony Coe: Yes.
Q307 Mrs Cryer: But quite a chunk of
that 60% could well be where those, possibly, fathers have formed
other relationships and are wanting to move on and perhaps do
not want contact. Are you saying that the 60% are all parents
who actually do want contact, but for various reasons they have
lost it?
Tony Coe: Well, first of all,
I am not saying 60% and I am taking that directly from the President's
own mouth. The usual statistic that is quoted is that 40% of non-resident
parents lose all contact with their children within two years.
Of course there are parents who are bad. Of course there are parents
who do not want to see their children and that pertains to intact
relationships also. We all go to Tesco's and we see parents who
we think probably should have their children taken away, but what
we are talking about here is if you have got fit parents, if there
is not a safety issue, and the Government has put that right at
the top of the page, it seems to me, in the Green Paper and it
is very helpful that they have done that, that if it is safe,
there should be contact and there has to be a system put in place
that delivers that. We know it is not being delivered because
the judges are telling us that. Lord Justice Wall himself came
out in The Guardian yesterday effectively saying, "Look,
it's not as though we're not saying that reforms are needed. Reforms
are needed".
Q308 Mrs Cryer: But the point I am trying
to make is that quite a chunk of that 60% is not because they
are not fit parents, the fathers, but it is just that they have
moved on, formed another relationship and, therefore, some of
that 60% must be because of choice, that they have chosen to sever
relationships with their first family.
Tony Coe: Well, you must be right,
but I would have to say, "So what!" All I can say is
that in our organisation, we see mothers and fathers every day
of the week who desperately want to have contact with their children.
What is the other side of that? The other side of that is a child
who is being denied contact with that parent. Let's put a system
in place that delivers that. We all want that.
Q309 Mrs Cryer: I wonder if I could ask
you all, do you believe that an expansion of section 1(3) of the
Children Act, which contains the welfare checklist, to read that,
"the court should have regard to the importance of a relationship
between the children and a non-resident parent" would be
of benefit to separating parents and their children?
John Baker: We are certainly very
enthusiastic about that. What we need to do is to change the culture
and the culture at the moment is that if parents separate, only
one parent has the lion's share and the other is excluded, marginalised
and is much less important. If we actually set it legally in legal
practices and in the culture that the assumption should be that
both remain important, a lot of things would follow. Legal cases
would be different and if people's private behaviour was taken,
then shadow legal cases would be different, and where people formed
a new relationship, they would not think, "Well, I can move
on from my previous children", and it would be clear that
their obligation was to stay involved. To pick up a point which
Tony Coe made, one way of doing this is to make formal, symbolic
statements by changing primary legislation which is often the
way of flagging up that this is being put. It is not legally necessary
to do that and it could be achieved within the existing law, but
there have to be bold statements that this should be the normal
outcome unless there are contraindications and amending the Children
Act in that way would be another way of doing that.
Q310 Chairman: Let's get your view on
this because these two are sometimes seen as alternatives, a new
legal presumption of contact with both parents, on the one hand,
and something in the Children Act about the importance of the
relationship between the children and the non-resident parent,
on the other, because having two legal presumptions operating
at the same time is rather difficult for the courts to deal with.
What happens if the two are in direct conflict and the interests
of the child, even the spoken, articulated views of the child,
are actually in conflict with the presumption that the child should
have contact with both parents?
John Baker: I think it would always
be that there is a presumption which would always be rebuttable
for various reasons, of which the most obvious ones would be abuse
or risk of continuing violence or something like that, so we are
arguing for a presumption, not a mandatory fixed right. In the
view of our organisation, it is the personal behaviour that needs
to change, but since the personal behaviour is often taken in
the shadow of the law and legal decisions, the best way of changing
the personal behaviour is actually to make it clear what the law
expects.
Q311 Chairman: Are you arguing that the
existing presumption where the interests of the child come first
should be removed or downgraded in some way?
John Baker: Absolutely no way.
It is a red herring in lots of respects to say that children's
welfare comes first and in the normal case this has these following
implications. We would not want to see the welfare principle changed
in any way, but, say, in the normal case if the welfare of the
child involves having ongoing relationships with both parents
unless some particular reason is brought in that that is not the
best for this particular child in these circumstances.
Celia Conrad: I think there is
confusion with the presumptions. The thing is that we have the
presumption of contact through case law, but what we do not have
is the presumption of reasonable contact. The problem is that
there are no guidelines anywhere, there is no definition anywhere
of how much contact or how much parenting time a child is supposed
to spend with each parent after separation, and this is the problem
because under the current system there is nothing there to guarantee
any time whatsoever. Tony is obviously talking about the legal
presumption to guarantee some degree of contact post-separation
and I know that Mrs Justice Bracewell said that she did not feel
that was viable because she said that it would obviously conflict
with the point you just made about the paramount consideration.
I think essentially that it could facilitate that paramount consideration
because at the end of the day it is in the child's best interest
to have reasonable contact with both parents to develop that meaningful
relationship which facilitates the welfare principle, but I understand
there could be conflict. I think that it is really looking at
reasonable contact and how much contact, how much time the child
should have with each parent post-separation which I think could
be developed by guidelines or judicial guidance, and I think that
was the emphasis of the Early Interventions Project which is distinct
from the Family Resolutions Pilot Project because there is no
parenting time definition within the Family Resolutions Pilot
Project, so I think that is something that needs to be addressed,
that there actually has to be some guidance somewhere as to how
much parenting time the child actually has with the parent post-separation.
Tony Coe: What I wanted to say
is that I do not see this conflict. If you have got two parents,
we all agree and the Government says in its Green Paper right
at the top that if both parents are fit, in other words, if it
is safe, they say, but we would actually say that if both parents
are fit, then it is in the best interests of the child for them
to be having contact and, therefore, there should be a presumption
making that happen. The pilot project you are referring to really
emanates from the Florida system. Now, the Florida system has
had a presumption not of contact, but of shared parenting, that
is to say, frequent and continuing contact of at least a third
of the time year round. That has been on their statute books since
1982 and the leading judge there has told me quite plainly that
he does not see how we can make any progress in this until we
have a presumption in place on our statute books.
Q312 Peter Bottomley: If any of you have
a research study showing the change in outcomes in Florida over
the last 20 years, it would be useful to have it sent to us. Could
I just reflect back on what I think I have heard which is that
if the interests of the child, which I look on as the long-term
interests of the child, are maintaining contact and if the variety
of cases that among the minority that come to court would be affected
by a change in the law had such a wide range from where a parent
is not thought to be fit or safe to have the child to one where
the present caring parent might be less adequate than the non-resident,
non-caring parent, how on earth is it possible to write into primary
legislation anything that is going to be useful?
Tony Coe: Well, we do not interfere
with the relationship. Going back to my rather flippant Tesco's
analogy, we do not interfere in the relationships between fit
parents, the relationships with the children, when they are intact
and the State has no business, in my respectful submission, interfering
in a relationship between a fit parent and their child. We may
have different ways of bringing up our children, but we are entitled
to have our different ways of bringing up our children and getting
into the areas of which parent is more adequate is not, in our
view, where the law should be going. We need a law that protects
the human rights of the child and of the parent to have a family
life together.
Q313 Chairman: But you are asking the
State to interfere because you are asking the State to deal with
the situation where one parent says, "I want more weekend
contact with the child", and the other parent says, "No",
and the child actually says, "Well, the trouble is that if
I go at the weekend, I'll miss my football or the society I belong
to". You have got three people whose views have to be reconciled
and it does seem, on the face of it, odd that the State should
be trying to resolve this.
Tony Coe: I do not think that
is an interference, if I may say so, Chairman. I think it is a
question of upholding the relationship between the child and the
parent. They have a right to a family life together, and we know
that from the European Court's rulings on this, and what we have
at the moment is a situation where many, many parents actually
lose all contact with their children or have an unviable relationship.
They have to go to McDonald's once a week and spend a couple of
hours with their child or maybe they have to go to a contact centre
where there is no issue of safety involved simply because the
custodial parent says, "Well, I want it to be supervised",
or "I want it to be in that particular regime". It is
so unnatural and when the oxygen of contact between the child
and the parent is denied, then that relationship withers and dies
and the court is left with the position where it has to say, "Well,
the relationship is finished, so it's not in the best interests
of the child to order it".
Q314 Mr Soley: If I could return to Celia
Conrad, you have partly answered the question where you seem to
agree with the Law Society that the resident parent has the advantage
in a resident dispute as to where the child is. I just wonder
if in your research or your work you have looked at the Society's
presumptions before that because I suspect that one of the things
that happens here is that there is almost a tendency from the
male and females roles in society that the male leaves and the
female stays in the home and the child also has an identity with
the physical situation at home. Now, if that is right, does it
not all point to a much earlier intervention if the parents cannot
agree?
Celia Conrad: The problem is of
course, as you say, that when parties do separate, it is generally
one parent that leaves the home and obviously becomes the non-resident
parent and then obviously the status quo is changed because the
child is living more or less all the time with one parent and
obviously the other parent is trying to see the child to keep
the relationship going. I think in terms of early intervention,
the use of the phrase "early intervention" can be confusing
because there is early intervention and there is early intervention.
To be honest with you, I do not think it matters actually what
it is called in terms of intervening. I think that something has
to be done so that there is some form of early intervention and
whether it is called the Early Intervention Project or the Family
Resolutions Project or something else does not matter. I understand
the argument that the name was changed from Early Intervention
to Family Resolutions, although actually it is not the same project,
but it was changed because they said that it was not early enough
for some families, so that causes confusion, but then I think
how early can it be because it can only ever be really as early
as the parties ask someone else for assistance on it, whether
it is phoning up Families Need Fathers or going to mediation or
going to a solicitor, which I think is 80% of cases, where people
come into the office, are emotionally driven and many of them
just want a fight, and that is a major problem, I think. I think
in terms of how early it can be, there are limits. I think Mrs
Justice Bracewell did say that as well, that it was actually quite
difficult to say how early we can intervene and there are limits
to how much we can do in invading other people's relationships.
Q315 Mr Soley: Your answer is very relevant,
but I was not thinking specifically of the Early Interventions
Project, but just talking about early intervention because the
core of the problem in a sense, and Tony Coe touched on this,
is actually the problem of why the State has to intervene, and
the State has to intervene frankly not because it wants to, but
because the parents cannot agree, so in a way the problem here
is to find a way of helping the parents resolve the problem without
the intervention stage and that is a lot easier said than done—
Celia Conrad: Yes, I would agree
with that.
Q316 Mr Soley: —if you are also
looking at the needs of the child which do at times get forgotten
in the battle between the parents.
Celia Conrad: I think that obviously
when a relationship breaks down and then the parties do not know
which way to go, at that stage they need information to actually
help them to decide. This is the problem because where parties
cannot agree, they are going to have to have some form of intervention
to help them come to some agreement, whether it is by mediation,
whether it is by information from the court, having parent education
classes or whatever or then going into the legal system which
should obviously be the last resort because adversarial proceedings
are very unhealthy. In my experience, most of the people who have
actually gone through the process are very unhappy with the results
and cases get compromised along the way, but that is not an indication
of a good result either because a lot of people give up because
they cannot afford it, they cannot take the strain, and it is
such a long, protracted and expensive process. Something has to
be done to stop that. It is a question of what type of early intervention
is necessary and what is most relevant and what is going to work.
I do not think the Family Resolution Pilot Project goes far enough
because the parties do not know what the expectation of the court
is. They are just given guidance as to things that they can do,
but there is nothing set out to say, "If you do not agree,
this is what is likely to be ordered". I really do think
it focuses parents' minds as to what is in the best interests
of their children if they have a clear indication of what is going
to come out of it if they do not agree, but in the meantime they
have all the other resources to try and avoid going down the court
route.
Q317 Chairman: If we accept the figure
that the Government give of less than 1% of contact applications
are actually rejected outright by the courts, the problem is,
perhaps as you were hinting earlier, much more one about the amount
of time, the extent of contact and, of course, issues about the
forcibility which we will come to later on in our session. You
come up against real practical difficulties if the court starts
to get involved or any other process in saying to the parents
you must have x% of the time, you must have so many days, so many
hours. Then you come up against all the practical difficulties
about housing accommodation, how far apart both parties live and
how disruptive it is to the child to meet this requirement because
you are actually placing the requirement on the child as well
as the parent that the child will travel 100 miles to some place
or other and have a different circle of friends during that contact
time.
Celia Conrad: I take the point
exactly because obviously then you are imposing a certain number
of days which is the problem anyway when you are looking at contact
applications. What I am saying is that I think there should be
some form of procedure whereby there are guidelines set down for
categories of case. I think we can look at categories of case
because they do exist for parents to work out their own parenting
plan through a three-step process, whether the Early Interventions
project or something else, which fits their individual child's
needs because essentially every case is different, that is the
problem, we are all different. Family life is different in each
family from the children's requirements and what parents would
like. Contact applications are all about time anyway. How much
time would create that meaningful relationship for the parent
and child? Really it would be a question of that family working
out their individual needs with guidance which can be done through
a procedural change rather than a legislative change essentially.
John Baker: A key thing for me
here is the role of parenting plans. I think this question of
fixed allocations of times is a red herring. We should have looked
at it in terms of objectives to be attained. They will be things
like both parents being effective parents and neither parent being
excluded by the parenting plan from any important aspect of the
children's life, for example from school. Children should not
be excluded from awareness of any important part of the parent's
life, for example the fact that they work as well as care. I think
there is a check-list of these sorts of things which will not
give a precise formula of this number of days and that number
of days but would be a series of guidelines as to the amount and
the best way of organising contact and that is the way forward
here. Yes, there is an informal understanding that some contact
is almost invariably given to the child, although it is not necessarily
guaranteed, but it is not necessarily a meaningful amount and
I think what we need is guidelines or parenting plans on what
sort of experience the child can expect to have from its parents
and that should lead the formula and the organisation.
Q318 Chairman: Would I be right in thinking
that reaching that kind of agreement in many cases is prevented
by outstanding other disputes, ie maintenance disputes, Child
Support Agency issues, continuing resentment that the break up
took place at all and that what sounds an obvious and ideal solution
is extremely difficult to achieve in quite a lot of the cases?
John Baker: I am sure that is
right. All of these things have to be seen as a package. What
often happens now is the financial things are seen as the most
urgent and they are settled earliest and then somehow the child
welfare things can be dealt with in the fullness of time. The
child welfare things are more urgent. They all need to be resolved
as a package, with every issue sorted out at a very early stage.
It is very difficult to distinguish between them.
Tony Coe: The beauty of this is
that we do not have to reinvent the wheel here. These things have
been thought about for years in North America. I think it is no
accident that probably the most forward thinking judge here at
the sharp end, as I think this Committee put it, is Nick Crichton
and you can see the sort of way he deals with it, and it is a
revolutionary way for this country of dealing with these sorts
of things. I know he has had exposure to the North American system.
He is part of the same organisation as I am which largely consists
of judges over there. The other one is Mrs Justice Bracewell who
has had exposure to those methodologies. There is a wealth of
stuff from North America that can be deployed to good effect here.
Q319 Mr Dawson: We have all talked about
the best interests of the child. I think one criticism that this
Committee will face is that we have not listened to the views
of children directly. What weight do you think should be given
to the views of children?
John Baker: I agree with the lady
from Family Mediation who said that children should not be asked
to decide between their parents. There should be an assumption
that unless something is awry they will want to go on having an
important and meaningful relationship with both their parents.
If they are talked to in a non-adversarial way with that assumption
their views can be given quite a lot of weight. Children do feel
they are ignored by their parents and by the system. So it is
a question of the context and the way in which they are talked
to. It would be appalling to have an adversarial system about
which one do you choose and that is going to end up in court,
that is appallingly child hostile. I think if the context is right
their views ought to be listened to quite carefully with the big
precursor that, of course, the more you listen to children the
more effort parents will put in to manipulating their children
to get the outcome that they desire. So you have to have a very
skilled and trained way of doing it. There has been some beautiful
material done by Hamish Cameron about how this is done in the
Australian system and it shows that if professionally and carefully
done it can be very, very useful, but if done badly and crudely
it can have horrendous results.
1 Author of Fathers Matter-A guide to contact on
separation and divorce, Creative Communication, 2003
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