Examination of Witnesses (Questions 320-339)
11 JANUARY 2005
TONY COE,
JOHN BAKER
AND CELIA
CONRAD
Q320 Mr Dawson: That is interesting because
the thing that worries me about this commitment to parenting time
is that I regard that as a crude approach to contact. Surely there
are better ways of approaching children, particularly young people,
over contact issues than simply saying we want to allocate so
much time and here is a plan where you will have so much time
with your father. Surely the last thing that many teenagers want
is to spend a lot of time with either parent.
Tony Coe: What would be very interesting
would be to get the views of children who have been through the
system. What children who have been through the system tell us
is that they desperately wanted to have contact with their non-resident
parent but they dared not say so and nobody would have helped
them. The judge did not hear them, the CAFCASS officer did not
hear them and now all these years have passed and they have a
nugatory relationship with that parent. So that is actually extremely
important. You need the time linking because how else are you
going to protect the child's parenting time with that parent?
There is no other way of doing it. You have to order it. It has
to be underwritten by a court order.
Q321 Mr Dawson: What if the child says
that they do not want contact?
Tony Coe: What if the child says
they do not want to go to school? What if the child says they
do not want to go to the doctor? Fit parents are supposed to make
decisions for their children. Once a parent becomes unfit or unsafe
we are in different territory and that is why it is so important
to look at the case right at the beginning and decide whether
one of those conditions applies. If it does apply then it goes
off into a different room.
Q322 Mr Dawson: What if the child has
been abused and nobody knows about it?
Tony Coe: That is something that
the court must investigate. What if a child has been abused in
an intact family, what could we do about it then?
Q323 Mr Dawson: That is too simplistic.
Child protection, physical abuse, sexual abuse and domestic violence
are not issues which come immediately to the fore. They are often
disclosed over very long periods of time through relationships
with people. The approach that you are proposing surely puts a
child in a position where they may be heartily relieved that abuse
which has been occurring has stopped, and now the approach that
you are advocating would push that child back into that abusive
situation or force them to disclose it when everything else might
be working in them to say that they do not want to disclose it,
they just want the abuse to stop.
Tony Coe: I do not know how you
make the distinction between an intact parent where that is going
on and separated parents where that is going on. Why do you wish
to discriminate against a separated parent? Where is the evidence
that a separated parent is likely to be an abusive parent? If
that parent is abusive they should be shut out of the contact,
there is no doubt about that. There is no difference between us
on that. The difference between us is that we have to get this
right at the beginning of the case and decide whether that is
a possibility there on the basis of some credible evidence, otherwise
how do you protect the relationship between the child and a fit
parent?
John Baker: If a child does not
want to see the other parent then this has to be explored, it
is an issue. One of the things I would like to see is that there
should be generally available and funded out of savings in Legal
Aid a very widespread service which children and parents can have
recourse to if there are issues. By and large it will not happen,
it is a red herring. If it does happen then you need to explore
why it takes place, whether that child has been abused—and
some of them have been—or whether one of the parents is
insufficiently child centred, things like that. It is an issue
that needs addressing but preferably not in an adversarial system
where one parent has used this as an argument to continue their
fight against the other. There should be a child centred service
to which these issues can be taken and the reasons explored and
the appropriate responses made.
Q324 Mr Dawson: I think this is a failing
of a lot of the evidence which has been put forward to us by fathers'
groups. We have heard evidence today about the problems which
are revealed in separating families and from CAFCASS, but for
some children who are being abused (and child abuse is not well
enough recognised in this country at all) separation could create
an opportunity for that child to be safe. You are failing to recognise
the significance of child abuse in reality and the difficulty
of detecting child abuse, and potentially forcing children back
into a situation where if you equate contact at the same level
as going to school then surely you are forcing children back into
a situation where they could be abused.
Tony Coe: What you are effectively
saying is that just by reason of the fact that two parents have
separated you ought to consider that there is a high probability
of something like that going on. We do not even have to get to
that point. What is actually happening in the current system,
indeed Mr Justice Munby wrote a scathing judgement about it, is
that even when there is no allegation raised whatsoever against
the parent the parent is still not achieving sufficient contact
or sometimes not achieving any contact with their child. I cannot
believe that you think that that should happen.
Q325 Chairman: Would it not set that
question in context if you were to recognise how many cases there
are in which the non-resident parent is concerned that abuse may
be taking place with a new partner as the resident parent?
Tony Coe: Sure. All these allegations
must be dealt with as an allegation of a crime. It is a crime
that is being alleged and if it is a crime then let us get it
into the criminal court and let us get it resolved.
Q326 Mr Dawson: I wish that life was
as simple as that!
Tony Coe: It can be.
John Baker: The assumption is
put about, because a lot of these issues are driven by gender
politics, that if there is a family where contact presents safety
risks—and of course on occasions it does—and this
is checked out and there are found to be risks, then no one sat
at this table is going to be against any robust actions, but the
presumption needs to be turned round the other way. Children are
more at risk of abuse in situations where there is no contact
than where there is. The figures from the NSPCC show that three
or four children a year are killed by contact parents and about
100 children a year are killed by parents and carers very often
in situations of stress and intolerable situations in which the
less strong personalities crack. It is the relief of stress and
making parenting easier that is likely to save children's lives
and shared parenting can have that effect. It is safer than contact
denial. We all know that the people who are abusing are more often
actually the residential parent's new partner and again it is
often in situations where the children are isolated from places
they can turn to for help. There are safety risks and they need
to be addressed if they are brought up. The presumption ought
to be that shared parenting protects children and contact parents
prevent more harm than they themselves can inflict.
Q327 Mr Soley: I get puzzled by this
argument. You end up making, if I may say so, mountains out of
molehills in some way. I do not think the schools' analogy is
a good one at all and the reason for that is that you are looking
at a situation where parental relationships have broken down,
very often parental-child relationships too and that is why the
court is intervening; it would not do otherwise. I agree with
you about the abuse. Abuse is a criminal offence. Let us take
that out of it. Take out the other one which is manipulation.
I agree that is a difficult one to deal with. In between that
there is a relatively unusual situation where a child refuses
to see the other parent because they are intensely angry and very
often it is because that parent has left and maybe for no other
reason. You can spend an awful lot of time working at that trying
to resolve it, but if you could not, this is why the schools'
analogy is so inappropriate, you had to do what was done in the
distant past, which is you would pick up the child and carry it
kicking and screaming to see the other parent and I hope nobody
is suggesting that. That all suggests that what you need is a
process of intervening more effectively and to get away from some
of these, in my view, rather misleading analogies about whether
it is this gender or that gender or whatever. It is actually a
situation where the child's interests need to be central and they
need to be understood, but they might just be very, very angry
because the two adults cannot get their act together. Is that
not right?
Tony Coe: Of course it is. If
you are saying you should remove that influence aspect then I
am afraid that is rather unrealistic because if there is litigation
going on and a child is feeling that way then the parent who has
the influence does not have to say very much, it can even do it
through body language, but it can send signals to the child that
really that parent does not want the child and also the child
feels, as you can easily understand, as though he or she has been
abandoned by the other parent. So the other parent needs to be
able to have some time in order to regain the trust.
Q328 Mr Soley: And you would enforce
that?
Tony Coe: Most certainly.
Q329 Mr Soley: You would literally pick
up the child and take it if it refuses to go?
Tony Coe: Most certainly.
Q330 Mr Soley: You would?
Tony Coe: I would, and I am supported
in that by mental health professionals the world over.
Q331 Mr Soley: I am not worried about
who supports and who does not support the argument, I am interested
in how it works for the child and ensuring that child has a satisfactory
upbringing. It is a long time since I worked in these situations,
but one of the most difficult ones was the situation where you
could work out the manipulative bit, you can identify that in
the case of the worker who feels that contact with both parents
would be beneficial but the child is distinctly saying no. If
you get to a situation where you are forcing it you are in trouble.
John Baker: I think it is going
to be very, very difficult to take that enforcement line. I think
there should be an obligation on the authorities to regard this
as a continuing problem that is yet to be resolved and I think
it will probably come up elsewhere. The support service part of
CAFCASS should be an area where there is ongoing work with a family
assistance order or some other procedure in place. It should not
be what happens now, that nothing can be done.
Q332 Mr Soley: I have described situations
from my own experience where we did carry on working with it.
Are you saying that that does not happen now? I do not see it.
I have been talking to people who do this type of work and they
think they do.
John Baker: I would like to know
who it is who is carrying on that ongoing work because I do not
see any service out there that actually provides this ongoing
work. I think there is a gap. There ought to be that ongoing work.
Q333 Mr Dawson: Do you think more could
be done to involve other family members, grandparents, aunts,
uncles, older siblings in efforts to achieve workable compromises?
John Baker: In both legal and
non-legal terms all the evidence is that grandparents are very
useful mediators at bringing people together. We need to look
at the whole family, particularly in our diverse societies where
grandparents and other wider relatives are much more important
in some communities than in others when it is just the parents.
Grandparents should be involved. They should have a legal right
to apply for contact without permission. So they ought to be able
to apply for contact in their own right and be treated under the
same welfare and check-list procedures as parents as to whether
the children would benefit.
Q334 Peter Bottomley: Celia Conrad asked
a question about whether grandparents should be required to apply
for leave. Would you agree that they should not?
Celia Conrad: I think grandparents
are very important because they do provide the majority of the
day-to-day care for these children. I do not think they should
have to have leave. Generally speaking, if you look at the categories
of cases and the people who have to apply for leave, grandparents
are in there, but I think they should be in a distinct class of
their own because they are very important, they are the backbone
really, they are family members and children generally feel secure
with them. Going back to the point that John was making about
grandparents generally. Currently under the system, because of
this non-resident/resident parent thing, in my experience I have
noticed that where the resident parent does not encourage the
grandparental contact with the non-resident parent's parents then
that does not take place. This is another example of how the system
works against the members of the extended family as well and it
pans out all the way. So I do think they are important, yes.
Q335 Dr Whitehead: I want to turn to
two frequently cited issues, one we have mentioned already of
enforcement but also delay. The NCH have indicated to us in evidence
that that in itself has caused greater animosity. Is it your view
that that is a substantial cause of further problems and, if so,
who do you think is the main protagonist as far as delay is concerned,
is it CAFCASS, is it the court itself or is it the parents?
John Baker: Delay is very important.
Delay can occasionally have a calming effect on the parents but
all that time the children are still suffering. There is no doubt
that delay is appalling, particularly on things that could be
prevented, ie somebody stopping contact immediately and then delaying
things to such an extent that the child alienated is angry against
the parent it does not see. The point that can be made is that
the arrangements have changed and the bond has been broken. There
needs to be very, very speedy action. I do not see why there should
not be a first interim decision within a week of anyone making
the first contact and obviously it might only be a holding decision.
One should look at a month or something like that for the first
firm order to be done. The delays are everywhere, for instance
in getting a court hearing, but I do not see that you can get
rid of almost instant administrative delays by saying, "Right,
the judge is free this afternoon".
Tony Coe: The main person to blame
for the delay is the system because of the lack of presumption.
There is a lack of presumption and there is the "no order
principle". The "no order principle" says to the
court "Thou shalt not make an order unless it is in the best
interests of the child". The court interprets that, it seems
to me, quite understandably, on the basis that they must first
of all do an investigation. That is why they press the investigation
button and in comes CAFCASS. You are then into lots of delay and
lots of unnecessary heartache where a report is produced saying
he said this and she said that. You will have seen our reform
proposals. We do not think the report should be written in cases
where there is not a safety issue. I think the evidence that the
new Chief Executive of CAFCASS gave to this Committee was very
interesting when he said their social workers are trained to come
down on one side or the other and make a recommendation. That
was very telling to me because that is exactly what is wrong.
We should not be coming down on one side or the other, we should
be coming down on the side of the child, the child needing a relationship
with both their fit parents.
Q336 Dr Whitehead: You appear to be saying
that the process of a report in many instances in itself moves
the issue beyond the scope of the report itself just by the delay
inherent in the report.
Tony Coe: Yes, the delay inherent
in the report and the report process itself. I often liken CAFCASS
to the fire brigade turning up to the scene of a fire and sitting
outside in their engine writing a report about how the building
is being consumed by fire and ending up with the conclusion that
the building has now burned down and there is nothing they can
do about it and off they go. That is flippant but that is really
effectively what the report process involves. Very often by the
time they have written their report there is zero contact and
they are not interested in that. They say their job is to write
a report. That is beginning to move with this reform process going
on now, they are beginning to talk in terms of wanting to conciliate
and to mediate. They see their job, as the Chief Executive says,
as coming down on one side or the other and making a recommendation.
John Baker: I think here the role
of CAFCASS is obviously to be a cog in adversarial litigation.
It might be CAFCASS, it might be some other organisation or some
other group like Mediation. The question is how we get speedy
parenting plans for those children in the least adversarial way
possible. That is the service there needs to be so that parents
can have recourse at a very early stage to a parenting plan. Only
occasionally in hard cases will the full weight of the law be
needed and that is the big gap in the service. They should be
guided by the assumption that a parenting plan should achieve
for the child the objectives that I outlined earlier on.
Q337 Dr Whitehead: On the other side
of this, turning to the adherence to court orders themselves point,
when that process has been completed and a court order has been
set out, what are the particular reasons why the court orders
are simply not adhered to?
John Baker: It is widely and generally
known that solicitors say you do not need to bother, you do not
need to do anything about it, nothing will happen and, even if
something does happen, it will be months and sometimes years later
when a lot of other processes have happened to the child as well.
One thing we are very keen on is that the message that must go
out is that if there is a court order it must be obeyed. Whatever
is done in response should be the least conflictual, the least
distressing and the most child centred as possible, but there
must be a clear message that this court expects that what we order
will happen.
Q338 Dr Whitehead: I think a rejoinder
to that could be that the idea the court has to be obeyed suggests
that the issue is normally the resistance of one parent. Do you
accept that quite often it is because of both parents sabotaging
how that process works?
John Baker: I am sure in the whole
range of family break up you will have examples of everything.
If there is a case where one person is obstructing conflict—you
could argue about how many of them there are, but it does happen—that
must be stopped and not least it must be stopped because it holds
out to everyone else who might be tempted to take that road the
hope that that might be a successful outcome. There are many other
situations in which contact stops, yes.
Celia Conrad: There are categories
of cases that people fall into. There are some who refuse to abide
by the contact order at all. When there is an order parties then
become quite inflexible because they nit-pick and there is no
give and take at all. Children are not commodities and things
change sometimes and there can be problems with that. Sometimes
they will have a sports match and one parent is not going to give
way on it and they want one hour's time back. People need to use
common sense as well. Quite a major problem I found when I was
dealing with people is that they are not practical in terms of
really dealing with the order. This is the problem about having
an order in the first place where parties cannot agree, because
if they could agree then they would be flexible. There is a little
bit of inflexibility with an order and that is something to bear
in mind.
Tony Coe: You cannot really look
at an enforcement order in isolation and it really goes back to
the early interventions point. There are two things that have
been found to be successful in best practice jurisdiction. The
first one is probably the most important and that is education.
The parents' education primes the mediation pump. We had an expert
over from California, a mediator, who said they do not even start
mediation without having the parent education component first
because the parents have not heard all this good stuff about how
they should be conducting themselves to make it easy on their
children and if you get that parent education piece right at the
beginning that then has a knock-on effect throughout the process
because they now understand, their mindset is different. I have
attended a high conflict parent education programme as an observer
in Arizona. It was done in court which I do not think was a great
idea. When I arrived in the waiting room it was filled with really
angry people who just did not want to be there. They had been
ordered there by the court. I was really amazed as the morning
went on and we had this education class with these mental
health professionals and mediators and so on at the way these
people softened, it was like the light had come on.
Q339 Chairman: The opposite effect from
the Jerry Springer show!
Tony Coe: Exactly right, but it
really works. I have seen it.
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