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UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE To be published as HC 116-iii House of COMMONS MINUTES OF EVIDENCE TAKEN BEFORE CONSTITUTIONAL AFFAIRS COMMITTEE
FAMILY JUSTICE: THE OPERATION OF THE FAMILY COURTS
Tuesday 11 January 2005 CAROLINE ABRAHAMS, SUSANNAH WEEKES and MARGARET PENDLEBURY TONY COE, JOHN BAKER and CELIA CONRAD Evidence heard in Public Questions 275 - 345
USE OF THE TRANSCRIPT
Oral Evidence Taken before the Constitutional Affairs Committee on Tuesday 11 January 2005 Members present Mr A J Beith, in the Chair Peter Bottomley Mrs Ann Cryer Mr Hilton Dawson Mr Clive Soley Dr Alan Whitehead ________________ Witnesses: Caroline Abrahams, Director of Public Policy, and Susannah Weekes, Assistant Director, NCH; and Margaret Pendlebury, Vice Chair of the Board, National Family Mediation, examined. Chairman: Welcome. We are very glad to have the help of our three witnesses for the first part of the session, Caroline Abrahams and Susannah Weekes from NCH, or still in the minds of some of us National Children's Home, as it always used to be, and Margaret Pendlebury from the National Family Mediation Board. We look forward to learning from your own experiences in some of these difficult cases. Q275 Mr Soley: I would like to look a little more at the question of delays in court and the issue of reports prepared by CAFCASS. The question really is to look a bit deeper into what the positive and negative aspects of delay are. In most cases I think most of us would accept that delays, certainly unnecessary delays, are highly undesirable and can be very damaging, but there are cases, I think, where you could argue that delay is useful in terms of allowing mediation and other factors to come into play. My first question to you is: can you tell us what you think are the main issues around delay? Do you think that delays are just unnecessary and ought to be dealt with as an efficiency system or are you saying that we should use delay in a more constructive way to achieve certain outcomes? Margaret Pendlebury: I would say, firstly, that delay is nearly always very bad for the children concerned because these are children who at present have parents who are in conflict and who need to make decisions about their arrangements, and while they are waiting for someone else to make that decision and shoring up arguments against the other parent, then that is generally very bad for the children, so the sooner that effective means of sorting things out between the parents can happen, the better. Q276 Mr Soley: Does that not assume that the child might not be going through a period of changing ideas itself about which parent it wants to see and in what circumstances? Might that not be the cause of delay in certain circumstances? Margaret Pendlebury: Well, I think generally we know that the effect of parental separation, particularly when it is quite highly conflicted, is very, very tough for children and one of the things they do is feel under pressure to take sides and think that they might be the one who has to make decisions about who they should go with. When parents come to mediation, one of the first messages is that that is a responsibility that children really cannot cope with, do not need and they want parents to be able to come to some kind of agreed view that takes their views into account and takes their needs into account, but does not put them into the position of having to choose. I think what happens when there is a delay is that whoever the child is living with of course has a lot of influence on what the child is thinking and how they are and if that is a period when they are not seeing the other parent or they are seeing them in the most unpleasant circumstances, tense and difficult, then that is bound to affect their relationship with the other parent, and the less that that happens for children, the better. Susannah Weekes: There is delay at different points really. There is delay in getting to court and then within the court process as well. I think at times it can be useful to have a period for some sort of conciliation work to be done between the couple and working out with the children and getting reports done. We are not expecting reports to be done within a week necessarily, but I think if it is a delay that is too long, that is not helpful at all for anybody, both parties and the children as well, so we would certainly think that some of it could be through efficiencies in the system, but some of it has to be through the court process and allowing people to go through the process. I see mediation and the whole separation being a process anyway and it is not just a fixed point of something happening. Q277 Mr Soley: Can I now ask you about the issue of CAFCASS reports, both the purpose and also the delays inherent in them. At times it seems to me that reports might not be entirely necessary and it might actually be better to look at the process of mediating and trying to work out a solution to the problem rather than preparing the report and then presenting a possible solution to the court where it must produce delays simply in putting that package together. What are your views on that? Caroline Abrahams: I have just one point about that. We had quite a lively debate about that in our organisation actually recently and there is a point of view in our organisation that actually the process of developing the report in partnership with parents in itself can be quite productive because in itself it can lead to more positive outcomes when the matter eventually arrives at court. Now, if that happens, that is great, but one fears of course that it is not always like that and I think your initial statement really about unwarranted delay and being clear about what is an unwarranted delay and a hold-up in the process and what is a constructive period where it may appear to the outside world that there is not a lot going on, but where actually some constructive work is happening, I think getting the differentiation between the two is probably the key point that you yourself put your finger on. Q278 Mr Soley: Because if a social worker was not appointed very quickly, then clearly that is an unreasonable and unacceptable delay, but if the process is going on, then in a sense the court needs to be flexible about the date, does it not, to bring it forward, move it backwards or whatever? Is that not right? Caroline Abrahams: Yes, it is a fit-for-purpose test really, is it not? Susannah Weekes: Yes, and I think for us as an organisation we are involved in mediation and providing mediation before it gets to the CAFCASS point anyway. Margaret Pendlebury: I think that is a very important point, that when you remember what the purpose of the CAFCASS report is, it is to make an assessment and make a recommendation to a court when the parents themselves have not been able to decide between themselves how their children should be looked after, so it really should be a last resort, not a first resort, but for lots of people I think they think it has got to be a first resort that when there is a dispute, someone else has to make the decision. At National Family Mediation, we see many, many parents who come either before things have got to court or they have taken time out of court. Q279 Chairman: Who refers them to you? Margaret Pendlebury: They come from a variety of sources. Often their solicitors will suggest mediation and of course mediation got a great boost when it was determined that in order to apply for public funding for representation for family matters, applicants for public funding must first consider mediation. That is not that they have to mediate, but that they must consider it and the way that they consider it is that they must meet with a mediator, so that person comes along to the meeting with a mediator, often very suspicious, where "This won't work. I'd be willing, but he wouldn't come" is very often the starting point, and, "Anyway it wouldn't work", and so on, and by the end of that first session with them, when they hear how it works, what it may offer, what they stand to gain, how little they stand to lose by trying it, they are very willing to give it a go. However, as things stand at the moment, it only can then go on to mediation if the other partner is willing and he or she is not yet obliged to have that same meeting. He or she is invited, but not obliged and I think that our experience of working with couples who have come through the route of being obliged to come is that many that come very, very reluctantly actually find it very beneficial, but we would like it to become an expectation, compulsory, however you work that in, that everyone considers it in that way rather than just those seeking public funding. Q280 Mr Soley: The preparation of the actual written report, if we are saying that the process is the important thing, why is it necessary in so many cases to produce a full written report rather than simply coming to the court and making the recommendation? Susannah Weekes: When people just go through mediation and not through CAFCASS, there is usually a memorandum of agreement that is made between the parties as to the bits that they agree to and the bits which are perhaps still points of issue that need to be decided in court and some of those memoranda of agreement would not necessarily come to court anyway because if they have come to an agreement between themselves, that can stand. The issue then if it did get referred to CAFCASS would be how much then they would use that memorandum of agreement and build on that and, equally, how much the solicitors and judge would use that and how much people would start from scratch and ignore all the work that had been done beforehand. I think that is one of the points of dispute, but mediators and those memoranda of agreement are not legal documents and they do not necessarily go into the court arena. At the point it does go to court, then the mediation work does not become a party to the court proceedings anyway, so they are separate proceedings. Margaret Pendlebury: If I may, could I just finish the answer to the question before about how do clients come to mediators. Some come via solicitors, but many others come either by self-referral where they have heard about it and very often a lot of ours come via Relate, couples who have attempted relationship counselling where they have accepted that the relationship has broken down and then are referred on to mediation, so there is a mixture of solicitor referrals and private referrals from other sectors. Susannah Weekes: The private referrals would tend to be those that would not be eligible for public funding. Q281 Mr Dawson: It sounds like a good argument for lots more social workers and fewer lawyers. Margaret Pendlebury: We are not social workers. We are mediators and that is again a point which I think is poorly understood because mediation is a distinct way of working. We are trained and it is very skilled. I have been a mediator for twelve years and, as it happens, my previous background was social work, but lots of mediators either are lawyers, counsellors or they have a background where they have been working with couples and families, but whatever we may have been or may still be in our other lives, as mediators, it is a distinct ---- Q282 Mr Dawson: It is a specific skill. Would you all agree that it is a specific skill? Caroline Abrahams: Yes, but I also agree with you that there is a need for more family support workers who will come probably more likely from a social care background. I think NCH's view really is that at the moment what we have got is a lot of emphasis on the need to support families generally through things like SureStart, for example, a great scheme, and then we have got the court system which is to do with when couples break down with children and actually what we need is a much more joined-up, strategic approach to supporting families when they are intact, when they are breaking down and afterwards, whereas at the moment all the bits of the system are incredibly disconnected, the funding streams do not stack up, et cetera, et cetera, and it is not how the world is. Families do not see themselves in these little pockets, but they see their lives evolving and the way at the moment we have thought about these services makes it really difficult to respond in a timely and effective way for families and children. Q283 Mr Dawson: So assuming it is in the best interests of children to reduce contested contact applications, what is the best way of doing it? You are advocating a sort of whole-system approach to supporting families? Caroline Abrahams: We are absolutely and of course the big issue about that is cost, and one has to be upfront about that, but at the moment the system we do have seems terribly inefficient and an organisation like ours which runs a small number of breakdown-focused services, but works with tens of thousands of families every year that are breaking down, we struggle to be able to meet their needs within the rest of our family support provision because we are not paid to do so, but it does not make a hell of a lot of sense really. It would be much more sensible if the funding was a little bit more creative to allow us and many others of course to be able to do that. Margaret Pendlebury: I speak specifically for family mediation because I am part of National Family Mediation which has been around, with a slightly new name in the last ten years, but has been around in this country for 25 years or more, and it is a network of services. It is in place and it is very effective when clients get to us, but we still find after 25 years that it is still not very clearly understood and those that use it, yes, I frequently get feedback from clients, and some recently, who say they have achieved more in four mediation meetings than they have done in four years worth of litigation over their child and it is not unusual. Q284 Mr Dawson: Good, but do you hear the voices of children? Margaret Pendlebury: We do, yes. Q285 Mr Dawson: You talked before about the voices of children. Margaret Pendlebury: We do, yes, and more so than ever now. We have always had a child focus. The family mediation service was set up and the main aim was to reduce and minimise the negative impacts of divorce and separation on children and it is always focused on the needs and purpose of parenting issues. Increasingly, we actually invite children directly to participate in mediation so that their view is heard, which is not to say they are ever put in a position of being asked to choose which parent or what they think should happen. Susannah Weekes: The difficulty with that is again that there is no money to actually do that, so the work that we do in that, because NCH services are members of NFM, has to be funded from somewhere. Q286 Mr Dawson: I almost thought you were getting on to saying previously in answer to Clive, Margaret, that a mandatory referral to mediation would be something that you would think would work. Margaret Pendlebury: We would welcome it and one of the really important principles of mediation is that the mediation itself, this is out-of-court mediation and other services, is voluntary and the parties are there voluntarily. However, what we found was that it was very effective to have a compulsory initial meeting where they consider mediation and they can then say no, but we are confident that we will persuade large numbers of people, as has happened with those who are publicly funded, that it is worth trying. Q287 Mr Dawson: There will be some families where there would be issues which are not appropriate for mediation, will there not? Margaret Pendlebury: Absolutely and that is again very much part of our training. That first initial meeting is to check the appropriateness of mediation and where there is such an imbalance of power where one could not be fairly heard or would be so intimidated and so on, we assess for that, we check for that, and we have screening processes. Suitability of mediation is something that not only both parties, but the mediator also has to agree. Susannah Weekes: And if there are child protection issues already in concert, we would not be involved in that either because if social services are involved with the parties, to do mediation while all of that was going on would be inappropriate as well. Q288 Mr Dawson: Thanks. I am glad you have clarified that. Are there circumstances in which child protection issues would arise during the process of mediation? Margaret Pendlebury: There are, yes, certainly and we have a very clear message that whilst mediation is confidential, the exception to that is that if any issue arises that suggests a child is at risk of harm, we are not bound to keep that confidential and we would report that. Q289 Chairman: In your experience, have you actually come across many cases where it appears to you that the views of the child are not emerging at all in the dispute between the parents? Margaret Pendlebury: Yes. Susannah Weekes: Yes. Q290 Chairman: So that is a common experience? Susannah Weekes: And part of the process of mediation then is to include the parents considering what the children's views would be as well, so we would encourage parents to think about that. Q291 Chairman: When you said that the resource or the money was not there for listening to the voices of children, is that because it would require a separate process from the mediation or can you not embrace it in the normal mediation process? Susannah Weekes: You could for some cases include it in the normal meetings with the parties, but sometimes you would want to see the children separately from that. Q292 Chairman: When I said "embrace it in the process", I did not mean having them all in the room at the same time. Susannah Weekes: No, but we do not get the funding for the children to be seen separately. Q293 Chairman: So every bit of expenditure which arose from that, travel expenses or whatever, you would have to find from your own voluntary sources? Susannah Weekes: Yes, or privately if the parents were to pay for that. Margaret Pendlebury: One of the things that our contract with the Legal Services Commission, which funds mediation, does not allow for is the extra time that is spent on the additional session involving the child, so we fund-raise for that at the moment. At present, we offer it as a free-of-charge service to parents because when you ask whether the voice of the child is not heard, that is very often the case and it is not because these are parents who are not interested in their children, but because the experience of what they are going through means they lose sight temporarily of what their children need and that is what mediation can do. It can bring it right back to, "What's it like for your children when they hear this? What do your children know?" and parents for the first time start to hear what each child is saying to both of them which is sometimes very different as children try to please both. Q294 Chairman: The Family Resolution Pilot Project, which is currently being trialled, do you think that is worthwhile given that it does not involve the level of compulsion which you think could work and which one of the models on which it was supposedly based contained? Margaret Pendlebury: What I am not saying is that one size fits all and I think for those who have got as far as contested court proceedings, there may well be a place for that with the parenting education. Yes, it is not compulsory and I think that an element of, if not compulsion, then a very, very strong message from the court that says, "What are we to make of your not having tried all possible means of resolving this?" Q295 Chairman: And you have given us quite a strong message that an element of compulsion does not undermine the ability to make mediation a success. Margaret Pendlebury: That is right, so long as it is compulsion to consider it fully, being to find out not just third hand, but to go along and see what it would be like, to hear from the mediator and anything that may go additionally with that, and I think it would be really helpful to have some more material to have parents made aware of the impact that their failure to sort things out for their children has on the children. There is research evidence that we have which shows what the impact on children is which can be demonstrated to them via videos and so on. Q296 Peter Bottomley: In a Parliamentary Answer I got overnight, the Minister says that one of the reasons why the name of the project was changed was because of the late stage at which the separation of the parents takes place, and that the original proposals were for early intervention. Can you tell us what your views are on that sort of difference of either fact or view? Susannah Weekes: Well, I certainly feel that having earlier intervention helps because the positions can possibly be less entrenched, and I am not saying that they will be less entrenched, but they are possibly less entrenched, and possibly more able to consider other possibilities or compromises, so my view would be earlier intervention would be better because I think once it gets to long court proceedings as well, it can be more and more conflictual with more and more sides being taken. Margaret Pendlebury: Having said that, I do think that there is a question of timing for some parents where the pain, the betrayal and so on of the actual separation and what has led up to that puts them in a position where they simply cannot focus on their children at that point and, therefore, it should not be a case of you try it once and if you fail, then you are into litigation. I think there is a place for alternative dispute-resolution procedures at all stages. I do think it was good that the name was changed and my understanding is that it was not the only thing that changed about the project, but I am not familiar enough with it to go into too much about that, but my understanding is that it was quite significantly watered down. Susannah Weekes: The other thing I would mention on the early intervention is that sometimes we have had referrals from solicitors where one party has gone to a solicitor, the referral has come to us the next day, but you find then that the couple perhaps separated the day before that, so there is a point of being too early in the process and they say, "Actually we are still exploring whether we are actually formally separating or we just had a really big bust-up", and it is too early, so I think there is a balance there. Q297 Peter Bottomley: The question of resources has come up before. We have significantly higher amounts of money now spent on Child Benefit and Income Support for families and I have often wondered whether organisations in your sort of field might think it a good idea to allocate maybe one-third of 1% of this Child Benefit money to actually have organisations around in each community where parents can naturally be in contact when things go well and be in contact when things do not go well. Would that kind of approach help to solve some of the funding issues and the fund-raising? Caroline Abrahams: That is the kind of question my kind of organisation tends to duck, I think is the honest answer to that. Certainly we see the need for more resources generally. We think this is an under-resourced, Cinderella-type of field that just suffers generally from trying to get too much out of too little and everything is spread too thin. One of the difficulties for us and I think indeed with this whole debate is that you very quickly get into a debate about where is the greatest need and I think this area has suffered from that because it is tended to be seen that children who are caught up in very conflictual situations when their parents break down tend to be viewed in less need generally than, say, children who are in the looked-after system or children suffering at risk of abuse, and one can completely see why. I am sure what my colleagues who work in this area and mediators particularly would say is that as soon as you start taking the lid off what actually is in the private law system, you see all of those issues as well. I think we are finding out more about some of the outcomes of not having dealt with this very well. For example, my organisation works a lot now to try and keep families together when the children are at great risk of going into care and one of the issues that crops up from those is very angry adolescents who have not got over the breakdown of their parents earlier on and maybe mum and dad have moved on, got into new relationships, formed new partnerships, so they have moved on and resolved it, but for the children to whom maybe this happened when they were five or six, they are still carrying the scars of what happened and it has never been addressed, so the detriment to them can show up in other ways, but it makes it quite hard to construct a telling argument for why these children and these families need that extra resource when we know about so much other need for children and families that we are also struggling to address. Q298 Dr Whitehead: I would gather from the discussion so far that essentially you are saying that the focus on the legal process itself and the limitations of that legal process and the debate which goes around that is perhaps itself the problem and that actually too much reliance is placed on legal solutions in their own right. Is that a fair summation? Margaret Pendlebury: I think that is right because I think we know that only a small percentage of parents actually end up in court, but many, many more parents negotiate their arrangements in the shadow of what they think a court would decide, so much more education and clearer messages for all of those who are not ultimately going to end up in contested court proceedings would be very helpful. I think that the role of the CAFCASS officer who is asked to write a report, there always has to be a role for that eventually, but other things have to have been really seriously tried before ever you get to that point where you are asking somebody else to make those decisions. Q299 Dr Whitehead: But where parents have engaged with the court or are engaging with the court, for example, where parents have engaged with the court and possibly through the directions you have suggested they then agree a settlement subsequently, is there any evidence that they are more content with the outcome than by more formal processes, shall we say? Margaret Pendlebury: I think there is quite a lot of evidence that suggests that agreements that are made by informed agreed proposals hold better than those that are imposed. Susannah Weekes: Also I think there is evidence that very immediate agreements that are made, say, in a court conciliation meeting, a one-off meeting where a couple might come to an agreement with the CAFCASS officer, would not necessarily last longer than those where there has been consideration over several weeks with a lot of information given about the finances, the property, the background detail to help inform and make real those recommendations, so mixed, I think. Q300 Dr Whitehead: There is a distinction, is there not, between where, as it were, parents go and sort a settlement out, having engaged with the court, and those parents who, as it were, come to a terminus in the court and the court then, as it were, directs mediation? Is there any evidence that that particular course of action is effective and that it actually leads to fewer, say, for example, enforcement-related issues than the more contested way of doing things? Susannah Weekes: I certainly think that for some people who come to court without perhaps having had a solicitor or help with a CAFCASS officer and just come to court on their own and without the preparation beforehand, it cannot necessarily help the agreement process. I think some people who either are not eligible to legal aid or there are no solicitors locally, say, in rural Wales or wherever, who can help prepare them for the process, I think that does not bode well. Margaret Pendlebury: Referral out to mediation, again I would come back to the distinction between a one-off, brief, quite pressurised, in-court conciliation meeting, which has its place certainly, but is very, very limited, I think, in its effectiveness, the difference between that and referral out to mediation in a setting with the sorts of things I talked about earlier, the legal privilege, the confidentiality, the fact that people can take a step back and look again at what their children need and what is going on here. Having clarified that, referral out to mediation, if both parties are willing because sometimes battle fatigue sets in and people are more ready to negotiate later on than they were at the beginning when they thought they had it all to win, a referral out to mediation at any time when they are willing can be effective, and that is my personal experience. I cannot quote you the research statistics on that, but certainly my personal experience is of as much success with some of those couples. Q301 Dr Whitehead: What is your view of the Solicitor Family Law Association's proposals on collaborative law, that is, not so much mediation, but where both parties, as it were, have a lawyer who they are aware is working for them, but the circumstances are that the lawyers are seeking a collaborative outcome as opposed to an adversarial outcome? Margaret Pendlebury: My view on that is that, as I said earlier, I do not really believe that one size fits all and I think there is room for different models. I think that the lawyers working in that way will very much use some of the mediation principles that we use. I think it is a more costly solution, but may well be right for some couples, particularly if some of the issues, some of the financial issues are so complex that people would not feel safe to negotiate alone. My feeling is that it may well be very good, but small-scale development, though I may be wrong, and I also think that there is scope for those collaborative lawyers to refer couples out to straight mediation when there are things that they do feel happy to work with on their own, so there is definitely overlap. Q302 Dr Whitehead: So a further process where, as it were, you go from courts to collaborative lawyers to jointly convened mediation, that in itself may be a route? Margaret Pendlebury: That could be a route or the other way round. You could be in mediation and feel that there are some things that you just cannot deal with yourself, much as you would like to, and you feel that you want the assurance of a financially expert lawyer on your side, but in the room with you working collaboratively rather than adversarially. I think there is a role for it so long as it does not confuse the basic product which, for me, is mediation and I still think that out-of-court mediation, as it works in this country, is very, very underused and not well understood, and I would welcome any moves to make it more widely available. Caroline Abrahams: NCH does not have a position obviously on the SFLA's proposals, but I think what they point to is a difference of emphasis in a sense, whether we are talking about a legal process with a few soft and cuddly bits attached with court at the end of it or whether we are talking about a process which tries at every opportunity to support parents and children and to divert people away from formal court processes, accepting that is needed for some people, but that it should be a last resort. I think our view very much is the latter and the difficulty, I think, and one of the issues that has come out of Margaret's comments is that where many members of the public are at is that they do not understand what the other bits and pieces are or view them as second best, whereas in fact almost everyone who works in the system has a somewhat different view of all this and recognises that it is actually terribly difficult for courts to produce sustainable solutions that will really satisfy people, and that is not the fault of the people working in the system, but it is a product of the kind of system that we have. Chairman: Thank you very much indeed for your help this morning. We have got some more witnesses to see, but we are particularly grateful for the help we have had from you.
Witnesses: Tony Coe, President, Equal Parenting Council; John Baker, Chairman, Families Need Fathers; and Celia Conrad, former law practitioner and a legal consultant on family law matters, examined. 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? Celia Conrad: If I can take you back just a couple of points in relation to the question, that is my experience from the research I have done for the book that I wrote and my experience in actually the Family Court process. Also I think the question is quite broad really because it 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 looks as if it is more unbiased 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 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 Mumby 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, about 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 Woolf 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 you are around. 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 and 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. The court just gives them 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. Tony Coe: 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 a case. I think we can look at categories of a case because they do exist for parents to work out their own parenting plan through a three‑step process 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 Creighton 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. 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 Mumby 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 many 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. Q340 Dr Whitehead: Mr Baker, you say enforcement has to take place and we know that where enforcement takes place either repeated returns to the court to implement enforcement are undertaken or, if the enforcement is undertaken, it is arguable on occasions that the interests of the child is thereby compromised, ie someone is locked up or removed from the process of parenting and there is a catastrophic outcome. Is that something you would advocate? John Baker: No. This is why the judges need to have a battery of provisions, not just the crude ones but quite a long list, of which my favourite one is community service of some sort, so that while the child is seeing the parent the other person has to do community service. I think there must be in the last resort, if the whole legal process is not going to be compromised from the beginning, some idea that there is going to be enforcement in the end. I would say anyone who puts themselves in prison and lets their children be neglected while they are in prison rather than letting them see the other parent is carrying out appalling parenting. It is not like criminal proceedings where sometimes it is unthinking actions or irrational people. Contact disputes never get to the point of enforcement without it being a deliberate, conscious, chosen decision with the options to drop out being available at every stage. It is precisely the sort of behaviour where certainty of result will change the behaviour that leads up to that. Q341 Dr Whitehead: Having seen some transcripts of repeated attempts to obtain enforcement, is there not a point at which, notwithstanding the points made about the fact that the behaviour of parents in potentially going to prison rather than agreeing to access means the situation is that the court is faced with a position of colluding with making that happen in the absence of any other way forward and the courts may be reluctant to do that? John Baker: I think they may be reluctant to do that. With the lack of options that they have now it is a very real dilemma. Nobody is going to want to see anyone going to prison over this sort of thing, of course they are not. There has got to be another more satisfactory outcome except in flagrant and extreme cases, but the principle is that people cannot voluntarily set aside a decision of the court, that is the important thing. I do not think too much should be made of these very rare cases. Q342 Mr Soley: If the British system were to be relaxed what would be the parameters to it? How far should we relax it and in what way should we relax it? Celia Conrad: At the moment there is a slight contradiction because obviously in the first hearing everything is completely anonymous, the children's names are not known or anything, but if it goes to appeal, the initials of the children are there and people can find out who they are. That is slightly silly because it defeats the purpose. I certainly think that judgments could be given in public. People need to understand a little bit more how judgments are given because then they would understand the process. Everyone thinks it is closed at the moment and we do not know anything about it and it is all in secret and that breeds for more discontent. I definitely think we should be more open. I know of experiences in other jurisdictions where they do have more of an open system, they do not have reporters there all the time reporting on things, they are not that interested in family cases. That might be a concern which one should not be overly concerned about, but I certainly think that we should be looking to open the system up a lot more, yes. John Baker: We have seen in criminal jurisdictions the protection of the identity of the children and that seems to work quite well and I would advocate transporting that to the Family Court, but all the substance of the issues needs to be out in the open and needs to be researchable as well. It would diffuse a lot of the arguments my organisation gets of stories of the most appalling decisions made against fathers. You go to Women's Aid and you hear stories of the most appalling decisions being made that are failing to protect women and children. The odds are they are both true because there is not the consistency of procedure across the court and in part it can be inconsistent because it is not subject to examination and people do not know what happened exactly and rumour spreads. I think it should be on the same basis as the criminal courts. There is a further issue which affects my organisation very crucially and that is the confidentiality of court documents. There was a case when somebody approached my organisation about their CAFCASS welfare report and therefore we had to talk about the welfare of the report and this was brought back as a contempt of court and later thrown out. People need to be able to seek advice and assistance as part of their services and that involves the court documents not being confidential except with this protection of the identity of the children and that is what needs to be done, that is the position of my organisation on this and we think it will benefit the procedures of parents. Tony Coe: There is a lot I could say on this issue. As far as we are concerned the administration of justice must be open. On the radio this morning there was mention of a case where a mother cannot get compensation from the Home Office because she was wrongly imprisoned. It reminds me of the Sally Clark case. It was only really because people were determined enough to get the matter in the public domain that the Court of Appeal the second time around did the right thing. Q343 Mr Soley: Would you include naming the child? Tony Coe: I do not see any reason for not doing it. I can certainly see the other side of the argument and I do not have any particularly strong feelings that one should name the child. I do have strong feelings that we have to be as open as possible. Q344 Mr Soley: Would you recommend that the child has no secrecy protection? Tony Coe: I would recommend total openness and I would point again to the North American system where they have total openness. My organisation has not heard of any cases where publicity has adversely impacted a child or anybody else. On the contrary, I feel openness leads to fair and balanced justice. Q345 Chairman: I think we have covered the ground we wanted to cover and we have had some very helpful evidence from you on a number of points which have been of great concern to this Committee. You have also given us detailed written submissions and indeed occasionally supplementary ones and this process will continue and we shall put forward some proposals at the end of it. Thank you very much for your help this morning. Tony Coe: Thank you, Chairman. |