Examination of Witnesses (Question Numbers
40-75)
Dr Julia Brophy and Dr Lynne Harne
16 November 2010
Chair: Dr Julia Brophy
from Oxford University and Dr Lynne Harne from Bristol University,
thank you very much for joining us today. One of you has already
been cited in evidence in the previous part of the session. We
are very grateful for your help. I think Mr Buckland is starting.
Q40 Mr Buckland:
Yes, thank you very much indeed. I want to start off by talking
about the safe minimum service guidelines that were issued by
the President of the Family Division and for a view as to their
impact. Before doing that, can I give you a very brief example
of a case that's been brought to my attention? It was a case that
originally started back in 2008. Cafcass was unable to allocate
it in time. It was then given to an independent social worker.
Because of the new guidance, that social worker, having done a
lot of work, was prohibited from actually doing the report. It
went back to Cafcass, which, first, failed to allocate the report
timeously, and secondly only saw the children concerned at the
hearing. That is a particularly acute example of where things
are going wrong. I would be grateful to hear from both of you
your view of the implications for families as to the "safe
minimum service" measures that Cafcass currently uses.
Dr Lynne Harne:
My view is that they are too minimum at the moment. There's not
necessarily a safeguarding of children in either public or private
law cases. My main expertise in terms of research is in private
law cases. As you've seen in my submission about my research,
Cafcass was improving in that area by introducing certain safeguarding
measures such as safeguarding checks and so on. It was compulsory
that Cafcass did those with the police and children's services,
and undertook risk identification. That research was done prior
to them introducing these minimum safeguarding measures, if you
like. Even at that time, the Cafcass officers who were actually
doing the work were saying, "We often don't have enough time
to do this properly." I think that the minimum safeguarding
measures must be having an impact on cases both in public and
private law. You know more about public law, Julia.
Dr Julia Brophy:
I think the first thing to say about the "safe minimum standard"
is, first, that we don't have a definition of it, so we don't
know how it's practised within and across court circuits. Secondly,
I think it's clearly not what Parliament envisaged in the Children
Act. The statutory duty is the best interests of the child as
determined by the court, but if the court doesn't have a guardian
,it loses that inquisitorial arm, which is crucial to the effective
working of family courts, particularly in child protection. I
think that the movement to this emergency footing is problematic.
It is problematic for children, but it is increasingly problematic
for the courts, which are charged with protecting children and
moving forward as quickly and cost-effectively as they can.
I think that the Committee has the evidence from
the Interdisciplinary Alliance for Children. They have argued
that actually this "safe minimum standard" does not
protect children and it does not support the work of the court.
The family justice system, as we all know, is currently under
enormous pressure, but doesn't have the resources without a guardian
to move forward in the way in which it clearly does want to but
cannot do. The "safe minimum standard" is problematic
because of a lack of definition. It doesn't allow the guardian
to use their professional judgment in a way in which the Children
Act initially envisaged. It is not beneficial to courts and it
is certainly not beneficial to families. There is some evidence
that families are beginning to be dissatisfied with the service
that they're getting.
Q41 Mr Buckland:
One report came to me that an independent social worker was told
that she was providing a gold-plated service, whereas what they
needed was a stainless steel service. Would that be a fair summation
of where we are with the minimum standard?
Dr Julia Brophy:
Gold-plated as opposed to stainless steel? Go back to the legislation.
What does the legislation say? What was Parliament's intention
in Part III and Part IV of the Children Act? The statutory obligations
and the guidance for the role of the guardian is clear and simple.
That's where we start. That was the intention of Parliament, and
I think we have to accept that what we are dealing with now are
two problems. One is the organisation of Cafcass and the way in
which that has moved. The other issue is, of course, that some
of these issues are Treasury-driven. They are to do with resources.
Q42 Mr Buckland:
There is much talk about interdepartmental responsibilities and
who is responsible for whom. Rather than talking about musical
chairs, I wonder whether you agree with the view of His Honour
Judge Bellamy, the designated family judge for Warwickshire and
Coventry, who in his submission says that what matters is not
which department is responsible for which agency but that there
is interdepartmental co-operation that is strategic, coherent
and efficient. Is that a fair summary of what is needed here,
or do you think it is more complex than that?
Dr Lynne Harne:
Yes, but that has been said for years. Interdepartmental efficiency
and relating to each other in terms of actual strategy is key.
I don't think it does matter in which department Cafcass is located.
Cafcass should be regarded primarily as a safeguarding agency
now. It's moved away from its role on agreement-seeking, and certainly
in terms of private family law it should be regarded as a safeguarding
agency and not in terms of mediation or anything else. That's
my view. Its key role is in safeguarding children, whether in
private or public law. That's what it should have the expertise
to do. So where it is located needs to be where it can be most
effective in safeguarding children. It needs to be focused on
the best interests of the child and not the parents.
A lot of the stuff about mediation and so on is focused
on the needs of the parents, not the child. Children must be safeguarded
from risk of domestic violence and abuse, and from parents who
are alcohol and drug abusers and parents who have severe mental
health problems. Those are the main issues in both public and
private law. Cafcass needs to identify those risks and do appropriate
risk assessment and so on to weed those cases out. If the proposal
is to go down the mediation route, all those cases need to be
weeded out and properly decided on.
Q43 Mr Buckland:
Accepting your point about boiling Cafcass down to its essentials
and letting it get on with welfare issues, which is what the Children
Act was all about—we must not lose sight of that—what
about those cases where mediation would be appropriate, where
you haven't got that danger, that risk element? What would be
the independent input then? There would still need to be some
independent input, wouldn't there?
Dr Lynne Harne:
Cafcass should also have skills in seeking children's views. At
the moment, as we've already heard before, children's views are
in most cases not sought. Only when there is a court welfare report
are their views sought. They are sought in public law, supposedly,
but in private law children's views are not sought, and that is
actually in breach of the UN Convention on the Rights of the Child.
In terms of what the UK Government have actually signed up to,
we have been in breach of that for years and years—not getting
children's views in any proceedings that affect them. That is
another role that Cafcass could have.
Q44 Chair: But
are we not then asking an agency which can't even cope with its
existing workload to do something which the court and the mediation
process should do themselves?
Dr Lynne Harne:
I don't think that Cafcass should be involved in mediation. They
are social workers. They are now child protection officers, and
they should be doing the screening of all cases. In private law
they should be doing that screening and risk assessment, which
is what they are supposed to do at the moment. This is happening
at the moment.
Q45 Chair: The
question I am asking is, if they have got all that to do, why
use them as the agency to ascertain children's views when you
could do that in some more direct form?
Dr Lynne Harne:
Because you need people who are trained in interviewing children.
They supposedly should already have those skills as social workers.
They should be trained in interviewing children. Mediators, for
example, are not trained in interviewing children and their focus
is usually not on the interests of the child but on getting the
parents to agree.
Chair: Claire Perry, do
you have a quick question?
Claire Perry: I will save
it for later, thank you, Chair.
Q46 Mr Llwyd:
I am interested in what you say about breaching the law in not
hearing the children's voice. It's also a breach, I believe, of
the 1996 Family Law Act because I tabled an amendment to that
Act to provide for it, actually. There we are.
Dr Lynne Harne:
Yes.
Q47 Mr Llwyd:
Having blown my own trumpet for a minute, can I take you back
to the issue that I questioned the other witnesses about—that
is to say, confidentiality and openness in the family courts.
It is clear to me, in any event, that there appear to be flaws
in the proposed scheme for media access under the Children, Schools
and Families Act. How do you believe we can balance the need for
openness and accountability with the need to protect children
from what could well be adverse publicity?
Dr Lynne Harne:
Supposedly by what we have now—anonymised reporting of cases.
We have that in the legal journals and so on to some extent, but
often only cases which are interesting legally, if you like. I
believe that the research is clearly showing that it's not something
that children want and it's not something that is beneficial to
them. Therefore, the research clearly shows that that really cannot
be followed. I don't know if Julia has any other suggestions about
how cases are reported, but obviously there must be anonymisation
in all reporting.
Dr Julia Brophy:
I think you need to start off by thinking about what we mean by
accountability, because the notion that family courts are unaccountable
needs to be addressed directly. It's different from giving the
public an understanding of how family courts work, how they address
difficult decisions and how competing interests are dealt with.
There is a lot of evidence from Australia and New Zealand, both
of which now have open courts.
The issue of accountability is partly dealt with
through the appeal system and, as Lynne said, through information
in the law reports. The issue about finding out how very difficult
decisions are made will not come, I feel, through the media for
a variety of reasons, but foremost they actually don't have the
time or the access to be able to do that. I don't think the issue
of public education is going to be served by media access and
reporting. It has to come by another mechanism. One of those
mechanisms is the pilot scheme for anonymised judgments. That
can be improved enormously, I think.
For example, in Australia online judgments enable
people to look things up. If you wanted to look at something around
domestic violence, there is an index that will allow you to look
at cases where that has been dealt with. If you wanted to look
up issues around whether fathers were suffering bias or discrimination,
they are categorised in that way. So the pilot scheme could be
tailored to look at contemporary issues and problems in a way
which would help the public directly rather than through the media.
The media will only ever be able to talk about one case at a time.
What we're looking at is the trend of family courts and how the
public can feel confident about the way in which they operate.
A one-off reporting of one case, where a journalist talks to a
disgruntled litigant, will not help the reputation of the family
courts. What you want is fair, accurate, balanced reporting.
Chair: We can all say
that.
Q48 Mr Llwyd:
I presume, therefore, that if there were extended use of a proper
system of producing anonymised judgments, that would probably
increase public confidence in the family court system?
Dr Julia Brophy:
It is making the information available directly to the public.
I think there is one other thing that the family justice system
could do. It has been started in Wells Street. That is to have
family court open days—to make local courts locally available
and locally accountable, in the sense that people can come in,
see what is going on, talk to judges, and have mock trials. I
think Wells Street had one last year. Over 1,000 people came through
that door and it was a very well attended and very well reported
day. It happens in Australia. They have gone beyond media access.
They take the court into rural communities. Judges go to rural
communities and talk to people in different minority ethnic groups,
and talk about how the family justice system works. In a sense,
courts have to go beyond the media to get the message over and
they have to go direct to their public. That way, I think they
can establish that things are fair.
Q49 Mr Llwyd:
I believe that you are both well qualified to answer this question.
Would you agree that the prospect of introducing publicity into
the family courts will inhibit children in giving evidence and
the way in which they conduct themselves?
Dr Julia Brophy:
I think there's no doubt about it. The really serious issue is
that the legislation, and indeed the change of rules in April
2009, did not really look at the consequences of that for children.
Children start talking to experts—clinicians, social workers,
guardians—right at the beginning of the case. It's at that
point they will have to be told that the media will have access
to the court. There is no option not to tell them. Medical ethics,
the GMC ethics, about trust, honesty, and openness when they are
dealing with consent with young people are clear. Equally, the
advocate for the child and the guardian has to tell the child,
and at that point, early on in the case, if the child votes with
its feet and says nothing, you are then presented with a case
where a judge is going to have to make very serious decisions
about the future care of a child without direct information from
the child. It's not surprising that children will vote with their
feet if they are told. My concern at the moment is that they are
probably, for the most part, not being told, and that is a breach
of their Article 12 rights.
Q50 Mr Llwyd:
Yes; you referred to that earlier. The real truth is that possibly
this Act has brought in unintended consequences which we need
to be looking at now.
Dr Julia Brophy:
It's not only unintended consequences, if I could say so. The
consequences were there. The President of the Royal College of
Paediatrics and Child Health and myself, and the President of
the Family Division, gave evidence at the Bill Committee stage
about those issues. The implications were there and the research
was being done, so it's not as though it was a great surprise
but it wasn't properly consulted upon. There wasn't proper public
consultation within the terms of the Government's own Cabinet
rules. I think we do have to start again.
Q51 Chair: Do
you recognise—and I give Dr Harne the opportunity to reply—that
there was a concern that wholly secret justice is seriously limited?
Dr Lynne Harne:
Yes. I think there is a concern about that and the way judges
actually reach decisions. Going back to one of the issues that
was asked earlier about whether the courts are making the right
decisions, you could say that, if part of their role is to safeguard
children, in some cases they are making the right decisions and
in some cases they're not; they're disregarding issues which they
should be regarding. Children themselves are already reluctant
to tell Cafcass officers what they really feel because they know
it will go in a Cafcass report, which one of their parents will
see. If they are saying, "I'm really afraid of my dad and
I don't want to see him because I'm really frightened of him",
that is already hard for them to do because they know that their
dad will see that report. The further additional fear that the
case would be heard in open court with reporters taking down what
they say is even worse for them.
Chair: I will turn to
Siân James to go on to another subject.
Q52 Mrs James:
I want to go to the role of Cafcass in private law proceedings.
Compulsory safeguarding measures have been in force since 2008.
In their evidence Families Need Fathers say they are causing unnecessary
delay.
Dr Lynne Harne:
I wouldn't say they're causing unnecessary delay at all. I would
say that they're absolutely essential. Part of the problem is
that some of the safeguarding checks take time to come back. All
services now have been cut back, so you can expect even further
delays. For example, safeguarding checks with the police take
time to come back. From my own research, there are cases of fathers
who had sexually abused children and had committed child sex offences,
who were coming out of prison. That would have shown up in the
safeguarding information but decisions in court were being taken
on child contact before those safeguarding checks were received.
These were really, really serious cases in which courts were saying,
"Right, we're just going to allow interim contact to go ahead".
These safeguarding checks are absolutely essential.
Over and above that is the risk identification.
Those checks will only pick up cases where there may have been
convictions or enhanced checking may pick up reports of domestic
violence. Risk identification will allow an abused parent who
has not reported to the police for various reasons, or who may
be in a refuge and so on, to say what has happened to her and
what the risk to the child is in that. So I would totally disagree
with Families Need Fathers on this. My concern is that because
of these minimum safety measures this screening, safeguarding
and risk identification has become really, really limited. From
the inspection follow-up reports there was some level of improvement
in Cafcass's safeguarding in 2009, but since the implementation
of these minimum measures we don't know what is happening whether
these essential safeguarding checks are being done, whether the
risk identification is being done and whether that is all going
out the window really.
Q53 Mrs James:
What about emergency provision; where we have a situation that
is an emergency?
Dr Lynne Harne:
In private law?
Mrs James: In private
law.
Dr Lynne Harne:
What do you mean by "an emergency"? What? Where?
Mrs James: Looking at
a case possibly that would come to court very suddenly, very quickly.
Things would have to happen quickly and decisions made quickly.
Obviously, if these processes are going through—
Dr Lynne Harne:
Well, they can't. The child must be safeguarded and so there can
be no contact, for example, with a parent who may be an abuser.
Those situations must be clear in private law proceedings.
Dr Julia Brophy:
I think we've got to focus on the child. I think delay is the
new mantra. Nobody dare do anything or think about anything that
might have an impact on delay. The important thing is the safe
outcome for the child and, indeed, the woman involved if there
is a woman involved in domestic violence. Any kind of assessment
will slow things down, but the important thing is the right decision
and the right information to enable the court to make the right
decision, and that takes time.
Dr Lynne Harne:
With regard to delay, in cases that I have been looking at in
my own research, where there had to be a welfare report some of
them didn't come to court for a year. These were all cases of
abuse. We have to recognise now that it is an abuse of the child
to witness domestic violence and to live with a domestically violent
parent. That is now the law in the 2002 Act. That child was being
protected. Where there had been adequate risk assessment, in cases
where it was clear that the child was going to be at risk, then
there were more recommendations by Cafcass for no direct contact.
That was safeguarding the child.
Q54 Chair: But
cumulative delay can bring you to a point where the contact with
the father, assuming the father is the person against whom the
allegations are originally made, is judged not on its merits but
on the fact that by this time the child's interests have moved
because there has been no contact with the father over such a
long period. So the delay itself may prevent an objective judgment
being made, because if it had been made earlier it would be different.
Dr Lynne Harne:
No, no, because that assessment should now be being done. In the
team that I evaluated, which included a small county, the assessment
that is being done and the recommendations that are being made
in the welfare report are about whether that parent is a safe
parent. In a lot of cases where the parent is domestically violent,
they are also abusive towards the children. They are not concerned
with protecting the children's interests. They are not safe parents.
So the assessment has to be done of the capacity of the parent
to parent and to be safe.
Q55 Chair: So
you seem to be excluding the possibility that the assessment might
conclude that the danger wasn't there?
Dr Lynne Harne:
No, no. The assessment is obviously done on evidence from what
the children say, from what the abused parent and the abusive
parent is saying, and any other evidence that there is available.
There is often police evidence. There is often evidence of convictions,
but not always. In domestic violence cases women are often very
frightened to report it to the police, which is why we can't just
go on convictions. We must look at wider evidence such as evidence
from GPs, evidence from refuges, injunctions and so on. Of course,
where there is domestic abuse, yesterday we had an announcement,
unless it's not going to apply to those cases, which will make
it even more difficult for parents and their children who are
experiencing domestic abuse to get injunctions. It all ties up
within the system as well.
Q56 Mrs James:
Public law cases are usually very big, they are very time-consuming
and there are some serious issues that are being dealt with. Do
you think that they take resources away from private law cases?
Dr Julia Brophy:
I think one of the problems is that the private law sphere was
badly funded in the first place. I think it's not a very fair
way to represent what's going on because the resource question
underscores both of them. I think, following on from what Lynne
said, if you look at the evidence in public law proceedings, there
is a high degree of domestic violence and it is actually a high
degree of male violence because in the last big study we did we
were able to differentiate. The evidence in that study came from
evidence on file—not simply what the mother, for example,
said but evidence from social workers, from GPs and from the police.
Over 50% of cases included aspects of male violence. So there
are similarities between the two, and equally important issues.
Q57 Claire Perry:
I wanted to ask one final question on this extremely tricky issue
that I commend both of you for investigating to such great depth,
and then move on to the topic of mediation. I think where we are
going with this is that many of us are concerned about a necessary
process step being applied at great cost to the taxpayer, and
also about Sir Alan's point on significant delays that could have
an impact on final decisions, where in fact it doesn't result
in anything other than just a delay. Are you aware of any percentage
of the 45,000-odd private law cases that Cafcass received that
actually resulted in a finding that there was abuse and therefore
that there should be some significant change in the court's direction
as to where children should be given contact or residence? Is
it 5%, 10% or 50%? What would be your assessment of that?
Dr Lynne Harne:
I would say it is much higher than that. I would say it's about
60%.
Q58 Claire Perry:
And do you have the evidence? So 60% of those 45,000 cases?
Dr Lynne Harne:
Yes, and research has been done. That research was originally
done by NAPO in 2002. More recent research into where domestic
violence has actually been reported has been done by Trinder in
2006. That was looking at in-court dispute resolution: i.e. in-court
mediation schemes. In 40% of those cases, domestic violence was
reported.
Q59 Claire Perry:
What was the sample size for that analysis, if you recall?
Dr Lynne Harne:
I am just trying to remember. I think it was about—
Q60 Claire Perry:
Perhaps you could let the Committee know.
Dr Lynne Harne:
Yes, I could let the Committee know the exact sample.
Q61 Chair: As
with our previous witnesses, we would be grateful if, where you
have made references like that, you could let us know—perhaps
when you get the transcript—what the details of that research
were, or what the references are.
Dr Lynne Harne:
It depends what you describe as "evidence", you see.
This is part of the problem that came up in my research. What
the courts were accepting as evidence was evidence of being in
a refuge; evidence of domestic violence having been reported to
the police on several occasions; evidence from GPs in some cases;
and evidence of convictions.
Q62 Claire Perry:
All of those would be very valid evidence, but what I am concerned
about is hearsay. Certainly based on my constituency postbag,
hearsay is a problem in deciding these things. Any hard evidence
that is found through those mechanisms is, I think, extremely
important and very valid.
Dr Lynne Harne:
There is a myth of false allegations of domestic violence, and
I really do think it is a myth—
Q63 Chair: So
nobody ever makes any false allegations?
Dr Lynne Harne:
The evidence is about 3%. The evidence of false allegations of
domestic violence is about 3%. It hasn't actually been researched
in this country, but in other jurisdictions like Australia and
the US it's about 3% of cases that come to court.
Q64 Chris Evans:
What do you gauge as domestic violence then? What would you say
was a domestic violence situation? Isn't it different levels and
people have different perceptions of what violence is domestically?
Dr Lynne Harne:
Exactly, and I think this is a real problem. One of the things
that has been pushed for before, particularly in 2004 with the
Domestic Violence, Crime and Victims Act, for example, was that
there should be a legal definition of what domestic violence is
and there isn't. There is just a Government-adopted definition.
In the Australian jurisdiction, they have just
had recommendations because they have a system where they follow
compulsory mediation for ordinary cases but not for abuse cases.
They are just proposing that they need to have a legal definition
of domestic violence which includes a pattern of abuse and control.
Control is very important—control of the other partner.
It's not just physical violence, sexual violence or emotional
violence. It's about control of the partner, and they are proposing
that that is included in a definition of domestic violence. We
do need a definition because domestic violence is often just seen
as being hit.
Chair: I want to move
on to get your views on mediation.
Q65 Claire Perry:
Of course, the issue of violence and abuse is a very thorny one
around the problem of compulsory or voluntary mediation, so thank
you for your views on that. I think the concern is, rather than
applying a draconian requirement for compulsory mediation for
exactly the points you've been raising, should an assessment for
mediation be compulsory? Is there a sense that this is actually
a helpful thing and if there was a compulsory assessment, taking
into account these family circumstances, that would be beneficial?
Dr Lynne Harne:
I think there should be a safeguarding assessment, yes. I think
that is an absolute priority—that there must be a safeguarding
assessment.
Q66 Chair: Sorry,
I don't think that was the question. I think the question was
whether people should be required to go through an assessment
to consider undertaking mediation.
Dr Lynne Harne:
Right. Prior to that there should be a safeguarding assessment.
Chair: I think we've
got that.
Dr Lynne Harne;
Then after that, yes, but you are talking about investing a huge
amount of resources. My view is that you put the resources into
safeguarding, whereas assessing people who are suitable for mediation
would involve a huge amount of resources.
Chair: But the court is
a huge amount of resources, because if they aren't going to mediation
they're going to court.
Q67 Claire Perry:
They are diverting from the court system. I think there is evidence
that often this is a better way to resolve conflict than putting
people through the very expensive court system with unsatisfactory
solutions.
Dr Lynne Harne:
Yes, except for cases where there is a risk of abuse, in which
case they should go through the court system because that is the
only means by which people can gain protection.
Q68 Claire Perry:
Professor Brophy, do you have a point of view on assessment for
mediation?
Dr Julia Brophy:
I don't have the research experience in this field that Lynne
has, but I think compulsion and mediation sit very uncomfortably
together. When you introduce domestic violence then they are,
I think, incompatible. I'm very uncomfortable with the use of
compulsion. I also have grave doubts about the voice of the child
being heard in these circumstances. For Article 12 of the Convention
on the Rights of the Child to be considered in any forum, judicial
or administrative, where their care is being considered, you need
the voice of the child. What about representation of children
in these circumstances? In our research, when we were asking young
people whether they thought parents should be allowed to talk
to the press, for example, the majority of them said no. They
don't want parents to talk to the press until they have consulted
with the children. The point about this is that the interests
of children and the interests of adults don't coincide. In the
normal state of affairs, they don't coincide.
Chair: I think Claire
Perry wants to ask you a question.
Q69 Claire Perry:
I am sorry for interrupting you. It's a very important point.
Does that then imply there should be separate representation for
children in mediation?
Dr Julia Brophy:
Yes.
Q70 Claire Perry:
Who would be the right person in this cast of characters to do
that, in your view—the right entity?
Dr Julia Brophy:
It would have to be somebody with safeguarding experience and
training. My concern is that in the mediation field there is a
whole range of activities that might be called mediation, and
we don't really know what people's training or qualifications
are. I have grave doubts about how many people are actually trained
to interview and safeguard children.
Q71 Chair: So,
in the case of mediation, you're saying you put in a process which
you don't have in a court case where there's no domestic abuse
allegation, and you have to have a safeguarding trained person
representing the child?
Dr Julia Brophy:
If you start with the child and look at the rights of the child
and the position of the child, and develop your system of protection
from there, then you begin to develop safeguards that we don't
currently have. There is research evidence on what are called
9.5 appointments for children at the high end of conflicting divorce
proceedings. The research of the National Youth Advocacy Service—which
I am sure the Committee has looked at—shows that there are
some very serious cases in which it is important that the voice
of the child is heard. At the moment we don't give that statutory
obligation.
Q72 Mrs Grant:
The Australian Family Relationship Centres have been heralded
as a great success in keeping many family disputes out of the
courts in Australia. There, they do have a system very much of
compulsory mediation, with obvious exceptions in cases of domestic
violence and where there are imbalances of power. What is your
view of those centres? Do you think they are successful? Could
they work over here?
Dr Lynne Harne:
I've just been looking at the evaluations of the research on this
system. What they say, particularly on screening and safeguarding
issues, is that the system is not working effectively in some
cases and that alternative dispute resolution is being promoted
in these Family Relationship Centres for some of those cases.
I have only had a chance to analyse it briefly, but the Australian
Government is having to introduce further legislation on alternative
dispute resolution to increase the safeguarding. These centres
themselves report very positive outcomes, but they differ from
the lawyers. The lawyers are saying that there are a lot of problems
in the system, of families being pushed into alternative dispute
resolution and shared parenting relationships, which is problematic
for the children as well as the parents.
You have to recognise that, apart from abuse
and safeguarding issues, there are other issues around the welfare
of the child such as, whether the child is happy to live in one
parent's house for half the week and in the other parent's house
for the other half of the week? In a lot of the cases in research
that's been done in this country, particularly for older children,
they are not. The type of arrangements that are being pushed in
the Australian system of equal shared parenting are not necessarily
in the best interests of children.
Q73 Mrs Grant:
I am aware that they are having to look at that aspect again,
but I believe it is about a 25% or 26% reduction in applications
to the courts since the legislation came in, combined with the
arrival of all of these Family Relationship Centres, which is
very interesting indeed. Obviously, as you well know, if people
go to court the parties become polarised and that's what we're
not wanting. Do you think that they have potential?
Dr Lynne Harne:
I think in some aspects they have potential for those parents
that are willing to accept mediation, where the children's views
are taken on board. In terms of parenting arrangements as well,
I think they have potential, and where there are not abuse or
safeguarding issues.
Q74 Chair: Dr
Brophy, do you want to add anything?
Dr Julia Brophy:
I think if you're looking at allocating the lion's share of available
resources to adult dispute resolution, with no consideration of
the voice of the child, then trying to unpack the figures that
you've mentioned in relation to Australia is going to be difficult.
Until you find out the views of children about the arrangements,
you don't know whether you've made a real saving. A real saving
has to include the health, happiness, welfare and safety of children.
Q75 Chair: Of
course, in many cases the child's view is that the separation
should not be taking place at all?
Dr Julia Brophy:
That is one view, but there are of course children who are relieved
that their parents have separated, and with separation comes some
stability in their lives.
Chair: Thank you very
much for giving evidence to us today. We look forward to receiving
references for some of the research that you've cited. Thank you.
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