House of Commons - Operation of the Family Courts

Operation of the Family Courts - Justice Committee Contents

4 Underpinning principles

The "best interests of the child" principle

47. The Children Act 1989 was introduced both to reform and to consolidate family law relating to children. It is widely acknowledged to be a highly successful piece of legislation and, as the Centre for Social Justice concluded in its report Every Family Matters, has been "much copied around the globe, with radical new concepts and much flexibility of approach and outcome, which...is still working very well."[65]

48. The 1989 Act brought private and public family law into one framework, replacing around 32 Acts in total, and set out three principles. The first principle was that the child's interests are of paramount importance in all decisions made about his or her welfare, and the Act introduced a 'welfare checklist' of the elements to be considered in determining the child's best interests.[66] Secondly, the Act replaced the concept of parental rights with that of parental responsibility, reflecting Parliament's view that parenthood was a matter of responsibility not rights.[67] Thirdly, the Act provided that: "In any proceedings in which any question with respect to the upbringing of a child arises, the court shall have regard to the general principle that any delay in determining the question is likely to prejudice the welfare of the child."[68]

THE AUSTRALIAN EXPERIENCE

49. In 2006, the Australian government introduced legislative and structural changes to the private law family justice system in Australia. The changes followed recommendations by the House of Representatives Standing Committee on Family and Constitutional Affairs following its 2003 inquiry.[69] In December 2009 the Australian Institute for Family Studies published its three year-long, government-commissioned evaluation of the success of the changes against the policy aims. The evaluation has involved the collection of data from some 28,000 people involved or potentially involved in the family law system—including parents, grandparents, family relationship service staff, clients of family relationship services, lawyers, court professionals and judicial officers—and the analysis of administrative data and court files.[70] It is noteworthy that the Australian Government had the benefit of a greater knowledge base for many of its reforms, having had the foresight to invest in research in this area.

50. The Australian experience is highly relevant to family justice reform in England and Wales. Before the 2006 reforms, the legal position in family law in Australia was similar to that here. The welfare of the child was the paramount consideration in all court decisions,[71] and the courts used a checklist of factors to guide judicial discretion.[72]

51. One of the most significant changes made in the 2006 reforms was the introduction of a legal presumption in favour of "equal shared parenting". While the welfare of the child remained the paramount consideration, the Australian family courts now "must" consider making orders for children to spend "equal" or "substantial and significant time" with each parent, unless this is not in a child's best interests or reasonably practicable.[73] As with all legal presumptions, the shared parenting presumption can be rebutted when the court is convinced, on reasonable grounds, that it is not in the best interests of the child.[74] It has led to an increase in shared-care orders after fully contested hearings from 3-4% to 33-34%.[75]

52. The shared parenting presumption does not require that equal time be spent with each parent. Dr Rae Kaspiew, Senior Research Fellow at the Australian Institute of Family Studies and lead author on the evaluation, explained that shared care in fact had a reasonably broad definition equating to anything between 35% to 65% of nights spent with each parent.[76]

53. Dr Kaspiew told us that the evaluation found two particular difficulties with the working of the shared parenting presumption. The first was that, although the shared parenting presumption can be rebutted if a court is convinced that shared parenting is not in the best interests of the child, the evidence showed that cases where the child's or parent's safety was at risk were not being effectively filtered out by the courts.

We had a study of 10,000 separated parents. About one fifth of those—21% of mothers and 16% of fathers—said that they had concerns for their safety or the safety of their child as a result of ongoing contact with the other parent. One of the findings that really highlights the issues to do with family violence was that, despite the presence of safety concerns, that group of parents was no less likely, and possibly more likely, to have shared care arrangements than parents without safety concerns. This is in a context where 16% of families have shared care arrangements.[77]

54. The findings of the Australian evaluation mirror evidence given by Women's Aid that the family courts in England and Wales do not always have all the relevant evidence before them, even of proceedings in another court, or may not give appropriate weight to that evidence even when it is submitted:

There is a dangerous separation between the proceedings of three separate court systems: child protection cases under public law where the focus is on the child, and the mother is encouraged—or even forced—to leave her partner to protect her children from the consequences of living with domestic violence; the criminal court, where the perpetrator is charged and may be convicted of assault, harassment or other abuse; and the family court system where the same abuser is seen as a "good enough father" to be given contact.[78]

Women's Aid went on to note that an academic study had likened the relationship of the courts to "three separate and non-communicating planets".[79] As noted above, the Family Justice Panel similarly found that all relevant evidence was often not before the court.

55. The Australian evaluation also found that the presumption was perceived as creating parental rights to shared care of the child:

There has also been a lot of confusion and misunderstanding about the presumption in favour of equal shared parental responsibility...it has been widely understood as somehow mandating or entitling parents to shared care. This is one of the features of the environment that has contributed to concern about children's interests not being considered to the extent that they should be because the framing of the legislation is viewed to encourage a focus on parents' interests and rights, although the legislation doesn't record any such right.[80]

The evaluation received evidence from legal practitioners that the presumption in favour of shared care led to some parents being less willing to negotiate and resolve arguments over child contact outside court.[81]

56. Considering the impact of shared-care time on children's well-being the evaluation found:

While a history of family violence and highly conflictual inter-parental relationships appear to be quite damaging for children, there was no evidence to suggest that this negative effect is any greater for children with shared care time than for children with other care-time arrangements. It remains possible, however, that the measures adopted in this analysis were insufficiently sensitive to detect existing effects in these areas. Longitudinal research based on a relatively small clinical sample of high-conflict separating families (McIntosh, 2009) found that, compared to other parenting arrangements, a pattern of shared care sustained over more than 12 months was associated with a greater increase in the already negative impact on children of highly conflictual inter-parental relationships and the negative impact of circumstances in which one parent holds concerns about the child's safety...The presence of safety concerns was associated with lower child wellbeing in all care-time arrangements. These findings are consistent with the findings of other researchers.[82]

Professor Jenny McIntosh found "children's experience of living in shared care over 3-4 years was associated with greater difficulties in attention, concentration and task completion by the fourth year of the study. Boys in rigidly sustained shared care were the most likely to have Hyperactivity/Inattention scores in the clinical/borderline range."[83]

57. Professor McIntosh also found evidence, across a range of national samples, that very small children found shared care difficult:

regardless of socio-economic background, parenting or inter-parental cooperation, shared overnight care for children under 4 years of age had an independent and deleterious impact on children under 4 years of age, manifested in behaviours consistent with high levels of attachment distress.[84]

This has led to a debate over whether having more than one place as 'home' is simply too difficult for very small children.

58. The Interim Family Justice Panel Report recommended that: "A statement should be inserted into legislation to reinforce the importance of the child continuing to have a meaningful relationship with both parents, alongside the need to protect the child from harm." It rejected the introduction of a legal presumption: "Based on the experiences of Sweden and Australia, the Panel has concluded that no legislation should be introduced that creates or risks creating the perception that there is a parental right to substantially shared or equal time for both parents."[85]

OUR EVIDENCE

59. Families Need Fathers (FNF) told us that the legal framework in the UK jurisdictions needed rebalancing with explicit recognition of the rights of parents, as well as the rights of the child:

What is needed is a law that encourages 'shared parenting', so that both parents are, wherever appropriate, encouraged to play a full role in their child's life following divorce and separation....In FNF's view the state should provide a family law system that handles disputes after separation and divorce fairly, efficiently, as speedily as possible and in the best interest of children. The state's intervention should be the minimum required to protect a child's health and their and the parents' right to family life in accordance with the Human Rights Act and the UN Convention on the Rights of the Child.[86]

60. In oral evidence, Craig Pickering, the CEO of Families Need Fathers, said "the Children Act 1989 says that family court decisions should be in the best interests of the child, but actually nobody has ever set out what that means. So when you enter the court system you are, frankly, in a bit of a lottery."[87] The Grandparents Association also suggested minimum rights to contact for grandparents should be introduced.[88]

61. We asked a number of witnesses, who did not otherwise support a rebalancing of rights between the child and the parents or a shared parenting presumption, whether a presumption that a child have contact with his or her parents, as opposed to the parent with the child, would unfavourably interact with the paramountcy principle. Fiona Weir, CEO of Gingerbread, rejected any changes to the best-interests-of-the-child test:

There is a huge body of evidence that contact is generally in the interests of the child and that children do very well if they have time with both parents strongly engaged in their lives. That is generally hugely to be encouraged. There is also evidence, however, that what can harm children is the conflict between their parents, whether they are in intact relationships or whether the parents have separated. That and safety concerns do need to be addressed. That is why you need to start not with a presumption of a particular outcome but with a process that looks at what is best for the child.[89]

62. Stephen Cobb, of the Family Law Bar Association, said it was difficult to see how the paramountcy principle could be bettered or enhanced by the addition of a presumption of contact. He also told us: "The starting point of every court, in my experience, is that it is generally in the best interests of a child to have an ongoing relationship with both of his or her parents. I am not sure that a statutory or other presumption in favour of contact is going to add very much to that universal starting point."[90] Linda Lee, President of the Law Society, agreed.[91] Mr Cobb also noted the complexity a presumption of contact could introduce into the court system:

If we introduce a presumption, we would then have to incorporate a range of situations in which one would say that the presumption wouldn't apply: for example, where domestic violence had perhaps been a feature of the family life or where there were ongoing investigations into allegations of harm to the child. The moment one starts to introduce exceptions to the presumption, I think one moves away, ultimately, from the best interests test...[92]

63. In 2009, some 95,240 applications for contact were made, of which 91,890 were granted, around 96.47% of the total.[93] A 2008 snapshot study of 308 cases for the Ministry of Justice found that 14% of initial applications ended in no contact between the non-resident parent and child. The majority of applications which ended with no contact at all were formally withdrawn or effectively abandoned, for example, when the applicant's representatives could no longer obtain instructions. Of the 308 cases reviewed, four (1.3%) resulted in no contact after a contested hearing.[94] The abandonment of applications for contact seems to be a relatively common experience. Jane Wilson of Resolution, a society of family law practitioners who seek to resolve cases non-adversarially, gave us two examples of cases she had seen dropped:

the experts' reports said that the child was suffering from post-traumatic stress having been assaulted by the father. The father read the report and withdrew his application...I can think of other cases I have dealt with where, in fact, the absent parent has withdrawn the application because they didn't like what the Cafcass officer had said in their report, because it tied in with what the mother had said from the start.[95]

Ms Wilson said her experience of such cases meant that she thought "it would be dangerous to have a presumption for contact if you are not going to get to the level where that sort of issue is being looked at."[96]

64. The numbers of cases in which contact is refused must be seen within the context of the proportion of cases that end up in court. There will always be cases where safety concerns mean that it is appropriate to deny a parent contact with his or her child, because of safety concerns over the child or one of the parents. Nicola Harwin of Women's Aid told us that only 10% of all divorces and separations ever reach court, with 90% of separating couples finding other ways in which to resolve their differences.[97] This might also explain the high incidence of domestic violence among cases that do come to court; in a 2005 study[98] 53% of women reported physical or emotional abuse as a cause of the separation, with actual or fear of violence continuing post-separation for 40% of women. Actual violence or fear of violence prior to the application was reported by 24% of women who had not reported violence during the relationship.

65. The evidence shows that courts rarely deny contact between child and parent. Most applications that result in no contact are abandoned by the applicant parent. In our view this reflects the reality of the cases that come before the court. In the majority of cases it will be in a child's best interests to have meaningful contact with both parents. In cases where a parent constitutes a danger to his or her child, either directly or through failing to protect them from others, the courts must remain free to refuse, or specify the arrangements for, contact in order to protect the child.

66. The Australian experience of introducing a shared parenting presumption shows that it does not contribute to children's well-being, which, in our view, must be the paramount aim and objective of the family courts. We believe therefore that the best interests of the child should remain the sole test applied by the courts to any decision on the welfare of children in the family justice system.

The Family Justice Panel recommendations

67. Having considered the international evidence, from Australia and Sweden, the Family Justice Panel rejected the introduction of a shared parenting presumption in its Interim Report. The Panel concluded:

In our view, achieving 'shared parenting' in those cases where it is safe to do so is a matter of raising parental awareness at the earliest opportunity. This is intended to manage expectations and move towards recognition of parental responsibilities rather than parental rights, as opposed to making any significant changes to the welfare principle of section 1 of the Children Act 1989, or to the approach of the courts.[99]

68. The Panel went on, however, to recommend the introduction of a legislative statement "similar to the delay principle, into the Children Act 1989." Such a statement, the Panel concluded, "would reflect the case law on contact, reinforcing the importance of the child continuing to have a meaningful relationship with both parents, alongside the need to protect the child from harm." The Panel thought that this statement would:

guide parents when coming to their own arrangements, whether or not they seek assistance via mediation or alternative dispute resolution. It would also reinforce the starting point of the courts, which has been recognised in case law, for the minority of cases that do require judicial determination. This amendment would require courts to take into account:

the benefit to a child of having a meaningful relationship with both of his or her parents; and
the need to protect the child from physical or psychological harm.[100]

69. The Panel's rationale for the insertion of this statement appears muddled. Separating parents who are capable of resolving their own childcare arrangements are highly unlikely to need a statement telling them their child benefits from a meaningful relationship with both parents but must be protected from harm. This should be patently obvious to all parents. If the statement reflects the case law on contact and the courts' current starting point, which the Panel has concluded it does, then legally it is redundant. If such a statement is intended to change the law on contact then this seems a remarkably ineffectual approach, the analogy with the delay principle in the Children Act 1989 showing the limited impact such an approach is likely to have.

70. Evidence from Australia, noted above, has shown that, despite the retention in Australian law of the paramountcy principle, legal professionals have found some parents less willing to compromise outside court because they believe they have a right to custody or care of their child. The potential for a legislative statement in the terms proposed by the Panel similarly encouraging a litigious rights-based approach is unquantifiable.

71. We do not see any value in inserting a legislative statement reinforcing the importance of the child continuing to have a meaningful relationship with both parents, alongside the need to protect the child from harm, into the Children Act 1989. Such a statement is not intended to change the current position as the law already acknowledges that a meaningful, engaged relationship with both parents is generally in a child's best interests. The Panel has concluded that the family court system is allowing contact in the right cases; in our view nothing should be done that could undermine the paramount importance of the welfare of the child.

72. The Family Justice Panel recommended that a statutory time limit be introduced for care and supervision proceedings, requiring them to be completed within six months. The Panel is seeking opinions on possible exceptions to the six-month limit, acknowledging that it is difficult to draw a definition that will be sufficiently tight while allowing appropriate cases the time required.[101] The Panel also acknowledged that the feasibility of such a time limit may be questionable, and would require significant system change, as it proposes in the creation of a Family Justice Service.

73. We welcome the intention behind the Family Justice's Panel's recommendation that there be a statutory six-month time limit on care and supervision proceedings, but question, on the evidence we have heard about delay, whether such a time limit would be feasible, even with the creation of a Family Justice Service. The average public law case currently takes over a year, despite the court's obligation to make decisions with as little delay as possible. It is not envisaged that the Family Justice Service will have greater resources than the current system: the aim is that it will use rather less. In these circumstances it may be that a statutory six-month time limit is unenforceable.

65 Every Family Matters, Centre for Social Justice, July 2009, p 40, www.centreforsocialjustice.org.uk/client/downloads/WEB%20CSJ%20Every%20Family%20Matters_smallres.pdf Back

66 Children Act 1989, s1 (1) Back

67 Children Act 1989, s2 and 3 Back

68 Children Act 1989, s1(2) Back

69 House of Representatives Standing Committee on Family and Community Affairs, Every Picture Tells a Story (2003) Back

70 Evaluation of the 2006 family law reforms, Kaspiew et al, Australian Institute for Family Studies, 2009, p 361, www.aifs.gov.au/institute/pubs/fle/ (from now on referred to as Kaspiew et al) Back

71 Children Act 1989 UK s1(1)); Family Law Act 1975 s60 Back

72 Children Act 1989 UK s3; Family Law Act 1975 s60 Back

73 Family Law Amendment (Shared Parental Responsibility) Act 2006 s61 Back

74 Kaspiew et al, p 9 Back

75 Ibid, p 132 Back

76 Q 350 Back