Written evidence from Families Need Fathers
(FC 54)
OPERATION OF THE FAMILY COURTS
ABOUT FAMILIES
NEED FATHERS
1.1 Families Need Fathers (FNF) is the UK's leading
shared parenting charity, established in 1974. Our remit is to
work to keep both parents in a child's life after divorce or separation,
supporting children, parents and increasingly their extended families
who seek to retain an active role in children's lives. Mothers,
fathers, new partners, grandparents, wider family and their friends
can access our services in a number of ways. We have a helpline,
56 branches across England, Scotland, Wales and Northern Ireland,
factsheets and guides, an online support forum and other member
services. The overwhelming majority of our services are provided
by volunteers.
1.2 FNF seeks to obtain the best possible blend
of both parents in the lives of children after divorce and separation,
enough for them to realise that both parents are fully involved
in their upbringing, wherever appropriate. We believe strongly
that to achieve our aim the legal framework in the various UK
jurisdictions has to change. Currently the law too often has a
divisive impact on families, treating one parent as the sole carer
and the other as the sole financial provider. The reality is very
different and much more varied. Very often both parents want to
play a full role in the child's life, and are well able to do
so, but the family justice system in effect prevents that. 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.
1.3 Separation and divorce is distressing in
itself. From our experience the family justice system too often
makes it much worse. Going through it is far too often a painful,
drawn out and exhausting experience. 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.
EXECUTIVE SUMMARY
2.1 FNF has a strongly held view that too often
the family justice system fails to meet the needs of its users
in the courts in a fair, child-focused, efficient and speedy manner.
Going to court encourages conflict. There are long delays. It
is expensive for the individuals concerned as well as the state.
2.2 CAFCASS plagues the system with unnecessary
delay. This could be avoided in private law cases by focusing
on the cases where domestic violence is alleged or the child or
parent is already at risk in any way.
2.3 Legal aid is inefficient and can encourage
one parent to prolong proceedings so that a child is denied a
relationship with the other parent, the grandparents and their
wider family. Well funded and appropriate mediation is usually
a far better alternative to court.
2.4 We feel that the Children, Schools and Families
Act 2010 did not go far enough with regard to the issue of transparency.
Although it is crucial that individual children and vulnerable
adults should be protected from being publicly identified, there
is a wholly legitimate concern about how and why decisions are
made. Whether they are the best ones and what the consequences
are for the individuals and society.
THE EFFECT
OF CAFCASS'S
OPERATIONS ON
COURT PROCEEDINGS,
AND THE
IMPACT ON
THE COURTS
OF THE
SPONSORSHIP OF
CAFCASS BY
THE DEPARTMENT
OF EDUCATION
3.1 One of the most destructive and corrosive
problems facing the family justice system is delay. We believe
CAFCASS are responsible for a large proportion of current delays
in the family courts. Families can wait many months for reports
that may not always be necessary. Delay exacerbates conflict between
parents and children grow up often without the love and guidance
of both parents and their wider family. It often leaves more time
for a child to be used a weapon by one parent.
3.2 The pressure on CAFCASS's resources, especially
since the Baby P case, could be significantly alleviated by focusing
on a minority of private law cases where there are claims of child
abuse or domestic violence or known risks of this kind. This would
both allow such claims to be investigated more carefully and remove
a major source of delay in cases which do not concern such claims.
The Interdisciplinary Alliance for Children recently released
a joint statement which questioned whether the CAFCASS model is
"either the most effective in terms of outcomes for children,
or the most cost effective use of available resources, both financial
and human". We agree with this. The CAFCASS budget 2009-10
was £131.2 million; the actual expenditure was £131,796,000.
In 2008-09 they spent £3.6 million more than their original
budget allocation of £114.9 million, consequently the Department
for Children Schools and Families re-profiled CAFCASS's funding
in December 2009 bringing forward £4.6 million from future
years. This is not sustainable financially, nor is it an effective
model.
3.4 If CAFCASS focused on the minority of private
law cases where domestic violence or child abuse has been alleged
then they would have the resources to address the other issues
which we frequently are approached with regard to. We often hear
complaints with regard to the conduct of individual officers.
There are cases where individual officers conduct themselves in
a way that is not in the best interests of the child. We believe
that this is sometimes a consequence of being under increased
pressure. If resources were refocused, we believe that officers
would have more resources available to them, meaning they can
fulfil their duties to the highest possible standard. Training
is also an issue here. If resources were available then officers
could benefit from increased training. A complaint we hear is
that the CAFCASS officer came to conclusions that were not reflective
of reality. Training and sufficient time to make well-founded
conclusions which have such lasting effects for families is crucial.
3.5 It is the resourcing and the overambitious
functions of CAFCASS that is of most concern. The issues that
we see arise from the sponsorship of CAFCASS by the Department
of Education centres around joined-up working. The Department
of Education and the Ministry of Justice are the possible departments
that could sponsor CAFCASS. The Department for Education and its
focus on children seems the best departmental fit, although this
often presents us with problems. When a parent comes to us they
are often in contact with many different agencies. Due to the
lack of case management there families are not viewed as a whole.
We feel this is a major shortcoming of the current system. If
the Department for Education continues to sponsor CAFCASS, then
it is crucial that they work more closely with HMCS and the Judiciary,
in a way that does not happen at the moment.
THE IMPACT
ON COURT
PROCEEDINGS AND
ACCESS TO
JUSTICE OF
RECENT AND
PROPOSED CHANGES
TO LEGAL
AID
4.1 First and foremost everyone should have access
to justice. However we feel that the legal aid system is neither
efficient nor fair, nor helping children sufficiently. Far too
often one parent is able to prolong court proceedings in a way
that is, all too often, successful, in order to cut off the children
from the other parent. It is often the case that one parent does
not quite qualify for legal aid and the other does. We often hear
of cases where a parent that qualifies for legal aid and abuses
it, by regularly breaking court orders and returning to court
time and time again, while the other parent is slowly bankrupted.
4.2 One sad feature about this is that the money
spent could be so much better spent on out-of-court options and
the children.
THE ROLE,
OPERATION AND
RESOURCING OF
MEDIATION AND
OTHER METHODS
IN RESOLVING
MATTERS BEFORE
THEY REACH
COURT
5.1 In our Family Justice Review response (annex
1) we recommended a new family law path based on the presumption
of shared parenting, a re-focused CAFCASS, targeted legal aid,
judicial continuity, compulsory parental education and compulsory
mediation.
5.2 Court is often the worst place to decide
who will care for children and when. There is general agreement
that mediation is a better alternative and it can have more lasting
results. Mediation can play a central role, by helping to switch
the culture from an adversarial one to an approach that emphasises
the need for agreement, for the children's sake primarily. It
can also minimise the opportunities for warring parents to use
the courts to ensure that a child sees little or nothing of their
ex-partner for long periods of time, often damaging the child
significantly.
5.3 Mediation is also significantly speedier
than court proceedings. In 2007, the National Audit Office published
a report looking at mediation in family cases involving legal
aid. On average, mediations surveyed took 110 days (from the start
of mediation to the end of the month in which the mediator sought
reimbursement from the Commission). Over 95% of mediations were
completed within nine months and all mediations were complete
within 12 months. In comparison, the average elapsed time between
applying for other legal help for family-related matters (predominantly
cases relating to children, domestic violence or financial provision)
and the date of the final bill was 435 days, or over 14 months.
Only 70% of these cases were completed within 18 months (Source:
National Audit Office, Legal aid and mediation for people involved
in family breakdown, 2007).
5.4 There is also the financial case. In 2007,
the National Audit Office published a report looking at mediation
in family cases involving legal aid. They found that legal-aid
costs are substantially lower in mediation than in court proceedings
in family cases. The report found that the average legal-aid cost
in family court proceedings was £1,682 per case. The average
legal-aid cost of a family mediation was £752.
5.5 Mediation is not appropriate for cases where
there has been domestic violence or the child is at risk in any
way. From our experience mediation has the most success when parents
attend quickly. Too often it takes place too far down the line.
Parents may refuse to compromise. Mediation also has more success
when parents have gone through some kind of parental education
course.
5.6 Although we strongly advocate mediation,
crucially, we believe that both parents need to understand how
important the other is to the child. Therefore, we have the strongly
held belief that mediation will work best with a presumption of
shared parenting.
CONFIDENTIALITY AND
OPENNESS IN
FAMILY COURTS,
INCLUDING THE
IMPACT OF
THE RECENT
CHANGES IN
THE CHILDREN,
SCHOOLS AND
FAMILIES ACT
201
6.1 FNF has long supported and promoted "transparency"
In the Family Courts. The point of openness is to ensure that
decisions are taken in the right way. By opening decisions to
public scrutiny we don't want to identify children, vulnerable
adults or their family. We do want the information to be available
on how the decisions are decided. We feel that the Children, Schools
and Families Act 2010 did not go far enough. There should be no
citing of names or of details that would result in identities
becoming known. The rules that prevent this in criminal cases
involving children provide relevant experience on how to do this.
6.2 The interests of the children caught in the
system demand that the legal proceedings whose outcome will so
affect their lives are carefully made, with all relevant factors
scrupulously assessed. The welfare of many children not directly
involved will be indirectly affected, by beliefs about what will
or may happen should the issue become one to be decided in court.
The issues concern some of the most vulnerable children in our
society. There is a wholly legitimate concern about how and why
decisions are made, whether they are the best ones, and what the
consequences are for the individuals and society. We believe that
court decisions should be published in full, minus the personal
details listed above. This will give the public and the media
the information they need to assess the decisions made.
September 2010
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