House of Commons - Justice Committee

Operations of the Family Courts - Justice Committee Contents

Written evidence from Gingerbread (FC 34)

OPERATION OF THE FAMILY COURTS

1. EXECUTIVE SUMMARY

1.1 Gingerbread is the national charity working with single parent families. Building on over 90 years of campaigning and service-delivery expertise, we work with single parents to understand the particular challenges they face and to ensure that their needs are met. We provide expert information and advice, along with membership and training opportunities, and campaign against poverty, disadvantage and stigma to promote fair and equal treatment and opportunity for single parent families.

1.2 Gingerbread welcomes the opportunity to submit evidence to the Select Committee's inquiry into the Working of the Family Courts. As part of our response to the inquiry, we have consulted Gingerbread's members via an electronic survey. To help inform our evidence and recommendations we asked members about their experiences of seeking to resolve disputes over contact and residence.

1.3 Drawing from evidence from leading academic institutions, government reports, Gingerbread's own research and the experience of Gingerbread's members, this memorandum makes the following recommendations to the Select Committee:

SUMMARY OF RECOMMENDATIONS

The wider context for the Working of the Family Courts inquiry

— Develop an integrated approach in terms of resources and strategy across government departments and agencies at both national and local level, to strengthen family relationships and to support parents who separate to do so in a manner that puts the best interest of their child first and where possible enables cooperative parenting. For example, improved coordination between legal and mediation service providers to build understanding and trust between professionals.

— Protect the vital role of the family court as the final arbiter in difficult, complex or intractable parental disputes.

The role of the family courts

Evidence suggests that clear information and effective signposting at national and local level is vital for parents who are separating or post separation:

— Support the development, and encourage the use, of a local information briefing session for parents considering litigation outlining the impacts of separation and with signposting to other methods of dispute resolution including help and advice services.

— Provide a free DVD or other such information tool to parents involved in legal proceedings at an early stage explaining what will happen when they come to court; the roles of each party; the processes involved and likely length of time of proceedings.

— Increase training and support to CAFCASS staff when acting as court mediators to identify and explore suggestions of domestic violence and child protection issues.

— Ensure that the primary role of CAFCASS staff is always to champion the needs, wishes and feelings of children involved in court proceedings over and above any additional functions, such as facilitating contact agreements, and that they are suitably trained for this.

— In family cases where the issues are very serious and where court intervention is essential in the interests of a child, or to protect a parent from harm, the state must ensure that both parents are properly represented (by a lawyer).

Alternatives to legal processes

— Conduct a robust cost/benefit analysis of different interventions intended to improve child outcomes, reduce parental conflict and reduce the use of the courts, drawing on evidence from the UK and elsewhere. This should include a broader analysis in terms of long-term cost savings of better outcomes for children.

— Expand the use of children's centres and schools as a "hub" for relationship services, including post-separation parenting services - offering practical and emotional support and encouragement to parents, including the use of facilities at weekends to assist with contact arrangements.

— Ensure existing mediation services are effectively targeted at parents who are separating or post-separation and relevant professionals, including GPs. Targeting measures should include providing information that explains what mediation is, how parents can access mediation services and the potential benefits.

— Improve coordination between legal and family professionals to build trust and understanding between professionals and improve referral rates for mediation.

— Reduce the direct costs of mediation for parents to encourage take-up and reduce the number of private law cases reaching court.

— Ensure a UK-wide promotion of existing relationship support services, and improve local level coordination, to increase the take up and "normalize" the use of such services.

— Act on the evidence from the Family Resolutions and Parenting Information Programmes that point towards peer group education sessions as a low cost intervention and their potential positive outcomes for parents and children.

1.4 This memorandum outlines Gingerbread's collated evidence and recommendations. Our evidence concentrates on private law matters and in particular disputes between parents concerning children ie contact and residence disputes. Quotes detailed throughout the memorandum are taken directly from parent's responses. No personal details of the parents were collected to ensure anonymity of responses.

1.5 The memorandum is structured as follows with recommendations at the end of each section:

— The wider context for the Working of the Family Courts inquiry.

— The role of the family courts:

— The role of CAFCASS.

— Access to legal aid and the experience of litigants in person.

— Alternatives to legal processes:

— The role of mediation and in-court conciliation.

— Greater investment in service for separating and post-separation families.

2. THE WIDER CONTEXT FOR THE WORKING OF THE FAMILY COURTS INQUIRY

2.1 Parental separation affects around three million of the twelve million children in the UK.[62] The great majority of parents have no contact with the courts or solicitors when sorting out the arrangements for their children post-separation. This is not an easy matter for many: whilst 70% of parents do make contact arrangements, a substantial proportion of these parents have encountered problems in making it work. Many parents outside the family justice system say they would like more help in resolving contact disputes.[63]

2.2 Of the small minority of parents (around 10%) who separate and who subsequently use the family courts to resolve disputes over children,[64] a substantial proportion of their cases involve allegations of violence or abuse, mental health problems, drink or drug addiction, or dangers to the child. In England, it is estimated that between a third and a half of family court contact cases include allegations of violence or abuse.[65] Even at this most difficult end of family disputes, the main work of the courts lies not in judicial determination but in case management and assisting settlement. 74% of such cases do reach agreement.[66]

2.3 Ideally, the family courts and the family justice system as a whole should function within a well-worked out and widely available system of support for relationships in general, and for parents who are separating or have separated in particular. The latter should have the access to a range of mechanisms designed to help them sort out arrangements post-separation and to resolve any disagreements regarding post-separation parenting at as early a stage as possible.

"What works is being given the space to be heard and help to hear each other's views"

2.4 In seeking to establish a better, simpler and less expensive family justice system, account must be taken of wider family policy, and the need to ensure the best outcomes for all children affected by separation.

"There was an average of four months between hearings and together with the divorce the process dragged on for years, with the resulting stress further blighting my children's childhoods"

2.5 The coalition government is correct in seeking to minimise the number of private law family disputes which end up in court, and to encourage the greater development of alternative forms of family dispute resolution. However, where those alternative mechanisms have failed or are not suitable, it is vital that the family courts are available to make considered and informed decisions regarding children's futures.

Recommendations

— Protect the vital role of the family court as the final arbiter in difficult, complex or intractable parental disputes.

3. THE ROLE OF THE FAMILY COURTS

3.1 The family courts are widely perceived as expensive, plagued with delay due to work overload, unfriendly to users, and reinforcing conflict between parents. Judging by the responses to Gingerbread's survey of single parents with experience of the courts, much of this criticism strikes a chord.

3.2 In our survey of Gingerbread members, just over half of respondents (54%) reported their experience of the family courts as "poor" or "dreadful"; over a quarter (27%) reported it as "OK" and only a fifth (19%) reported it as "good" or "excellent".

3.3 A relatively low cost intervention would be to require parents who wish to go to court over contact and residence to attend a local information briefing session, designed to alert them both to the court process and what is involved and also to the range of other local services which might help them. Such sessions should be held at evenings or weekends, for groups of parents (in such a manner that each partner in a couple could attend a separate briefing), and might consist of:

— A video/DVD and short interactive session on the impact of separation on children; and on improving parental communication and behaviour to reduce children's exposure to conflict.

— Details and active promotion of the range of local services aimed at assisting parents resolve or manage differences over contact.

— Details of other local and national services where parents can get support and help, such as Citizens Advice, parents' organisations, Womens Aid, money advice services, etc.

Recommendations

Evidence suggests that clear information and effective signposting at national and local level is vital for parents who are separating or post separation.

The role of CAFCASS

3.4 The Children and Families Court Advisory Support Service (CAFCASS) plays an important role in private family disputes which come before the courts. Much has been written elsewhere concerning the growing demands placed on CAFCASS staff; the pressure on resources; and the current problem of delays in getting reports on children.

3.5 It is clear that CAFCASS staff do a very difficult job. Staff can find themselves in the middle of serious disputes between parents, where substantial allegations of harm, neglect or emotional damage to the child can be at issue. It is important that CAFCASS is sufficiently resourced to be able to undertake its work effectively and without undue delay.

3.6 Almost a third of respondents to Gingerbread's survey found their sessions with CAFCASS staff helpful or very helpful. This reflects the valuable role CAFCASS can and should play for children and parents in resolving disputes:

"The CAFCASS officials were down to earth, warm, friendly and helpful and really helped defuse the situation"

However, just over two-thirds found them not very helpful or no help at all:

"… My concerns were just dismissed"

"They don't listen, were judgemental and put my son's life in danger"

"I was greatly disappointed with their unprofessional conduct"

3.7 We raise two concerns in particular:

3.7.1 Under pressure to get conflicted parents to agree contact and/or residence, some CAFCASS officials do not give due weight to the welfare concerns expressed by one parent, involving, for example, questions of the other parent's drug taking, mental state, or domestic violence. This was a view expressed by a significant number of parents in our survey. A recent analysis of data relating to in-court conciliation by CAFCASS staff confirmed concerns that, despite intensive efforts to enhance risk assessment with the family courts and mediation, CAFCASS officers saw their role primarily as to facilitate an agreement and to promote or restore contact. Allegations of risk tended to be marginalised and not explored, in the absence of clear evidence.[67]

3.7.2 The evidence from parents in our survey suggests that CAFCASS staff were not always good at engaging with the children involved in disputes, listening to their needs, wishes and feelings or ensuring that the children's interests and views were heard in the proceedings - by both parents and the court. Gingerbread's own research has highlighted how children's views on contact can differ from their parents.[68]

Recommendations

— Increase training and support to CAFCASS staff when acting as court mediators to identify and explore suggestions of domestic violence and child protection issues.

Access to legal aid and the experience of litigants in person (LIPs)

3.8 In our survey, the vast majority of respondents were represented by lawyers in court proceedings (78%) and most felt they would have been unable to manage without a lawyer (86%). However, we know from our Helpline that many parents struggle to meet the legal costs involved in family contact cases. Access to legal aid is already very restricted and likely to get worse, with many families on modest incomes denied any help, and others required to pay hefty legal aid contributions. The result is severe long-term financial hardship for many. Respondents to our survey describe loss of savings, debts to relatives, large bank overdrafts, and worry about the loss of equity on their home as a result of a large legal aid charge. Others reported a strong disincentive to take a job, where it meant the loss of legal aid and hence legal help with a matter crucially important to their child's future welfare.

"My ex partner withdrew his case when he lost his Legal Aid. Very frustrating being a victim of Domestic Violence and having to pay my own fees to protect myself and my son"

3.9 Our survey also shows the anger of some parents at the perceived injustice where one parent is legally-aided and is therefore seen as more able to make use of the courts, compared to the other parent who has to pay considerable sums in order to be legally represented - or represent themselves with limited or no legal help.

"My ex had legal aid so he was able to get the support he needed easily. I was not able to get legal aid as I was employed but unable to meet these legal costs"

3.10 There are a growing proportion of litigants in person (LIPs) cases before the court. They face a number of difficulties in representing themselves. Court procedures, paperwork, language and rules of evidence can be hard to understand, with the LIP reliant on the judge to explain things. It can be difficult to cross-examine an ex-partner, a position made worse where the latter has been threatening or violent in the past. Conversely, it can be threatening and deeply intimidating to be cross-examined by an ex-partner appearing as a litigant in person, who has been violent or abusive. LIPs can feel patronised or that their voice carries less weight compared to a partner who does have full legal representation. From the court's perspective, LIPs can create considerably more work and delay proceedings, making courts less efficient in the disposal of cases and prolonging uncertainty for the families involved.

3.11 For those on modest incomes, there is already a strong financial deterrent to using the family courts. The great majority of families neither use the family courts nor seek legal advice. Nevertheless, where feelings are very strong, many parents will undoubtedly persist even at great personal and financial cost to themselves. This underlines the importance of early intervention, and making widespread the availability of cheaper forms of alternative dispute resolution, which parents are strongly encouraged to use.

Recommendation

4. ALTERNATIVES TO LEGAL PROCESSES

4.1 There is widespread agreement among parents and organisations giving advice to them[69] that the courts are not the ideal place to resolve private disputes between parents regarding their children. In our survey of Gingerbread members, 79% of respondents said that more should be done to help parents avoid court proceedings.

4.2 Since the publication of Parental Separation: Children's Needs and Parents' Responsibilities in 2004, there has been an increased focus within the Ministry of Justice on helping parents agree arrangements without involving the courts. The 2006 Children and Adoption Act gave increased powers to the courts to promote and enforce contact arrangements, including requiring a parent to participate in "contact activities" designed to assist the person to "establish, maintain or improve contact."

4.3 In discussing alternatives to legal processes below, Gingerbread draws on the experience of programmes in the UK and elsewhere aimed at encouraging families already in the family courts system, or who are about to enter it, to reach an agreed settlement. However, by the time families are embarking on legal proceedings, the conflict between them is already likely to be entrenched. Such programmes will therefore be too late for many.

The role of mediation and in-court conciliation

4.4 Although promoted by successive governments as a means of providing quicker, cheaper and less acrimonious resolution of family disputes, in practice family mediation is used by only a small proportion of parents. The evidence on the success of family mediation is mixed. Since 1997, the Legal Services Commission has provided publicly funded family mediation to individuals entitled to legal aid for their family law case. However, although 50,000 couples are referred to mediation services annually, just 13,500 of those couples participate in mediation.[70] In recent UK in-court mediation pilots, only 17% of private law listed cases for court hearing were referred to mediators for assessment.[71] In Australia, where the 2006 family law reforms established a comprehensive mix of post-separation services including provisions requiring parents to attend family dispute resolution (FDR) prior to filing a court application, in total, only around 31% of fathers and 26% of mothers who separated after the reforms reported they had attempted family dispute resolution or mediation.[72]

4.5 On the other hand, many of those who tried mediation voluntarily had a reasonable degree of success. In the most recent UK pilots, although only a small minority of parents participated, 73% of those who underwent an assessment went on to participate in mediation, with 71% who participated either reaching a full agreement or narrowing the issues in dispute. In Australia, around two fifths of participants in FDR or mediation said they had reached agreement as part of the process. Just under a further third of those said they later went on to sort out arrangements or were in the process of doing so:[73]

"Mediation was an excellent help - a neutral party to hear both sides and take a neutral stance with suggestions".

4.6 There is clearly scope for increasing participation in mediation:

4.6.1 Gingerbread's own research on problematic contact arrangements does suggest that many parents, who mentioned a mediation-type service as something they would have liked, were unaware that such services were already available. The term "mediation" itself had little resonance with them, with a common misconception being that it was concerned with reconciliation.[74] This does suggest that more needs to be done to increase awareness among parents of what is on offer and to promote services in a manner that people can relate to.

4.6.2 Evidence both from Australia and the UK points to a need for better cooperation between legal and family relationship professionals. In Australia, evaluation of the 2006 family law reforms suggested continuing concerns by lawyers about FDR and the family relationship service sector in general.[75] In the UK, lack of referrals from solicitors, CAFCASS and the judiciary to mediation services is seen as one factor behind poor participation.[76] The poor referral rate of the most recent in-court mediation pilots was seen as partly attributable to the lack of strong links, trust and understanding between the different professionals involved.[77] Building up such trust and understanding of the role of mediation through more collaborative working between legal professionals could well improve take-up.

4.6.3 Cost is clearly a barrier to participation in mediation where one or both of the parties are not legally aided. Reducing the direct costs of mediation for parents would be likely to lead to more take-up and might prevent cases going to court or requiring a full hearing.

4.7 One option to increase participation would be to follow the Australian route and make family mediation compulsory for all parents before being able to lodge a court application, unless there are concerns about family violence or child abuse. Such an approach may well increase the number of parents helped by mediation. However, Gingerbread holds strong reservations about making mediation a compulsory element in parental disputes without careful consideration of the following:

4.7.1 Where there is a strong antipathy between parents or a serious lack of trust, mediation is less likely to be successful. Whilst many of those who voluntarily take part in mediation clearly find it helpful (for example, "each party was able to put forward their own views without fear of interruption and/or judgment"; or "we were able to talk without my husband being abusive", there are clearly a significant proportion of parents for whom mediation is less likely to work. For example:

"The mediator just tries to find the middle ground - which is not fair if one side is being very extreme and unreasonable in their demands".

"I was being bullied and manipulated in mediation and found it difficult to stand up to my ex at the time"

4.7.2 Gingerbread's survey showed that a significant proportion of respondents in dispute regarding their children were grappling with serious issues including physical threats or violence; emotional abuse; mental health problems; child sexual abuse; or threats of child abduction. Such cases are likely to be unsuitable for family mediation. Trinder's recent work examining child contact dispute resolution sessions highlighted how, where there was pressure to reach a settlement, one parent's valid concerns regarding contact could be marginalised by the mediator, intent on reaching an agreement.[78] Without careful screening, compulsory mediation runs the risk of particularly placing women and children at risk.

4.8 Getting couples to agree and stick to contact agreements doesn't necessarily produce better outcomes for the children involved. Research on the longer-term impact of in-court conciliation has found that, although under pressure couples did agree and later stick to contact arrangements, the process did little to resolve underlying conflicts between them or improve their ability to communicate - with the consequence that, despite contact taking place, child well-being had not improved from initially poor levels two years later.[79]

Recommendations

— Improve coordination between legal and family professionals to build trust and understanding between professionals and improve referral rates for mediation.

— Reduce the direct costs of mediation for parents to encourage take-up and reduce the number of private law cases reaching court.

Greater investment in services for separating and post-separation families

4.9 Where couples are contemplating separation, or are grappling with the often emotionally charged realities of post-separation parenting, there are currently few places to which they can turn for information and advice on how to cope and how to protect their children from the fall-out.[80] Gingerbread is firmly in favour of greater investment in services "upstream" (ie, before applications to court are even contemplated) designed to reduce parental conflict, tackle the emotional, practical and health problems which can accompany relationship breakdown, and encourage constructive engagement around children's needs at an early stage. In this way, fewer cases are likely to require court intervention and the outcomes for children are likely to be improved:

"Maybe we approached mediation too late, feels it's just scratched the surface of issues that have built up over the years. Would have liked to know more about the service years ago"

4.10 Given the restrictions on public finances, careful decisions will have to be made concerning effective investment in the right programmes to yield the maximum effect. Gingerbread puts forward the following points for consideration:

4.10.1 The evidence suggests there is no "one size fits all" support that will work well for all parents. A spectrum of services - in terms of cost, accessibility and depth of intervention - is required to meet the varying needs of separating families at different points.[81] At one end of the spectrum is provision of "self-help" resources such as helplines, books and websites. At the other, are services for "high conflict" families where more intensive and specialized interventions are needed.

4.10.2 Evidence from the "Family Resolutions" pilots and from more recent "Parenting Information Programmes" under the 2006 Children and Adoption Programme points to the potential added value of peer group education sessions designed to help parents understand children's needs and to develop skills in conflict management and communication.[82]

4.10.3 A robust cost/benefit analysis is needed of different interventions intended to improve child outcomes, reduce parental conflict and reduce the use of the courts, drawing on evidence from the UK and elsewhere. In this context, evidence from the evaluation of the nine local pilots established by the last government to provide a coordinated local service for separating parents will be very important.[83]

4.10.4 There is evidence that many people are reluctant to use services available to help them deal with relationship breakdown due either to stigma, denial that they need help, or simply lack of knowledge of what might be useful. A common feature of a number of potentially useful projects has been the challenge in recruiting parents to attend.[84]

4.10.5 A matter to be considered is whether a cost/benefit analysis of any investment in services should be based simply on the cost savings achieved from fewer cases going to court, or whether a broader analysis is needed in terms of the long-term cost savings of better outcomes for children.[85]

4.10.6 An analysis of the 2006 Australian family law reforms shows that of parents who used counselling, mediation or family dispute resolution as their "main pathway" for resolving parenting arrangements, three quarters also consulted a lawyer and one in three still used the courts. Two thirds of those who said that using a lawyer had been their main pathway had also tried counselling, mediation or family dispute resolution.[86] This again suggests there is no simple relationship between provision of greater support services and a reduction in the number of parents entering the family justice system.

Recommendations

— Ensure a UK-wide promotion of, existing relationship support services, and improve local level coordination, to increase the take up and "normalize" the use of such services.

September 2010

62 Department for Constitutional Affairs/Department for Education and Skills/Department for Trade and Industry (2004) Parental separation: Children's needs and Parents' Responsibilities Cm 6273 TSO Back

63 Peacey, V and Hunt, J op cit. Back

64 Blackwell, A and Dawe, F (2003), Non-resident parent contact, London, ONS. In a national survey of parents carried out by Gingerbread 9% of resident parents and 8% of non-resident parents said that contact arrangements had been decided in court. (Peacey, V and Hunt, J (2008) Problematic contact after separation and divorce: a national survey of parents, Gingerbread). Back

65 See Smart, C, May, V, Wade, A, and Furniss, C (2003) Residence and Contact Disputes in Court. Volume 1. London: Lord Chancellor's Department Back

66 Hunt, J and Macleod, A (2008) Outcomes of applications to court for contact orders after parental separation or divorce, Ministry of Justice. Back

67 Trinder, L, Firth, A, and Jenks, C '(2009) "'So presumably things have moved on since then?' The management of risk allegations in child contact dispute resolution", International Journal of Law, Policy and the Family 2010 24(1):29-53 Back

68 Peacey, V and Hunt, J (2009) op cit Back

69 Gingerbread is part of the Kids In the Middle Coalition (KITM) which consists of over 30 organisations including Relate, Families Need Fathers and the Grandparents Association. KITM is about helping children who get caught up in relationship problems at home and about helping parents to avoid these problems in the first place. See: http://kidsinthemiddle.org.uk/index.php/about/ Back

70 Information taken from a Ministry of Justice Briefing on mediation Back

71 Funded by the Legal Services Commission, the pilots took place in five areas and involved court referrals, where appropriate, to a family mediator at court for an assessment as to whether mediation might be suitable as a means of trying to resolve the dispute. Such assessments were funded for all parents - both private or legally-aided. See Legal Services Commission (2010) In-court mediation for family disputes Back

72 Kaspiew, R, Gray M, Weston R, Moloney, L, Qu, L, & the Family Law Evaluation Team (2009). Evaluation of the 2006 family law reforms. Australian Institute of Family Studies. Back