Children and Families Bill

Memorandum submitted by Jane Fortin and Joan Hunt (CF 14)

1. We are submitting our views on clause 11 to the Committee in our capacity as authors of a recent study (Fortin, J. Hunt, J. and Scanlan, L. (2012) Taking a Longer View of Contact, Sussex Law School). Professor Fortin is an academic lawyer at the University of Sussex who specialises in Child and Family Law and Joan Hunt is a Senior Research Fellow at the University of Oxford who specialises in issues of social policy.

2. Our report produced independent empirical evidence on how a large, representative sample of young adults who experienced parental separation as children viewed the contact they had at the time, and what they now believe made that contact a more or less successful experience. It is based on the recollections of a random sample of just under 400 young adults (aged between 18 and 35) who took part in a telephone survey and in-depth interviews with 50 of them. This retrospective approach enabled us to tap into the considered and dispassionate reflections of those most directly affected by contact, adding an important dimension to our knowledge of what makes contact arrangements work and not work.

3. Our report was referred to by the Justice Select Committee in its pre-legislative scrutiny of clause 11 (House of Commons Justice Committee, Pre-legislative scrutiny of the Children and Families Bill, Fourth Report of Session 2012-13 , Cm HC 739, paras 163 – 164) and by Mr Lywyd MP in the debate of the second reading of the Children and Families Bill (HC Debs, 2013 Vol 559, col 96).

4. We strongly oppose what is intended to become a new s1 (2A) of the Children Act 1989. While superficially innocuous, the amendment is potentially damaging both to children and to the public perception of the courts.

5. We fully support the principle that children are likely to benefit from good relationships with both parents after separation. However, any amendment which undermines the paramountcy principle of the Children Act, as this does, should be evidence-based, rather than ideologically driven. The findings of our research study have a particular relevance to this issue

6. Amongst our findings ( a summary of which has been sent to all MPs) were two particularly important ones:

a) The child’s pre-separation relationship with the non-resident parent was statistically very significant – both as a predictor of the success/failure of future contact and of the quality of the child-non-resident parent’s subsequent relationship. This was more significant than the frequency of contact.

b) The frequency and format of contact, for example whether there were overnight stays, were statistically less important than the continuity of contact.

7. We found that other ingredients of successful contact were:

a) Involvement of the children in decision making

b) Little post-separation conflict between the parents

c) No domestic violence or other abuse concerns

d) Support for contact by the resident parent

e) The child feeling equally at home in both homes

f) Contact being child-focused, enjoyable and committed, rather than complying with the non-resident parent’s own interests

8. Overall, our findings indicate that contact works best when it is tailored to the needs, wishes and circumstances of the individual child. Section 1 of the Children Act currently requires the courts to do precisely that. Introducing a presumption of shared parenting, even under its now more neutral label of ‘parental involvement,’ would remove this essential safeguard and risk the courts adopting a more simplistic, broad brush approach to complex and usually highly conflicted family relationships. Indeed, it will undoubtedly make it more difficult for children, who have good reasons for opposing contact, to have their voices heard and taken seriously.

9. The Justice Select Committee, in its pre-legislative scrutiny of the draft clause, concluded that the government’s intention was not to change radically the way the courts handled contact cases but to tackle perceptions of bias in the population and to encourage parents to resolve their disputes without coming to court. In our view the amendment is not likely to achieve either objective. There is a real risk that non-resident parents will mistakenly think that the changed legislation gives them a right to very substantial parenting time. In consequence more may seek to use the courts to obtain their rights and will feel let down when and if they do not achieve them, exacerbating, rather than reducing, perceptions of bias in the court system. It should be noted, moreover, that research commissioned by the Ministry of Justice found no evidence that the courts were, in reality, biased against non-resident parents (Hunt, J. and Macleod, A. (2008) Outcomes of applications to court for contact orders after parental separation or divorce, Ministry of Justice). Indeed, as other researchers have concluded, it found that the courts already operated on the assumption that contact was usually in the interests of children and made considerable efforts to bring this about.

10. Finally, there is a risk that the clause will have a damaging effect on children where parents make arrangements without involving the courts, in the mistaken belief that equal parenting time is now the law. This is particularly likely where the parental relationship is highly conflicted and/or has involved domestic abuse. Indeed, our findings suggest that in some cases, no contact may be better for the child than poor contact. Again, the change in the law may make it more difficult for children’s wishes about contact to be taken into account.

11. For all these reasons we hope that Clause 11 will not be enacted. If Parliament decides that some change to the Children Act is required then we would urge this to be done by means of an addition to the ‘welfare checklist’ (section 1 (3)). If the clause is retained, then we consider it imperative that it includes a rider, as recommended by the Select Committee, which sets out that ‘involvement’ does not mean or imply the right to any specific quantity of time. It is not sufficient for this to be stated in an Explanatory note, particularly since the majority of parents will not have the benefit of legal advice which might make this clear to them.

Submission Summary.

As authors of a recently published research study (Fortin, J. Hunt, J. and Scanlan, L. (2012) Taking a Longer View of Contact, Sussex Law School) we oppose the introduction of Clause 11 of the Children and Families Bill. Our findings suggest that the aims of the clause are not evidence based and may achieve more harm than good.

Authors of Submission:

Jane Fortin, Emeritus Professor of Law, University of Sussex and Joan Hunt, Senior Research Fellow, Oxford Centre for Family Law and Policy, University of Oxford.

March 2013

Prepared 8th March 2013