Children and Families Bill

Memorandum submitted by Families Need Fathers (CF 70)

 

Written Evidence to the Public Bill Committee on the Children and Families Bill 2012 – 13: Welfare of the child: Parental Involvement

 

About Families Need Fathers

Established in 1974, Families Need Fathers is a registered UK charity which provides information and support to parents of either sex. grandparents and wider family members following divorce and separation. We work to ensure that children are able to maintain a meaningful relationship with both parents and their wider family following family separation. We do this through the provision of information and support to families, whilst also working with the government, judiciary and legal professionals to raise awareness of the issues faced by separating families.

Summary:

This submission:

· Demonstrates that Clause 11 of the Children and Families Bill (‘Welfare of the child: parental involvement’) works in the best interests of children by encouraging both parents to play a full roll in their child’s life after separation or divorce, wherever appropriate;

· Makes clear that the Bill in no way compromises the paramountcy principle. In particular, the Bill in no way implies a right to contact or any specific division of time spent with each parent by the child;

· Explains why a presumption of parental involvement in legislation is a necessary step to better reflect the expectations the wider public has of the family justice system;

· Critiques the argument that misrepresentations of the Bill in the media justify inaction in legislative change.

1. Welfare of the child: parental involvement

1.1. The purpose of this submission is to address misconceptions about the current legislation proposed in Clause 11 of the Children and Families Bill, and the case that has been made against it in the 2nd Reading and in some of the oral evidence the Committee has already received. Specifically, these are a) that the Bill would not meet the Government’s objectives with regard to parental involvement; b) that legislation on parental involvement would conflict with, or have a negative impact upon, the paramountcy principle, and; c) that the Bill will lead to a perception amongst parents that there is a requirement for courts to presume that there will be an equal, or near equal, division of time in all cases. The paper will conclude by briefly clarifying how the legislation in its proposed form is a necessary component of the wider suite of private law reforms intended to reduce conflict between separating parents, and, most importantly of all, improve welfare outcomes for children post-separation.

2. Objectives of legislation on parental involvement – will the Government’s objectives be met?

2.1. The Government outlined its intentions in legislating for a presumption of parental involvement in the Co-operative Parenting Following Family Separation consultation document. These were that children will benefit from the continued involvement of both parents following separation wherever this will not compromise child welfare; to make it an explicit requirement for courts to consider the benefits of a continued relationship alongside other welfare factors; to remove the perception of bias in the family justice system, and thereby encourage greater use of out-of-court dispute resolution services; and to avoid the supposed pitfalls of similar legislative changes internationally, particularly Australia.

2.2. These objectives are, evidently, interlinked. It is widely accepted that children benefit from the continued involvement of both parents where to do so would not place the child or a parent at risk of harm. It is also accepted that it is generally better for children and families where parents are able to reach agreements outside of court regarding post-separation child arrangements. The Government’s intention is that by making explicit the importance of a continued relationship with both parents in law, perceptions of bias towards ‘resident’ parents in the family justice system will be reduced. In addition, the adversarial nature of proceedings, and the entrenchment of parental conflict within the process that can lead to parents losing sight of the best interests of their children, will be minimised. In turn, it is believed that this reduction in potential for conflict will encourage more positive engagement with out-of-court dispute resolution services such as mediation, and that the provision of improved information and support for parents to use these services will allow parents to reach private arrangements without recourse to litigation and a court-ordered outcome.

2.3. Key to ensuring the success of this legislation is that the wording of a presumption does not compromise the paramountcy principle; this issue will be taken up in greater detail in the following section of this paper. However, there is a strong case to be made that supports the Government’s logic of legislating for a presumption of parental involvement, and that the wording of Clause 11 in the Bill represents the correct course of action to achieve this.

2.4. An argument made against legislation in this area has been that there is no evidence of bias against ‘non-resident’ parents in the family justice system, and that judges already give great consideration to the continued involvement of both parents in a child’s life wherever possible. It is also very clear though that this is not how parents and the wider public perceive the family justice system and their experiences. A recent survey for the Channel 4 Dispatches programme Sharing Mum and Dad found that 84% of respondents believed that the family justice system favours mothers over fathers, and 88% believed that the law needs updating with regards to parental separation [1] . This reflects wider societal changes to the way society perceives the role of both parents; research carried out by YouGov in June 2012 found that 95% of Britons agree that both parents should share responsibility for bringing up children, and 86% agreed that the role of fathers has changed drastically over the past 50 years [2] .

2.5. We believe that these survey results reflect reality, judging by our long experience as a charity. Since 1974, Families Need Fathers have been helping parents – usually fathers, but an increasing number of mothers and grandparents – who feel that the law has prevented the degree of involvement that is best for their children.

2.6. It is not enough for a justice system to be fair in the way it reaches decisions and outcomes; it is crucial that it is also seen to be fair by the public it serves. Regardless of whether or not courts currently give due consideration to the benefits of a continued relationship with both parents, the lack of transparency and clarity as to how this is considered or applied merely serves to breed discontent and erode confidence in the system as a whole. Our members report to us that it is all too common for a resident parent to threaten that the non-resident parent will have to take them to court, in the belief that a court-order will only provide for limited contact (particularly if, as is currently common, legal proceedings take months or years to resolve).

2.7. Making explicit the importance of both parents in legislation merely codifies what is currently implicit in the family justice system. It does not introduce a prescription to reach particular decisions on contact, but instead brings much needed transparency to a process that for too long has been unclear to the children and families the system is there to serve.

2.8. Although the legislation proposed in the Bill is considerably less far reaching than that implemented in Australia, an examination of rates of litigation following legislation in that jurisdiction is useful for interrogating the Government’s argument that removing perceptions of bias in the system can encourage greater use of out-of-court dispute resolution services. Research by the Australian Institute of Family Studies found that there was a sharp fall in litigation following the introduction of legislation, a decrease of 32% between 2005/6 and 2010/11 [3] . This was supported by investment in the network of Family Relationship Centres [4] . We would expect the greater support for out-of-court dispute resolution services provided for in the Bill, such as compulsory mediation information and assessment meetings, to play a similar role in the UK context.

2.9. We therefore consider that Clause 11 of the Children and Families Bill, in conjunction with improved information and support services for parents to resolve their disputes without recourse to litigation, is sufficient to meet the Government’s objectives for legislation on the involvement of both parents.

3. Clause 11 and the paramountcy principle

3.1. Concerns have been raised by some stakeholders in the family justice system that any reference to the desirability of involvement from both parents in legislation risks diluting the paramountcy principle, and with it increasing potential risks to children’s welfare. It is right that any change to the law which could impact upon the welfare of children should be very carefully scrutinised before being implemented. However, claims that the provisions for a presumption of parental involvement as drafted in the Children and Families Bill would put children at risk are without foundation.

3.2. Equating the clause with a challenge to the paramountcy principle illustrates a number of misconceptions about the nature and purpose of this legislation. The first of these is to consider parental involvement as a parental rights issue, thereby creating a scenario where the rights of the parents are placed in competition with the welfare of the child. This is simply not the case, in either the wording or the spirit of the clause. It is explicit that the only purpose of a presumption of involvement is that within a strict set of circumstances where there is clearly no risk to the child’s welfare, it is presumed that the continued involvement of both parents "will further the child’s welfare". This is clearly a question of children’s rights and parents’ responsibilities to ensure the welfare of the children is protected, and not one of rights of parents to specific levels of time with them.

3.3. The second misconception, related to the first, is to confuse the clause with a prescription rather than a presumption. There is no way of interpreting the wording of the clause in its current form to imply that parents have an automatic right to contact, let alone set levels of time.

3.4. The two-stages of the presumption make this clear. Firstly, it would require a judge to consider whether a parent can be involved "in a way that does not put the child at risk of suffering harm". This ensures that cases involving welfare concerns will not be covered within the clause. Even if a court considers that a parent meets this requirement, it is still for the court to decide whether its application can be done in a way that "will further the child’s welfare". The discretion of the courts and their ability to make decisions based on the welfare of the child given their unique set of circumstances will not be compromised. This is made clear in the explanatory notes and process map published by the Government as an accompaniment to the clause. It is difficult to see how, if judges already give strong consideration to the involvement of both parents in relation to the welfare of the children as has been suggested, the codification of this in legislation would suddenly require courts to operate a decision making process that no longer has the best interests of the child as its paramount consideration.

4. Legislation on parental involvement: perceptions of parents

4.1. An argument against legislating for a presumption of parental involvement made by the Family Justice Review panel, and one that has been raised again with the introduction of the Children and Families Bill, is that the legislation would create the public perception that parents have a ‘right’ to equal or near equal time, thereby increasing rates of litigation in the courts. This is simply not supported by any available evidence.

4.2. The wording of the Bill and the explanatory notes of the presumption make it very clear that there would be no presumption of equal or near equal time. References to media reports framing the legislation as parents gaining ‘equal rights’ to children is very poor justification for inaction, as it diverts responsibility for the explanation of the relevant legislation and processes from the family justice system itself to the individuals and families it is there to serve. Many reports on private family law still make reference to ‘custody’ and ‘access’ rather than contact and residence. This is likely to remain the case, even if the terminology is again changed from contact and residence to child arrangement orders as currently proposed in the Bill. It is unfair and unrealistic to expect parents and the media to be experts on the interpretation of a system as complex as family law before they enter the family justice system. Just as concepts such as the paramountcy principle and terms such as contact and residence need to be explained to parents, both before a case by their legal representatives or other sources of advice such as third sector organisations, and during a case and in rulings by the Judge, parents will need to be directed as to the clause’s meaning and interpretation. The argument that parents will be unable to understand how such a clause can operate is hollow, and without foundation.

4.3. There is however a great deal of evidence that many parents do not have confidence in the current system, and that they do not believe that it is capable of delivering justice for their children and themselves. As the previous references to the YouGov and Channel 4 surveys demonstrate, there is a strong public perception that the law governing post-separation parenting arrangements is out of step with the lived realities of modern British families.

4.4. Whilst legislation continues not to clearly recognise the responsibility of both parents to contribute to their children’s continued wellbeing, this perception will be impossible to change. It will merely continue to encourage parents to play out their hostility through litigation in the hope of ‘getting one over’ their former partner, at the expense of the best interests of the children. This would inevitably limit the efficacy of dispute resolution services such as mediation, as there is otherwise little impetus for parents in intractable disputes, or a parent determined to force their former partner out of their child’s life, to engage constructively with these services.

4.5. Our service users often tell us that where the parent who is living with the children does not want the other parent to be involved following separation, they will either completely ignore requests to attend mediation, or refuse to engage constructively with the other parent when in attendance. When one considers that the delays involved in trying to arrange abandoned or unconstructive mediation sessions followed by a court hearing can result in months of estrangement between the child and one of their parents in highly conflicted cases, establishing the damaging ‘status quo’ of low or minimal involvement, it is easy to see how the current system can work against the continued meaningful involvement of both parents and work against the best interests of the child.

4.6. The importance of a legislative presumption of involvement is one which goes far beyond the cases which end up in the family justice system. Although the large majority of separating parents do not end up in court, it would be incorrect to presume that all of those are happy with the arrangements put in place. All parenting arrangements are made within ‘the shadow of the law’, and many of those who do not make a court application nevertheless engage with legal professionals to find out what their position in law may be. It is certainly not uncommon for potential applicant parents to be told that they are at a disadvantage in law if they were to make an application, and that their future involvement is likely to be limited.

4.7. It is the perception of whether the law is equitable that is of most importance when we consider whether reform is necessary or desirable. The success of the wider suite of reforms aimed at increasing out-of-court resolutions to disputes will hinge on whether the foundations of the system are perceived to be fair. The parental involvement clause is a crucial first step in achieving this.

5. The need for reform

5.1. This submission has made clear that there is a very real need for a presumption of parental involvement, and that such legislation is necessary to achieve the Government’s objectives in relation to private family law. To do so would neither hinder nor compromise the paramountcy principle, and would not require courts to adhere to a ‘one size fits all’ approach to family law. It would however be a significant step in updating legislation to better fit the wishes and expectations of the public the family justice system is there to serve, whilst also addressing the perception that it does not offer a level playing field between parents. If this perception remains, it is likely that the wider suite of reforms intended to assist parents in reaching child-centred arrangements without recourse to litigation will ultimately prove unsuccessful. The importance of a presumption of parental involvement in primary legislation can therefore not be underestimated, and the current drafting of the Bill provides appropriate safeguards to ensure that the best interests of children remain the paramount consideration for courts in determining arrangements for children.

March 2013


[1] Channel 4 (2013) Dispatches - Sharing Mum and Dad: Survey http://www.channel4.com/programmes/dispatches/articles/sharing-mum-and-dad-survey

[2] YouGov (2012) Equal Rights Over Child Custody http://yougov.co.uk/news/2012/06/13/equal-rights-over-child-custody/

[3] Kaspiew, R., Gray, M., Weston, R., Moloney, L., Hand, K., and Qu, L. (2009) Evaluation of the 2006 Family Law Reforms, Melbourne : Australian Institute of Family Studies

[4] Parkinson, P. (2012) Reforming the Children Act 1989: Learning from the Australia Experience, Sydney Law School Research Paper No. 12/41

Prepared 19th April 2013