Children and Families Bill

Memorandum submitted by His Honour John Platt (CF 76)

Comment on the Children and Families Bill currently in committee in the House of Commons.

Summary

1. The present definition in section 13 of what constitutes a child arrangement order firstly deprives the court of an important element of the range of orders presently available to the court on contact applications and secondly may introduce an element of compulsion to what were previously called residence and contact orders, both of which run the risk of being positively harmful to the welfare of children.

Submission

2. I am His Honour John Platt. I retired as a Circuit Judge in May 2012 after thirty years’ experience of judging private law cases in the Family Courts. I have authored a book and numerous articles on Domestic Violence. As a serving judge I lectured regularly to judges and lawyers on Domestic Violence and I still lecture at International Conferences on this subject.

3. My principal concern is with the consequences in the bill as drafted which follow on from replacing residence and contact orders with an omnibus child arrangements order. This new order is defined in much wider terms than the definitions of the present residence and contact orders. The effect is in conflict with the entirely laudable aim of the Bill to reduce parental conflict over child arrangements and risks increasing rather than reducing such conflict. In order to understand how this will come about it is necessary to look at the present law in more detail.

Orders regulating Contact

4. The nature and extent of parental disagreement over post separation arrangements for their children is as diverse as human nature itself and it is important that the response of the court which makes the order is proportionate to the level of disagreement. An order expressed in too draconian terms may simply pour fuel on the flames of parental discord and end up actually harming the children it is supposed to help.

5. At the moment a judge dealing with a contact application has three choices. He may apply the no order principle. He may make a declaratory order (a subset of the no order principle) setting out the contact arrangements which he decides best meet the welfare needs of the parties. Finally he may make an order in mandatory terms.

6. The first order meets the case when, usually during the course of the proceedings, the parties have reached a compromise which the court approves and the parties can be trusted to work together in the interests of their children .

7. The second order is not a contact order as presently defined by section 8 but makes a declaration which the parties are expected to use as a basis for contact with the kind of adjustments which the accidents of daily life will inevitably produce. For example a child has the chance to spend a weekend he should be spending with his father with maternal relatives visiting from abroad or to attend a family celebration. Of course reasonable parents would not hesitate to swop weekends and the judge is best placed to decide whether the non-resident parent is likely to be reasonable in this way.

8. This order has the huge and important psychological advantage to the parties in that there is at this stage no element of compulsion but an independent judge has after listening to them resolved by decision a problem which they have been unable to solve.

9. The other very considerable advantage of the declaratory order is that it encourages the parents to compromise and co-operate in the future, which is the key to successful contact, and places the responsibility for making day to day decisions about children’s lives back where it should be, on the shoulders of their parents.

10. It is highly undesirable that minor disagreements over the quantum of contact should end up in court. It would also be preferable not to place further burdens on a family court system by having to resolve such disputes when it is already facing unprecedented strains on its resources.

11. Finally there is the court order in mandatory terms. At present this is and should be very much an order of last resort where one or other parent, and sometimes both parents cannot be trusted to co-operate in the task of ensuring their children build a loving relationship with both parents .

12. But this order carries a serious risk. A parent who is faced with a mandatory order for contact and does not comply can defend an enforcement order application by showing a reasonable excuse for non-compliance. The test is an objective one and depends on the view of the judge. Not every case will be clear cut. The changes in legal aid entitlement will make is practically impossible for many parents to take legal advice on what is or is not likely to be a reasonable excuse.

13. A significant number of contact applications are made by perpetrators of domestic abuse who have a dual purpose in making the application. The primary purpose may well be a genuine wish to play a positive part in the lives of his or her children and the perpetrator, although not perfect, may be reasonably capable of fulfilling that role to the long term emotional benefit of his children. However the second purpose is control.

14. The essence of domestic violence is control of the victim by the abusive partner. Even when the victim has escaped from the control of the relationship a contact order can offer the perpetrator an opportunity to re-assert his control over the life of the victim. A judge facing such an application has to balance the welfare needs of the children having a loving relationship with the non-resident parent, which may well be possible to achieve, against the danger of the resident parent being exposed to domestic violence by controlling behaviour of the perpetrator. In some cases the children’s welfare needs may outweigh the risk of any harm to them and lead to an order being made, but for some perpetrators the opportunity for control is irresistible and can lead to frightening results.

15. Under the new definition the declaratory order effectively disappears as a separate form of order and the court is reduced to a choice between making an order or making no order. It does not matter whether the new order is phrased in declaratory or mandatory terms, the amendments in Schedule 2 will require all child arrangements orders to carry a warning notice and to be enforceable by the enforcement order or compensation route.

16. But this produces a knock on and possibly unintended effect on enforcement by the alternative route of committal proceedings. At the moment if the order is broken, the person in whose favour the order is made has the option of applying for an enforcement order or applying for committal. But it is a fundamental principle of law that only orders made in mandatory or prohibitory terms are enforceable by committal. Unless all orders are now to be phrased in mandatory terms the present form of warning notice will need to be amended and two separate forms introduced in order to avoid giving incorrect information to the parties.

17. Orders made in declaratory terms may be enforceable by application for an enforcement or compensation order but there is certainly European Court jurisprudence to support the proposition that enforcement proceedings are governed by Article 6(2) of the convention and in consequence the order which lacked the precision of a mandatory order would fall foul of the rule laid down by the Court of Appeal in Manchester City Council v Lee.

Orders regulating who a child will live with

18. At present these orders are expressed simply in declaratory terms i.e. "The child X shall live with the applicant mother." I am not able to see how an order which states "The child X’s life shall be regulated by living with the applicant mother" offers any greater psychological comfort to the disappointed father. It is in truth a distinction without a difference. And an order in mandatory terms "The respondent father must permit the child X to live with the applicant mother" is likely to be very much less comforting to the disappointed father than the present wording. Indeed the various amendments set out in Schedule 2 which replace the words "the person in whose favour a residence order is made" with "the person who is named in the order as a person with 
whom the child concerned is to live," would clearly point to an intention that the new orders will simply be declaratory and follow pretty much the existing wording .

19. The purpose of extending the warning notice and enforcement provisions in sections 11I to P to declaratory orders regulating with whom a child shall live is unclear and the difficulties set out at paragraphs 15 to 17 would equally apply. In any event the Family Law Act 1986 already provides a much swifter and more effective remedy for the unauthorised removal or detention of children in breach of a section 8 order.

20. The required amendments to resolve these issues are very simply shown in italics as follows.

Section 13. After "In this Act-" insert-

""child arrangements order" means an order either in declaratory or mandatory terms regulating arrangements relating to any of the following-

(a) with whom a child is to live, spend time or otherwise have contact, and

(b) when a child is to live, spend time or otherwise have contact with any person;".

As a matter of pure drafting subparagraphs (a) and (b) above can be simplified and much improved by deleting and substituting

… relating to "when and with whom a child is to live, spend time or otherwise have 
contact with any person;"

Consequential amendments will then be needed in Schedule 2 to make clear that the warning notice and the procedures for applying for an enforcement order are only to be applied to orders in mandatory terms.

April  2013.

Prepared 19th April 2013