Children and Families Bill

Memorandum submitted by Celia Conrad (CF 85)

My background

1. I qualified as a solicitor in October 1994 and practised exclusively as a family law practitioner until March 2001 when I left full-time private practice. I continued to work part–time in private practice until April 2003 while I researched and wrote the first edition of the legal handbook Fathers Matter – A guide to contact on separation and divorce (Creative Communications, October 2003). I no longer work in private practice but continue to research and write on family law matters. The second edition of Fathers Matter was published in March 2007 with the fully revised and expanded third edition recently published on 31 March 2013. I have appeared on BBC 1 and Channel 4 as a direct consequence of my work and my comments on family law reform have been quoted in the press. I am interested in all areas of family law reform, but have a particular interest in the field of child law.

2. I gave written and oral evidence to the Constitutional Affairs Committee Family Justice: the operation of the Family Courts in 2005. I was asked to give my comments on ‘Contact & Conflict’ for the Policy Report by the Family Law Review Every Family Matters produced by the Centre for Social Justice in July 2009. More recently I was one of the 214 people/organisations who responded to the Government’s Consultation Paper Co-operative Parenting Following Family Separation: Proposed Legislation on the Involvement of Both Parents in a Child’s Life (DFE 13 June 2012).

Basis of my submissions

3. I am making these submissions in my capacity as a former specialist family solicitor and from my experience of dealing with the family courts in the course of my work and from my research and writings on the subject. I have set out my comments on the latest ‘proposed’ reforms in Part III of the third edition of Fathers Matter.

4. In the course of my research I have studied the Final Report of the Family Justice Review (November 2011); the Government’s Response (February 2012); the Government’s Consultation Paper on Co-operative Parenting (referred to above) & the Summary of Consultation Responses and the Government’s Responses (November 2012); Draft Legislation on Family Justice (September 2012); and the Action Plan of the Family Justice Board (January 2013).

5. Although I have reviewed the whole of the Children and Families Bill, my submissions relate to Part 2: Family Justice - Clauses 10-12.

6. I have been following the progress of the Bill through Parliament and, in particular, the comments made by MPs on the 2nd Reading on 25 February 2013, at the Committee Debate 7th Sitting: House of Commons 14 March 2013 and the Committee Debate 8th Sitting: House of Commons 14 March 2013.

Legislating to amend the Children Act 1989

7. The Children Act assumes that the parties will do their best to resolve differences by negotiation and co-operation. It introduced a non-intervention and no-order policy so that the court will only intervene and make an order where it would be better to make an order than no order at all. This is ironic. The fact is the law only works for parents who are able to act in the best interests of their children and reach an amicable agreement, because in that situation the law does not need to intervene at all. The problem arises where parents cannot agree and the law is used to try to resolve what they cannot. This problem is well-recognized hence the increased emphasis on diverting parties away from the court process by forms of Dispute Resolution Services and in encouraging and directing parents to work out their own agreements for the children.

8. The issue then is if the Children Act in its current form does not work will the proposed legislative changes make it work? There are arguments against making any legislative change on the basis that it is unnecessary because the Children Act does not require amendment; it is only the system that needs improving. And then there are the concerns of the Family Justice Review, particularly in light of the experience in Australia over the problems with shared parenting and the increase in litigation there, that despite what is said to the contrary, parents will regard shared care as equal care. And what about the argument that with the increased emphasis now on diverting parties away from the court process by forms of ADR (or Dispute Resolution Services as proposed in the Family Justice Review (FLR) November 2011) and in encouraging and directing parents to work out their own agreements for the children more cases will settle, so why the need for change when only a very small proportion of cases will proceed to court anyway?

9. More specifically, what impact will the proposed legislative changes actually make to the courts duties or powers and on the conflicting parties themselves?

Proposed legislation on the involvement of ‘fit’ parents in a child’s life

10. So what practical difference will this legislation make? Edward Timpson MP has stated that, ‘The proposed legislative change does not give or imply the creation of any rights of equal time, or that there is any prescribed notion of how much time is appropriate. Courts will continue to make decisions based on children’s best interests.’ [1]

11. Currently, when the court is faced with a decision as to what arrangements are to be made for a child where the parties cannot agree between themselves, the starting point will be that a continuing relationship with both parents is in the interests of the child unless that continuing relationship will put the child at risk of harm. The assumption that a child will benefit from an order being made under the Children Act can always be displaced if the child’s interests dictate otherwise, thus covering safety issues such as domestic violence and abuse. The welfare of the child will be the paramount consideration even though the court will have to weigh up the rights of the parents because of the right to family life under Article 8 of the European Convention on Human Rights.

12. Clause 11 of the Children and Families Bill will amend section 1 of the Children Act so that whenever a court is considering whether to make, vary or discharge an order under s 8 or an order in relation to parental responsibility, the court’s default position will be for both parents to be involved in the child’s upbringing. If however, there is any evidence before the court to suggest that the involvement of the child’s parent would put the child at risk of suffering harm and that cannot be overcome by involving the parent in the child’s life in a way that will not put the child at risk of harm, then the presumption will not apply. If there is no evidence before the court to suggest that the involvement of the child’s parent would put the child at risk of suffering harm then the next question is whether the involvement of that parent furthers the welfare of the child. If yes the presumption stands. If not the presumption is rebutted. The court will make its decision in accordance with section 1 (welfare of the child) of the Children Act. In practical terms I believe this legislation will make little difference.

13. It may well be that in the future directing a recalcitrant parent to the new legislation may have a positive effect and encourage settlement, but so much is down to the parties themselves and their ‘mindset’. Forms of early intervention to keep parties out of the court system are recommended, but much depends upon resources, and again the parties themselves. Since 6 April 2011 parties have been expected to explore the scope for resolving their dispute through mediation before embarking on the court process as part of the Pre-Action Protocol by attending Mediation Information Assessment Meetings (MIAMs). The inclusion of Clause 10 in the Children and Families Bill clearly reinforces the Government’s intentions for as many cases as possible to be resolved without resorting to court proceedings.

14. I am all in favour of putting a system in place which keeps as many cases out of court as possible because a court order imposed upon the parties can never be a substitute for a fair and agreed arrangement between two parents genuinely acting in their child’s interests. Parties need to remember that when they proceed to court they surrender their parental powers to the court when they ask the court to decide what is in the best interest of their child. But this means that any ‘out of court’ system must deliver a solution acceptable to both parents and in the best interests of the children otherwise it simply will not work. There is concern that the Government regards Dispute Resolution Services and particularly mediation as the ‘all cure’ for parties in dispute. While DRS will work in many cases it will not work for everyone.

15. The problem with introducing any form of reform is that it is unrealistic to expect that it will wipe away completely all the problems, and this is only too true when it comes to family law. There are just too many ‘what ifs?’ and ‘buts’ and nuances to every case to be able to achieve that. It would be naïve and unreasonable to expect that everything will be resolved simply by making these reforms to the family justice system. This is a highly emotive and contentious area and I do not believe that any Government would be able to introduce legislation which will deal with every single contentious point that could possibly arise.

16. The fact is that although cases have similar scenarios and characteristics, ultimately every case is different and although much can be achieved by way of reform, a good deal depends upon the parties themselves, their mindset and the circumstances of the case. How much do they want to resolve the issue? How far are they prepared to compromise their wishes for the sake of the children? What are the issues in the case? Has there been domestic violence or abuse? What is the background of the parties and the framework against which the case is set? And sadly there will always be those parents who, despite what measures are introduced, will do their utmost to flout court orders and attempts to enforce them.

17. It is to be hoped that with greater emphasis on out of court settlements more cases will settle. However, it is likely that the cases that do not settle will be the most intractable ones where there are high levels of conflict between the parties and which have little chance of resolution without court intervention. These parties will still be within the court system and they will need ‘in-court’ resources and access to specialist legal advice, but that will come down to how readily available those resources are and with cuts to legal aid for private Children Act cases that will be an added burden for many parties.

18. In the research report Taking a longer view of contact: The perspectives of young adults who experienced parental separation in their youth a joint research project between the Universities of Sussex and Oxford and founded by the Nuffield Foundation, it is stated that key ingredients in successful contact include the absence of parental conflict; a good pre-separation relationship between the child and the parent the child no longer lives with; that parent demonstrating his/her commitment to the child and the child being consulted about the arrangements. One of the biggest stumbling blocks to contact taking place is the relationship between the parents. The parental relationship is a determining factor. A highly conflicted relationship between the parents does not bode well for contact.

19. Whether this legislative reform makes any difference either in practice or for the better remains to be seen, but the Government’s position is very clear – it is trying to convey a strong message about a parent’s ongoing involvement with the children post-separation and divorce hence the following statement, ‘It is vital that both mothers and fathers feel confident that the court will consider fully the benefits of their involvement. We believe that the absence of an explicit reference to this consideration in the Children Act 1989 has contributed to a perception that the law does not fully recognise the important role that both parents can play in a child’s life. We remain convinced that a change to the law is needed to help restore confidence in the family court system.’ [2]

20. I note that in the course of the debate on the Bill MPs have raised the issue as to whether the term ‘involvement’ should be defined. Mr Llwyd on the Second Reading on 25 February 2013: Column 95 states that, ‘the Government did not accept the recommendation of the Justice Committee that the term "involvement" should be defined in the Bill to remove any implication that involvement equates to a parent’s right to a set amount of time with a child.’ We have never had a definition of reasonable contact in the Children Act 1989, nor anywhere else for that matter, the argument being that it cannot be defined since ‘every case is different’ and therefore there cannot be any legislation on it because we do not have a concensus on what it is. It would seem that the definition of involvement will now be approached in the same way and much will be down to the discretion of the court.

21. Changing a perception. Mr Llwyd makes the point 25 February 2013: Column 96 that, ‘…I simply do not understand why we are legislating to change a perception.’ I think this is a very relevant point.

Clause 12: The Child Arrangements Order

22. Again this is about perception as in practical terms I am not convinced this will make any difference. I am only too aware that the terms residence and contact have negative connotations and the idea is to make parties focus on the day to day care of the child. Replacing residence and contact orders with a child arrangements order would certainly remove the terms ‘resident’ and ‘non-resident’ parent, but children have to live somewhere and if that somewhere is with one parent then the effect on the other parent of not being labelled ‘a non-resident’ parent is going to be of very little practical significance. What difference will this really make to the parent with whom the child is not living?

Summary

These submissions relate to Part 2: Family Justice - Clauses 10-12 of the Children and Families Bill 2012-13. The comments made are based upon my practical experience as a family lawyer and from my research and writings on family law reform, particularly in the area of child law reform. They deal with the merits and practical implications of the Government’s proposed legislative changes.

April 2013


[1] Edward Timpson MP, Parliamentary Under Secretary of State for Children and Families. Letter to the Rt. Hon Alan Beith MP – 1 November 2012.

[2] Ibid.

Prepared 19th April 2013