4 Private law |
91. Private family law concerns issues arising from
the breakdown of family relationships.
|1 Family mediation information and assessment meetings
(1) Before making a relevant family application, a person must attend a family mediation information and assessment meeting.
(2) Family Procedure Rules.
(a) may provide for subsection (1) not to apply in circumstances specified
in the Rules,
(b) may make provision about convening a family mediation information
and assessment meeting, or about the conduct of such a meeting,
(c) may, in relation to cases where a person makes or seeks to make a
family application, make provision about the determination by the
court, or by an officer of the court, of.
(i) whether subsection (1) applies, and
(ii) if subsection (1) does apply, whether it has been complied with, and
(d) (d) may make provision for the court, or an officer of the court, to refuse to
deal with any application in relation to which it is determined that, in
contravention of subsection (1), the applicant has not attended a family
mediation information and assessment meeting.
(3) Provision as mentioned in paragraph (c) of subsection (2) may, in particular,
include provision for the court, or an officer of the court, to make a
determination mentioned in that paragraph after considering only evidence of
a description specified in Family Procedure Rules.
(4) In this section.
"the court" means the High Court or the family court;
"family application" means an application made to the court in, or to
initiate, family proceedings;
"family mediation information and assessment meeting", in relation to a
relevant family application, means a meeting held for the purpose of
enabling information to be provided about.
(a) mediation of disputes of the kinds to which relevant family
(b) ways in which disputes of those kinds may be resolved
otherwise than by the court, and
(c) the suitability of mediation, or of any such other way of
resolving disputes, for trying to resolve any dispute to which
the particular application relates;
"family proceedings" has the same meaning as in section 75 of the Courts
"relevant family application" means a family application of a description specified in Family Procedure Rules.
(5) This section is without prejudice to sections 75 and 76 of the Courts Act 2003
(power to make Family Procedure Rules).
92. The Government wishes to legislate to provide
that every person who wishes to apply for a court order in family
proceedings of a certain type - whether publicly or privately
funded - must first attend a family mediation information and
assessment meeting (a "MIAM") to find out about and
consider mediation, or other forms of non-court based dispute
resolution, unless that person meets limited criteria exempting
them from this requirement. The proposals aim to put privately
funded persons in the same position as recipients of legal aid.
In our Report, Operation of the Family Courts, we broadly
welcomed similar changes to the Practice Direction 3A - Pre-Action
Protocol for Mediation.
93. Much of
the detail of draft clause 1 as to the operation of family Mediation
Information and Assessment Meetings (MIAMs) will be set out in
the Family Procedure Rules, and we found the submission from the
Government on MIAMs helpful in clarifying that the "Government's
wish is largely to mirror the detail of the current Practice Direction".
We agree with the Government that, because of the level of procedural
detail needed, it is appropriate that the detailed operation of
the draft clause is set out in the Family Procedure Rules rather
than in primary legislation.
94. The MIAM process was explained by our witnesses,
who made clear that the MIAM must be distinguished from the actual
mediation process, and that there will be enough mediators to
meet demand. The
[...] designed to tell people what is involved in
mediation. In order to help people decide whether or not mediation
is right for them, mediators have to consider welfare and safety
issues, and all mediators are trained to assess those risks. It
is not a quasi-judicial role; it is an assessment meeting to see
whether or not mediation is suitablenothing more.
95. The existing means of encouraging MIAM attendance
through the Pre-Action Protocol was not judged a success by some
of our witnesses. Resolution provided detail as to its application
across the family courts:
We carried out a membership survey in March
2012 after almost one year of operation of MIAMs which showed
inconsistency in the way in which the courts applied the Protocol.
The survey responses covered over 100 courts in England and Wales
revealed that over 40% of those courts were not requiring an FM1
at the point of issue and over 75% of judges were not raising
with the parties in proceedings whether a non-court based
method to resolve their dispute might be appropriate.
96. A key concern of many of our witnesses was the
role of the mediator in filtering domestic abuse cases out of
the mediation system at the MIAM stage. The
Government's evidence to us made clear that they will ask the
President of the Family Division to agree to amend the current
definition of domestic abuse in the Pre-Action Protocol to mirror
that in the Legal Aid, Sentencing and Punishment of Offenders
Act 2012 in the provisions for exemption from MIAMs.
We welcome this clarification.
97. Some witnesses considered that this filtering
process would change the role of the mediator, with one describing
it as a "quasi-judicial" role.
The mediators who gave evidence disagreed, highlighting the need
for a proportionate response depending upon what the mediator
98. The Family Justice Council raised concerns about
the training of mediators in filtering out abuse cases, and these
were echoed by other witnesses to our inquiry. Particular concerns
were raised as to a lack of protection for children within the
MIAM and mediation process. Nagalro suggested that "the majority
of mediators [...] have very limited, if any, child protection
background or experience and moreover they are not officers of
This view was shared by Cafcass who commented:
[...] we think mediators should sign up to child
protection protocols set by Local Safeguarding Children Boards
so that, where there are serious concerns, children are referred
appropriately for investigation and assessment. This would increase
the likelihood of mediators being supported and trained to recognise
the impact of domestic violence and other child protection and
serious welfare issues as they impact on individual children.
This applies particularly to children facing hidden harm, and
cumulative invisible harm, with a potentially significant adverse
emotional and psychological impact. Without additional safeguards,
Cafcass feels there is a risk of harm to children being missed.
99. Both National Family Mediation and the College
of Mediators explained that they had policies and procedures in
place to filter cases where risks were identified.
Colin Anderson of the College of Mediators stated in supplementary
There has been the implicit and explicit suggestion
that mediators are not sufficiently well trained to undertake
this work. It is also implicit that it is a poor substitute for
Cafcass staff screening. As someone who was the lead for Cafcass
in the North of England for implementing for all Family Court
Advisers the mandatory domestic violence training between 2008
and 2011, I can say with some confidence that the training required
of mediators is not very different to that received by Cafcass
The biggest difference in the MIAM system that does
limit the impact that mediators screening may otherwise have is
that mediators do not have access to police and local authority
antecedent information in respect of the parties, in the way that
Cafcass currently does upon receipt by the court of a C100 application.
However to introduce a parallel scheme in all family disputes
would require a very significant change in philosophy and in the
Government's proposals, introduce delay and demand a lot of additional
resources if such a proposal was contemplated.
100. Our witnesses have suggested various solutions
to the lack of safeguarding information available to mediators
for the MIAM process, and as to their concerns for vulnerable
parents and children, including: signing up mediators to Local
level 2 safeguarding checks to be made in advance of all MIAMs,
and initial safeguarding checks by Cafcass.
that well-trained family mediators should be just as able as legal
practitioners to identify cases of domestic abuse that should
be exempt from MIAMs or mediation; however the responsibility
for filtering out domestic abuse cases from the MIAM process should
not solely rest on mediators. We ask the Government to consider
the options suggested by our witnesses, and to work with recognised
mediation organisations to clarify what advice mediators should
seek and from whom, if they are concerned about a party's welfare,
and then put that agreed system into place.
101. We asked our witnesses about the potential involvement
of children in the MIAM process. Some witnesses suggested that
there was a potential role of Cafcass in making sure that the
child's view as to what they want from the process is fed into
the mediation process at the MIAM stage, but that this was unrealistic
at the moment, given the constraints on Cafcass in terms of resources
and funding. Cafcass
confirmed that there are no plans for them to be involved in private
law proceedings pre-court applications.
The MIAM process is an assessment
and information providing meeting, and any opportunity for the
voice of the child to be heard must be considered within these
parameters; however, the child's voice is important and may have
a role in persuading parents to mediate, or to focus discussion
within the MIAM. We recommend that the Government look again at
the MIAM process with recognised mediation organisations to produce
guidance on how the child's voice can be heard within the MIAM,
with such guidance being applicable to all mediators undertaking
MIAMs (not just those that are members of recognised mediation
102. The training of mediators and the setting of
national standards was considered in our report Operation of
the Family Courts, where we were "very concerned that
there are currently no minimum qualifications for privately-funded
No progress has been made since our Report. The College of Mediators
told us that
There are lots of people who undertake private mediation
who are members of a membership organisation, but there is nothing
to stop someone setting up and not being a member of a membership
organisation, and that is a real concern.
again recommend that privately-funded mediators should have to
meet the current requirements for mediators undertaking legal
aid work set by the Legal Services Commission. This must be a
priority and should be included in the draft clause.
104. As to the
operation of the draft clause, as stated above, much is left to
the Family Procedure Rules. One area where some detail is provided,
is as to who determines initial MIAM compliance when applications
are made to the Court. The draft clause says that the Family Procedure
|1(2)(d) - may make provision for the court, or an officer of the court, to refuse to deal with any application in relation to which it is determined that, in contravention of subsection (1), the applicant has not attended a family mediation information and assessment meeting.
105. We asked our witnesses to comment upon the role of the officer
of the court. A number of witnesses did not accept that court
officers should make final decisions on an applicant's compliance
because this should be for a judge, and/or because there should
be a process to review the court officer's decision. The Association
of Lawyers for Children note that this would be a new venture
for Court staff:
We are not aware of any training programme within HMCTS which
is intended to equip HMCTS staff (as opposed to District Judges)
to deal with applications [...] Certainly HMCTS staff are not
carrying out this function at present, [...] Applications are
issued irrespective of whether or not there has been compliance
with the Pre-application Protocol. [...] Our sister organisation
Resolution felt it appropriate to provide their legally qualified
members with a domestic abuse screening toolkit to assist with
this complex and sensitive task, and we would be very concerned
about how highly vulnerable individuals may feel about being questioned
about this at a Court Counter or over the telephone? It may act
as a deterrent to genuine victims of domestic abuse seeking legal
protective remedies. [...] current counter access policy of HMCTS
is highly relevant - will the application have to be left in a
drop box?. Will the court officer engage in ping-pong correspondence
106. We put this question to Mr Timpson, who answered that:
[...] the court officers will not be deciding the FM1 forms that
come in in relation to complying with the MIAM process on the
basis of the merits of whether they have complied with it or not.
It is a procedural element of their task. So they are not, in
a sense, in a quasi-judicial role in trying to decide whether
the merits of the process have been met or not. It is simply whether
they have complied with the form and the process required for
them to move into the next stage of the application being heard
by the court.
107. We think that court officers
should not be deciding upon the merits of whether a party has
complied with the MIAM process or not, but, the draft clause as
currently drafted does not make this clear, and leaves the process
open to the problems identified by the Association of Lawyers
for Children and other witnesses. The draft clause should be revised
to clarify that where a decision about the merits of compliance
must be made, that is a decision for a judge.
108. The Law Society highlighted three gaps in the
current MIAM process. The first relates to the timing of the MIAM
and the point at which MIAM attendance becomes compulsory. The
Law Society told us that previously MIAM attendance for parties
funded by legal aid took place early in the life of a case,
with legal aid funding triggering the assessment for both public
funding eligibility and suitability for mediation.
National Family Mediation agreed with the Law Society that placing
the trigger for compulsory attendance at the Court application
stage could be too late. The Law Society told us that:
Conducting a MIAM immediately before the issue of
proceedings is chronologically precisely where the relative positions
of the parties are liable to be most polarised - it is highly
likely that informal attempts at resolution by correspondence
or negotiation will have been attempted, will often have been
rebuffed or ignored.
[...] the effective point at which cases will become
eligible for legal aid/public funding by reference to the draft
legislation will now be much later in the development of any family
conclude that there is no obvious alternative to the placement
of the trigger for MIAM attendance than at the Court application
stage, particularly for privately-funded parties. We note National
Family Mediation's evidence to us that 83% of people go to a lawyer
and we conclude that early MIAM attendance is best encouraged
by the Government working with legal practitioners and mediators,
to try to encourage and disseminate best practice. It is not something
which is suitable for translation into the draft clause.
110. The second gap relates to the omission from
the draft clause of compulsory MIAM attendance by respondents;
again this is an issue raised by a number of our witnesses. The
Law Society noted that this was a change from the "current
Pre-Application Protocol to the Family Proceedings Rules [which]
expressly preserved the equality and universal application of
the 'expectation' that both applicants and respondents attend
We asked the Ministers to explain why respondents had been omitted.
Mr Timpson explained the Government's view that:
There is an inherent difference between an applicant
and respondent. The applicant is the one who has proactively sought
the court to decide on a particular issue, whereas a respondent
has not had any contact with the court and so is outside of that
process. So to compel them into mediation is attacking the problem
from a very different angle. Of course, once it is in court, the
court can direct that the respondent takes part in a mediation
session. Often that takes place at the first hearing.
111. National Family Mediation made a similar point
but suggested that a more consistent approach by judges might
cause solicitors to advise respondents that they should attend
before the matter reached the Court:
Working with the MoJ over the course of the last
year, I know that there are difficulties about engaging with the
respondent causing delay in cases, but I absolutely agree that
both parties should be compelled to attend a MIAM. I wonder whether
one way of achieving that would be through contact directions
under the Children and Adoption Act. Because of the constitutional
issues about causing delay to somebody who needs to move something
forward, the applicant, once in the court arena, the judge has
the power to adjourn the case for a MIAM for both parties, but
judges are not using that facility at all, anywhere.
112. This approach would appear to link to Resolution's
evidence that the current approach of the Courts to MIAM attendance
is inconsistent. We
recognise the difficulty in requiring compulsory attendance at
a MIAM by a party who, as a respondent, may have no wish to attend
Court; however, we ask the Ministry of Justice to work with the
Family Judiciary to develop a consistent practice across the Courts
in adjourning cases for MIAM attendance. We recognise that each
case will be different, and that in many cases, delay for compulsory
respondent MIAM attendance will not be suitable, but we consider
that there should, in practice, be an equal and universal requirement
for MIAM attendance for applicants and respondents. We do not
recommend inclusion of the requirement in the draft clause, because
we conclude that as a matter of Court practice and procedure,
it is more appropriately included within the Family Procedure
113. The third gap that the Law Society identified
relates to ensuring that MIAMs are available on a "free at
the point of delivery" basis.
For our inquiry, Operation of the Family Courts, Ministers
told us that legal aid would be retained for family mediation
in private family law cases, including private law children and
family proceedings and ancillary relief.
The Law Society told us that "Mediators and mediation providers
are working on the assumption that such public funding will not
only extend to mediation, but also to the intake or MIAM preceding
114. The Impact Assessment section on "On-going
costs" states that for legal aid-funded applicants:
We do not expect any additional impact on those applicants
to court who are currently eligible for legal aid. This group
are already required to attend a MIAM as a requirement of obtaining
funding. When legal aid changes take effect from April 2013, the
requirement to attend a MIAM will in fact disappear for legal
aided clients. This is because from April legal aid will generally
only be available where domestic violence is a feature of the
case - and such victims are exempt from the requirement to attend
a MIAM. Legal aid will remain for mediation however, as at present.
115. We asked the Ministry of Justice to explain
how and when MIAMs will be funded by legal aid. They told us that
"The Legal Services Commission (LSC) currently provides publicly
funding for mediation through legal aid. A client who meets the
means and merits requirements will receive funding for attendance
at the MIAM, and for any subsequent mediation sessions should
both clients decide to mediate."
pleased that the Government has confirmed that legal aid funding
will be available for the MIAM as well as mediation.
116. For privately-funded parties the cost of a MIAM
is expected to be approximately £87 plus VAT.
We asked our witnesses what would happen where an applicant had
attended a MIAM, both parties subsequently engaged in mediation
and a settlement was agreed, which was then breached; would they
be required to go through the MIAM process again before applying
to the Court? National Family Mediation thought that the answer
would depend on the length of time before the agreement was breached:
In our experience of delivering mediation, when agreements
are reached, they depend very much on the composition of the family,
the age of the children and the circumstances of both parents,
but our data show that agreements tend to hold for about two years.
It is not that they are necessarily breached; it is that family
circumstances change and they then need another mechanism to negotiate
a new agreement. These people are more likely to come back to
mediation. If you are talking about quick breakdowns after agreement,
which is a possibility given the late arrival into mediation and
the hardened views, perhaps the time scales should be linked to
LSC eligibility, which is three months. There is also the anomaly
that the FM1 form stands for four months. Maybe those two need
bringing together to be three months rather than three and four
months. Possibly, people whose agreements break down very quickly
need access to the court to have some kind of oversight. It would
depend very much on each case, I think.
117. We asked the Ministry of Justice to consider
this point, and they provided a written response.
In summary, the Government considers that it would be preferable
for parties to resolve their disputes without seeking the intervention
of the Court, but that "[...] it is considered that no second
family mediation information and assessment meeting will be required
to be attended in the scenario set out by the Committee."
The Response highlights some of the possible exemptions that could
apply under the current Pre-Action Protocol to exempt parties
from a repeat MIAM, but acknowledges that "[...] for the
exemptions referred to above to be shown to be applicable, the
prospective party to the court case would have to approach a mediator
to ask that the mediator make the determination in question."
118. The written response concludes that:
[...] consideration will of course be given as to
whether any further exemptions should be proposed to the Family
Procedure Rule Committee, in addition to those already set out
in Annex C to Practice Direction 3A supporting the Family Procedure
Rules 2010. So if there are any identified "gaps" in
the current exemptions, these can be "closed" in due
recommend that the Government considers the inclusion of a time-limited
exemption to prevent parties from having to pay for repeat MIAMs
before applying to the Court. We have considered the National
Family Mediation's suggestion of three months, but consider this
to be too short where parties have engaged in MIAM and mediation,
and therefore are unlikely to need to be provided with repeat
information about how the process operates. We suggest the inclusion
within the Family Procedure Rules, Pre-Action Protocol, Annex
C, of a period of six months, after which there would be a potential
benefit in their dispute being re-assessed for suitability for
mediation, and we ask the Government to discuss this recommendation
with the Family Procedure Rules Committee.
120. A further gap that is of concern to our witnesses
is the group of litigants in person who are not entitled to legal
aid and are not considered suitable for mediation (for reasons
not involving domestic abuse). This group, described as the "in-betweeners"
by Gingerbread, was raised with us by the Magistrates' Association.
We ask the Government to clarify what policies and practical measures
will be in place to assist the group of litigants in person who
are not entitled to legal aid or considered suitable for mediation.
make the following recommendations for further smaller revisions
to draft clause 1:
- replace "deal with" with "issue", to accurately
reflect Court procedural terminology, and clarify that this relates
to relevant family applications;
b. (4) -
we ask the Government to clarify why two definitions are needed
for applications falling within the section: "family application"
and "relevant family application". Either one should
be deleted, or the differences more clearly explained, preferably
by the use of different terms. The terms used should also be consistent
across (1), (2)(c) and (d).
Parental time arrangements
CHILD ARRANGEMENTS ORDER
|2 Child arrangements orders
(1) Section 8(1) of the Children Act 1989 is amended as follows.
(2) Omit the definitions of "contact order" and "residence order".
(3) After "In this Act" Insert
" "child arrangements order" means an order 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;".
(4) Schedule 1 (amendments relating to child arrangements orders) has effect.
122. Section 8 of the Children Act 1989 includes four types of
order for use in a wide range of different situations involving
- Residence order - an order settling the arrangements to be
made as to the person with whom a child is to live (often called
the Resident Parent);
- Contact order - an order requiring the person
with whom a child lives, or is to live, to allow the child to
visit or stay with the person named in the order, or for that
person and the child otherwise to have contact with each other
(often called the Non-resident Parent);
- Prohibited Steps order - an order that no step
which could be taken by a parent in meeting his parental responsibility
for a child, and which is of a kind specified in the order, shall
be taken by any person without the consent of the court;
- Specific Issue order - an order giving directions
for the purpose of determining a specific question which has arisen,
or which may arise, in connection with any aspect of parental
responsibility for a child.
123. The new draft clause applies in relation to
Residence and Contact orders only (Prohibited Steps and Specific
Issue orders remain), and replaces the two orders with one order,
a Child Arrangements Order (CAO), replacing the current definitions.
This change was recommended by the Norgrove Report
as a means of changing the focus of disputes from "winners"
and "losers", to the child's needs, an approach with
which the Government agrees.
124. The Impact Assessment suggests that the intention
of the draft clause is twofold: first, to remove the perception
of "winning and losing" in court which can contribute
to the adversarial nature of court proceedings; and second, to
remove the perception, contributed to by the current wording of
Residence and Contact Orders, that the court system is biased
against non-resident parents. The Impact Assessment goes on to
suggest that "Ultimately, children are deemed to be the main
beneficiaries of the Child Arrangement Order", but it also
states, "[...] the Government anticipates that the outcome
of court decisions will not be significantly different as a result
of the introduction of child arrangement orders."
In describing the reasons for bringing forward this draft clause,
the Government also says:
There is no clearly defined evidential basis for
introducing CAOs although the balance of views in the consultation
responses to the Family Justice Review was firmly in favour of
the change. The Review Panel were also persuaded by the view of
the Chief Justice of Australia's that the removal of the terms
contact and residence had been beneficial there.
125. The draft clause has been strongly criticised
as making a clear piece of statute unclear and unnecessarily complex.
It is not helpful that there is already a basic lack of consistency
as to whether the new orders are Child Arrangements or
Child Arrangement Orders across various Government documents.
Of greater importance is that the definition of what "child
arrangements order" means, imports into CAOs the term "contact"
and "with whom a child is to live" from the current
section 8. A number
of our witnesses also made reference to the fact that despite
the aim of the Children Act 1989 to remove the terms "custody"
and "access" they are still widely used.
126. At a time of likely increases in litigants in
person, many of our witnesses said that there is a need for clarity
and simplicity, and that the draft clause will not remove the
"winners and losers" perception. The Family Law Bar
Association ("FLBA") gave an example:
[...] where parents make cross applications for residence
and one parent also makes a specific issue application (under
s8 [...] Children Act 1989) to remove the child from the jurisdiction
of England and Wales, to say, New Zealand. There is much at stake
in these applications and if the court accedes to the application
of one parent to permanently remove the child to another jurisdiction
it is inevitable that the parent who opposed the application will
feel as though he or she has "lost".
127. The Law Society disagreed, however, and favoured
the draft clause as:
[...] it is more likely to focus the court and the
parents on the practical arrangements for caring for the child
and for the co-operative parenting of that child, as the language
is more neutral than residence and contact orders. [...] It is
felt that the child arrangement orders will be more reflective
of a positive parenting style.
128. We note, in particular, that the Government
has highlighted the removal of the words that the resident parent
is to "allow the child" to have contact from the definition
of contact as important.
129. The Association of Lawyers for Children and
Family Law Bar Association both said that shared residence orders
were a better way of removing perceptions of winners and losers
130. We think
that it is unlikely that a change to the wording of orders from
"residence" and "contact" to "child arrangements
order" will remove the perception of winners and losers within
the family courts, although a change of terms would not, in itself,
be objectionable; the effect of this change must be considered
in combination with the other private law reforms. Our main concerns
relate to how, from the drafting of the clause and the mixing
of the different elements of living and spending time with, the
Court is to record what ultimately it needs to decide, namely,
with whom a child is to live, and the time and type of communication
they will have with the non-resident parent. The mixing of the
different elements of the order makes the clause much more complex
and confusing, particularly for litigants in person. We agree
with the Association of Lawyers for Children and Family Law Bar
Association that shared residence orders are a better way of removing
perceptions of winners and losers than CAOs.
131. There are also concerns amongst our witnesses
that the draft clause could cause confusion and delay in cross-jurisdiction
cases. The Government's Impact Assessment
admits that there is a risk:
It is important that CAOs do not change how international
law relating to children operates. A central concept in the relevant
Hague (1980 Child Abduction and 1996 Protection of Children Convention
and Council of Europe Conventions (1980 Custody Convention) and
EU legislation (Council Regulation (EC) No 2201/2003 Brussels
IIa) is that of 'rights of custody'. In England and Wales, the
concept of parental responsibility includes the right to determine
where a child lives. The CAO will not change the nature of parental
responsibility ["PR"] and how it operates. Where a court
order is in place that sets out what the living arrangements should
be, it is expected that the content of the order will be specific
enough to establish who has "rights of custody" from
an international perspective. In situations where a father does
not have PR, but is named in a CAO as a person the child will
live with, he will automatically be awarded PR. The Government
believes that the introduction of the CAO and the repeal of the
contact order and residence order will not alter the way in which
the main instruments in the field of international private family
law operate in relation to England and Wales.
There is however a risk that the change in terms
(i.e. away from contact and residence) may be hard to interpret
in other jurisdictions. To be enforceable under 1980 Hague Article
5a, 1996 Hague Article 3b or Brussels IIa Article
2(9), orders need to show clearly which parents have the right
to decide on a child's place of residence. Although the position
regarding the operation of PR will be clearly established through
the making of CAOs, the interpretation of the terms used is a
matter for the courts and authorities with jurisdiction in Hague
Contracting States and EU Member States.
132. We asked the Family Law Bar Association whether
there was a risk of confusion and delay, they replied:
The most obvious example is in Hague convention child
abduction cases, because it relies on which parent has rights
of custody. One has to be very careful under a child arrangements
order to define what it means. If the order says that arrangement
is that the child is to live with a person, what does that mean
in terms of rights of custody? Does it mean that that person has
the right to dictate where the child lives, in which case that
person has rights of custody? If not, there is going to be an
issue about whether that amounts to rights of custody. There are
potential problems there unless there is further definition.
One could get round that by having a provision that
says, "If you have a child arrangements order under which
the child is to live with a certain person, that person has rights
of custody for Hague convention purposes." You could deal
with it, but if it is just left as rather vague language, it could
133. The Family Judiciary agreed:
In cross-border cases, there may be particular difficulties
in interpreting the meaning of a child arrangements order for
the purpose of determining rights of custody and rights of access
and in applying international instruments to such an order.
For example, would a child arrangements order be recognised in
another EU Member State as an order conferring rights of access
for the purpose of Brussels IIA, Art 41?
A residence order confers parental responsibility
on an applicant who does not otherwise have parental responsibility.
Grandparent carers in particular, and also others, may care for
a child on the basis of informal arrangements. But if they do
not have parental responsibility a removal from the jurisdiction
by a person with parental responsibility may not be wrongful within
the meaning of the Hague Convention.
To bring carers within the remit of the Hague Convention,
legislation could make provision for child arrangements orders
(or perhaps only those constituting care arrangements) to confer
parental responsibility on carers, thus rendering a removal wrongful;
or alternatively provide another route by which carers may acquire
The making of an application for an order which carries
with it parental responsibility would, under the present law,
be deemed to give rights of custody (or at least a right of veto
to removal, which amounts to a right of custody) to the court
and the applicant.
134. In oral evidence, Mr Timpson told us that as
with current orders, the body of the CAO will make clear exactly
what the arrangements are for with whom a child lives and with
whom a child spends time, and therefore there should not be any
implications for "cross-jurisdictional marry-up".
The Government also wrote to us on this issue:
The key treaties on international family law to which
the UK is party, including the 1980 Hague Child Abduction Convention,
use the concept of 'rights of custody'. This concept includes
"rights relating to the care of the person of the child and
in particular the right to determine the child's place of residence".
The right to determine a child's place of residence is an aspect
of parental responsibility under our law, and it is important
to note that we are not changing the law on parental responsibility.
Further, it is the content of orders themselves,
not what they are called, that is important internationally. In
so far as a CAO settles with whom the child is to live, the content
of the order should be the same as that of a residence order under
the Children Act 1989. It should therefore be treated internationally
in the same way as a residence order is at present. Any right
to parental responsibility that arises as a result of such an
order (for example where a person who is not a parent or guardian
of the child is named in the CAO as the person with whom the child
is to live) will remain unchanged. We recognise that it will be
helpful to provide information on the new orders to other states
party to the relevant treaties; officials are planning how this
can be achieved.
135. While the Government's position is correct as
a theoretical exercise, the problems raised by our witnesses are
not about "parental responsibility" per se, but about
interpretation of "rights of custody" for the purposes
of the Hague Convention. The concept of rights of custody is autonomous
to the Hague Convention and runs across all Hague States, but
is determined within each state in accordance with their national
statute; for example, rights of custody could be described via
a custody order in State A, a residence order in State B, or indeed
a Child Arrangements Order in State C, as long as that order means
that that person (or persons) can determine the child's residence.
136. In practice, where a national court has to decide
what foreign legislation determines to mean as "rights of
custody", the parties can ask a foreign court to determine
the issue (article 15 of the Hague Convention); however, this
is costly, and many national courts have to decide for themselves
what are rights of custody before determining whether the removal
breached those rights.
137. The difficulty with the Child Arrangements Order
is that it deliberately merges together the two issues of residence
and contact. Whilst as a paper exercise the Government is correct
that the right to determine a child's place of residence is an
aspect of parental responsibility and that the law on this issue
is not being changed, in practical terms there are potential problems
of confusion or delay. Firstly, the first language of the foreign
courts interpreting the new clause is not necessarily English.
Secondly, there will be a time lag between the introduction of
the legislation and the publication of textbooks or indeed case
law explaining what has changed, and more importantly, what has
not. Thirdly, the law needs to be capable of being understood
outside of the courts, for example, by the police or port officials.
The confusion is illustrated by the following two hypothetical
Example A - The Court makes a Child Arrangements
Order, which states that the child is to spend most of its time
with its grandmother. Mother of the child, who has parental responsibility,
removes the child to a Hague Convention country. In this example,
the Mother's parental responsibility means that she has a right
to determine the child's place of residence, but grandmother,
who does not have an order stating that the child is to live with
her, (only a "spend time with" order) does not. It may
not be clear, however, to a foreign court, that the spend time
with order is not equivalent to the former residence order, particularly
as it will all be part of one statutory section, one CAO.
Example B - Parent A has a CAO granting right for
the child to spend time with them but does not have PR. Parent
B has the same CAO, but it determines that the child will live
with Parent B. Both orders fall within section 2(3)(a). Parent
A removes the child from the jurisdiction. Parent A misrepresents
on the basis of the orders both falling within the same part of
s.2(3)(a) that they have more than the former "contact"
order, that is, they say that because they have a CAO they have
rights of custody. Parent B has trouble establishing that the
order they hold gives them rights not held by Parent A and therefore
that the child should be returned.
is likely that, with time, the terms of Child Arrangements Orders
will become sufficiently established so as to prevent misunderstandings
arising in cross-jurisdictional cases, but, in the medium-term
there is the potential for problems because the looser language
of the draft clause makes the meaning of the subsections more
debatable. We therefore recommend that the individual elements
of the CAO are separately set out within the draft clause, leaving
one order, but with clearer contents; and secondly, that the clause
sets out that the person with whom the child is to live has rights
of custody for the purposes of the Hague Convention and other
relevant international family law treaties.
139. We ask
the Government to look again at the potential practical problems
with interpretation of the draft clause in light of how the international
law relating to children operates. We are not reassured by the
Minister's answer that, as long as the body of the Court order
makes clear where the child will be living there should not be
any implications. The issue is one of delay and confusion - the
draft clause must avoid parents being required to appeal their
cases in foreign courts because the custody rights granted by
the CAO have been misunderstood in that country's the lower Courts,
as other parents have had to before them.
|1A Shared parenting
(1) Section 1 of the Children Act 1989 (welfare of the child) is amended as follows:
(2) After subsection (2) insert -
"(2A) A court, in the circumstances mentioned in subsection (4)(a) or (7), is as respects each parent within subsection (6)(a) to presume, unless the contrary is shown, that involvement of that parent in the life of the child concerned will further the child's welfare."
(3) After subsection (5) insert:
"(6) In subsection (2A) "parent" means parent of the child concerned; and, for the purposes of that subsection, a parent of the child concerned -
(a) is within this paragraph if that parent can be involved in the child's life in a way that does not put the child at risk of suffering harm; and
(b) is to be treated as being within paragraph (a) unless there is some evidence before the court in the particular proceedings to suggest that involvement of that parent in the child's life would put the child at risk of suffering harm whatever the form of the involvement.
The circumstances referred to are that the court is considering whether to make an order under section 4(1)(c) or (2A) or 4ZA(1)(c) or (5) (parental responsibility of parent other than mother)."
140. Our Report Operation of the Family Courts concluded
in relation to shared parenting that:
We do not see any value in inserting a legislative statement reinforcing
the importance of the child continuing to have a meaningful relationship
with both parents, alongside the need to protect the child from
harm, into the Children Act 1989. Such a statement is not intended
to change the current position as the law already acknowledges
that a meaningful, engaged relationship with both parents is generally
in a child's best interests. The [Family Justice Review]Panel
has concluded that the family court system is allowing contact
in the right cases; in our view nothing should be done that could
undermine the paramount importance of the welfare of the child.
141. The Norgrove Report considered this and similar criticisms
from stakeholders and concluded that no legislative statement
should be inserted. The Government, in its response to the Norgrove
Report disagreed, concluding that the issue required further consideration.
142. The Government duly published the Co-operative
Parenting Consultation, which contained four options for a legislative
statement: presumption, principle, starting point, addition to
the section 1 welfare checklist. The Government's Response to
the Co-operative Parenting Consultation concluded that analysis
of the responses:
Shows a clear preference among those whose responded
for legislative change [...] and for option 1 (the 'presumption'
approach) in particular.
[...] The Government has considered all of the points
raised during this consultation and remains of the view that option
1 will best meet its objectives to ensure that children can benefit
from the involvement of both parents in their lives following
143. There were 214 responses to the consultation,
with the biggest group of respondents being fathers (67 compared
to 18 mothers). 52% of all respondents supported the option 1
presumption. The Government's analysis did not distinguish between
individual responses, and responses by charities, practitioner,
policy or other groups.
144. The organisation Fathers 4 Justice contacted
us in the late stages of our inquiry and asked for an invitation
to provide oral evidence. They had not responded to our original
Call for Evidence nor to the Government's Co-operative Parenting
Consultation. We offered them the opportunity to provide written
evidence on matters within our terms of reference for the inquiry,
but they declined. We have not, therefore, had the benefit of
their views, but we have received written evidence from a number
of parents with direct experience of the family justice system,
and we took oral evidence from two organisations representing
such parents, Families Need Fathers and FNF Both Parents Matter
145. As we have previously stated, relationship breakdown
and the family justice process are highly emotive topics, producing
strongly held views, many based upon personal experience. These
issues are often brought to our attention by constituents and
in addition we considered the experiences of individual parents
and grandparents in this inquiry and for our previous report Operation
of the Family Courts. We include here a small selection of
the evidence we have seen:
|Six months after separation from child's mother, and after a satisfactory custody solution had been established, the mother reduced the agreed 30 hours of contact to 3 hours per week. Contact time was used as a bargaining tool by the mother according to Mr P. His ex-wife, he claims, uses the courts sympathy towards the mother to falsely accuse him of conducting himself in a way that would undermine his claim for visitation and custody rights. These are made in the knowledge that there are no repercussions for false accusation and that judges are inclined to take a low risk approach.
|A mother of a teenage child who hasn't had access to the child for the last four years. After the use of CAMHS, children services and Cafcass, the child made clear that they wanted to live with their father. The mother believes that this is proof that the idea that 'child's voice' can be manipulated by one parent - leading to the alienation of another. The contact order which is in place has not been followed, and the mother feels that she has no form of redress.
|Mr F has experienced significant differences in outcomes from court cases that have taken place in different parts of the county. Over a court period of longer than a year, proceedings have taken place in N County Court and the Principal Registry of the Family Division. In N County Court his ex-wife was found in breach of four court orders relating to residence and contact, and received no sanctions. In the PRFD his ex-wife was found in breach of six court orders and was briefly held in prison for contempt of court. He considers that Court cases do lead to a winner/loser mentality.
|A previously abusive ex-husband intimidated Ms V into allowing contact with their teenage autistic child. The ex-husband had little knowledge of how to care for the special requirements of autism and contact was erratic whilst arguments were frequent. Assertions by the father have led to court cases in which the child was placed in the hands of the local authority and the mother's access limited. She says she faced the humiliation of the local authority demanding a mental health assessment across the court from her ex-husband, from whom she fled many years before.
|Mr A separated from his partner with whom he had a young son. Child support, residence and contact arrangements were settled consensually between Mr A and his partner without recourse to the Courts. Mr A says that his partner soon broke their agreements and he was refused contact with his son. He sought help from Cafcass and the Police, but he says they were unable to assist him as there was no physical threat to his son. He arranged and paid for mediation, but problems continued. He has now resorted to the Courts. He thinks that non-resident parents are often left at the complete mercy of the resident parent. He believes that they are often failed by an inadequate process, poor support infrastructure and complete lack of framework.
146. We fully
support the principle that, where there is no potential harm to
the welfare of a child, both parents should be involved in that
child's life. The doubts we expressed in our former report related
to the desirability of enshrining that principle in legislation.
We have examined the issue afresh in the context of the wording
of the draft shared parenting clause published by the Government
and the evidence which we have received on it.
147. An Office of National Statistics publication
from 2007/08 on Non-residential Parental Contact concluded that
8% of resident parents and 17% of non-resident parents reported
that their contact arrangements were determined through the courts.
We have previously cited a composite figure of 10%, through a
combination of this survey and a 2003 ONS survey; we now consider
this approach to be incorrect, because the surveys were carried
out at child level meaning that the figures should not be combined
because there is a chance that some children may be included in
both the resident and non resident parent sample. What does appear
to be clear from the survey, albeit on a small sample, is that
the majority of parents do not have their contact arrangements
determined by the Courts. This mirrors the anecdotal evidence
that we have heard from practitioners and other witnesses.
148. In order to assess whether the draft clause
is a necessary, proportionate and desirable legislative change,
we consider it important to know what the Government is hoping
to achieve from the legislation and how that aim will work in
practice. We therefore asked our witnesses what effect the draft
clause would have on the content of Court orders. Families Need
Fathers and the NSPCC gave direct, if different, answers. Families
Need Fathers said:
The proposed legislation will strengthen the "best
interests of the child" presumption. That will still be the
paramount principle. I do not think that the court order content
will change much at all anyway. It certainly will not conflict
with the paramountcy principle; I think it will add to it, so
it will be a benefit.
The NSPCC's view is:
It is very difficult for us to judge whether the
individual decisions of judges will be affected by this. I have
certainly heard evidence from Mr Justice Ryder and others that
there will be no change in practice.
149. In contrast, Mr Timpson told us:
I don't think we can be prescriptive about the effect
it will have on each individual case and the orders that the court
will be making. The most important element of this is to ensure
that there is real confidence in the family justice system and
the decisions that they are making around a child's arrangements
between parents where, sadly, they have separated and need the
assistance of the court to come to arrangements for their own
individual child. [...] I am not able to say that this is how
each order is going to be affected by the change that we are going
to bring in. My anticipation is that it will ensure that there
is greater confidence in the decision-making process by making
it clear on the face of legislation that, where it is safe to
do so and it is commensurate with the welfare of a child, an ongoing
relationship with both parents would be in their best interests.
150. We put the question to the Minister again, and
[...] what I am saying is that you can't at this
stage anticipate, with judges still having the discretion they
have in deciding a case, how each individual case would play out
as compared with what we currently have.
What we are clear about is that this is not about
enhancing parents' rights. This is about the rights of children.
He further said:
[...] We don't know what the change will be, whether
it is going to be significantly different from the current decisions
made by the court, [...]
151. We also asked him whether it was the Government's
intention that court decisions should be changed by the insertion
of these words into law or not? He replied:
We are not looking to change the way a judge makes
a decision based on the paramountcy principle. Yes, it will be
clear on the face of the Act that they will be considering the
presumption rebuttal that we have been discussing. To suggest
that this is going to create a huge sea change in the way that
the judges come to their final decisions about what is in the
child's best interests is not the intention. The intention, as
I say, is to deal with the sense that there is an in-built bias
towards one parent or another within the current system, to get
more confidence into that system with those who come into contact
with it, and that, ultimately, with that clear knowledge that
that is the way the court's thinking and process works to come
to a decision, parents will think more carefully about how they
can resolve their differences before having to go to court and
have it all played out in the way that we know it can be.
152. We asked a further question as to why no Impact
Assessment had been published, when Impact Assessments had been
published for the other draft clauses, and were told:
The process changed over the summer, but we are going
through the pre-legislative scrutiny, which everyone would welcome.
We want to listen to what this Committee has to say on the back
of its work on the pre-legislative scrutiny. There is an on-going
assessment of what the impact may be, but the impact assessment
will be published in line with the Bill when it comes before the
House in the usual way.
the responses we received from the Minister, it appears to us
that the draft clause has been included not to effect any change
in Court orders but to tackle a perception of bias within the
Courts that we have previously concluded has no basis in fact,
and in the hope of influencing parents to agree to make provision
for shared parenting rather than risk entering the court process.
154. A large number of parents responded to the Co-operative
Parenting Consultation, and we received evidence from individual
parents too. Looking at their experiences one of the most common
complaints is not the order that the Court has made, but problems
with enforcing orders. As stated above, no draft clause has been
published in relation to enforcement. We
note the Government's decision to give further thought to the
issue of enforcement, although any draft clauses must be subject
to rigorous parliamentary scrutiny, and time must be allowed for
that scrutiny to take place. We consider that resolution of problems
of enforcement is more likely to change perceptions than the draft
clause on shared parenting.
and in relation to perceptions, in our Report Operation
of the Family Courts we considered media and public
access to the family courts
and recognised the need for transparency in the administration
of justice. We ask the Ministry to provide an update as to the
Government's policy in this area and any plans they have to legislate
for greater transparency and openness in the family court.
156. As to the contents of the draft clause, the
chosen presumption has been drafted more tightly than the option
presented in the Co-operative Parenting Consultation, and the
Government does appear to have taken on board some of the criticisms
contained in the consultation responses. For example, the wording
"not adverse to the child's safety" has been replaced
with the broader concept of "harm".
157. There are many definitions of shared parenting,
some of which include suggested divisions of time, but the draft
clause defines shared parenting as the involvement of a parent
in the child's life, where that involvement will further the child's
welfare, with no reference to divisions of time. The draft clause
is therefore narrower in its aims than Danish legislation which
has recently been repealed
or the Australian 2006 legislation
which has since been amended. With that caveat, their experiences
are, however, nonetheless useful in analysing the draft clause.
The Australian experience in particular, and our consideration
of it for our previous Report, raises the following broad questions
that were also considered by our witnesses:
a. Does the draft clause detract from the principle
that decisions must be made in the best interests of the child
(the paramountcy principle)?
b. Is the draft clause likely to be misunderstood
as a right for parents to spend particular amounts of time with
c. What effect will the draft clause have on
the number of cases requiring court orders?
d. Will the draft clause change perceptions of
bias within the family courts?
Does the draft clause detract from the paramountcy
158. Families Need Fathers told us that they thought
the draft clause would "strengthen the 'best interests of
the child' presumption".
The NSPCC disagreed; they considered that the "introduction
of a presumption will, inadvertently dilute the paramountcy principle"
by taking attention away from the child's welfare.
This dichotomy is at the heart of the debate on introducing legislation
that promotes shared parenting.
159. Mr Justice Ryder discussed with us the possibility
of the draft clause being considered as an imperative rather than
a presumption; he said:
The draft clause could be construed not to be a presumption.
If one looks at welfare as an overarching principle, it is the
presumption. The draft clause, as written, is what the Court of
Appeal used to politely refer to as an imperative. [...] Imperatives
are important. Children are, in general terms, subject to welfare
argument, best brought up by their birth families. This is a similar
imperative; it is not likely to change practice, but it might
highlight what the judges already believe is good practice.
160. Since the publication of our earlier Report
fresh research has been undertaken on a number of issues relating
to the welfare of children following separation. When we considered
this as part of our Operation of the Family Courts Report,
we heard evidence from Dr Kaspiew. She told us that:
We had a study of 10,000 separated parents. About
one fifth of those21% of mothers and 16% of fatherssaid
that they had concerns for their safety or the safety of their
child as a result of ongoing contact with the other parent. One
of the findings that really highlights the issues to do with family
violence was that, despite the presence of safety concerns, that
group of parents was no less likely, and possibly more likely,
to have shared care arrangements than parents without safety concerns.
This is in a context where 16% of families have shared care arrangements.
I should say that "shared care" is a broad definition
of 35% to 65% of nights spread between each parent; so it is a
very generous definition. What that statistic tells us is that
the system has had difficulty in distinguishing families for whom
shared care is appropriate and healthy for their children and
families for whom it is not. There is a range of reasons behind
161. For this inquiry we asked Dr Kaspiew to update
us on her more recent research. The updated evidence from the
Australian Institute of Family Studies (AIFS)
compared and contrasted two data sets of the Longitudinal
Study of Separated Families. Wave One, which Dr Kaspiew discussed
with us and was included in the 2006 Kaspiew et al Report, studied
10,000 parents from a near-nationally representative sample of
separated parents, who were interviewed in late 2008, some 15
months after separation. In Wave 2, 70% of these parents were
re-interviewed in late 2009, and on average had been separated
28 months. We had not discussed Wave 2 with Dr Kaspiew in 2011.
AIFS report that:
In LSSF Wave 1 and Wave 2, 17% and 18% of children
respectively were in shared care arrangements (involving at a
minimum a 35%/65% night spilt between parents). The data indicate
that while the dynamics for many of these families are positive,
there is a substantial minority who report ongoing conflictual
and fearful relationships and the presence of safety concerns
(for themselves or their child) as a result of contact with the
other parent. At least one in two mothers who maintained a shared
care-time arrangement between survey waves indicated they had
experienced emotional abuse in the period between survey waves,
while at least two in five fathers also reported such experiences.
162. The new AIFS evidence explained that as a result
of the Kaspiew et al Report, further legislative amendments were
made to the Australian Family Law Act 1975, which came in to force
in June 2012: "The shared parenting provisions, including
the presumption in favour of equal shared parental responsibility,
have been left intact but a series of new provisions is intended
to heighten the focus on examining issues that may compromise
the wellbeing and safety of children and their caregivers."
As stated above, in comparing the Australian experience of shared
parenting reforms, we bear in mind firstly, that their legislation
was much broader than the draft clause, and secondly, that the
surveys were of the general population of separated parents as
a whole, not simply those with court ordered shared-care time.
163. Recent research by Fortin, Hunt and Scanlan,
Taking a longer view of contact
considered the views of 398 young adults aged between 18 and
35 (plus in depth sub-sample). Just over half of their survey
sample (54%) experienced some disruption to contact (in 17% there
was never any contact; in 10% it ceased; in 27% it was interrupted).
They do not support the legislative amendment, and favour preserving
individuality of decision-making. Their findings include:
Our respondents saw contact between children and
their non-resident parents as being vitally important in principle,
it being a way of reassuring children that they are still loved
and important to both parents. This was considered to be the case
even amongst those who had never had any contact themselves and
those whose own experience of contact had not been particularly
Respondents were also more likely to rate their experience
of contact with the non-resident parent as being positive if the
following factors were present: the parents involved their children
in the decision-making; there was little or no postseparation
conflict between the parents; there was no domestic violence or
serious concerns about the care the non-resident parent could
provide; the resident parent encouraged the relationship between
the child and the non-resident parent; the non-resident parent
made time for the child; the child felt equally at home in both
the resident and non-resident parent's home; the non-resident
parent either did not re-partner or the child got on well with
their new partner
164. The findings of the Fortin, Hunt and Scanlan
research are similar to reports of research in Denmark,
that in relation to shared parental authority and shared care
orders made under the Danish Parental Responsibility Act in 2007
many parents who the court expected to co-operate were unable
to reach minimum standards of agreement on important matters.
165. Responses to the Co-operative Parenting Consultation
and witnesses to our inquiry raised concerns considered by us
and in the Norgrove Report about how a presumption would work
for victims of domestic abuse; Resolution summed up the concerns
by reiterating in its consultation response that "the child
should benefit from the involvement of their parent where that
is known to be safe rather than it being presumed that there will
be involvement unless it is shown to be unsafe." There are
two main concerns: firstly there is concern that misunderstanding
of the law may lead to victims of domestic abuse failing to report
abuse because they mistakenly believe the Court will order shared
care; and secondly that the presumption places the responsibility
for rebutting the presumption on the victim of domestic abuse,
and that this may be particularly difficult for litigants in person.
166. Supporters of shared parenting point to research
which shows the benefit to children of both parents being involved
in their lives. They raise concerns that allegations of domestic
abuse must be properly investigated. Families Need Fathers were
confident that the paramountcy principle would "override
It is very unlikely that the courts will change their
views on the best interests of the child, so if there is clear
evidence of domestic abuse, I cannot imagine that any judge will
say that care for the child should be shared, or that any contact
with the children should be unsupervised. We are doing judges
and courts a dishonour to think that that would be the case. They
just would not. 
167. Cafcass told us that they had:
[...] carried out research in 2010 into the levels
of disclosure of domestic violence in applications to the court
and during Cafcass' risk screening work, using a sample of 100
s8 Children Act 1989 family court cases (primarily concerning
contact and residence applications). Among the 75 applications
where there was no evidence of harm in the C100 application form,
32 per cent of applicants and 16 per cent of respondents were
found to have convictions or cautions relevant to safeguarding.
The family was known to the local authority in 45 per cent of
168. We note that the Explanatory Notes to the draft
clause suggest a role for Cafcass in determining whether there
is evidence to rebut the presumption. Our witnesses suggested
that Cafcass was already overstretched with its current work,
and particularly in private law cases.
Cafcass told us that they were not doing as much direct work as
they used to.
to the law on shared parenting must ensure that they do more good
than harm. It is generally agreed that the involvement of both
parents in a child's life is normally beneficial and in the interests
of the child, but as the incidence of abuse cases in the Courts
and across population studies show, it is not beneficial in every
case, and therefore we do not consider that it can be "presumed".
We therefore maintain significant concerns about the draft clause
on shared parenting.
170. We consider
that the types of cases that require a court order rather than
resolving by consent, be that with or without the help of lawyers
or mediators, are precisely the types of case where there are
the highest levels of conflict. These include a range of scenarios
from physical abuse, to an inability to co-operate to make joint
decisions on important issues for the child. We are concerned
that the draft clause will be applied across these sorts of cases,
which would not necessarily be in the child's best interests.
We think that children benefit from the current ability of the
courts to make individualised decisions as this allows a court
to take all the circumstances into account and prioritise the
welfare of the child; a good example of this is the case of A
referred to by Mrs Justice Pauffley in her evidence to us.
There is a danger that the introduction of a second presumption
will take the attention of the Court, but equally importantly
the attention of parents (who will often be litigants in person),
away from determining what is in the child's best interests and
on to double rebuttal on the grounds of harm.
171. We describe this as a double rebuttal, because
the Explanatory Note suggests a decision-making process for the
Court whereby a judge must consider firstly whether the parent
can be involved without posing a risk of harm, but even if they
can be so involved, the Court must go on to consider whether the
parent's involvement is consistent with the child's welfare.
Subject to a request for clarification, we do not have concerns
about a double rebuttal in theory, although as to its use in practice,
we echo concerns raised by Professor Judith Masson in her consultation
response, that litigants in person are unlikely to be able to
marshal and present evidence other than their own testimony, and
would now have two steps to go through.
we are pleased that the clause refers to "harm", if
the Government chooses to proceed with the draft clause we recommend
that they make the following revisions for the purpose of clarity.
Firstly that "unless the contrary shown" is either defined
separately or through proposed subsection (6); the intention should
be made clear that there are two stages to the rebuttal. Secondly,
the Government should give consideration to whether an amendment
similar to that in Australia in 2012, needs to be added to the
clause to make clear that of the child's welfare is paramount
and should be given the most weight.
173. Our witnesses
were not sure what effect the draft clause would have on the content
of court orders; however, we concur with the consultation response
of HHJ John Mitchell where he said that there is a danger that
the presumption will be used by advocates and judges where they
feel undecided or overwhelmed. A statement setting out the paramountcy
of welfare over the shared parenting presumption might prevent
this problem occurring.
Is the draft clause likely to be misunderstood
as a right to particular amounts of time?
174. The draft clause refers to "involvement"
of the parent, but does not define what involvement means. Many
responses to the Co-operative Parenting Consultation were concerned
that a presumption, however drafted, would be misunderstood as
a right to particular amounts of time. The Government has made
clear that this is not what the clause is meant to do. It is therefore
unfortunate that media reports after the publication of the draft
clause did say that effect of the draft clause was "Absent
fathers to get legal right to spend time with their children".
175. The draft clause has been titled "shared
parenting". Much comment has been made as to the Australian
experience and whether and how their legislation was misunderstood
as giving parents a right to quantities of time. We consider that
the Australian experience is relevant, but we accept that their
legislation went much further than the draft clause in suggesting
equal time or substantial and significant time, and that the confusion
described by Kaspiew et al was not caused by one particular section
of statute. In their Report they discuss the omission of a definition
of "meaningful relationship" in the Act, and note that
"different decision-makers have offered different constructions
of the term" including whether it was a qualitative or quantitative
also consider the difficulties in maintaining distinctions:
[...] many parents do not understand the distinction
between shared parental responsibility and shared care time, or
the rebuttable (or non-applicable) presumption of shared parental
responsibility. A common misunderstanding is that shared parental
responsibility allows for "equal" shared care time,
and that if there is shared parental responsibility then a court
will order shared care time. This misunderstanding is due, at
least in part, to the way in which the link between equal shared
parental responsibility and care time is expressed in the legislation.
176. We asked Families Need Fathers whether the clause
would require appellate guidance, particularly to define "involvement"
and "unless the contrary is shown". They told us:
I think courts will need some guidance, and there
will need to be a statement from Government as to what "substantial
involvement" means. From our point of view, again, it is
not time related, although clearly there will need to be sufficient
time for what would traditionally be the non-resident parent to
be able be involved in all aspects of the child's life. It is
not just about McDonald's for an afternoon once a fortnight; it
is about being involved with the child's schooling, the child's
friends, being able to take the child to Cubs or Guides, attending
sports days and things like that. It is on all aspectsemotional,
social and the child's well-being.
There needs to be clear guidance on what that high-level
involvement actually represents. That may be difficult to come
to a decision on without being specific about the minimum amount
of time, but we would rather that it focused not on time, but
on the type and the quality of involvement.
177. The Government has clearly stated that the draft
clause "does not give or imply the creation of any rights
to equal time, or that there is any prescribed notion of how much
time is appropriate."
that on its face the draft clause on shared parenting does not
give or imply rights to equal time, but we think that many parents
will misunderstand the clause as giving such rights because of
the use of the word "involvement" without definition,
and because of the use of a presumption.
178. We note
that the Co-operative Parenting Consultation response from Wikivorce
pointed out that the majority of their respondents misunderstood
the consultation to be about 50/50 equally shared parenting. This
is why we pressed the Ministers to explain what the Government
intends the effect of the draft clause should be on Court orders:
if they do not think that they will change, and in particular,
if they do not intend such a change, then they should say so.
Equally, if the intention is for the clause to merely codifying
existing practice in the Courts, it is important for the Government
to make that clear.
179. If the
Government proceeds with its intention to include the draft clause
in the Children and Families Bill as introduced, we recommend
the Government make clear, preferably before introduction of the
Bill, what effect they intend the draft clause to have on Court
orders. We also recommend that the draft clause is revised firstly
to include a definition of "involvement" setting out
that it does not give or imply a right to a set amount of time,
and secondly, and to avoid any possible confusion, the short title,
although not a material part of an Act, is changed to "Parental
involvement". If "involvement" is not defined,
we expect that the Appeal Courts will be required to define it.
What effect will the draft clause have on the
number of cases requiring court orders?
the former Children and Families Minister, Tim Loughton MP appeared
before us in June 2012 he told us that:
The measure of whether this has been successful or
not will be whether there have been fewer divorcing couples who
have children who decide to go all the way through that court
door rather than take heed of the fact that they cannot play the
"winner takes all" game; in too many cases, that still
181. In our Operation of the Family Courts
inquiry Dr Kaspiew told us:
[...] our findings show a 22% drop in court filings
over that period. That is probably largely attributable to the
advent of family dispute resolution, with exceptions. It will
be important to monitor that over the longer term. Those data
were based on the years immediately after the introduction of
the reforms. Informal discussions that I have had with the courts
indicate that filings might be starting to creep up. There was
an immediate effect after the reforms that perhaps is not going
to be sustained to the same extent.
182. Unfortunately we do not have any updated evidence
as to current filings. The new Australian system is different
to the English and Welsh system, particularly in their system
of Family Relationship Centres. The changes to legal aid funding
are an additional factor to take into consideration. Given these
differences, we do not think that the Australian experience can
simply be transposed to explain any likely effect of the draft
clause on litigation, the views of stakeholders and in particular
practitioners must be taken into account.
183. Families Need Fathers told us that they think
that the presumption will "stop many families going to court"
and some responses to the Co-operative Parenting Consultation
agreed. On the other hand, other responses suggested that litigation
would increase, particularly re-litigation
or additional fact-finding hearings.
184. The draft
clause will be implemented at a time when there will be other
factors at play affecting the number and length of private family
law cases. There will be increased numbers of litigants in person
in the family court system, but at the same time, a push to move
cases into mediation. We think that it is likely that the effect
of the draft shared parenting clause will be an increase in cases
in the short term as parents, lawyers and the Courts work out
how the draft clause operates in practice. We draw no conclusions
as to whether litigation will increase or decrease in the medium
and long term because there is no statistical analysis that we
can draw on that is directly applicable to the combination of
changes that we have described.
Will the draft clause change perceptions of bias
within the family courts?
185. The perception problem was summed up by FNF
Both Parents Matter Cymru in their evidence to us:
It is very difficult. We are dealing with complex
issues. [...] I am mindful that the First Minister of Wales said,
"As someone who's worked as a barrister, I've seen it can
be too easy for contact to be denied to one parent, for no real
reason." I think there is a problem of perception, and it
is important that we try to tackle it. The number of times that
people have come to our support group meetings[...]and
they say, "Oh, I've been told by my solicitor that I will
be lucky if I see the kids once a fortnight." I fear that
that perception overshadows the family justice system. What I
would like to see, and what I would hope, is that, when there
is a clearer message that both parents should, as a default, be
encouraged to play a full and active partor, in terms of
the children's rights measure, to have direct contact and a meaningful
relationshipthat will clear away a large number of cases
where the parents appreciate that seeking to exclude one parent
or vastly to reduce their contact with the child is counter-productive
and will not achieve the aims that they are looking for. That
will, I hope, contribute to the reductions in the number of cases,
certainly in private law, that we are seeing.
186. We recognise that for other individuals and
groups the draft clause does not go far enough, as they consider
that a presumption of equal shared parenting or equal shared care
parenting is the only fair means of deciding private law children's
187. In our
view, it is unlikely that the draft clause on shared parenting,
on its own, will change perceptions of bias within the family
court system, many of which are entrenched. It is possible that,
in combination with changes to MIAMs and Child Arrangements Orders,
there may be an overall improvement however slight in perceptions,
but on balance, we think that is unlikely. Although the draft
clause could lead to a few parents reaching agreement because
their perception of the likely outcome of the Court process has
changed, given the fact that these will be cases in which there
is already a high degree of conflict, this is also unlikely.
188. We have
considered the problems raised by individuals who provided evidence
of their experiences, and we believe that the absence of enforcement
of court orders is a bigger factor in the perception problem than
the content of those orders. This makes it regrettable that the
Government has not brought forward draft legislation on enforcement
for us to consider as part of this pre-legislative scrutiny. Considering
our conclusions on all four questions, we maintain significant
concerns about whether the draft clause is a necessary or desirable
189. We consider
that any legislation on this subject, when interpreted objectively,
should retain the paramountcy of the welfare of the child, and
should prevent shared parenting orders being made where the child
is at risk of harm, and/or where, whatever the level of parental
involvement, that involvement would not further the welfare of
the child. The problem, as we identify it, is how the clause will
be subjectively interpreted by parents who appear before the Court,
or who agree arrangements for residence and contact without a
Court order, but on the basis of what they understand the law
to say and mean. The distinction is one of technical drafting
versus the practical effect on real families. We recognise concerns
about the inclusion of the draft clause, and we consider that
if the Government includes the clause in the Bill as introduced,
the revised wording which we suggest may reduce the likelihood
of its effects being misinterpreted.
|7 Repeal of restrictions on divorce and dissolution etc where there are children (excerpt)
(1) The following are repealed -
(a) section 41 of the Matrimonial Causes Act 1973 (in proceedings for divorce etc. court is to consider whether to exercise powers under Children Act 1989);
(b) section 63 of the Civil Partnership Act 2004 (in proceedings for dissolution etc. court is to consider whether to exercise powers under Children Act 1989).
(2) - (8) [...]
8 Repeal of uncommenced provisions of Part 2 of the Family Law Act 1996 (excerpt)
(1) Part 2 of the Family Law Act 1996 (divorce and separation), except section 22
(the only provision of Part 2 which is in force), is repealed.
(2) - (9) [...]
190. There are two draft clauses on divorce, clauses 7 and 8.
Clause 7 concerns the repeal of restrictions set out in section
41 of the Matrimonial Causes Act 1973 and section 63 of the Civil
Partnership Act 2004, that require a court to consider, in proceedings
for divorce or dissolution, whether to exercise powers under the
Children Act 1983, primarily those under section 8 (contact, resident
191. The intention of clause 8 is to repeal uncommenced
provisions of Part 2 of the Family Law Act 1996. The sections
remain uncommenced following unsuccessful trials, and the then
Lord Chancellor announced in January 2001 that they should be
repealed. In addition, as stated by the Ministry of Justice and
Department for Education in their joint evidence, "in order
to implement the proposed statutory MIAM legislation we need to
repeal these divorce provisions as the mandatory MIAM requirement
is similar to the information meeting [...]"
We conclude that draft clause
8 contains appropriate and necessary legislative changes.
192. Returning to clause 7, the Explanatory Notes
to the draft clause and the Impact Assessment state that:
The aim of the proposal is to save judges' time in
looking at uncontested
divorce cases. Currently
the district judge in the county court will look at the divorce
papers and any arrangements for children before issuing a decree
nisi. A member of the court staff deals with applications to make
the decree nisi absolute.
They also state:
The Government intends to use the powers to delegate
functions of the Family Court, or of a judge of that court, [...]
to delegate the consideration of uncontested divorce and judicial
separation and dissolution and separation proceedings to legal
advisers of the family court, subject to a power to refer appropriate
cases to a judge.
193. We asked witnesses to the inquiry whether the
draft clauses on divorce removed an important safeguard for children.
Most witnesses, including the Association of District Judges and
Association of Lawyers for Children, said no. For example the
Most divorce proceedings are dealt with administratively
and child protection concerns are unlikely to come to notice through
information set out in a statement of arrangements for children.
We agree that any disputes about future arrangements for the child
or any child protection concerns are more appropriately dealt
with through a free-standing application to the court under the
Children Act 1989.
194. Among the witnesses who raised concerns about
the effect of the proposed change on children were the Family
Law Bar Association and the Interdisciplinary Alliance for Children
who told us:
It is the experience of FLBA members that the requirement
for a District Judge to sign off the arrangements for the children
as being satisfactory has been used effectively over many years
to flag up cases where further scrutiny is required. Where the
court cannot be satisfied about the arrangements, it may make
a direction for further enquiry to be made, particularly for a
report from local social services under Section 7 of the Children
It should be borne in mind that, prior to the passing
of the Children Act 1989, the parent with care was required to
attend court to give evidence about the arrangements for the children.
The current paper exercise is simple and streamlined and, in the
opinion of the FLBA, provides a minimum safeguard for children
whose parents are divorcing. (Family Law Bar Association)
Such a provision would remove one of the few remaining
safeguards for children in private law proceedings as it would
mean that there would be no possibility of any objective judicial
scrutiny of the arrangements, even the limited paper exercise
that exists as the moment would go. (Interdisciplinary Alliance
195. The Family Judiciary told us that the removal
of the requirement for the court to consider whether it needs
to exercise its powers under the Children Act or to delay decree
absolute/final order is "unlikely to have any significant
impact on the level of protection for children. The power of the
court to require further evidence in relation to the child's arrangements
is rarely exercised."
196. Cafcass, who do not consider that the change
would remove important safeguards, told us that in 2011-12 they
had received three applications from courts in respect of section
41 of the Matrimonial Causes Act 1973, and as at 24 September
2012 they had not received any applications of this type in 2012-13.
197. We conclude
that, on the balance of the evidence we received, draft clause
7 does not remove an important safeguard for children, and we
consider that the changes are likely to be merely administrative.
We recommend, however, that the Government monitors the changes
to ensure that if the problems suggested by some of our witnesses
arise, they are identified and appropriate safeguards are re-introduced
either in statute or by changes in Court procedure.
198. The Government wishes to remove these requirements
to help its wider policy of expediting and simplifying the procedure
for uncontested divorces. We heard evidence from the Family Judiciary
about these changes, and their concerns and recommendations:
The removal of the requirement under s.41 and s.63
is distinct from, and should not be confused with, the proposal
to deal with uncontested divorce administratively. There are increasingly
frequent issues relating to conventional marriage and divorce
and the recognition of marriage and divorce processes overseas.
There is as yet no safeguard in the proposed legislation to ensure
that the work of the District Judges who scrutinise divorces can
The judiciary do have a proposal that would allow
uncontested divorces to be dealt with by legal advisersproperly
trainedwhich is that they should be supervised by the district
bench. If the administrative system that HMCTS set up allowed
the legal advisers to work with the district judges, then the
issues that the senior district judge raises could be dealt with
on a day-to-day basis by proper advice and consultation between
those two groups of professionals. That coincides exactly with
how legal advisers and judges will be working in the new family
court, both in respect of allocation of work and indeed in obtaining
advice on more complex work as problems arise.
are pleased to see that the Family Judiciary's recommendation
that legal advisors complete this administrative work on uncontested
divorces under the supervision of a district judge has been adopted
in the Impact Assessment.
88 Explanatory notes, para 15 Back
HC (2010-12) 518-I, para 118 Back
Ev 66 Back
Q 46 Back
Q 30 Back
Court form accompanying an application, that sets out whether
the Applicant has complied with the MIAM process. Back
Ev w15 Back
Ev 58 Back
Ev 44 Back
Q 33 Back
Ev 67 Back
Ev 80 Back
Ev 52, 54 Back
Ev 103 Back
Ev 80 Back
Ev w46 Back
Ev w65 Back
Qq 2-11 Back
Q 97 Back
HC (2010-12) 518-I, para 126 Back
Q 150 Back
Ev 41 Back
Q 31 Back
Q 32 Back
Ev 41 Back
Q 153 Back
Q 41 Back
Ev 41 Back
HC (2010-12) 518-I, para 153. Back
Ev 41 Back
Impact Assessment -The mediation pre-application protocol and
legislation to make attendance at a Mediation Information and
Assessment Meetings (MIAM) a prerequisite for starting court proceedings
Ev 102 Back
Q 45 Back
Q 43 Back
Ev 101 Back
Ev 103 Back
Norgrove Report, para 4.60. Back
Impact Assessment, Child Arrangements Order, 31 July 2012,page
6,sub-heading, "The benefits to children of involvement with
both parents". Back
Ibid, page 7. Back
Ev w34 Back
Ev w24, w27 Back
Ev 44 Back
Q 20 Back
Impact Assessment, Child Arrangements Order, 31 July 2012,
page 7. Back
Q 20 Back
Impact Assessment, Child Arrangements Order, 31 July 2012,
page 12. Back
Q 18 Back
Ev 88 Back
Q 156 Back
Ev 109 Back
For examples of delay caused by appeals see cf: Bader v Kramer
US Court of Appeal for the Fourth Circuit, F.3d 051480, or
Abbott v Abbott US Supreme Court. We make no comment on
the judgments in these cases. Back
HC (2010-12) 518-I, para 71 Back
Table 2.9. We note that the base number of respondents to this
survey was relatively small. Back
Qq 20, 105 Back
Q 108 Back
Q 139 Back
Q 160 Back
Q 161 Back
Q 162 Back
Q 177 Back
Q 171 Back
HC (2010-12) 518-I, para 65 Back
Ibid, Chapter 9 Back
Danish Parental Responsibility Act 2007 Back
Australian Family Law Act 1975 (Cth) (as amended in 2006 and 2012) Back
Q 108 Back
Q 135 Back
Qq 78-79 Back
HC (2010-12) 518-I Back
Ibid, Q 350 Back
Ev w72 Back
Taking a longer view of contact: the perspectives of young
adults who experienced parental separation in their youth,
Prof. Jane Fortin, Joan Hunt and Dr Lesley Scanlan. Taken from
the Executive Summary and as summarised pre-publication by the
authors in July  Fam Law. Back
Study by the Danish National Centre for Social Research. Back
Qq 110-111 Back
Ev 80 Back
Qq 8-11 Back
Q 95 Back
A v A (Shared Residence)  EWHC 142 (Fam); 
1 FLR 1195 Back
Q 77 Back
Q 173 and The Telegraph, 5 November 2012. Back
Kaspiew et al, Chapter 15, page 348. Back
Kaspiew et al, Chapter 16, Summary of key findings and
conclusions, page 365. Back
Q 113 Back
Letter from Edward Timpson MP to Sir Alan Beith, 1 November 2012,
Q 25, 13 June 2012 Back
HC (2010-12) 518-I, Q 358 Back
Q 105 Back
The Centre for Separated Families Consultation Response. Back
Resolution Consultation Response. Back
Q 116 Back
Ev 58 Back
Explanatory notes, para 65 Back
Ibid, para 67 Back
Ev 92 Back
Ev 88 Back
Ev 80 Back
Ev 88 Back
Impact Assessment, Provisions for divorce arising from the
Family Justice Review, page 7 Back