Pre-legislative scrutiny of the Children and Families Bill - Justice Committee Contents

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

applications relate,

(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

Act 2003;

"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.[88] In our Report, Operation of the Family Courts, we broadly welcomed similar changes to the Practice Direction 3A - Pre-Action Protocol for Mediation.[89]

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".[90] 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.[91] The MIAM is:

[...] 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 suitable—nothing more.[92]

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[93] 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.[94]

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.[95] 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.[96] The mediators who gave evidence disagreed, highlighting the need for a proportionate response depending upon what the mediator is told.[97]

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 the court".[98] 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]

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.[100] Colin Anderson of the College of Mediators stated in supplementary evidence that:

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 officers. [...]

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.[101]

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 Safeguarding Boards,[102] level 2 safeguarding checks to be made in advance of all MIAMs,[103] and initial safeguarding checks by Cafcass.[104] We conclude 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.[105] Cafcass confirmed that there are no plans for them to be involved in private law proceedings pre-court applications.[106] 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 organisations).

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 mediators".[107] 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.

103. We 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 Rules:
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.[108]

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,[109] with legal aid funding triggering the assessment for both public funding eligibility and suitability for mediation.[110] 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 dispute.

109. We 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 first,[111] 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 a MIAM."[112] 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.[113]

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.[114]

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 Rules.

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.[115] 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.[116] 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 mediation."[117]

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.[118]

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."[119] We are 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.[120] 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.[121]

117. We asked the Ministry of Justice to consider this point, and they provided a written response.[122] 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 course.[123]

119. We 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.[124] 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.

Drafting revisions

121. We make the following recommendations for further smaller revisions to draft clause 1:

a.  1(1)(d) - 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

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 children:

  • 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[125] 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."[126] 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.[127]

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.[128] 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.[129]

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".[130]

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.[131]

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.[132]

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 than CAOs.[133]

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[134] 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 be problematic.[135]

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 parental responsibility.

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.[136]

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".[137] The Government also wrote to us on this issue:[138]

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 examples:

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.

138. It 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.[139]

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.[140]

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 family separation[...]

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 Cymru.

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.[141] 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[142].

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.[143]

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.[144]

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.[145]

150. We put the question to the Minister again, and he answered:

[...] 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.[146]

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, [...][147]

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.[148]

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.[149]

153. Analysing 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,[150] 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.

155. Additionally, and in relation to perceptions, in our Report Operation of the Family Courts we considered media and public access to the family courts[151] 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[152] or the Australian 2006 legislation[153] 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 their children?

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 principle?

158. Families Need Fathers told us that they thought the draft clause would "strengthen the 'best interests of the child' presumption".[154] 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.[155] 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.[156]

160. Since the publication of our earlier Report[157] 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 those—21% of mothers and 16% of fathers—said 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 that.[158]

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)[159] 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."[160] 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[161] 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 happy


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[162], 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 everything":

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. [163]

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 cases.[164]

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.[165] Cafcass told us that they were not doing as much direct work as they used to.[166]

169. Changes 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 v A[167] referred to by Mrs Justice Pauffley in her evidence to us.[168] 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.

172. Whilst 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". [169]

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 concept.[170] They 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.[171]

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 aspects—emotional, 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.[172]

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."[173] We agree 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?

180. When 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 happens.[174]

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.[175]

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"[176] and some responses to the Co-operative Parenting Consultation agreed. On the other hand, other responses suggested that litigation would increase, particularly re-litigation[177] or additional fact-finding hearings.[178]

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 part—or, in terms of the children's rights measure, to have direct contact and a meaningful relationship—that 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.[179]

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 cases.

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 legislative change.

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 etc.).

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 [...]"[180] 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.[181]

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.[182]

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 NSPCC said:

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.[183]

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 Act 1989.

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 for Children)

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."[184]

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.[185]

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 be replicated.[186]


The judiciary do have a proposal that would allow uncontested divorces to be dealt with by legal advisers—properly trained—which 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.

199. We 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.[187]

88   Explanatory notes, para 15 Back

89   HC (2010-12) 518-I, para 118 Back

90   Ev 66 Back

91   Q 46 Back

92   Q 30 Back

93   Court form accompanying an application, that sets out whether the Applicant has complied with the MIAM process. Back

94   Ev w15 Back

95   Ev 58 Back

96   Ev 44 Back

97   Q 33 Back

98   Ev 67 Back

99   Ev 80 Back

100   Ev 52, 54 Back

101   Ev 103 Back

102   Ev 80 Back

103   Ev w46 Back

104   Ev w65 Back

105   Qq 2-11 Back

106   Q 97 Back

107   HC (2010-12) 518-I, para 126 Back

108   Q 150 Back

109   Ev 41 Back

110   Q 31 Back

111   Q 32 Back

112   Ev 41 Back

113   Q 153 Back

114   Q 41 Back

115   Ev 41 Back

116   HC (2010-12) 518-I, para 153. Back

117   Ev 41 Back

118   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 31/07/12 Back

119   Ev 102 Back

120   Q 45 Back

121   Q 43 Back

122   Ev 101 Back

123   IbidBack

124   Ev 103 Back

125   Norgrove Report, para 4.60. Back

126   Impact Assessment, Child Arrangements Order, 31 July 2012,page 6,sub-heading, "The benefits to children of involvement with both parents". Back

127   Ibid, page 7. Back

128   Ev w34 Back

129   Ev w24, w27 Back

130   Ev 44 Back

131   Q 20 Back

132   Impact Assessment, Child Arrangements Order, 31 July 2012, page 7. Back

133   Q 20 Back

134   Impact Assessment, Child Arrangements Order, 31 July 2012, page 12. Back

135   Q 18 Back

136   Ev 88 Back

137   Q 156 Back

138   Ev 109 Back

139   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

140   HC (2010-12) 518-I, para 71 Back

141   Table 2.9. We note that the base number of respondents to this survey was relatively small. Back

142   Qq 20, 105 Back

143   Q 108 Back

144   Q 139 Back

145   Q 160 Back

146   Q 161 Back

147   Q 162 Back

148   Q 177 Back

149   Q 171 Back

150   HC (2010-12) 518-I, para 65 Back

151   Ibid, Chapter 9 Back

152   Danish Parental Responsibility Act 2007 Back

153   Australian Family Law Act 1975 (Cth) (as amended in 2006 and 2012) Back

154   Q 108 Back

155   Q 135 Back

156   Qq 78-79 Back

157   HC (2010-12) 518-I Back

158   Ibid, Q 350 Back

159   Ev w72 Back

160   Ibid. Back

161   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 [2012] Fam Law. Back

162   Study by the Danish National Centre for Social Research. Back

163   Qq 110-111 Back

164   Ev 80 Back

165   Qq 8-11 Back

166   Q 95 Back

167   A v A (Shared Residence) [2004] EWHC 142 (Fam); [2004] 1 FLR 1195 Back

168   Q 77 Back

169   Q 173 and The Telegraph, 5 November 2012. Back

170   Kaspiew et al, Chapter 15, page 348. Back

171   Kaspiew et al, Chapter 16, Summary of key findings and conclusions, page 365. Back

172   Q 113 Back

173   Letter from Edward Timpson MP to Sir Alan Beith, 1 November 2012, Back

174   Q 25, 13 June 2012 Back

175   HC (2010-12) 518-I, Q 358 Back

176   Q 105 Back

177   The Centre for Separated Families Consultation Response. Back

178   Resolution Consultation Response. Back

179   Q 116 Back

180   Ev 58 Back

181   Explanatory notes, para 65 Back

182   Ibid, para 67 Back

183   Ev 92 Back

184   Ev 88 Back

185   Ev 80 Back

186   Ev 88 Back

187   Impact Assessment, Provisions for divorce arising from the Family Justice Review, page 7 Back

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Prepared 14 December 2012