Joint Committee on The Draft Children (Contact) and Adoption Bill Written Evidence

Memorandum by Jewish Unity for Multiple Parenting


  First, we would like to thank those seeking input on this draft Bill for the opportunity to provide written comments.

  JUMP (Jewish Unity for Multiple Parenting) is a support and lobby group within the Jewish Community campaigning to secure better relationships following separation and divorce for children, their parents and extended family as well as providing support to those encountering similar problems. We find many parents struggling to maintain a positive relationship with their children after divorce, particularly non-resident parents. Often, they are fathers, but the problems affect a growing number of mothers as well as grandparents and extended family members.

  We are lobbying with other national parent groups for a legal presumption of parenting time for both parents at the outset of a contested child residency case so that it explicitly acknowledges the vital and equal role of both parents continuing in their children's lives after separation/divorce. We realise the significant impact that the legal profession and the Courts often have as to how the painful divorce process impacts on the children and their relationships with both parents and their respective families. We also recognise that safe contact for children is paramount and needs to be ensured from the start. In addition, a legal presumption of parenting time is a distinct issue from the time each parent practically spends with their children which will be influenced by a number of factors. However, to ensure each parent is able to maintain a loving, nurturing and continuing relationship with their children they should be able to spend a minimum of 30 per cent of their time with their children following separation/divorce.

  JUMP has provided written evidence to the DfES on their July 2004 Green Paper on Parental Separation: Children's Need and Parents' Responsibilities and forwarded these also to the Constitutional Affairs Committee who have conducted an inquiry into the family justice system and the operation of family Courts. We feel this evidence is also relevant to raise in relation to this draft Bill (see Appendix 1). Through our ongoing initiative with the Chief Rabbi's Office, JUMP also requested that the Chief Rabbi submit written evidence to the Constitutional Affairs Committee in January 2005 (see Appendix 2). In this evidence the Chief Rabbi stated that ".  .  . it is the firm view of the Office of the Chief Rabbi and the Chief Rabbi himself that both parents of the child, have a right to be involved in the child's upbringing (unless proven otherwise) and can make a contribution to their religious, educational, emotional, social and material welfare."

  In addition, JUMP has provided comments to the Law Society in February 2005 on their 2nd Draft Family Law Protocol.


  We welcome proposals for new and more flexible judicial powers to ensure Contact Orders are adhered to, however we do not feel these new proposals are extensive or powerful enough, and remain to be convinced that they will achieve their aims of maintaining contact for children with their non-resident parent.

  We also welcome new mechanisms to deal with contact disputes such as in-Court conciliation, improved Court case management and alternative dispute resolution projects. However our concern again is that we are not convinced the following issues have been addressed to ensure enforcement, viability and practical implementation of these measures. The issues that we are particularly concerned about are as follows:


  The draft Bill suggests that there is sufficient funding currently available to address the draft Bill proposals because the Green Paper claims the number of contact disputes will significantly diminish as a result of these new proposed measures. A recalcitrant parent is not going to adhere to a Contact Order unless it is clear to them from the outset that both parents have an equal legal presumption of parenting rights.

  As raised by a representative from the Law Society at the Constitutional Affairs Committee oral evidence session on 7 December 2004, the first one-day hearing date available in the High Court was found to be in July 2005, namely there was a delay of over six months. This is therefore a reflection of the limited number of High Court judges available to hear cases in relation to the increasing number of contact disputes coming to the High Court. As the High Court is the arena to which most difficult and protracted cases are referred, unless this situation is rapidly addressed through significant additional funding of judicial positions and support mechanisms, the proposed improvement of Court case management will just not be achievable.

  Changes to the recent C1 and C1A Court application forms early this year demand increased information required to bring a case to Court, and additionally request information relating to domestic violence, violence or harm. We believe that there will be a disproportionate increase in the number of cases involving alleged domestic violence. This will take significantly more Court time in evaluating whether a genuine case of domestic violence exists and will significantly impact on, and delay, the continuing evaluation and implementation of contact arrangements for children with their non-resident parent, which assuming contact is safe, will seriously and negatively impact on their ongoing relationship.

  In addition, if the full gamut of domestic violence allegations is to be taken seriously, consideration must also be taken of cases where implacable hostility is cited whereby the resident parent damagingly influences the children against the non-resident parent that can result in the breakdown of their relationship.

  No mention is made of what action a Court might take should the allegations be proven to be unfounded.

Timely Implementation of the draft Bill proposals

  There is a genuine concern that with the impending General Election there will be a significant delay in implementing these proposals. There is overwhelming evidence provided to date from a broad spectrum of interested parties that the current family law system in this country is not working. Reform and effective change to protect the children's best interests in maintaining a relationship with both of their parents following relationship breakdown must therefore be implemented as a matter of urgency and not influenced by any political agenda.

Integrated Court-related process

  In all the recent consultation documents there has not once been a proposal about the overall integrated Court-related process and how each group (ie; judiciary, social services, mediation services, children and family experts etc) will input into this process. If changes to the current family law system in this country are to be effective, every Agency and individual involved in the process needs to understand from the outset how the process should work. At present it is a very "hit and miss" process and no one person or Agency is held accountable for any significant delays in having a case heard in Court. This is clearly unacceptable, and needs to be addressed.

  Experiences of how systems work well in other jurisdictions should be taken into consideration, seriously reviewed, particularly where a critically evaluated level of success has been achieved, and then included in any recommendation for change in this country. The following process has an established success rating and should be seriously considered here:

Proposed Court Integrated Process

  Step 1—On issue of proceedings about children, a Court hearing is booked six weeks in advance. A Parenting Co-ordinator is appointed.

  Step 2—Mandatory "parenting education" class is attended by both parents.

  Step 3—Mandatory "Alternative Dispute Resolution" session is undertaken to guide parents to an agreed "Parenting Plan".

  Step 4—Court Hearing where the agree "Parenting Plan" is scrutinised and endorsed, or if no agreement, the Court Orders its own "Parenting Plan".

  Step 5—Follow up care. The Parenting Co-ordinator remains available to help address any ongoing problems with attempts to resolve these outside of Court.


  It is not possible or practical to comment on each specific point. However the following statements have been raised specifically as they cause particular concerns.


  11C  Sections 11A (Contact activity direction ) and 11B (Contact activity condition): further provision

  (7)  Information about the likely effect of the direction (or the condition) may, in particular, include information as to:

    (a)  any conflict with the person's religious beliefs;

  It is important to recognise and respect differing religious beliefs either between religions or within a religion, and ensure that the beliefs embraced within the family while it was intact are upheld. However, the use of religion or alleged religious differences between the parents to thwart contact with the children should be addressed and minimised as much as possible.


  (3)  If the court is satisfied that a party to the proceedings has without reasonable excuse failed to comply with the contact order, it may make an order (an "enforcement order") imposing on the person—

    (a)  an unpaid work requirement, or

    (b)  a curfew requirement.

  (4)  [If the court makes an enforcement order imposing a curfew requirement on a party to the proceedings, it may include in the order provision imposing a compliance monitoring requirement on him.]

  Whilst new sanctions available to the Court are to be welcomed, the imposition of a curfew on the parent failing to comply with a contact order is highly unlikely to achieve this aim. The issues of enforcing it and policing adherence to it are completely impractical and are not a strong enough deterrent. In addition, such policing will incur additional financial and resource costs that have not been considered.

  In addition, the gender wording relating to "him" in this point and many other points throughout the draft Bill need to be addressed to ensure gender neutrality.

  In this regard, JUMP infers the generic term "children" to mean one or more child, and the term "he/him/his" is a gender-neutral description that includes "she/her/hers". The use of the word "their" instead of "he/him/his" may address this problem.


  (4)  If the court is satisfied that the ground is established, it may order the person in breach to pay the applicant compensation in respect of his financial loss.

  This sanction only has a very limited chance of success in the very small number of cases where finances are not an issue to either parent. Again, even if this sanction were imposed on the recalcitrant parent breaching a Court Order, how is it to be enforced, particularly where the sanctioned parent states that they do not have the means to pay?



  45.  For illustrative purposes, we assume that measures on contact orders will reduce enforcement applications by a maximum of up to 80 per cent, reducing the annual caseload for enforcement applications from around 7,000 per year to around 1,400.

  This assumption is made without any credible supporting data such as a Regulatory Impact Assessment, bearing in mind the number of contact orders has steadily increased over the last five years. The proposals made in this draft Bill are simply not radical enough to achieve this. In addition, the points made previously about the perceived increase in Contact Order disputes fuelled by domestic violence allegations will certainly not reduce the number of applications and subsequent caseload for enforcement applications.


  54.  We do not anticipate that the provisions in the Bill will have a significant effect on public service manpower.

  58.  It is estimated that the maximum reduction in overall caseload would be around 60 per cent, which would represent a maximum overall saving of up to £76.8 million per year.

  Based on previous comments made in the General Comments section we are not compelled to believe these arguments and, if anything, more funding has to be made available to address the significant shortfall of judges available to meet required Court hearing needs so that cases come to Court within a maximum of six weeks and not six months which is the current trend in the High Court.


  60.  The commencement clause provides for the clauses to be commenced by order of the Secretary of State, after consultation with the National Assembly for Wales.

  There is no indication how quickly this will happen and there are real concerns that the forthcoming General Election will railroad a rapid implementation of proposed poorly conceived improvements to the family law system which is desperately needed; alternatively the Bill will be consigned to the back-burner until the next Session of Parliament.


  4.  The legal and court process can be slow and adversarial which can contribute to a deterioration of the situation between separating couples. It can also result in the voices of the children involved being overlooked.

  5.  Court decisions based on past circumstances may not always provide workable long-term solutions. The resolution of family issues is not a one-off event; it is an on-going process that parents need to work at over the long term. As circumstances change, orders may need to be varied. Other cases that return to court may be due to non-compliance with the court order. At present, a number of cases keep returning to court and the courts may find it hard to resolve them.

  These are the precise reasons why a rapid and fundamental overhaul of the family law system needs to be implemented in the UK. Changes have to be made based on input and recommendations from other judicial systems that have been successful in addressing these challenging problems. "Tinkering at the edges", which this current draft Bill attempts to do, simply will not put in place an effective family law system geared to meet the demands and challenges faced by parents and more importantly by children in the 21st century.


  24.  The package of measures proposed in the Green Paper should ensure that fewer cases brought to court are repeat applications as other interventions will be more readily available.

  Based on previous comments made in the General Comments section and also in Appendix 1, we are not compelled to believe these arguments.


  38.  CAFCASS will take on the role of:

    —  advising courts on what provision is available in the local area, before a court directs a person;

    —  to undertake a contact activity, or makes an order on condition that they do so, or makes an enforcement order;

    —  monitor, and report to the court on, compliance with a contact activity;

    —  monitor, facilitate and report to the court on, compliance with a contact order; and

    —  monitor, and report to the court on, compliance with an enforcement order.

  39.  This role has been discussed with CAFCASS, and it is anticipated that no additional resources would be needed, as most CAFCASS officers would be aware of information relating to programmes in an area through the course of their normal work, and would not require additional research to advise the court.

  Recent evidence presented to the Constitutional Affairs Committee has clearly demonstrated that CAFCASS is completely ill-equipped to deal with these proposed reforms. There are no consistent quality standards applied to CAFCASS officers as to how they work within the family law arena, and until these are put in place as a fundamental first step, then these other proposed roles and responsibilities for this government organisation simply cannot be met.


  58.  At present, courts can enforce contact orders under the law of contempt, through fines and the power to commit to prison those who have disregarded orders (or equivalent statutory powers in the Magistrates' Court). However, the provisions in the draft Bill provide a more flexible range of facilitative and enforcement methods. These will give courts the power to refer parents to a variety of new measures to facilitate the making of contact arrangements and to improve compliance with contact orders.

  As previously stated, these new sanctions are a minimal change to those already in place and are simply not far-reaching enough to ensure compliance of Contact Orders. Mandatory parent education needs to be established as the norm from the outset and parents need to be informed what the Court expects of them from the start in agreeing parenting time arrangements. Parents also need to be informed that breaching agreed Contact Orders will not be tolerated. These firm measures should reduce the number of times cases return to Court on the issue of non-compliance with Court Contact Orders.

  The Government has previously stated that the 10 per cent of most difficult cases reach the Court arena; therefore strict measures must be adopted from the outset to achieve a significant improvement in the family law system and potentially achieve the cost savings so desired. In addition, the question has to be asked as to whether the best welfare of the child or cost-savings to Government is uppermost?


  59.  Once proposals have been in place for three years, we intend to monitor the use of the new powers and compare the number of applications made currently to those under the new powers. One way we would measure success is by a reduction in the number of court orders and repeat applications.

  The proposed review method and assessment of success endpoints is not frequent or detailed enough bearing in mind the importance of ensuring an improving family law system in this country as quickly as possible. The system should be made open and transparent and a clear framework established that is communicated to everyone involved in the process.

  Annual interim evaluations should be made and significant shortfalls addressed on an ongoing basis with proposed recommendations made to address these. In addition, a final full 3-year review should be undertaken. For such a review to be effective, the statistics need to be presented timeously. This infers that statistics need to be collected and analysed on an on-going basis to reduce the delays between the end of a reporting period and publishing statistics where the delay is currently typically a year. This is not acceptable, and a time limit of six months should be mandated.

  Clear assessment criteria should be defined which should include:

    —  Number of new applications under the new powers vs previous powers

    —  Number of cases returning to Court on a repeat application as a result of breached Court Contact Orders under the new powers vs previous powers

    —  Number of cases where domestic violence is cited using the new C1 and C1A forms vs the previous C1 form

    —  Number of cases where domestic violence is proven using the new C1 and C1A forms vs the previous C1 form

    —  Number of cases where contact has been withheld resulting from allegations of domestic violence later shown to be false using the new C1 and C1A forms vs the previous C1 form

    —  The time taken to reach a decision about domestic violence allegations, resolution of contact arrangements, and the time one parent has been prevented from seeing their children as a result

    —  The true incidence of contact related domestic violence problems based on contact orders made from Court applications

    —  The time taken for cases to reach Court following submission of an application (NB: There should be a maximum defined waiting period for an initial Court hearing of six weeks as the standard to be achieved)

    —  Assessment of judicial continuity in cases and the impact of this on outcome and the need to return to Court

    —  The types of residency arrangements and contact arrangements agreed and their level of success in minimising repeat applications

3 March 2005

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