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What is and who is behind the Family Law Reform Group?
The Family Law Reform Group, as the name suggests, is a group specifically set up to campaign for UK family law reform. It is the brainchild of David Mortimer. David, a father who has been through the family court process and suffered many of the pitfalls and injustices of an outmoded legal system, has long campaigned for changes in family law to achieve justice for all, and in the hope and expectation that his sons’ sons and other fathers’ sons will never have to endure what he or they have done. That is the ethos of this Group – to build a better future for our children.
I became acquainted with David a number of years ago through a mutual contact while researching for the first edition of my legal handbook Fathers Matter. During this time I have observed his determination, perseverance and tenacity in bringing difficult and highly controversial family issues to the foreground, even though on numerous occasions it has brought him into conflict with those in a position of authority. Although David instigated the formation of the Group, he makes it very clear that he is just one part of it and the Group depends on the input of all its members to bring about radical reform which is its ultimate goal . The Group also provides support and information to anyone who needs it.
Celia Conrad, former specialist family lawyer and author of Fathers Matter.
----- Original Message -----
Dear Mark Lancaster,
The Government have got themselves into a muddle about the current law and how the law operates in practice. The Government has repeatedly maintained that case law safeguards the principle of the two-parent model; that is to say, the principle that children normally benefit from a meaningful relationship with both parents following separation, unless good reasons can be shown why that should not happen. In other words, they say that there is already a presumption of meaningful relations or meaningful contact enshrined in case law. But when it is put to them, that that presumption should be mirrored in statute, they say that they do not like the idea that presumption of reasonable contact should actually appear in the Children Act 1989. So their position is contradictory, and the muddle of it is compounded by your belief that the present law is all right.
The present law is not all right, because it cannot prevent thousands of blameless and loving parents being granted next to no contact with their children for no material or good reason. I an not talking dangerous or dysfunctional parents but about normal, loving, non-violent parents who have had to come to court repeatedly to prove to a judge why it is reasonable for them to have a meaningful relationship with their child. That is the effect of the current law. They do not enter the court with a presumption of reasonable or meaningful contact; they enter it with a presumption of contact of some kind, which may end up as two hours once a fortnight, for no material or good reason.
Case law does not help those parents. The Governments contention that it does is based on a fundamental misreading of case law and of the Children Act 1989. Certainly you can find in case law warm pronouncements by judges about the desirability of meaningful relationships between the child and both his parents. But if case law is to be useful as a precedent, it has to pass a test. It would have to be recognised by the Court of Appeal as having clear applicability to broad and recognisable categories of parents. It would have to provide a steer to the courts in cases involving those same categories of parent about how much contact time it is reasonable for the resident and non-resident parent to have. Nothing like that exists in case law, which is why I say that the Government has misled it's self in referring to case law.
The question was asked in 2006: what is the definition of the term "reasonable contact"? The answer is that it can be defined by reference to units of time, dependent on the circumstances of the case, so long as those units of time are sufficient to deliver the desired end result, which is a meaningful relationship with the child. Most aggrieved non-resident parents will tell you that unless there is overnight contact, the chances of a meaningful relationship continuing are low.
The judge might say that in the best interests of the child, and to give the best chance of a meaningful relationship, it is reasonable for the resident mother to have 70 per cent of the contact time and the non-resident father to have 30 per cent. The apportionment is then translated into numbers of days and nights per year.
But all too often, material contact of this kind is denied or brought to an end for no material reason. It is brought to an end in the face of the resident mother's emotional protests. It is brought to an end because the mother accuses the father of having repeatedly asked for the marmalade in a sarcastic tone of voice. It is brought to an end because the mother accuses the father of changing the time at which a meeting is to take place, thereby upsetting the domestic routine. There needs to be a good reason to deny a blameless non-violent parent reasonable contact time.
With only a legal presumption of contact, a non-resident parent can be sure of only one thing—that he or she will be awarded at least some minimal level of contact unless a good reason can be shown why not. No more than that.
The fact that there is a presumption in law does not mean that a court must make a contact order. If there is a good reason in the interests of the child not to make a contact order—usually because to do so would pose an unacceptable risk to the child—then there is no contact order. In the same way, if the Children Act were to provide for a presumption of reasonable contact, that would not put the child at a greater risk of harm. A presumption is only what it says—a presumption. If a good reason is shown to the court why there should not be material contact, the court will not make an order granting it. It would not be reasonable to do so.
So I say to the Minister, please take further legal advice. With one breath, he is embracing the presumption of reasonable contact, and with the next he is resisting it. By sticking to his current position, by resisting the idea that a presumption of reasonable contact should be incorporated into the Children Act, he is doing one thing and one thing only—rejecting the two-parent model for bringing up children. He is rejecting the golden principle that the child-parent bond should not be lightly set aside. He is going against what he says he believes about how children can best maximise their life chances. And because he does not acknowledge that a very simple change to the law is what stands between contentment and utter grief for hundreds, if not thousands, of parents, he has allowed himself to believe that the measures contained in the Children & Families Bill will do good. They will not, because they are conceived on the premise that there is nothing wrong with the Children Act provisions on contact. If you do not cure the root of the problem, you will not cure the problem, and the root of the problem is something that the Children & Families Bill does not touch.
Caroline Opposes Lords’
Amendment to Children & Families Bill on Shared Parenting
Caroline Nokes, MP for Romsey & Southampton North, has spoken against an Amendment to the Children & Families Bill which sought to ‘water down’ the right of absent parents to have on-going involvement in the life of their child. Caroline was joined by other MPs who likewise criticised the amendment.
Caroline, who sat on the committee which scrutinised the Children & Families Bill, criticised amendment 12, tabled in the Lords by Baroness Butler-Sloss, once the most senior family judge in England and Wales. The amendment sought to change Clause 11 of the Bill, which had intended to enshrine an automatic right for a child to be parented by both parents, except in exceptional circumstances.
Speaking during the debate, and on the subject of the welfare of children, Caroline said “The welfare of the child should be the court’s paramount concern, but it should not be the court’s only concern. The legal system must ensure that the child’s welfare comes first, but it should not ignore the welfare of parents, whether a mother or a father. Few people consider the emotional and psychological impact that enforced separation from one’s own flesh and blood can have.”
Speaking after the debate, Caroline said “The purpose of the Bill was to produce legislation which ensured the child’s need was the paramount consideration, and included the right to have an on-going, meaningful relationship with both parents. The Bill which left my committee did this, and would have benefitted the child and non-resident parent alike. The Bill which came back from the Lords does not. It removes almost any expectation an absent parent may have of enforceable shared parenting arrangements.”
Caroline continued “To deny non-resident parents a meaningful role in the life of their child is not only unjust to the child, and detrimental to the parent, it is also contrary to the best interest of society. The social, financial and emotional cost of family breakdown is too high a cost to bear, and we must do everything we can to encourage families to stay together, and if not possible, to work together after separation. There is much research which shows children, and especially girls with an absent father, deal better with family breakdown where there is an on-going relationship with both parents. We must encourage shared parenting for the good of society, the parents and most importantly, the good of the children.”
Caroline went on to echo the calls of organisations like Families Need Fathers, UK Family Law Reform and the Joint Parenting Association, for the law to reflect the experience of shared parenting in Australia, where cases of family litigation have fallen. “Credible shared parenting organisations make the case overwhelmingly for shared parenting legislation. The Government should listen and not retreat on this issue. Opponents of shared parenting are wrong” said Caroline.
The Butler-Sloss Amendment sought to ensure the Bill does not create an expectation that absent parents can demand a set amount of time with their child. But Caroline said the Bill should create exactly that expectation. “It is interesting those who supported this amendment are those who opposed the use of the phrase ‘shared parenting’ in the original Bill. This amendment was another example of the ‘chipping away’ of what was intended to be at the heart of this clause – an automatic right for the child to be parented by both parents. Unless you clearly establish a legal presumption in favour of absent parents spending a reasonable amount of time with their children, and more importantly, enshrine a right for a child to have a meaningful ongoing relationship with both parents, there will be no change in custody outcomes, and we will have missed the best opportunity in a generation to create a culture of shared parenting.”
----- Original Message -----
Dear Mr Mortimer
Thank you for your further emails of 13 January and 21 January, addressed to the Parliamentary Under Secretary of State for Children and Families, concerning child protection and residence policies, and obligations under the Freedom of Information (FOI) Act. I hope you will appreciate the minister receives a large amount of correspondence and is unable to respond to each one personally. I am aware that you have also contacted several other Secretaries of State and departmental ministers asking for their opinions regarding the points you have raised. The Department for Education is responsible for child protection and child residence policies, and has a comprehensive understanding of the obligations covered by the FOI Act in relation to these policies, and therefore, on this occasion I have been asked to reply on behalf of all recipients of your email. I trust that this single response is acceptable.
I would first like to assure
you that the government is clear that protection from abuse and neglect
is a fundamental right for all children. The department is committed
to reforming the current child protection system to make sure that children
at risk of abuse or neglect are identified early, have an assessment
which is based on their individual needs, and get services to promote
their welfare and protect them from harm.
'If at any time it is considered that the child may be a child in need as defined in the Children Act 1989, or that the child has suffered significant harm or is likely to do so, a referral should be made immediately to local authority children's social care. This referral can be made by any professional.’
Turning to the point you raise about child residence following parental separation. Every family and every child’s circumstances are different, and the courts will continue to make decisions based on what is best for the individual child concerned. The issue is not about equality in the time that a child spends with each parent after separation; neither parent has a ‘right’ to any particular division of the child’s time. It is the quality of time a child spends with each parent, and the sustainability of arrangements, that are the most important factors.
The government is committed to giving parents and others clear information about all of the changes it is making, including the parental involvement legislation. The government’s 'Sorting Out Separation' online information hub at: www.sortingoutseparation.org.uk will include comprehensive information so that parents understand what this change means and what it doesn’t mean. The government intends to work with relevant organisations in the voluntary sector to make sure it makes the right decisions, and that parents have the information they need.
In response to your query about whether Local Safeguarding Children Boards (LSCBs) are subject to the FOI Act or not. I can confirm that LSCBs are not public authorities for the purposes of the FOI Act 2000. LSCBs are made up of many agencies and information requests should therefore be directed to the local authority or relevant partner agency.
Thank you again for writing and I hope this is helpful.
Your correspondence has been allocated reference number 2014/0003237. If you need to respond to us, please visit: http://www.education.gov.uk/contactus, and quote your reference number.
As part of our commitment to improving the service we provide to our customers, we are interested in hearing your views and would welcome your comments via our website at: http://www.education.gov.uk/pcusurvey.
Mark Lancester MP
14th February 2013
Dear Mark Lancester,
Re: Shared Parenting reform
Almost 3 years after the coalition government of David Cameron and Nicholas Clegg was voted into office, its draft legislation on family justice has finally been published. Articles in the media have waxed about the government's "shared parenting" proposal claiming it assures “meaningful” parent/child involvement post-divorce. It clearly does not. The words of the proposal are as starkly plain as can be and there is no requirement that parents (i.e. fathers) have a meaningful relationship with their children. Judges would be required to order that only if the words were in the family law legislation. They are not. Commentators should read the proposal.
What does a parent’s (i.e. father) “ongoing involvement” in his child’s life mean? That’s not defined, so it can mean anything any individual judge wishes it to mean. Perhaps a Christmas card once a year would suffice. What about monthly “visits” via Skype with his child whose mother has been allowed to move with him/her thousands of miles away?
Should it become law; the legislation will make not the least difference in the custody edicts of British family courts. Those rulings reflect judicial prejudice far more than they do the directives of applicable law. After all, no British law requires judges to give custody to mothers 90% of the time, but that’s what they do. No law requires those judges to refuse to enforce the meagre contact rights of children, but they do that too. There is nothing in the proposal that will change that mindset.
Against this backdrop, tens of thousands of children a year are losing contact with their fathers because of a failing family court system and disastrous custody arrangements. (The Telegraph 16 Nov 2009). This is a national disgrace. Anyone who wanted to could see the deleterious effects of fatherlessness in the streets almost every day of the week. A few minutes’ thought would tell anyone that as a simple matter of economics, keeping fathers and children connected makes sense. How much money do we spend every year trying to address social problems – crime, drug and alcohol abuse, boy’s educational difficulties, teen pregnancy etc. – that fathers themselves could hugely ameliorate? The reasons to keep fathers in children’s lives are many and there is no real counterargument.
As to Australia’s shared parenting experience anecdotes are not evidence of a rule, nor must they trump human rights. Far from the 2006 reforms being a failure misleadingly reported by the Norgrove review the Australian Institute of Family Studies evaluation concluded that "The philosophy of equal shared parental responsibility is overwhelmingly supported by parents, legal system professionals and service professionals." Litigation rates have fallen and the Equal Parental Responsibility presumption is beneficial and working well for children, including children under 3, according to parents. (Kaspiew, et al 2009) Opinion polls in Australia have confirmed those assessments.
The attached parliamentary speeches by your Australian conservative party counterparts confirm their continuing support for the 2006 legislation that they introduced. In sum, what we saw in Australia was not the failure of shared parenting but the latest round in an ideological struggle orchestrated by anti-shared parenting forces in the Gillard led Labor government that is analogous to a painful and unnecessary courtroom squabble between former spouses. Children’s rights to their mothers and fathers must transcend party politics.
In the light of your well known support of genuine shared parenting we respectfully request that you move the below highlighted revisions to the UK government‘s timid proposal. “As Emery (2007) points out, a legal presumption does not abandon children’s best interests, but provides a clear, evidence-based definition of children’s needs in the divorce transition.” (Kruk 2012)
(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 substantial, meaningful involvement of that parent in the life of the child concerned will further the child's welfare.
The term, substantial, meaningful involvement in this part denotes a parenting arrangement in which both parents not only have equal rights and responsibilities for their children's welfare and upbringing, but also have an active role to play in the everyday routines of their children's care and development. Each remain as salient attachment figures in their children’s lives, the child spending substantial but not necessarily equal time with each parent.
Substantial meaningful involvement gives emphasis to maintaining or maximizing the child's emotional psychological and physical well-being as much as possible. The term substantial, meaningful involvement encompasses shared day-to-day care of children and equal authority regarding the children’s education, medical care, and religious upbringing.
For the purposes of subsection (2A), a child will be taken to spend substantial time with a parent only if:
a) The time the child spends with the parent includes both (i) Days and nights that fall on weekends and holidays; and (ii) Days and nights that do not fall on weekends or holidays; and
(b) The time the child spends with the parent allows the parent to be involved in:
(i) The child's daily and nightly routine; and
(ii) Occasions and events that are of particular significance to the child; and
(c) The time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
As a highly regarded family values parliamentarian your endorsement of the submitted amendments would be most persuasive and I have included recently published research recommending public policy in favour of shared residential parenting for your consideration. To paraphrase Professor Linda Nielsen (2013) ‘Misconceptions that are not grounded on a broad spectrum of up to date, methodologically sound and statistically important empirical data have an impact on custody decisions and custody laws. By empirical data I mean research studies where quantitative data has been statistically analyzed and published in peer reviewed academic journals – in contrast to articles where opinions or theories are being presented, often without benefit of peer review.’ In that spirit the attached studies present current research refuting erroneous common beliefs related to shared residential parenting.
Sent on behalf of Joint Parenting Association.
Dear Sarah Leung
The 'Lost' Family Law Reform - the NATC EI project
I now enclose copies of our 'exit' correspondence with the Permanent Secretary at the DfES.
These pages chart the final burial of the intended and agreed reform: the NATC EI project.
You may take the view that this correspondence records a straightforward cover-up by the DfES.
This correspondence relates to the same NATC EI project which you have seen recorded in Family Law. It was this project that the judiciary approved, in detail, and this project which was passed intact to the DfES - where it was discarded without the Ministers' knowledge (the DfES claimed to be taking it forward).
This same NATC EI project is the project that the DfES told DJ Crichton and the Honourable Mrs Justice Bracewell was still being developed.
This NATC EI project bears no relation whatever to the Family Resolutions project, which was produced by the DfES and overseen by DJ Crichton.
The last-named was told by the DfES that the design of the project they told him to build was similar or identical to the NATC EI project which they, the DfES, had received. DJ Crichton was not sufficiently familiar with the origina; project to know that a substitution had been made, and that, in fact, the two projects were opposites.
This same NATC EI project remains deeply-needed. It is this same project which would resolve the private-law difficulties in the family courts. The original implementation team, of high and orthodox calibre, remains ready to proceed. The funding requirement is low. Development time is 6-8 months. The project has already been peer-scrutinised and peer-approved. Detailed paperwork and the appropriate management structures are in existence.
Attempts are in continued furtherance to have this project re-instated as originally designed by the NATC and as originally approved.
Of necessity, these efforts are extra-Governmental.
Judicial control (not Whitehall control) is an absolute imperative.
If you wish to take this matter further, it may be possible to direct you to those in the Establishment who still have the NATC EI project in hand.
Dear Mr Mortimer
Thank you for your email of 4 June, addressed to the Prime Minister, about child contact issues. I have been asked to reply on the Prime Minister's behalf. The Government supports the view that children benefit from a continuing relationship with both parents following parental separation, where it is in the best interests of the child and safe for all family members. It is already open to divorcing or separating parents to make what arrangements they consider reasonable for the future of their children. When they are unable to agree, problems can arise and there may be disputes about what level of contact is reasonable. It is only if either parent applies for an order for residence or contact with the child or children in question that the court steps in. The court is required by the Children Act 1989 (the Act) to make the welfare of the child concerned its paramount consideration. In deciding what would be in the best interests of the child, the court has a wide discretion to take account of all the facts and circumstances of each individual case. Decisions are made after the judge has heard and considered all the evidence provided by both parties and any other witnesses, including experts. Both parties are entitled to have their views heard and have the opportunity to respond to any evidence put before the court. If arrangements under a court order do not work out, either parent may, according to the circumstances, apply to the court for the order to be varied, revoked, or enforced. I note your comments on legal presumption of contact however, the Government does not believe that a legal presumption of contact would be helpful. As the principles of the Act focus on the child, and what would be in his/her best interests, a legal presumption of contact would conflict with this principle. A legal presumption would also undermine the ‘no order principle’, which is that the court should only make an order when satisfied that this is better for the child than making no order at all. On 19 March, the Government published its final response to the Children Act Sub-Committee report ‘Making Contact Work’. A copy of this response can be found at the following website address: http://www.dca.gov.uk/family/abfla/cascresponse.pdf.
We consulted extensively on proposals to support more effectively contact arrangements between children and their non-resident parents. The main outcomes of the report are:- · A new ‘Family Resolutions Pilot Project in London, Brighton and Sunderland to divert families from lengthy and often acrimonious court cases by helping them to agree practical solutions between themselves wherever possible; · An additional £3.5million for child contact centres, including the funding of 14 new supervised contact centres; and · The introduction of new forms to ensure that judges are aware of and address concerns about domestic violence at the start of contact cases The enforcement of court ordered contact continues to be a major issue. This and other issues are being explored in greater detail in work currently being carried out by the Department for Constitutional Affairs with full DfES participation. This work is looking across the board, at how further support for parents can help to ensure the best arrangements for their children. Consideration is also being given as to how post-order arrangements might be improved. The Government hopes to publish specific proposals for consultation this summer.
Thank you for taking the time to write. I hope you find this information helpful.
Families in Change Team
Vulnerable Children Division
Dear Prime Minister,
However one looks at the future of divorced couples and their children logic and research is on the side of joint custody as the presumptive first choice. As a society, we must move into the next century armed with realistic custody practices that protect the documented needs of children. Continuation of the defacto presumption for sole custody simply, will not do. The movement for presumptive joint physical custody is a human rights issue and no child should ever be denied their human right to know and love two care-giving parents (except, obviously, in abuse situations). Second, no parent should be denied his or her parental rights (i.e. human rights) without conclusive evidence that the exercise of those rights is destructive of the child. The only way joint physical custody will ever work is with a legal presumption of contact for both parents after separation or divorce and if a resident parent refuses to allow contact, the standard procedure for all courts must be on the first occasion to order a community punishment order, which if broken or contact is refused for a second time must be followed by a jail term and custody being reversed. What is clear from the available evidence is that children in joint physical situations have a much better prognosis for positive post-divorce adjustment (Coller 1988; Doll 1995; Bauserman 2002). In addition to the research concerning child adjustment there are other factors that indicate a rebuttable presumption for joint physical custody is preferable concerning:
Lower divorce rates;
Children are more successfully adjusted overall;
There is less child abuse in joint physical custody situations;
Parents with joint physical custody are less litigious than parents in sole custody;
Parents with joint physical custody are more likely to comply with financial child support obligations;
Joint physical custody benefits both parents and both sets of grandparents;
Parents in joint physical custody are more satisfied with the custodial arrangement, even if they initially disagreed with the custodial decision
Children want Joint physical custody because it allows them to continue their relationship with both parents.All of the studies that sought the views of children indicates that while they would prefer the intact family of origin, they are satisfied with joint physical custody and value the opportunity to continue their relationship with both parents. In Deborah Luepnitz's (1982) work for example, nearly all the joint physical custody children were content with the arrangement. These children echoed the sole physical custody children in responding to the question, "With whom would you have wanted to live after the divorce?" by saying, "With both." Not only were joint physical custody children not confused by the arrangement they were able to cite specific advantages in the two-household lifestyle. They described their arrangement as "more fun, more interesting or more comfortable." A more recent Australian study adds weight to the view that children are better off spending equal time with both parents after divorce. The study is one of the first in Australia to look at how children feel about spending time with their parents. When they were asked how parents should care for children after divorce, the most common answer was "half and half" or "equal." Half also said they wanted more time with their non-resident parents (Parkinson, Cashmore & Single 2003). In a research review Kelly (1988) summarizes children's own descriptions:
· The children continue a daily life with both parents, and they consequently don't become strangers to each other.
· The children feel that it is "Just": neither of the parents is favoured.
· The children are less likely to feel guilty and/or to miss his father.
· The children get to experience that they are loved and important to both parents, which strengthens self-confidence.
· The boys continue to have a father as a role model for identification.
· For small children with frequent changes they can experience that they still live with both parents (this type of contact seems to be best for very young children with their fragile, still-developing emotions.
· There is no risk that contacts with either of the parents will cease in the teenage years.
· It can feel good to "have a rest" from one of the parents (especially for teenagers).
· A divorce is not experienced as a devastating loss, because the child has not lost any love and important person from their daily life (p 133).
Coller D.R (December 1988). Joint Custody: Research, Theory and Policy. 27(4) Family Process pp 259-269. Doll B (14 June 1995). American Psychological Association. Preliminary Summary: Empirical Research Describing Outcomes of Joint Custody. Washington DC. Bauserman R (2002). Child Adjustment In Joint Custody Verses Sole-Custody Arrangements: A Meta-Analytic Review. 16(1) Journal Of Family Psychology. Kelly J. B (1988a). Longer-Term Adjustment In Children of Divorce: Converging Findings and Implications For Practice. Journal of Family Psychology. 2: 119-140. Luepnitz D. A (1982). Child Custody: A Study of Families After Divorce. Lexington Books: Massachusetts. p 46 & 47. Also see Luepnitz D. A (1986). A Comparison of Maternal, Paternal, and Joint Custody: Understanding the Varieties of Post-Divorce Family Life. Journal of Divorce. 9(3): 1-12. Note: 5 Family Law Report (1979) at 2395. Parkinson P, Cashmore J & Single J (2003). Adolescents' Views on the Fairness of Parenting and Financial Arrangements After Separation. Faculty of Law, University of Sydney