UK Family Law Reform

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Read this report carefully, there are a lot of clues as who to target for our future actions and also those we must support.

Report by Tony Coe, president, Equal Parenting Council

BATH WORLD CONGRESS ON FAMILY LAW – SEPTEMBER 2001

NOTES ON THE CONFERENCE: I was the only official representative from any organization representing parents. Vast majority of attendees were lawyers.

OPENING SESSION set the theme.

The judge visiting from overseas who opened the Congress said, "justice is about fairness and balance".

Children are our richest national resource. We should be investing in prevention. Persistence and determination are omnipotent.

David McIntosh, President, Law Society of England and Wales. His parents split up when he was 7. Without a very good, West Country family lawyer his mother (and he) would have been seriously disadvantaged. Children are well served by the family division. Rights are enforced, he said. [Oh dear!]

MEANS AND METHODS OF INTERNATIONAL COOPERATION IN RELATION TO CHILDREN

CHAIR: LJ THORPE

The Hon Madam Justice Claire L’Hereux-Dube, Supreme Court of Canada: re international abductions, she said: "For a child and parent to be separated even for a day can be an eternity".

[I thought how equally this applied to all those everyday cases where the abduction is one of the child’s mind – ie where the child has been turned against the other parent without good reason – Parental Alienation]

"We made it mandatory for judge to interview child re custody. Child’s views must be probed sufficiently."

LET THE CHILD SPEAK OUT – THE WISHES OF THE CHILD AND FAMILY DISPUTES

CHAIR: The Hon Justice Richard Chisolm, Family Court of Australia

The Hon Justice James (Jim) Williams, Supreme Court of Novia Scotia, Family Division.

Must consider implications of child’s choice.

In Ohio, a child of 12+ can decide custody unless parent is unfit.

In Georgia, a child of 14+ ditto.

[Note "custody", not deciding whether to even see a parent! North American practioners are incredulous when I tell them UK courts allow children simply to shut themselves off from one perfectly good parent]

The judge made some good points about getting the child’s views:

Evidence of child – don’t put child in the middle.

Lawyer for child.

Through parties/others

Expert report/assessment – place context on wish being expressed.

Interview with judge.

Is preference clear and unambiguous?

Are the alternatives/implications well understood by the child?

How informed is the expressed preference?

Strength of wish

Overall context – e.g. Siblings, extended family?

Influence?

These matters should be considered early, at the pre-trial stage.

Dr Judy Cashmore, Psychologist University of New South Wales.

Research states that children are saying:

They want to know what’s going on

They want their views to be respected as a person ("Why are you talking about me?")

They don’t want to make decisions – participation doesn’t necessarily mean taking decisions

They don’t want to be part of the process (some say)

Most weren’t expecting the separation

They don’t feel well informed

They don’t feel they are being consulted

In Australia, 60% of contested cases involve expert family reports, which are very influential.

STUDY: one-off meeting with stranger no good. Children don’t like being misinterpreted. Child wants to tell the judge but they want the judge to keep what they say confidential from parents. Children say they are not happy with their views being filtered. They clearly don’t trust that their message will get through.

There is very little longitudinal research – info. on long term outcomes.

The Hon. Mrs Justice McGuinness, Supreme Court of Ireland – extempore response to previous speakers.

Research on children’s views of process and outcomes is important. Best interests/welfare changes all the time with Societal changes.

Court report based on one interview is no good.

Courts must be careful about expert reports. The facts on which the report is based must be true.

Not all children want to be involved in giving their own decision.

CONTACT ENFORCEMENT AND FACILITATION

CHAIR: The Hon Mr Justice Wall, Family Division, Royal Courts of Justice

His Hon Judge Patrick Mahony, Family Court of New Zealand

In high conflict cases the children align themselves with one parent. Court gets report from a "registered psychologist". Use of parental education classes is fruitful. They take a planned approach to post-separation parenting.

There needs to be clear and unambiguous arrangements in the parenting plan to reduce the opportunities for conflict.

Avoid situation where one parent effectively exercises veto.

Intervene quickly post separation.

Andrew McFarlane QC Barrister, England

KEY: Is there a good foundation for opposing contact?

Court can require surety or impose a fine.

S34 – Officer can be sent round to get child.

Where it is clear that the child would benefit from contact with both parents, the courts should make and enforce contact orders.

Eunice Halliday, Director, National Association of Child Contact Centres

What children want is a relationship, not just contact/access.

She would like to see a better term than "contact" or "access". One Canadian judge in the audience suggested "parenting time", being the term she always writes into her court orders. [EPC has said the same all along!]

Parents attending contact centres sometimes don’t know how to play with their kids. The volunteers get on the floor and help.

Recommended a new web site http://www.itsnotyourfault.org/[superficial and v. slow]

Vicky Leach, National Family Mediation Adviser of the NCH Action for Children, England

KEY: What is right - for the children?

Children want fairness. They also want to know what’s going on.

They don’t want to choose a parent.

Court Reporter has insufficient time to build trust and ascertain true wishes – that is to say, to get to the bottom of the child’s wishes and feelings.

They simply report on their brief encounter with the child.

Advocates referral of the court order for contact to mediation to discuss how the parents are going to make the ordered contact work. [Example of the sort of support CAFCASS should be providing, instead of just writing reports that follow contact down to zero.]

DISCUSSION:

A Canadian judge from Edmonton made the point from the floor that she thinks judges are too soft. She has a reputation for enforcing her orders, whether for parenting time (she eschews the term contact) or maintenance.

She tells the obstructive parent to bring their toothbrush next time! She will jail offenders without hesitation. They soon correct their conduct. The threat is almost always sufficient.

[She believes strongly in parental education classes and is sending me information on a programme in California that uses role play and is proving very successful. The course organisers believe in both parents being involved and there being overnights from the get-go, even if it’s a baby. Her colleague, a judge called Sylvia, told me she, Claire and their fellow judges have a reputation for being tough on parents who interfere with the other parent’s relationship with the children. Their reputation means that parents mostly comply with their orders. Their lawyers tell them they better! Contrast that with UK lawyers who know, on the whole, judges here will largely do nothing to ensure contact happens.]

INTERNATIONAL MAINTENANCE & CHILD SUPPORT ENFORCEMENT

CHAIR: Sharon Corbitt, Chair, Family Law Section of the American Bar Association, USA.

Prof. Robert Spector, Professor of Law, University of Oklahoma, College of Law, USA

Children are society’s most valuable treasure – applies to every society.

Convention places burden on states to apply foreign law.

Enforcement is expensive. Money must be provided to exercise authority. Otherwise, authorities have no value.

Prof Takafuni Sato, Attorney, Japan, International Convention of the Rights of the Child

Mr Sato practices law, solo practice in Hiroshima.

Japan operates a sole custody system (not joint). The custodial parent often does not want any support from the other parent, and the non-custodial parent often does not want to provide support.

There are only 8 Notaries in Hiroshima, which has a population of 1 million. Notaries are mainly ex judges, etc. Fees are high due to oligopoly.

A notarised agreement or mediation document is almost as good as a court order. But even a court order is not much good.

Big flaw is there is no sanction for non-disclosure of assets. Judge has no power to reveal assets. It is not a crime under Japanese law not to pay maintenance, even if as long as 5 years of arrears.

David Truex, Solicitor, International Family Law Chambers, London, England – Getting Blood from Rolling Stones: International Maintenance Enforcement.

See his handout. He is at the coalface trying to get maintenance from overseas obligors. It can take years and costs a fortune. Process must be streamlined and supported with money so that maintenance can be collected.

[He accepted my point that parents who are allowed to remain involved in their children’s lives are much more likely to meet their financial obligations. However, he said that takes time and, in terms of priorities, that it was more important to put bread on the table.]

[Professor Kurt Siehr, Director, Institute of Private International Law, University of Zurich, Switzerland, one of the speakers at this session, approached me privately afterwards and said he thought my point was absolutely right, but the solutions not so easy.]

REPRESENTATION OF CHILDREN IN LEGAL PROCEEDINGS.

CHAIR: The Hon. Mr Justice Holman, Family Division, Royal Courts of Justice

Marvin Ventrell, Executive Director, National Association of Counsel for Children, NACC, Association of Children’s Attorneys, Denver, Colarado – Representation for Children in Abuse and Neglect Cases

Often faced with 2 representatives - "Best Interests of the Child" rep.(usually a Guardian) versus "Expressed Wishes Representative" – on either side of the court.

He talked about "youth empowerment".

Michael Antrum, Solicitor, Law Society of New South Wales.

Children’s Court must be representative of best practice.

Liz Goldthorpe & Pat Monro, Solicitors, Association of Lawyers for Children, UK – New Government structures for the Representation of Children in Family Justice – Rights or Welfare?

LIZ: Case of Maria Colewell, 7 years old. Her death in 1993 led to Public Inquiry that led to the appointment of an independent representative in care proceedings. There have been 50 Public Inquiries since.

PAT: Has acted for children since 1970s. Important for representation where a child protection issue arises.

Private law (unlike public) does not have a right to child representation.

Legal representative and welfare representative – the "tandem approach".

LIZ: Judicial Review. CAFCASS lost and had to pay costs. Took unlawful action. One third of Guardians do not want to join CAFCASS.

Justice Holman proposed a motion that all children should be represented in ALL legal proceedings. I proposed qualifications and was supported by a very senior Irish family court judge, but the ALL motion was carried.

I asked Justice Holman to add a note that nearly all attendees were beneficiaries – i.e. lawyers!

IMPACT OF SOCIAL CHANGE ON THE FAMILY

CHAIR: Chief Justice Alistair Nicholson, Austraila

Dame Brenda Hale – Court of Appeal

She posed the question, acknowledging that it would be controversial, have we gone too far in asserting the right of the child?

Must balance with responsibility. There are reciprocal obligations on children.

There is a big trend towards people not marrying, but two-thirds of births are registered to 2 parents.

Cartoon on slide showing little boy asking mother: "Mummy, where do daddies come from?"

Department of Health recent research – not yet published – says that in stepfamilies a higher proportion of children are in touch with their other parent and are enjoying it.

Still large numbers of children lose touch with one parent.

Children’s rights are no more important than their needs. Those needs have to be assessed by adults – their parents or substitute.

A well-known professor said that the interests of the weakest often depend on the security of the strongest. Yet we are making marriage unattractive to men. At the same time we have made divorce more attractive to women.

Cartoon around Scrabble game: "Marriage, isn’t that some sort of pre-divorce agreement?"

Children lose out if they don’t have 2 involved parents.

30% of divorces happen when children have grown up.

Grandparents are important in facilitating contact.

HUMAN RIGHTS OF CHILDREN

CHAIR: The Hon. Lord Bonomy, Court of Session, Scotland

Professor Vitit Muntarbhorn, Professor of Law, Chulalongkorn University, Bankok, former UN Special Rapporteur on Child Trafficking (Thailand)

Child has a right to be heard and to have views respected.

But, he asks, does the CRC neglect the rights of the family and the rights of parents?

[Child’s wishes and feelings are important but they should not overrule their needs. Children can’t decide whether they attend school, do their homework, smoke, take drugs, visit the dentist, etc. Also the context in which those wishes and feelings are expressed must be taken into account.

[Research is needed on what children would want if their parents were to separate – i.e. the views of children who have not yet been contaminated by divorce/the family justice sytem. We need to ask, what values are we teaching our children.]

SOFTENING THE BLOW – DOES A CHANGE FROM "CUSTODY" TO "RESIDENCE" MAKE A DIFFERENCE?

CHAIR: The Hon. Justice Emile Kruzick, Superior Court of Ontario, Family Court, Canada

He held up a copy and referred to Maureen Freely’s article in The Times, 17 September 2001. He also referred to the parents’ protest outside the conference centre. Perhaps the law is not working so well here in UK.

Prof. Christine Davies QC, Faculty of Law, University of Alberta, Canada

She referred to the Parliamentary Committee report "For the Sake of the Children" and said it recommended joint parenting. The emphasis is on Parenting Plans.

Senator Ann Cools took up the fathers’ position when law was being toughened on payment of maintenance. Cools did a deal that it could only go through if the Parliamentary Committee went ahead.

However, the recommendations have been tabled for 3 years pending further research. Fathers are up in arms at this.

The National Post – major Canadian newspaper - took up the fathers’ position.

The Minister will reply to the report For the Sake of the Children in May 2002.

Jennifer Cooper QC, Chair Canadian Bar Association, Family Law Section, Canada – Child Custody Litigation – Best Practice in Canada.

She has been a lawyer/mediator/collaborator for 20 years.

There is a trend towards mandatory parenting education programs – on the basis, if you want the privilege of using the family court system, then you have to first take the education first.

Court users, i.e parents, had been saying that the court system disempowered the parties. The courts took these views on board.

There are now early intervention conferences.

Terminology has changed from "custody" and "access" to "shared parental responsibility".

In the Manitoba Court, they have introduced AUTO ORDERS. There are pre-set terms that go into orders. Provisions must be selected from these precedents or there has to be a good reason to depart from them. Simplifies negotiating consent orders.

The benefit is the parties can leave the court with the order in their hands. There is a high level of customer satisfaction.

The Hon. Justice Richard Chisolm, Family Court of Australia – Recent Legislative Reform of Children Law in Austria: A review.

An older judge, he mentioned that the conference organisers were selling his handout, Legislation Research Report and his paper, but we could get them for free at the web site http://www.familycourt.gov.au

To see the intentions of the new law it is necessary to look at the speeches that led up to it. [I mentioned in my reply that speeches in our Parliament that led to Children Act 1989 said, in effect, shared residence was the way to go as the common form of order. This intention subsequently ignored by UK courts.]

The Bill was intended to reduce the attitude of separating parents treating children as property. The idea was to stop children being treated as possessions.

This goes to the concepts of power and responsibility – residence and contact orders, he said, don’t touch these issues.

Each parent retains equal rights and responsibilities – even if they live with one parent. One intention was to reduce the idea of the other parent being "only for entertainment" – e.g. Disneyland Dads.

He said the jury was still out on whether the reforms were working. Certainly fathers like them.

DISCUSSION:

One Australian, elderly judge said from the floor that he had encountered many such protests in his long career – I think he was retired. He suggested that the protesting parents probably fell into 2 categories (a) those who had been pronounced unfit to see their children; and (b) those who had a contact order that was not being observed by the custodial parent.

I responded that I knew many of the parents outside personally. Most were loving, devoted parents who were being excluded from their children’s lives for no good reason; that the UK family justice system was not working as Parliament intended and the system was in chaos. These parents had valid reasons for protesting and the last thing I wanted to see happen was for representatives of the judiciaries from other countries to leave this conference thinking that the UK system was working well. Nothing could be further from the truth. Tony Coe

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