UK Family Law Reform

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----- Original Message -----
From: dave.mortimer@mensaid.com
To: J.Baker@bton.ac.uk
Sent: Monday, October 09, 2006 12:50 AM
Subject: The Lib Dems policy to guarantee contact for non-resident parents?

Dear John,

The Lib Dems policy to guarantee contact for non-resident parents is exactly half of the NATC Early Interventions project, i.e. the idea of time-linked minimums - but not subject to the 'good reason' principle. That is, in reality you should not have these time-limits - unless they can be varied by good reason to the contrary. In consequence, any such initiative will end in fiasco and will not get off the ground. I would strongly suggest to anyone who is honestly interested in family law reform to simply read what Earl Howe said during the debate on the Children and Adoption Bill in the House of Lords.

Best regards Dave

http://www.publications.parliament.uk/pa/ld200506/ldhansrd/vo051012/text/51012-44.htm

Earl Howe: There is a very simple truth associated with contact disputes. It is that if both parties to the dispute are content with the amount of contact that they have with the child, there is no longer any dispute. Contact disputes are about one thing and one thing only: the amount of time that each parent believes that he or she should have with the child. That simple truth has somehow got submerged during the drafting of this Bill. What we needed in the Bill—what everyone thought we were going to get when the Green Paper was published—was measures designed to facilitate contact; measures that would put right the deficiencies of court settlements under the current system, deficiencies which the Government acknowledged in their Green Paper. What we have in Clause 1 are not measures that will facilitate contact, but rather measures that will serve only to defer contact. The so-called contact activities for which the clause provides are not contact; they are things that the court says you have to do before you are allowed contact. That idea, with great respect to the Minister, will do nothing to help sort out the one and only question at issue between two parents in this situation: how much time should each of them be allowed to have with the child? It completely misses the point.

Clause 1 is a blind alley, and the Government have got themselves into it because of a muddle about the current law and how the law operates in practice. Instead of acknowledging, as they originally did, that the system was not working and needed mending, they are now saying that the basis on which the courts operate is all right and that it does not need changing.

The Minister 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, the Government say that there is already a presumption of meaningful relations or meaningful contact enshrined in case law. But when it is put to them, as it was yesterday, that this presumption should be mirrored in statute, they say "Oh no; we do not like the idea of a presumption of reasonable contact actually appearing in the Children Act". Their position is thus contradictory. And the muddle of this position is compounded by their 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.

To the noble Baroness, Lady Howarth, I say that we are not talking about dangerous or dysfunctional parents but 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 meaningful relationship with their child.

Earl Howe: With the leave of the Committee, I shall start my remarks again, as it is perhaps easier to pick up the thread of the argument that way. A very simple truth is associated with contact disputes—that if both parties to the dispute are content with the amount of contact that they have with the child, there is no longer any dispute. Contact disputes are about one thing and one thing only; that is, the amount of time that each parent believes that he or she should have with the child. That simple truth seems to have somehow got submerged during the drafting of this Bill.

What we needed in the Bill, and what everyone believed that we were going to get when the Green Paper was published, were measures designed to facilitate contact, which would put right the deficiencies of court settlements under the current system—deficiencies which the Government themselves acknowledged in their Green Paper. What we have in Clause 1 are not measures that facilitate contact but rather measures that will serve only to defer contact. The so-called contact activities, for which the clause provides, are not about contact—they are the things that the court says that you have to do before you are allowed contact. That idea, with great respect to the Minister, will do nothing to help to sort out the one and only question at issue between two parents: how much time should each of them be allowed to have with the child? It completely misses the point.

Clause 1 is a blind alley, and the Government have got themselves into it because of a muddle about the current law and the way in which it operates in practice. Instead of acknowledging, as they originally did, that the system was not working and needed mending, they are now saying that the basis on which the courts operate is all right and that it does not need changing. The Minister 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, as it was yesterday, 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 their 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 say to the noble Baroness, Lady Howarth, that we are talking not about 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 Minister's 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 Minister has misled himself in referring to case law.

The question was asked yesterday: 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. That, again, is the answer to the noble Baroness, Lady Howarth. She did not say that the current presumption of contact poses a risk to the child, and she was right in not saying 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 Clause 1 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 that a few parenting classes will not cure. 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 Bill does not touch.

http://www.libdems.org.uk

Stronger Families, Brighter Futures.

Policy Paper 72

Seperation and Divorce - page 20

Liberal Democrat policy for families focuses on putting in place mechanisms to enable families to thrive, to support them through the good times and the bad, so that children have every chance of growing up in a stable and secure environment. But in modern Britain the breakdown of marriages and partnerships ending in formal divorce or separation has become increasingly common. Many families manage to keep separations amicable and forge arrangements outside of the courts but inevitably some families find this process exceptionally difficult.

Two thirds of marriages which end in divorce, and a substantial number of separations of couples who have been living together, involve children under 16. Family breakdown can have lasting emotional effects on all parties, particularly children, and comes with a substantial financial cost to the state.

Children are most vulnerable during these periods of transition with an increased risk of financial hardship and emotional instability. A minority of children experience acrimonious parental disputes and battles over contact and residence. The negative effect of family breakdown can continue to impact on the children involved well into adulthood.

There is always the danger that separation and divorce will be a difficult experience for children. But there is evidence to suggest that a careful and considerate approach to children during the process can help to mitigate any immediate distress and enable children to maintain strong relationships with their parents. This can be of enormous benefit in their emotional development.

The present law

The 1989 Children Act sets out the current legal process for children upon separation and divorce. The Act gives the courts wide powers to make orders for residence or contact or on specific issues relating to a child’s upbringing or education, subject to the overriding requirement that in any dispute before the courts the interests of the child concerned are to be paramount. That means that where there is a conflict, priority should be given to the interests of children over the interests of the parents.

While the system works well for many, the Courts’ approach to the implementation of the Children Act has been the subject of widespread criticism. Fathers’ groups in particular have argued that the system in practice is inherently biased in favour of mothers and against fathers.

Some argue that the starting point in determining any dispute concerning residence or contact should be a 50/50 division of the child’s time between its two parents. Others argue that contact forced on unwilling mothers, especially in cases where there is a history of domestic violence, can be damaging for both mother and children.

It is also the case that the complexities of any legal system can be daunting, unpredictable and opaque to all except those in the legal profession. This makes approaching residence and contact proceedings very difficult for those taking part.

The best interests of the child

Liberal Democrats have always believed that the interests of children should be paramount. They are the innocent parties when parents separate or divorce. We believe the state has an obligation to safeguard and promote the rights of children in such situations as it is they who most require the state’s consideration and protection.

We maintain that the diversity of family structure and circumstances within our society means that it is wrong in principle and unworkable in practice to impose a uniform arrangement on all families. For those reasons we do not believe that it would be acceptable to move to a system where there was a presumption prescribed for the courts to use as a starting point when approaching these issues, beyond that of the best interests of the child.

However, there is some justification for the criticism that the law does not give sufficient guidance to people as to what they might expect from the courts or as to what their rights are in these circumstances. The lack of clearer guidance can encourage resident parents to withhold or unduly restrict contact and can deter some nonresident parents from pursuing contact issues in the face of intransigence on the part of the resident parent.

Within the framework of a system where the presumption is that the best interests of the child are paramount, we propose:

• A legislative statement to the effect that in the absence of strong reasons for withholding contact, the courts should have regard to the general desirability of a child maintaining a strong relationship with both parents and that this will generally entail reasonable contact. The purpose of such a statement of principle is to inform parents and public of the law’s view that reasonable contact is generally in the best interests of children, in the hope that more parents will be able to agree contact arrangements without needing legal advice or the courts’ intervention.

• The introduction of a Default Contact Arrangement, applicable only in cases where there is no threat to the safety of the child, to take effect on parents’ separation unless and until the parents agree some other arrangement or the court otherwise determines. The Default Contact Arrangement would apply to all children and would provide for all children between 1 and 14 staying contact every other weekend and for a reasonable proportion of each school holiday together with weekday contact one afternoon every week. Infants under 1 would have visiting contact on one day every weekend. Parents would also be free and indeed encouraged to make their own agreed arrangements to suit their family circumstances in place of the Default Contact Arrangement. Children of 14 and over are generally expected to make their own decisions about contact.

This would enable the parties to have a set of arrangements in place from the date of separation, without either party being dependent on the agreement of the other, at a time when agreeing anything is often very difficult. Under such a system the trauma of parental separation would not be exacerbated for children by lack of immediate contact with the non-resident parent as parents would be under an obligation either to implement the default arrangement or make alternative arrangements by agreement with each other. Only if that proved impossible would application to a court be necessary. There would also be a duty on any court to treat with great urgency any cases where the resident parent opposed contact on the ground that it would pose a threat to the safety of the child concerned. There would be no departure from the principle of the paramount interests of the child, because when the court came to decide any case it would not be constrained by a preordained starting point, but concerned only to determine the best interests of the child.

A less adversarial system

Despite the advances made in recent years under successive Presidents of the Family Division to make the courts more approachable, the current family law system remains adversarial in nature.

We advocate moving to a much more informal court system for residence and contact disputes. We favour hearings with the judge encouraged to seek advice from a variety of professionals, the Children and Family Court Advisory and Support Service (CAFCASS), those involved in the child’s upbringing and witnesses whom the parties choose to call.

It is undesirable for different judges to be hearing different stages of cases such as these. Cases should be arranged with strong regard to the need for judicial continuity. We would also like to see the introduction of a protocol similar to that in public law children’s cases setting a firm timetable for the resolution of residence and contact disputes.

We also believe that the child’s voice is still too seldom heard. CAFCASS, set up as an independent body for England and Wales in 2001, has the function of informing the Court of the child’s views. The rights based approach of CAFCASS and its principles of good practice are to be commended but experience of how well CAFCASS is functioning in practice across the country is varied. It is important to involve children directly where possible and keep them fully informed about the process to minimise confusion and help prevent children becoming too unsettled.

In a new informal system it should be possible for the court to hear from older children directly in more cases. In such a system there must always be regard to the undesirability of requiring children to appear to take sides in disputes between their parents. In cases where this makes it impractical for the court to hear directly from the child the CAFCASS officer should be required to spend time alone with the child in an attempt to ascertain the child’s views as effectively as possible.

Mediation

Mediation has been found to be an effective way to help couples to reach agreements without the stress, hostility and expense that accompany contested court proceedings. Liberal Democrats believe that while it is the right of every citizen to have disputes resolved by a court if necessary, contested court hearings should be seen as a last resort. This is particularly true of disputes involving children.

Liberal Democrats have been reluctant to require parents to attend mediation and have argued that it is for parents to decide whether they wish to go to mediation. Since mediation cannot oblige any party to agree to any particular outcome, forcing parties into mediation against their will can be counterproductive.

However, every attempt should be made to get couples to accept mediation. We would insist, except in unusual circumstances, that before the courts heard an application for residence or contact, the parties should be required to meet with a mediator who would explain the options for mediation and how it would proceed if they agreed. If the parties insisted that they would not take the process further the mediator would certify this and the application to the courts would be permitted to proceed.

Enforcement

Contact orders can be difficult to enforce. Judges hearing proceedings to deal with contempt of court have had the options of fining or imprisoning the parent in breach of the order, usually the resident parent. Since it can rarely be in the child’s best interest to have the resident parent deprived of money or liberty, judges have been reluctant to use these powers and have been left without an effective sanction.

We would wish to ensure that the courts took an incremental approach to enforcement in contact cases, starting with measures that encouraged the reluctant parent to comply such as information sessions, classes and counselling. Escalation to more penal measures would only be necessary if previous approaches failed.

The Child Support Agency was set up in 1993 to assess and enforce child support payments by absent parents but has been in crisis ever since. It has proven itself to be the worst performing Child Support Agency in the developed world, and its performance continues to be totally unacceptable. Billions of pounds of outstanding payments are owed much of which the CSA has admitted is unlikely to be paid. Families and children have suffered for too long, as successive governments have failed to get a grip on the CSA.

The Liberal Democrats have long advocated that the CSA should be scrapped and its functions transferred to HM Revenue and Customs (HMRC). As HMRC already holds information about family incomes and children it would be far more effective than the CSA at collecting maintenance from source.

The safety of the child

It is only a relatively small number of cases about residence or contact that involve allegations that there is a risk to the safety of the child such as fear of physical abuse. In such cases the Default Contact Arrangement we have proposed (see 4.2.4) would not apply. We regard it as crucial both that such cases are dealt with urgently in order that the facts can be determined quickly.

In any case where allegations of physical abuse suggest that there might be a threat to the safety of the child an independent professional as a matter of urgency should carry out a risk assessment for the court. The degree and manner of contact allowed, if any, would be made on the basis of the risk assessment report to the court.

Costs and legal aid

Liberal Democrats are committed to retaining the availability of legal aid for all residence cases and for those contact cases where either the issue of contact in principle or the issue of staying contact is in dispute.

We are, however, unconvinced that legal aid should be available for disputes about the timing or arrangements for contact in ordinary cases. Such cases do not raise issues of principle and are generally amenable to a decision by a judge who hears the parties informally without the assistance of lawyers.

We also believe that the courts should be less reluctant to make orders for costs against parties who are found to be deliberately obstructive or unreasonable in their approach to contact or residence cases

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