UK Family Law Reform

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FAMILY JUSTICE DEBATE

Extracts from Hansard House of Commons 13 December 2004

CONTENTS

1. Ministerial Integrity 2. Statistics 3. Basic Error: The Existing Legal Framework 4. Destruction of the EI Project 5. The Green Paper

Summary of the Debate:

The Government’s stated policy is that it carries forward the Early Interventions reforms to install the presumption of reasonable contact. In fact, and in line with the Minister’s opposition to this presumption, these reforms have been dropped.

The Government continued to announce the policy-benefits which would have accrued from the EI reforms. In addition:- the scale of the social problem was minimised by dubious statistics - the existing legal framework was gravely misrepresented. The actuality of the Green Paper programme relayed to the House consisted of tinkering at the peripheries. Government policies are based on distortions, some of them deliberate.

The Proposition opposed by the Government: That there should be reasonable contact between a parent and child…… in the absence of good reason to the contrary

15.12. 04

The Motion Before The House

That this House agrees that on the separation of parents, priority should be given to the interests of the children; believes that it is in the best interests of all children for both parents to be fully involved in their upbringing and hence that separated parents should each have a legal presumption of reasonable contact with their children, except where a child's safety would be at risk, so that children are able to benefit from being parented by both their parents, as well as from contact with any grandparents and extended family members able and willing to play a role in their upbringing; regrets the Government's opposition to such a legal presumption, which will lead to yet more children being denied access to both their parents and their extended families; views with concern the Government's failure to implement the Early Intervention Project; and calls on the Government to replace the legal term 'contact' with 'parenting time', to introduce a legal presumption of co-parenting and to introduce early intervention in parental separation, with court-backed mediation and guidelines on parenting-time.

1. MINISTERIAL INTEGRITY

Protestations

Margaret Hodge, 1463: I give the right hon. Gentleman my absolute assurance that I would be the last person to rule out any ideas that would enable us to manage these difficult issues with the interests of children at their heart. Opposition Members are failing to put the interests of children first. Fact: Margaret Hodge ruled out the Early Interventions project – which had across-the-board legal and professional support

Misleading the House

Margaret Hodge, 1468: To suggest, as the Opposition have, that we have abandoned what was known as the early interventions initiative is simply a travesty of the truth. Fact: The Minister’s statement is the the reverse of the truth. The Government: (a) has abandoned the Early Interventions pilot (b) says it has abandoned the Early Interventions Pilot See Section 4

2. STATISTICS

Fact: The Government repeatedly affirms that only 1 in 10 separating-parents-with-children use the Courts. But, on its own figures, there are 66,000 contact applications a year; and only some 70,000 divorces-with-children a year

An uplift of 100% for unmarried separations would suggest 1 in 2 families goes to court. This estimate is subject to diminution - for repeat applications by the same family. It may also be subject to increase - by an uplift in the true figure for contact applications. It is not yet clear whether the official figure of 66,000 contact applications excludes residence applications; if so, and since all residence applications entail an application for a grantor variation of contact, they should be factored in.

Margaret Hodge1460: We know that more than 150,000 children each year experience the emotional distress of their parents' divorce. We know that two out of three of those children are under 10, and one in four is under five. We know that around one in every five children is likely to have to go through their parents' separation and divorce before they reach the age of 16. Given those figures, it is also important, in terms of tonight's debate, to acknowledge that most parents who separate and divorce deal with the issues involving parental responsibility, residence and contact between themselves, without recourse to the courts. In fact, nine out of 10 do so.

Margaret Hodge, 1463: Nine out of 10 families, when they separate or divorce, deal with the issues of parental responsibility between themselves. Mr Leslie, Labour, 1495: We need to view the matter from the right perspective. Nine out of 10 couples sorted out contact arrangements with no court involvement.
[Mr. Luff, Cons, 1482: We are discussing the failure of relationships. The increasing number of relationships that break down makes the matter more important with each year that passes. Between 150,000 and 200,000 parental couples separate each year.

3. BASIC ERROR: THE EXISTING LEGAL FRAMEWORK

The Government is fundamentally misadvised on the existing legal framework. It has muddled three concepts:

1. Mothers and fathers – confused with - Resident and Non-resident parents. An Irrelevant truth: mothers and fathers have equal rights. The Relevant Fact: Resident and Non-resident parents do not have equal rights

2. Presumption of Contact – confused with – Presumption of Reasonable Contact. An Irrelevant Truth: there is a presumption of contact. The Relevant Fact: there is no presumption of reasonable contact

3. Fundamental Error: case law is said to confer a presumption of reasonable contact. Both parents cannot be ‘critically important’ to the child if the child can be deprived of all material contact with one of those parents for no or no material reason. Nor can ‘love’ and ‘companionship’ be properly said to flow between a child and a parent divested of the ability to spend significant time in each other’s presence.

Margaret Hodge 1466: The hon. Gentleman is right. That is another reason why I fail to understand why we need the legislative change that the Conservatives propose. Let us pursue this argument. If the term "co-parenting" means that Conservative Members believe a child's welfare, following its parents' separation, is best promoted by a continuing relationship with both parents whenever that is safe, all they are doing is restating the existing legal position, established by case law. Pretending that this is something new is simply misleading, and raising false hopes. Case law has established that mothers and fathers have equal standing before the courts, and that both parents are critically important to the child. There is no gender bias in the courts, and I challenge the Opposition to demonstrate that there is.

Case law has established that unless there are cogent reasons against it, children are entitled to know, have the love of, and enjoy companionship and time with both their parents. That is why contact is refused in fewer than 1 per cent. of cases heard in the courts. We already have a legal framework which recognises that children's interests are best met by the maintaining of a relationship with both parents when that is safe.

Margaret Hodge, 1467: I agree with the point that my hon. Friend has made so eloquently. The proposed amendments to the statute add nothing to the existing arrangement that both parents, where they have parental responsibility, are equal before the law. What those amendments do is hoodwink some parents into believing that things will change.

Mr. Grieve, 1497: I thank the Minister for giving way and I am grateful for the tone in which he is conducting the debate, which is very helpful. I do not understand his anxiety about a change to the statutory framework. Does he agree that if that change had the benefit of explaining in clear terms to parents what is expected of them in normal circumstances after divorce, it would be of great value in facilitating contact? Does he agree that that could be achieved without diminishing the paramountcy of the welfare of the child?

Mr. Leslie: The fact that we have been debating the issue, and the confusion generated by the suggestion from the Opposition, shows that adding that extra unnecessary element into statute would not take us any further forward. It is not necessary. The case law already establishes that point and any change in statute as they propose would be pandering to those people with an anecdotal misconception of how the law is framed. The law usually allows both parents to have contact arrangements and, in the vast majority of cases, that happens.

There are guiding principles in this area. The welfare of children must always be paramount. The legal position that both parents, mother and father, are equal before the law in Children Act proceedings is enshrined in law. We should have a bipartisan approach to this issue in future.

Margaret Hodge 1493: Again, the hon. Gentleman has used the word "equally". I understand that to mean dividing children equally between their parents. [Interruption.] If the hon. Gentleman did not mean that, perhaps when he winds up the debate he will tell us in what way his proposition alters current case law and the way in which courts approach the issue.

4. DESTRUCTION of the EARLY INTERVENTIONS PILOT

Narrative

The Conservative account of Whitehall’s ‘hijacking’ of the Early Interventions reforms is accurate; as is the Lib Dem assessment. Mrs May 1460: When the presumption of reasonable contact is introduced, the system is rebalanced so that the resident parent knows that they cannot use the child as a weapon against the other parent. The result is that the right case outcomes are achieved quickly, instead of the wrong case outcomes being achieved slowly, but that entails a wholesale reversal of procedure. So, this was quite a nut to crack, but the job was done. On 8 October 2003, the Early Interventions reforms went to the Government with across-the-board support. The hon. Mrs. Justice Bracewell, of the High Court family division, said: "It would be incomprehensible if the Pilot Project did not receive official sanction from the DfES and the Department for Constitutional Affairs." Yet within weeks of Early Interventions being approved, the project was destroyed in Whitehall. I understand that its originators were never approached or consulted. I believe that the early interventions papers never reached the new Whitehall design team. The project was discussed as a "brand name" to be discarded. Ministers were reassured that the early interventions project was still under construction, albeit under a different name. So, one project was swapped for another in a tableau worthy of "Yes Minister". The family resolutions project, which has just emerged from Whitehall, is the opposite of the early interventions project that was submitted and approved. Family resolutions is not a legal reform at all; it is the same old failing mechanism with a glossy new title. Family resolutions is a new scheme to continue the existing system. It does not change the legal system; it is a public relations exercise—more spin from the Government. Parents will receive leaflets advising them not to go to court. They will see videos. There will be more "flexible levers" and telephone helplines. Parents will be sent to "anger management classes", presumably to learn how to manage their fury at the Government's failure to provide the family justice system they need, but what they will not get are guidelines on how much parenting time the court expects them to agree on, nor will they get any rights giving them a say in how their child is bought up. Instead of it taking two months for parents to get a first hearing, it will take five. That is the difference, and there is evidence that the family resolutions pilot project simply is not working, which brings me to the Government's final contradiction—the Green Paper. The Green Paper was trumpeted as the Government's answer to parents' problems—more talk from Government, appearing to say all the things that parents trapped in the family court system wanted to hear. I quote the 30 November edition of The Independent: "Fathers are to be given better access rights to their children in the event of family break-up under new proposals from the Government",
but fathers will not be given better access rights. The Minister knows it, and I know it. All those anxious parents and grandparents have been misled. The promises made in the Green Paper are incapable of fulfilment.

13 Dec 2004 : Column 1462

The Green Paper says that "co-operative parenting arrangements are what is needed to promote the interests of the child", yet the Government are refusing our calls for a presumption on co-parenting. Under the Government's scheme, not only will there not be a presumption of reasonable contact, there will be no presumption of contact at all. Presumably, parents who want to see their children will be asked, "Why?".

The Government do not have to accept my word; they can take their own. On 29 April, in a letter to the chairman of the Coalition for Equal Parenting, Lord Filkin said: "The Early Interventions project which was developed by New Approaches to Contact (NATC) and others, is being developed and taken forward."

The Green Paper said: "We will develop" parenting plans "and will provide specific examples of contact arrangements which are known to work well for parents", but let us consider what the Department for Education and Skills itself had to say in a standard letter written this November, when it realised that it could no longer pretend that the two projects are the same: "The Family Resolutions Project has been designed in line with the Children Act 1989. The Act does not prescribe parenting patterns, nor does it have a legal presumption of contact. These are two ways by which Family Resolutions is distinctive from the Early Interventions project proposed by New Approaches to Contact". Listening to the Government, the two projects are not only the same, but different. The judiciary, Queen's counsel and Lords of Appeal are still being assured that the Government are progressing the early interventions reforms, which they have scrapped. Yet again, the Government have been shown to be all talk and no action. I said that this was a sensitive issue: it is a sensitive issue because it deals with the lives of children; because it deals with the loving bond that is developed between parents and their children; and because many children in this country today find themselves separated from a parent or grandchildren by a system that enables the parent with whom the children reside to use the child as a weapon against the other parent. Many people find themselves on the receiving end of a family justice system that does not deliver justice for them or their family. We have seen from recent statements that the Minister believes that the best parent is the state. We recognise, however, what experts and common sense have always told us—that the best parent for any child is both parents. It is time for a family court system that protects children and respects parents, and it is time for a Government who will deliver it.

Margaret Hodge, 1468: To suggest, as the Opposition have, that we have abandoned what was known as the early interventions initiative is simply a travesty of the truth. What we have done is reflect on the experience from Florida and other jurisdictions with a group of experts. What we have done is reflect on the experience from Florida and other jurisdictions with a group of experts.

Mrs. May: Will the right hon. Lady give way?

Margaret Hodge: I will when I have finished this bit. What we have done is adapt those proposals to create our own family resolutions pilot project, so that it works in the British context. We have not failed to implement the scheme. We have simply sensibly tailored it, so that it has the chance of working in our courts.

Mrs. May: The right hon. Lady says that the Government have put the project in place. Perhaps she will explain why it was that, in November, an official in the families in change team for vulnerable children at the Department for Education and Skills sent letters making it absolutely clear that "There are ways by which Family Resolutions is distinctive from the Early Interventions project". She says that she has not abandoned the early interventions project, yet she is not actually putting it in place.

Margaret Hodge: The right hon. Lady may not accept this, but it seems total common sense that we adapt a particular scheme to meet the British circumstances and the British courts. Perhaps it will help if I give an example. In Florida, early intervention is compulsory. In the United Kingdom, our family resolutions pilot project is not. Our scheme reflects that difference; it has been deliberately changed to reflect the difference.
In our view, the family resolutions project will work only if people want to engage with it

Peter Bottomley 1469 (Worthing, West) (Con): The Minister is being more specific now. Can she explain how the scheme that she will bring forward differs from the one that she inherited from the Department for Constitutional Affairs, which is a rather more interesting question than how it differs from the Florida experiment?

Margaret Hodge, 1469: The family resolutions pilot project was developed by the Department for Education and Skills working with colleagues in the Department for Constitutional Affairs to ensure that it was amended to reflect British circumstances. That seems such a common-sense approach that I cannot for the life of me understand why Conservative Members seek to mislead people, if I may say so, by suggesting that we are not pursuing an early intervention to prevent people from entering into litigation, which often only worsens matters.

David Heath: 1475, Lib Dem We need an arrangement whereby both parents, if willing and able to do so, can through co-operation properly provide for the physical, emotional and financial support of the child. That is why the early intervention scheme, which we have debated, was so important. I am sorry, but I do not accept what the Minister for Children, Young People and Families says about this. She is trying to conflate two different schemes and claim that one is a very good development from experience overseas. It may well be, but it does not replace the early intervention scheme, which was developed in this country on the basis of consensus within the community of interests, particularly professional interests, involved in these matters. It needed statutory backing in order for it to work and it involved changes in court procedures, which the family intervention scheme does not. They are totally different things. As my hon. Friend the Member for Sheffield, Hallam (Mr. Allan) said in an earlier sedentary intervention, it is all very well saying that a cow is an adapted sheep, but try getting wool from it. They are two different creatures. The Government would be well advised to look again at the real advantages of an early intervention scheme.

DESTRUCTION of the EARLY INTERVENTIONS PILOT

Ommitting the Core Innovation

Margaret Hodge: For example, we are revising our parenting plan materials, which the right hon. Lady chose to decry. They are there to help parents, with clear advice and information, to think through realistic options in a co-operative way to settle issues on contact. This is not about the Government, with so-called "guidelines on parenting time" attempting to dictate from the centre what works, when we cannot know the circumstances of any individual case. We want to show in practice the sort of contact arrangements that work well for children of different ages and in different circumstances, without trying to be prescriptive, as the right hon. Lady would have us be about individual cases.

5. THE GOVERNMENT’s GREEN PAPER

Margaret Hodge 1468: That is why we want to ensure the availability of another initiative that the right hon. Lady decried: the availability of a telephone advice service that will provide practical support to parents when they need it. That is why we want to introduce more mediation, building on the successful expansion of publicly funded mediation cases, which are now helping about 5 per cent. of separating couples to reach agreement. That is why we want to support good practice among lawyers in this sector, with improved accreditation of solicitors who provide advice on family matters, and by encouraging lawyers to work more collaboratively, with the aim of securing a resolution outside courts, rather than a win in the courts. That is why, far from abolishing the Children and Family Court Advisory and Support Service, we want to make greater use of its officials to promote the resolution of contact issues through conciliation, as is already happening successfully in the courts in Essex.

Margaret Hodge 1469: We all recognise that there is much we can do to improve the court processes. If parents have to wait for months, attitudes become even more entrenched and the possibility of an agreed resolution between the parents diminishes. That is why the judges, under Dame Elizabeth Butler-Sloss, are seeking, for example, to improve the listing of cases, are looking to provide greater judicial continuity and are ensuring a rapid return to court if things continue to go wrong. That is why we want to change the role of CAFCASS so that its officials spend less time writing lengthy reports for court hearings and more time using their

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expertise, knowledge, skills and training to promote conciliation between warring parents and to ensure that the voice of the child is heard as arrangements are determined. That is why we are proposing a range of additional levers for the courts to ensure that both parents put their children first and comply with court-ordered contact arrangements. That is why we are, for the first time ever, ensuring proper funding of contact centres and ensuring the expansion of services that support children in enjoying contact with their parents. Indeed, we hope that many of our children's centres and extended schools will provide the facilities to enable parents to maintain contact with their children in safe surroundings.

CONSERVATIVE ASSESSMENT of the GREEN PAPER

Mrs May 1457: The problem for so many parents who are desperate for proper contact with their children is that the Government have been willing to talk about co-parenting but unwilling to put it into practice. They speak the language of reform, but do not deliver. In rejecting our proposals for co-parenting, they have clearly demonstrated that their Green Paper was simply all talk.

Mrs May 1461: The Green Paper was trumpeted as the Government's answer to parents' problems—more talk from Government, appearing to say all the things that parents trapped in the family court system wanted to hear. I quote the 30 November edition of The Independent: "Fathers are to be given better access rights to their children in the event of family break-up under new proposals from the Government", but fathers will not be given better access rights. The Minister knows it, and I know it. All those anxious parents and grandparents have been misled. The promises made in the Green Paper are incapable of fulfilment.

13 Dec 2004 : Column 1462

The Green Paper says that "co-operative parenting arrangements are what is needed to promote the interests of the child", yet the Government are refusing our calls for a presumption on co-parenting. Under the Government's scheme, not only will there not be a presumption of reasonable contact, there will be no presumption of contact at all. Presumably, parents who want to see their children will be asked, "Why?".
The Government do not have to accept my word; they can take their own…

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