UK Family Law Reform

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http://www.publications.parliament.uk/pa/cm201213/cmpublic/childrenandfamilies/memo/cf40.htm

Children and Families Bill

Memorandum submitted by Professor Liz Trinder, Alison McLeod, Julia Pearce and Hilary Woodward (Exeter University) and Joan Hunt (Oxford University) (CF 40)

The enforcement of court orders for child contact: interim research findings

Professor Liz Trinder [1] , Alison McLeod, Julia Pearce and Hilary Woodward (Exeter University) and Joan Hunt (Oxford University)

1. This submission is designed to share early findings from a Nuffield Foundation funded study of applications to enforce contact orders in private family law cases. The study is due for completion in the summer but the Committee may well find it useful to see early findings from analysis of 81 recent enforcement cases.

2. Enforcement is a highly salient issue given recent statements from the government [1] and the Justice Select Committee [2] . It is a policy area with no previous research. Understanding of the issue has been shaped by personal testimonies. Whilst powerful, like any individual accounts or other anecdotal evidence, these are not necessarily representative or complete. The current study was designed to address the evidence gap by providing a profile of enforcement cases and evaluating how courts respond to applications.

3. The research is being conducted by a team of socio-legal researchers with many years of experience of family law research. The Nuffield Foundation has funded the research, but the views expressed are those of the authors and not necessarily those of the Foundation. The research team would like to thank both Cafcass for enabling access to their electronic records and the President of the Family Division for granting permission for the study.

INTRODUCTION

The policy context

4. It is well known that most parents decide their own parenting arrangements after family breakdown. Only about 10% of separated parents have court-determined contact arrangements. A fraction of those 10% seek enforcement of the court order. In 2011/12 there were just 1,383 applications for enforcement in England [1] . To put that in context, 38,405 children were involved in contact applications in England and Wales in 2011 [2] .

5. Although numbers are small, any non-implementation of a court order is serious and risks damaging public confidence in the family justice system. The challenge for legislators and judges has been to find appropriate interventions for non-compliance. Courts can impose fines, imprisonment or transfer a child’s residence but these may be impractical, counter-productive or harmful to a child. The Children and Adoption Act 2006 made new sanctions - community service and financial compensation - available, but these have been little used.

6. Following a consultation, the government has decided against curfew orders or the withholding of passports and driving licences as further sanctions [3] . Policy will focus instead on returning cases swiftly to court. Consideration is being given to extend powers of committal to Magistrates and District Judges. A new enforcement-specific Contact Activity (or parent education programme) is also mooted.

The study

7. The study is based on analysis of a national sample of enforcement applications. The final sample will be every C79 application made in England in March and April 2012, a total of 215 applications. This submission is based on initial analysis of 81 C79 [1] applications. The research team has been examining the cases in date order, starting from March 1st 2012. There is no reason to suggest that this initial sample of 81 early-mid March applications differ in any way from late March/April applications.

8. The cases are being accessed through electronic case reco rds held by the Children and Family Courts Advisory and Support Service (Cafcass). The records typically include court application forms, Cafcass reports and court orders made in the case. The information available therefore includes the perspectives of both parents, the children (if interviewed), safeguarding information (including police and local authority checks), numbers and types of hearings and the outcome of the application.

9. The data reported here are interim findings. The final report in mid 2013 will provide a more comprehensive analysis of the larger final sample. Focus groups with judges will also provide further understanding of how courts approach these cases.

KEY MESSAGES FROM THE INTERIM FINDINGS

· Few cases come back to court for enforcement activity

· Those that do are complex cases involving high levels of parental conflict and/or allegations of child welfare or safety concerns. Very few are ‘stereotypical cases’ of a single implacably hostile parent

· Courts seldom use punitive measures to enforce orders. Instead they focus on problem-solving, usually seeking to restore contact using further contact orders

· The findings support greater attention to risk assessment and management in contact cases and the development of psycho-therapeutic interventions for high conflict cases

FINDINGS

Who applies for enforcement?

10. As might be expected, most (85%) enforcement applications in the sample of 81 cases were from non-resident fathers. In 60% of cases, contact had broken down, half of these within the last three months. A quarter of enforcement applicants also sought compensation for financial loss following alleged breach of an order. Most claims were for the £200 court fee.

11. Over half (59%) of applications were brought within 52 weeks of the index order, including 18% within the first three months. Another fifth (22%) were late applicants, applying two to eight years after the index order.

12. Only five cases could be characterised as chronic litigants with 3-6 previous applications for a court order prior to the enforcement application.

What is the cause of the dispute?

13. The debate on enforcement has focused on cases where resident parents, typically mothers, are said to repeatedly and unreasonably defy court orders. In our sample of the 81 cases, the resident parent was said to be blocking all or some contact in 67% and 29% of cases respectively.

14. Respondents presented a range of counter-arguments to justify their actions, including the behaviour of the applicant and the wishes of the children. Concerns about child or adult safety were present in 75% of the 75 cases where information was available. In 51.9% of cases concerns were raised at the index stage, 53.3% at enforcement stages and 41.3% at both stages. Concerns at the enforcement stage were about child physical or sexual abuse and neglect (31% of cases), domestic violence (21%), alcohol abuse (22%), drug abuse (13%), mental health (11%) and abduction (7%).

15. The children were alleged to be refusing all contact in 31% of cases or some contact in 38%.

The main types of enforcement case

16. It is difficult to gain a sense of individual cases from aggregate statistical data. For each case the research team is drawing up a case profile to be used to develop a typology of case types.

17. At the interim stage the great majority of cases fall fairly evenly into two main types of case - conflicted or risk/safety.

18. Conflicted: Cases where poor parental relationships and chronic mistrust resulted in an inability to negotiate the everyday challenges/changes in circumstances necessary for contact to occur reliably. Safety issues, often mutual allegations of poor parenting, may be in the background. Parents require external assistance to work out solutions to contact problems. Case example: Detailed index order setting out arrangements for father’s contact with pre-school child. Contact continues but with handover problems prompting enforcement application. Cafcass reports that the parents are in intense competition for the child, expressed in clothing (mummy’s or daddy’s clothes) and bedroom decorations (Hello Kitty vs Peppa Pig). The child is developing a stammer, attributed by Cafcass to an acute awareness of the conflict. The father is seen as focused on his rights, the mother as distrustful and anxious. The case concludes with a two page consent order specifying in even greater detail how handovers will occur and the precise seating arrangements for future school functions (I-65).

19. Risk/safety: Cases where one or both parents raise, or continue to raise, significant adult and/or child safeguarding issues. Contact in these cases may be intermittent or have stopped. Case example: History of DV including father’s threats to kill the mother. The index contact order allows direct contact. Father is then convicted of battery against the mother and subject to a non-molestation order. Mother stops contact after father breaches this. Father then applies for enforcement. Cafcass recommend DV Perpetrators Programme and Fact Finding hearing followed by gradual reintroduction of direct contact at a contact centre. Instead the enforcement case ends in a consent order with unsupervised contact. Cafcass notifies the local authority (I-59).

20. ‘Implacably hostile’: In a small number of cases the primary problem appeared not to be mutual conflict or safety issues but the resistance of the resident parent. These cases figure large in public debate but were rare within the sample of 81 cases. Case example. The index order specifies staying contact with a 6 year old. The unrepresented mother does not cooperate fully with the court process. Contact broke down immediately triggering an immediate enforcement application. The same judge threatens a transfer of residence if the mother does not comply. Further contact was agreed. The father later contacts Cafcass to say that contact is being undermined. Note – the mother had raised concerns about domestic violence issues at index stage but none in the enforcement proceedings(I-68).

The problem-solving approach of the court

21. One of the most powerful themes emerging from the analysis of the 81 cases was that courts overwhelmingly adopted a problem-solving approach to case, the problem framed typically as about restoration of contact. Courts did not usually adopt an investigative or punitive approach and seldom commented explicitly on whether a breach had occurred. The focus was on moving the case forward. Case example: Teenage son with severe autism living with mother. Long history of repeated litigation, most recently with contact ceasing following an unspecified incident at father’s home. The Cafcass report was very critical of both parents for putting inappropriate pressure on the son. He had said how much he hated his parents arguing and would rather be adopted. Eventually it was agreed that the boy would continue to see his father and once he was ready stay overnight again. Until then there were very detailed arrangements in the order with regard to venue, transport costs and arrangements and other contingencies (I-22).

22. The outcome of applications exemplify this approach. The court ordered punitive sanctions (unpaid work) in only four cases, two of which were suspended. In contrast, in 62% of cases the court amended or made a new contact order [1] . In most cases the new order was similar or identical to the index order. The same amount of contact was ordered in 50% of these cases, more contact in 24% and less contact in 26%. In six cases (16%) the court ordered (more) supervision, in 4 cases (10%) less supervision and in 74% there was no change. Follow up orders contained a higher level of specificity in 30% of cases, the same level of detail in 60% and less detail in 9%.

23. Planned focus groups with judges will explore how courts approach cases, especially why punitive sanctions were not considered more often. The case data, strongly suggest two possible explanations.

24. First, the problem-solving approach to enforcement is very similar to how courts approach contact cases in general – with a pro-contact, pro-agreement and orientation to the future not the past.

25. Second, although courts clearly acknowledged when there was a problem with contact, they did not necessarily or typically accept the applicant’s view of the cause or the solution. The Cafcass reporter, for example, had access to all perspectives in the case as well as external data such as police checks. Our ratings [2] indicated that the Cafcass report was supportive of the applicant’s case in only a minority (24%) of applications. More commonly the Cafcass report supported neither parent’s case (29%), the respondent’s case (24%) or was partially supportive of both parent’s case (23%).

26. The court’s approach therefore often involved measures that would address the behavior of both parents, including agreements or orders including provisions relating to how parents behave with each other or referral to parent education. Case example: Young parents of a toddler. Father subject to a non-molestation order regarding the mother. The index contact order was followed quickly by each parent making allegations against the other of physical abuse of the child (a slap, a bite mark). The father applied for enforcement after mother stopped contact. After local authority investigations proved negative, the court declined to impose sanctions, reaffirmed the index order and referred both parents to a Parenting Information Programme (PIP). (I-31).

27. Children were consulted for their wishes and feelings, usually by Cafcass, in just 31 cases. Their views were similarly mixed. We assessed their reported views as more aligned with the applicant’s position in 21% of cases, with the respondent’s position in 36% and partially aligned with both parents in 32% of cases.

The limits of rapid case processing

28. Most enforcement cases were dealt with fairly rapidly. The median wait from application to the first hearing was four weeks. As of February 2013, 86% of these proceedings initiated in March 2012 had concluded. The average case duration was 14.5 weeks from application to final hearing. A third (35%) of the completed cases were disposed of in a single hearing and 26% in two hearings.

29. The courts relied heavily on relatively brief Cafcass Schedule 2 reports [1] to understand the issues in the case. These were filed in 91% of cases but varied in the level of detail. Other more in-depth Cafcass reports – on single or multiple issues or on children’s wishes and feelings - were filed in 36% of cases. Only three cases included reports from experts such as psychiatrists. There were no Finding of Fact hearings into abuse allegations at enforcement stage [2] .

30. The fairly swift timetable for most cases did have some drawbacks. In some cases with safety allegations the court proceeded with what appeared to be insufficient information. In one case, concerns about sexual abuse continued to undermine contact but the court declined to undertake a Fact Finding hearing that would allow the court to move forward assertively, in either direction. In another case, a resident mother was ordered to undertake community service for non-compliance. Afterwards she applied to vary contact following further incidents. The subsequent and far more thorough risk assessment identified significant longstanding safeguarding concerns resulting in an order for indirect contact only (I-11).

31. There were some safety cases where there was a clear understanding of the problem but limited follow through. In one case a father seeking enforcement of a supervised contact index order was required to attend a Domestic Violence Perpetrator Programme as a condition of contact. He dropped out of the programme but the court still made a final order for unsupervised staying contact in the absence of the (unrepresented) parties and against the advice of the Cafcass officer (I-8).

32. Given the numbers of high conflict cases it was surprising that little use was made of more intensive or therapeutic interventions. A therapeutic approach could work. In one case the court found a creative way for parents to pay for family counseling. The result was that contact was restored in a case where the teenage children had been refusing all contact (I-71).

How effective is the courts’ approach in securing compliance?

33. The courts have made very little use of powers to order the monitoring of contact orders. Thus little information is available on the outcomes of orders, beyond rates of relitigation.

34. Given the level of case difficulty, the relitigation rate was relatively low. There have been seven new applications. In a further two cases, the former applicant contacted Cafcass to allege non-compliance. Three of these nine ‘further activity’ cases were chronic litigation cases.

35. The limited further activity rates suggest that the approach of the courts may work in reducing immediate relitigation for many cases. However, the likelihood is that not all non-compliance is reported.

36. The punitive approach had mixed results in securing positive outcomes. Three of the unpaid work requirement cases (including the two suspended orders) remain closed. As noted above, the fourth completed UWR case was unsuccessful and it became apparent, was an entirely inappropriate order.

SUMMARY AND IMPLICATIONS FOR POLICY

37. Three principal findings are evident at this interim stage of the research. First, very few enforcement cases fit the popular media image of the implacably hostile resident parent. This stereotype does not capture the full picture available to the courts where most enforcement cases involve troubled or conflicted sets of parents or significant safety issues.

38. Second, courts focus on problem-solving and getting contact restarted rather than identifying whether or not a breach has occurred and sanctions needed. This orientation reflects the default approach of the family justice system that is pro-contact, pro-settlement and future-oriented.

39. Third, the problem-solving approach can default to over-rapid, "cookie-cutter" case processing. In some cases, risk was inadequately assessed and/or managed. Some of the high conflict repeat litigation cases returned to court quickly after very limited input.

40. There are a number of implications for policy. The government’s decision not to introduce further new sanctions is consistent with these interim research findings. It is unlikely that new punitive sanctions would be used when existing sanctions are not. Nor is there evidence, at least at this interim stage, that greater use of sanctions would be particularly helpful given that very few cases are about the stereotypical implacably hostile parent where a punitive approach might be appropriate.

41. We would have concerns about extending powers of committal to all tiers of the judiciary. Cases where committal would be under active consideration would be the most difficult and probably should be reserved for the most experienced judges.

42. Our interim findings suggest courts do a reasonable job at handling cases quickly. But dealing effectively with enforcement cases is difficult. They are tough and complex cases. The government’s proposal to develop an enforcement-specific case assessment and intervention pathway is a positive step forward. If any further tools are needed, however, they are not additional penalties but the time and resource for effective risk assessment and management in safety cases and therapeutic interventions for the high conflict cases.

March 2013

[1] Law School, Exeter University, Exeter EX4 4RJ. Tel: 01392 723375 . Email: E.j.trinder@exeter.ac.uk

[1] Ministry of Justice Co-operative parenting following family separation: proposals on enforcing court-ordered child arrangements: Summary of consultation responses and the Government’s response. February 2013.

[2] Justice Select Committee Pre-legislative scrutiny of the Children and Families Bill , HC 739, December 2012, especially paras 40, 55, 154 and 188.

[1] Cafcass Case Management System data for April 2011-March 2012. Cafcass Cymru records data separately.

[2] Judicial and Court Statistics 2011, London: Ministry of Justice, table 2.3.

[3] Ministry of Justice Co-operative parenting following family separation: proposals on enforcing court-ordered child arrangements: Summary of consultation responses and the Government’s response. February 2013.

[1] The C79 is the form used to apply for enforcement of a contact order.

[1] In 12% of cases the application was withdrawn. In five cases the case for enforcement was dismissed, in two cases no order was made and there were other outcomes in four cases.

[2] We will present the full methodology in the final report.

[1] These are 2-4 page reports prepared prior to the first hearing. They set out a summary of safeguarding issues based on police and local authority checks and, where possible, phone calls with the parties.

[2] Only two FoF Hearings were held at index stage, both upholding the allegations fully or in part.

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