UK Family Law Reform

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----- Original Message -----
From: Eileen.KELLY@dfes.gsi.gov.uk
To: dave.mortimer
Sent: Thursday, June 24, 2004 3:40 PM
Subject: Views wanted on child contact agreements

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.

Yours sincerely

Kabir Ahmed

Families in Change Team

Vulnerable Children Division

----- Original Message -----
From: dave.mortimer
To: general.queries@lcd.gsi.gov.uk
Sent: Friday, June 04, 2004 2:51 PM
Subject: Views wanted on child contact agreements

http://www.number10.gov.uk/

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).

References

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

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