Tuesday, 19 October 2010

Family Law Reform - A reality check?

The broadcast on Radio 4 today (19 October 2010) with Sir Nicholas Wall and David Norgrove left me with concerns that the family law reforms currently being discussed will result in a poor system made worse.

In brief summary, Sir Nicholas Wall, President of the Family Court, spoke of compulsory mediation, a greater inquisitorial role for the judiciary, private law not being state funded, and one wonders whether costs of proceedings will be recoverable from parents. He admitted that this would mean longer court delays, as he wished judges to spend more time on intractable cases in an ‘inquisitorial role’. He also accepted that the judiciary were not trained or experienced in following an inquisitorial approach, as they currently rely on counsel or the litigant to present arguments.

Parenting classes were also mentioned. There was the almost mandatory comment from Resolution about collaborative law, and solicitors negotiating with parents in place of an application to court. David Norgrove, Chair of the Family Justice Review Panel also spoke of compulsory mediation.

Undoubtedly well intention, and on the surface, appearing laudable, there are significant flaws in these early proposals. The starting point in this debate should be securing the outcome that is most likely to safeguard a child’s long term welfare. There is a risk that parents will be driven from the courts and have no access to justice. If Wall’s plans come true, longer delays will be the disincentive, while affordability will be an insurmountable hurdle for others.

Compulsory Mediation alone will not be an effective solution - Mediation only works where both parents are prepared to reach a reasonable agreement. Therapy only works where the patient is willing. A parent, as we commonly see, only has to make a false allegation for the matter to be listed for court directions, welfare investigations, and numerous hearings. The proposals, as discussed today, do nothing to address this.

Mediation is only likely to be more successful if the outcome of court proceedings is more certain from the outset. That is why we are proposing a default presumption of shared parenting. We know from extensive research that shared parenting is the outcome that is most likely to secure child welfare.

There also need to be sanctions where allegations are proven to be false. Without this, there is nothing to encourage the ‘parent in possession of the children’ to mediate, or dissuade them from maintaining an unreasonable approach or capitalising on delays in the system regardless of the harm this causes their children.

We are proposing that where serious allegations are made, the more rigorous scrutiny under public law, and a s.47 and core assessment be applied. We also propose that CAFCASS and Social Services are merged, and that the often ‘woolly’ s.7 welfare report be dispensed with. The timescale for a s.47 and core assessment is 35 days. CAFCASS reporting under s.7 can take 280. Merge the services, and invest the economies of scale in the frontline.

The assurance that 90% of mediated outcomes are successful does not fit with the other statistics that (depending on the study) between 25% and 40% of non-resident parents lose contact with their children after two years of separation.

Delays - Under Sir Nicholas’s proposals, he accepts that those parents who are unable to reach a mediated arrangement will face greater delays. Sir Nicholas proposes a first hearing within 3-4 weeks to order compulsory mediation, but states that with a more inquisitorial approach by the judiciary (which he said he favours), cases will take longer, and greater delays will be inevitable. The courts currently fail in their statutory responsibility to consider that ‘time is critical in a child’s life’.

The status quo of a child being denied contact will worsen, and the possibility of a final outcome where the children benefit from both parents being involved in their lives will be harder to achieve. The proposals discussed today will fail children. There is a real chance that more children will lose contact with the non-resident parent.

In the case Re D in January 2010, Lord Justice Wall refused a father permission to appeal, as he did not consider that delay was in the children’s best interests. Nine months later, he proposes a new system which will, at his own admission, result in delay for anyone needing to access the courts.

A two tier system – The greatest failure in the current thinking is a lack of consideration as to who will pay for mediation, parenting classes and a host of other well meaning proposals. With the current Government cutbacks, it is highly unlikely that these will be covered by the state.

The proposals are well intentioned, but perhaps made by people removed from the average national wage of £489 per week (2009).

How can parents afford two sets of collaborative solicitors? Many can’t. We risk a two tiered system.

As a brief reminder of why both parents matter to children, a child is 40% more likely to suffer mental health problems when denied a meaningful relationship with both parents. Statistically, they do less well academically, their IQ is lower, they are more likely to become involved in crime, more likely to experience teenage pregnancy and so on. Research detailing the disadvantage brought by parental exclusion was detailed in our 2009 Parliamentary Briefing Report on Relocation.

Sir Nicholas’s proposals do not address an of these matters, a significant failing from the representative of an organisation whose primary purpose is to safeguard child welfare.

An Inquisitorial System – The judiciary face much criticism, and the current debate over leave to remove is just one example. The judiciary’s failure to apply Parliament’s intention from 1989 that shared parenting should be the common outcome on parental separation, and their misapplication of the Children Act leaves many understandably distrustful. The new powers from the Children and Adoption Act 2006 were not applied as intended.

The Office for Judicial Complaint is to be abolished, as is the role of the Judicial Appointments and Conduct Ombudsman. Greater powers, unchecked by outside scrutiny, a diminished means of complaint, and the judiciary’s past statutory failure is worrying enough. Will an inquisitorial system, with the inevitable greater judicial powers lead to a more just outcome? There is no evidence to assume it will be so. Sir Nicholas’s acceptance that the judiciary were untrained and inexperienced in pursuing an inquisitorial approach hardly leaves one feeling confident.

If Family Law is considered locked in the past, be warned, we could be headed for the dark ages.