Wednesday, 2 November 2011

FJR - Failed Justice Review?

The Family Justice Review (FJR) Final Report is released today. One part which may surprise readers is 'There was general agreement in the consultation that the legal framework is robust and that the welfare of children must be the paramount consideration in all decisions affecting them.' If you can hear me above the self congratulating applause, perhaps someone should remind the consultation body that the United Nations found the UK to have the unhappiest children in the developed world in 2007. David Cameron's aim to fix Broken Britain is not assisted by this report's recommendations.

We'll start with our own quick review. There is little if any trust in the family courts. National broadsheets have campaigned against the courts' secrecy; this year we've seen the courts backpeddle from their 40 year old untenable position in leave to remove cases; the application of the legal framework has been criticised by leading legal practitioners and even a few brave members of the judiciary themselves. CAFCASS has been deemed to be a failed service. Delays beset the service. Statutory contact enforcement measures in the Children and Adoption Act are only sporadically used. Wishes and feelings can be ignored, manipulated, or trump considerations as to children's needs. Parents' roles are undermined by unelected state bodies which are largely unaccountable and undemocratic. Even the relatively ineffective Office for Judicial Complaint is to go.

My own feeling is that the wide ambit of judicial discretion leads to many inconsistent outcomes and sees cases of identical nature can having very different results... all dependent on which judge hears them. Certain courts and judges are viewed with dread. Judicial continuity can be wonderful for some, but a nightmare for others. Family Justice remains a lottery in terms of outcome.

Within the FJR report, the President of the Family Division of the Courts is quoted as saying 'I…agree that the Children Act 1989 represents “the most comprehensive and far reaching reform of child law” and that it remains “the overarching legal framework for family law as it applies to children”. I welcome and agree with the Report’s positive attitude to the Act.'

This is somewhat at odds with the reality that the judiciary failed to acknowledge Parliament's intention behind the Children Act. By way of explanation, Sir Nicholas Wall, President of the Family Division said to me in 2010 that the judiciary do not read Hansard. Had he have done so, or had his two predecessors, they might have read Lord Kilbraken's prophetic concerns, and the hollow reassurances of the Lord Chancellor back in 1988. [Hansard Debate (19 December 1988, page 1217 to 1219)]

Lord Kilbracken:
".... As I said in debate, I always thought that was a very good arrangement, where both parents had a residence order and the children went to each of them in succession." ".... However it seems to me that when this definition arises we should emphasise that, by not having the word "person" in the singular in line 43, the residence order may apply in most cases to the father and the mother.

The Lord Chancellor: ".... As I explained earlier, by virtue of Section 6(c) of the Interpretation Act 1978: "Words in singular include the plural and words in the plural include the singular".

Lord Kilbracken:
".... I am very glad to know that will be on record, although of course what is said in your Lordships' committees on the record is in fact never brought up again in any court. But, all the same, I am satisfied by the noble and learned Lords assurance that the singular includes the plural. Therefore I wish to withdraw the amendment."

In essence, the concepts of custody and access were simply renamed residence and contact (which the FJR report seemingly accepts). The intention that shared residence should be commonplace was resisted (and indeed limited by the then President's 1991 guidance to her family court judges). The Children Act 1989 became what the judicary wanted, rather than what was democratically intended. I remain unconvinced that any review, or enacted reform, will be supported by the judiciary as a whole.

One can't help wondering with this current review how hard the judiciary have lobbied to see their preferred and somewhat antiquated social model maintained, and this despite the Prime Minister calling for 'meaningful' involvement of fathers in childcare, and his party's commitment to dispense with the need for grandparents to apply for contact. So much for our judiciary being defenders of democracy!

The review panel was appointed by Labour, whose model of social engineering, along with the judiciary's majority preference for a primary carer has led to what Ian Duncan Smith described as Broken Britain. The review was headed by an economist. The review was always going to be concerned more with cost cutting than child welfare.

A further question not addressed by the review is why we need an indepedent and unaccountable judiciary in the family courts? There are arguments for independence in the criminal and civil courts, but these don't held for determining arrangements for children. In what other system does each practitioner choose how to do their job and successfully both scrutiny and accountability. Would we accept each individual teacher having the right to choose how and what they teach our children? Why then is the judiciary's 'wide ambit of discretion' sacrosanct?

It is fact that single parenting, and reduced paternal involvement leads to higher levels of teenage pregnancy, higher levels of youth crime, more instances of poor adolescent mental health and lower levels of academic achievement. Despite this, the FJR, presumably influenced by those resistent to change, cite the Australian research which is not overwhelmingly anti shared parenting, and the majority of that research relies on low sample sizes (meaning the findings are neither definitive or robust). No mention by Norgrove that the three countries which have the happiest children in the developed world (in the UN 2007 report into child wellbeing) have a presumption of shared parenting.

We do not accept that a rebuttal presumption of shared parenting puts children at risk. Where there is proven violence or a risk of significant harm, the state has an obligation to protect child welfare. We do not see why the state interferes with a child's right to the meaningful involvement of their parents in their lives where there is no risk of significant harm. Perhaps next we will see parents require a license to conceive or courts granting parenting orders before parents can take a baby home from hospital.

While selectively citing parts of the United Nations Convention on the Rights of a Child in terms of recognition of wishes and feelings (which already exists), the FJR's recommendations fly in the face of the presumption of a child's right to both parent's meaningful involvement which is actually enshrined in the Convention and the UK is supposedly committed to. The FJR suggest that the term meaningful will lead to long court battles without a definition. We supplied a definition in our own response to the FJR. It's not rocket science.

In short, I do not believe that the FJR findings best protect child welfare, but instead maintain the status quo for a failed single parenting social engineering model which research has shown to be harmful to child welfare and less advantageous to child development. That model does not reflect society today in intact families, where father/mother childcare time is almost equal (on average, parental childcare time only differs by 15 minutes a day - 2007 Equal Opportunities Research Findings). A presumption of shared parenting exists for intact families without any state paranoia or welfare officer meddling, so why the extreme fear when parents separate and the FJR's refusal of a presumption of meaningful parental involvement post separation? Surely this is unreasonable state interference in family life? Primary carer models reflect last century parenting. A presumption of shared parenting with meaningful parenting time being defined would lead to shorter and reduced numbers of proceedings. Why battle when the outcome is less uncertain? Who benefits from the current adversarial and 'up for grabs' system... the lobbiests perhaps, the legal profession, the welfare officers, and the judiciary. Families lose out as an industry protects itself.

The report quite rightly recommends mediation, but renames Alternate Dispute Resolution as Dispute Resolution Services. We agree with the greater use of mediation, but this was introduced back in April 2011, as were parenting information programmes. In 2007, the Legal Services Commission found that only one third of legal aid solicitors mentioned the option of mediation to their clients. A shift in attitude is needed, and mediation takes business away from solicitors.

The FJR report would be better entitled the Family Justice Process Review, as much of it relates to recommended structural changes. A new Family Justice Service (FJS) to incorporate CAFCASS and other ancillary services related to proceedings. Indeed, the FJS will be largely staffed by ex-CAFCASS officers. Some view with horror the prospect that this failed service will see its powers and role increased. It was a Parliamentary Select Committee which found CAFCASS not to be fit for purpose.

There are proposals for a new computer system. The Government does not have the best track record for introducing new computer systems. The FJS would also bear responsibility for safeguarding checks at the commencement of court proceedings.

Judges will be responsible for managing a more structured judicial service, despite this not being their area of expertise (e.g. organisational/resource management). A single court with three levels of judges (magistrate, district and circuit) to hear cases dependent on complexity will make matters simpler. Fair enough that the High Court remains separate to hear the most complex cases and those with an international aspect.

The report recommends a Family Justice Board to promote greater inter-agency liasion. Wasn't this was Family Justice Councils were created for?

There will be a presumption of shared parental responsibility (PR). This is a fudge, as shared parental responsibility already exists in law for most parents and the Government has been working to re-educate teachers and doctors about what PR means. Despite the FJR's supposed commitment to shared parental responsibility, they recommend nothing to assist the declining number of fathers without PR. If Cameron wants more fathers involved, have all biological fathers automatically have PR, and apply this retrospectively. The FJR should have recommended this as part of their 'commitment'.

We agree with the Review Panel that the concepts of 'Residence' and 'Contact' should be repealed, and this was our own suggestion within our consultation response. We had recommended these unnecessarily divisive terms be replaced with parenting time, and arrangements be set out in a Parenting Time Order. The FJR preferred the name Child Arrangements Order... fair enough, and a better name. A step forwards was that this order would allow the parents to take the child abroad for up to 28 days (which will hopefully remove the need for Specific Issue applications in the future). It is recommended that Prohibited Steps Orders and Specific Issue Orders remain which was also our recommendation.

Mediation and 'Alternate Dispute Resolution' remain a primary focus, in keeping with the Government's own recent reforms. Rather than Alternate Dispute Resolution, the FJR recommends that this should be termed Dispute Resolution Services. There is a recommendation that breaches of orders within 12 months of an order having been made should not require a return to mediation, but involve judicial continuity and enforcement. Again, fair enough, but what happens will be down to the individual judge.

We were disappointed that the FJR is recommending that Grandparents must still apply for permission before making an application for contact or other orders. This seems to us an entirely retrograde step, as political parties had made manifesto commitments to remove this unnecessary hurdle.

In Summary
In summary, we view a number of the proposals to be simple rebranding; we do not believe the resources or funding exist to pay for the new systems or restructing that the FJR are calling for and we are not convinced that the skills exist within the existing bodies to effectively manage the structures that are proposed. The proposals fail to address the public's concern about the family justice system while a lack of transparency, little accountability and inconsistency in judicial decision making goes largely unaddressed. We do not believe the proposals adequately benefit child welfare or support the UK's commitment to the UN Convention on the Rights of the Child.

Download the report