2013 - Is this the year of the fatherless child?

A while ago, Iain Duncan Smith was quoted in the Telegraph on the subject of fatherlessness in society, and how the legal system had failed a third of children who had lost contact over the last 20 years. It's wrong to lay the blame solely at the doors of the courts. Successive Governments haven't treated the issue seriously or with sufficient thought.

Over 2,000 years ago there was a judgment given, where Solomon faced a bitter custody dispute. Not much has changed in the years since. Human nature doesn't change. People behave badly. People get caught up in disputes, and anger, revenge, spite and a long list of other unpleasant human emotions come to the surface. As one sage judge said on the issue of fact findings and allegations (we do love Mostyn's judgments) 'if parents were behaving well, they'd probably still be together'.

The Government is naive if it believes that mediation alone is a panacea to fatherlessness or will soak up the mess left by legal aid cuts. Lay advisers and members of the legal profession see the full ambit of unpleasantness in the courts. I've seen a number of extremely unpleasant cases recently, where before matters had gone to court, one parent was fabricating evidence to stitch up the other, then calling the police or social services. The Jeremy Kyle world sadly exists, and isn't limited to the working classes.

I agree that adversarial family law fans the flames of parental hostility, but it's naive to think that it's the cause of parental hostility, or that the carrot without the stick is sufficient to resolve many parental disputes. Statistics suggest that 10% of separating parents go to court, while a further 30% fail to agree any arrangements (lacking the court's involvement). Could it be that fatherlessness may be reduced by more parents accessing the courts? Could it be that an imperfect system is better than no system at all?

Where is the support for parents who cannot afford a solicitor, whose numbers are to be swelled by tens of thousands next year once legal aid goes? What access to justice for them?

45,000 are to lose legal aid. Courts are closing. Court delay more likely due to inexperienced litigants in person eating up court time. The Government's plans are likely to save some money (if only from the reduced legal aid bill). Has any consideration been given to replacing that support, and giving parents the depth of knowledge they need to make informed decisions should mediation fail? What we saw yesterday was a useful links page to third sector organisations, but nothing in practical terms to support parents whose ex-partner says 'no'. Nothing to support those falsely accused whose world is at risk and who need legal advice. Nothing to support those who come home and find the house empty and their children gone... and the list of more complex but fairly routine scenarios goes on.

...and consider what a falsely accused parent faces, which will become worse next year. The accuser receives Government funded legal representation. The accused not. No equality of arms, and I fail to see how their right to a fair hearing is protected. Consider the risks... loss of children, loss of home, and findings made that destroys their character... all judged on a subjective balance of probability in a court under pressure, and where the accused lacks the legal guidance afforded to their alleged victim. No checks and balances. Will the prospect of free legal aid encourage false allegations?

On a good note... consider the benefit to Government statistics... we'll see headlines that Government policy has led to more successful findings against perpetrators of domestic violence... 

The cost to society could be many times greater than the short term financial savings that the Government hopes for. We know that fatherlessness is linked to higher incidences of crime, teenage pregnancy, poor mental health, addiction, lower performance at school and other societal ills. Such are the findings of Iain Duncan Smith's Centre for Social Justice. Will mediation fix Broken Britain? Will the Government's new app, which is little more than a useful links page, give parents the tools they need to safeguard their children's relationships? No. Not for many. Not for thousands.

Can those third sector organisations deliver the support that's needed? Will they have the resources to meet demand? Could you fit 1000 parents in your local pub for a monthly support meeting?  Are there sufficient numbers and sufficiently knowledgeable volunteer advisers to offer support to 45,000 parents next year?

We hope the Government has something else up their sleeve, but we found nothing on that app, and have seen nothing in their publications to suggest they have meaningful support for the parents who find mediation doesn't work, and where a solicitor is unaffordable.

Is the Government's policy to hope that thousands of years of human nature can be reversed overnight? Surely the biggest social gamble in my life time. I may be being harsh, but they may be being criminally negligent.

Mediation can work, but there also needs to be access to justice where it fails. Access to justice is about to become harder. I wonder how many parents won't approach the courts because they simply don't know how to, lack the necessary information and feel overwhelmed.

On a good note... consider the benefit to Government statistics... we'll see headlines that fewer parents are resorting to the courts...

What we may see next year are the ranks of fatherless children swelled by those whose parents no longer qualify for legal aid, and a hopeless situation for those whose parents face false allegations. Broken Britain perpetuated, or made worse by this Government due to a mix of poor advice, wishful thinking and a lack of planning and resources.

Staying contact remains a dream for many

Digest these figures, and question what we're told and led to believe.

Parents are likelier to be happier if agreements are reached outside of court

According to the Government's own statistics, the non-resident parent is almost three times more likely to have no face to face contact unless matters progress to a court order. Without a final order, it seems the chances for face-to-face contact drop significantly, and the prospects for staying contact are considerably less. [1]

The Rise and Rise of Shared Residence?

Should the courts be proud at their effectiveness. At the better end, yes, but the wide ambit of judicial discretion means that outcomes in court vary dramatically, and in some courts the outcomes differ appallingly.

In one court, you are statistically 2.6 times less likely to be awarded staying contact than in another. Can children and parents bond properly if there isn't overnight staying contact? It seems a large percentage of our courts remain ignorant of child welfare research...

Even very young children can benefit from overnight stays with their other parent. Kelly J B & Lamb M E (2000) Using child development research to make appropriate custody. and access decisions for young children, Family and Conciliation Courts Review, 39, 297-311

Based on the experiences of 30,000 children, the research found that 'a child's performance at secondary school, self-esteem and well being as an adult is linked especially to the father's input' and 'children are 40% more likely to suffer mental health problems when separated from their fathers' and 'on average, children are less likely to fail at school or suffer depression the more they see their separated father.' A Good Childhood: Searching for Values in a Competitive Age’. Richard Layard and Judy Dunn.  The Children’s Society (2009)  

The Government now 'gets it'... but any reform is doomed to failure unless the judiciary offer consistent decision making. Without much more detailed guidance and statute, that remains unlikely.

Dame Butler-Sloss complained that 60% of children lose contact with a father after 2 years of parental separation.[2] Perhaps the above statistics help explain why. Not much has changed since 2003, and certainly not enough has changed in the courts. Added to this, it appears not enough cases get to a final hearing, and for those which do, their outcomes are based too much on inconsistent opinion rather than welfare based guidance.

We want shared parenting? For too many children, alternate weekends with a parent remains a dream.

Notes

1. Tables are taken from 'Outcomes of applications to court for contact orders after parental separation or divorce.' Joan Hunt and Alison Macleod. Oxford Centre for Family Law and Policy. Department of Social Policy and Social Work University of Oxford. Family Law and Justice Division. September 2008
2. “The Paul Sieghart Memorial Lecture”. Dame Elizabeth Butler-Sloss [3 April 2003]

Demographics, Leave to Remove and the Courts: The Ticking Time Bomb

A few years ago, leave to remove applications were comparitively rare when compared to other types of family law case (anecdotally, circa 1000 cases a year).

As reported in a number of broadsheet papers this week, the number of births in Britain to immigrant mothers is fast approaching 25% of all births. In London, it is already over 50%. In some boroughs, 75%.

You do not need to be a seer to realise that cases involving international relocation and abduction abroad are certain to increase and could overwhelm the courts and Foreign Office.

At the Custody Minefield, we're receiving more and more enquiries from parents seeking to prevent a leave to remove application. Already in 2011, we've experienced a 50% increase in our guides being viewed, compared to page views in all of 2010. A couple of years ago, emails about relocation cases mainly involved ones where emigration was a lifestyle choice. From what we're seeing in 2010, they more commonly involve a parent seeking to return to their country of birth, with cases involving returns to Europe, Eastern Europe, the USA, Canada, New Zealand, Australia and South America, but most commonly Poland and Pakistan. In all of these cases, the children had been born in the UK and had lived all their lives here.

About these latest birth statistics, shadow home secretary Dominic Grieve said: 'With births to foreign mothers becoming such a large driver of population growth, it is vital that immigration levels are set taking into account the ability of our schools, hospitals and other local services to cope.'

Have the Government or courts considered the impact on leave to remove applications and unlawful abductions abroad in the years which will follow?

The Family Justice Review Panel have specifically said that it is not within their remit to consider this area of law despite even senior members of the judiciary accepting the controversy that exists over the handling of these cases.

The Family Courts did review Payne v Payne earlier this year, which until that point was held to be both leading and binding case law in international child relocation cases. The review happened in the case K (Children) [2011] EWCA Civ 793, but was contradictory and inconclusive. The review followed much criticism that the courts paid too much attention to adult, rather than child welfare.

The review saw the courts slightly pull back somewhat from the adult centric guidance which had been followed since the Payne case. The Lord Justices of Appeal did not agree on which guidance should apply (depending on the particulars of the case), with Thorpe (Head of International Family Law) and Moore-Bick (Deputy Head of Civil Justice) holding that the guidance in Payne v Payne should not be a consideration where parents share care, while Lady Justice Black felt it should. All agreed that despite the controversy and criticism that the judge made guidance conflicts with Parliamentary statute, the guidance would still apply to cases where there was a primary carer.

Moore-Bick led us to believe that the only point of law ever to come from Payne v Payne was that child welfare must be the court's paramount consideration. Every family law case includes this point of law... so why was Payne considered binding precedent (as said to us by all preceeding Presidents of the Family Courts)? Why was it necessary to have this raised as a point in law, when that principle was laid out in statute? As a vanishing act, it wasn't particularly convincing, and rather than a white rabbit, the furry creature which Moore-Bick sought to make disappear was the judiciary having held adult welfare above child welfare in relocation cases which contravened the existing statute. The basis upon which relocation cases had been judged in the preceeding decade had 'contaminated the purity of the paramountcy principle' and due to the confused and contradictory ruling in K (Children), will continue to do so.

The main review point from the K (Children) judgment was that the wide ambit of judicial discretion should be unfettered, although this was muddied by the Lord Justices also saying that the guidance from Payne should be considered where there is a primary carer, and Lady Justice Black going further when she said it was useful in all external relocation cases. As a magic act, we were assured the rabbit had disappeared, but the head was clearly poking out of the magician's coat.

We are now seeing firms of solicitors asking for a £30,000 deposit from a parent needing representation in a case involving an international element, and their advising the parent that total costs could top £100,000. Why so much? The lack of detailed, child centric guidance and the inconsistency caused by the wide ambit of judicial discretion in considering these cases leads to lengthier and thus more expensive litigation.

This is compounded by the adversarial rather than inquisitorial nature of our family law system which leads to success being as much dependent on the skills of advocates and legal advisors as the facts of the case.

We believe the welfare checklist within the Children Act 1989 is too open to interpretation, and due to this, all family law cases concerning children become more uncertain, causing more lengthy litigation. Outcomes are inconsistent from court to court due to individual judicial discretion. We can only hope that at some point, the Government wakes up and considers the proposals that we and Families Need Fathers put forward to the Family Justice Review.

We are also seeing an increase in enquiries for information concerning unlawful child removals. Pakistan presents a particular problem in these circumstances. While an agreement exists between the UK and Pakistan courts setting out a protocol as to how these cases should be covered, the protocol was not ratified under Islamic law. One senior member of the legal profession in Pakistan commented that the UK/Pakistan Protocol was not worth the paper it was written on. Pakistan is not a signatory county to the Hague Convention on the Civil Aspects of International Child Abduction, and consequently, there is little practical help available to parents in the UK whose children are unlawfully removed to Pakistan.

Statistics from the Foreign and Commonwealth Office confirm that in the last year, the instances of one parent abducting their children abroad have increased by 10% and believe more cases go unreported.

Their response? A campaign to warn parents of the risks and prevention steps, and an admission that the assistance they can give is limited once the children have left the country. The reason being they cannot interfere with the law in foreign countries (not even when the unlawfully abducted child is a British national?).

The clock is ticking, and harm being done while the Ministry of Justice sleeps. Sadly, it is probably only the explosion in cases that will wake them, and by then, it will be too late.