Checking Credentials - Therapists and Counsellors

The Children and Adoption Act 2006 introduced a variety of tools related to supporting contact activity which the court could access if the child/parent contact broke down. An anomaly was that these tools solely related to supporting contact orders and not shared residence orders. Amendments to legislation in April 2014 corrected this when contact and residence orders were combined within the new child arrangements order (click for more information on Child Arrangements Orders).

One of the tools available to the court allows a judge to order that the parents and/or child attends counselling. The child may be encouraged to meet with a therapist where alienation is suspected or some other unresolved matter is at issue causing the child to feel anxious about or resistant to seeing their parent.

Where contact has broken down entirely, it is critical to get a qualified therapist with experience. If a name is proposed by a legal adviser, welfare officer or judge, you should check that the therapist is suitably qualified and experienced. Why? In 2012, a Channel 4 News investigation found that over a fifth of expert witnesses producing reports for court were not qualified at all. Do not assume that recommended experts and professionals have the required knowledge, qualifications or expertise.

In the area of contact breakdown, alienation, family therapy or conflict resolution it is only prudent to check that those recommended as expert therapists, are! 

For more complex cases, if the court orders that a psychologist assists the family, their credentials and areas of expertise can be checked via a visit to the British Psychological Society website. Via the directory below, you can search for an individual psychologist and ascertain their experience and qualifications.

Counsellors and therapists may also be directed to assist the family. The British Association for Counselling and Psychotherapy holds a register for its members, which you can check to ensure the validity of someone purporting to be BACP accredited. They also, like the other professional bodies, have a code of ethics and complaint procedure should something go wrong or service delivery be poor. Importantly, they publish hearing findings, decisions and sanctions which arise from complaints. The BACP register is approved by the Professional Standards Authority for Health and Social Care.

To find a BACP approved therapist, you can also visit their 'It's Good to Talk' site where you can search by region, specialism and approach.

Counsellors and therapists may also be a member of one of the following bodies. Please note the United Kingdom Council for Psychotherapy directory search function wasn't working when we tried it last night, and the Association of Child Psychotherapists' register doesn't differentiate between trainee and full members.

To help resolve broken contact, expertise is required, and if a therapist is recommended by the court, in our opinion they should be an expert, a member of a professional psychotherapy association and have specific experience. We recommend that if a person is proposed as a therapist, ask which professional body they belong to, confirm their membership by using one of the above links (if they belong to another organisation, contact that organisation to confirm their membership), and check that organisation's code of ethics/conduct and criteria for membership. It's no guarantee of success outcome, but wise, nonetheless.

Warning: You must not seek to have your child seen by a counsellor, therapist, psychologist or psychiatrist as part of a strategy to include the therapist's opinions into court proceedings to support your arguments. In such circumstances, you should seek the court's permission first. See our guide to Psychological Assessments.

Family Law: Marketing, Supply and Demand, Paid and Unpaid Advice

Yesterday I came across a news item that the Legal Services Consumer Panel were considering whether there should be paid McKenzie Friends in court, and the implied expectation that lay advisers should work for free. I tweeted a slightly facetious comment that such was Marie Antoinette style thinking... 'Let them eat cake'!

When legal aid was withdrawn from family law, the Government estimated that 45,000 case would lose funding. For those people, and the legal profession, the news was devastating. For the legal profession, it came on top of a reduction in workload caused by the stagnation in the housing market and the economic slump. While property sales may be flying in London, in many areas of the country, things remain stagnant. Many firms have closed. Solicitors find themselves unemployed, with mortgages to pay, children to feed, and bills mounting.

Some, inevitably, have joined the ranks of those working as McKenzie Friends. They are joined by law students unable to find employment. Paid McKenzie Friends have been around for a long time. The President of the Family Division of the Courts acknowledged them in his 2010 Practice Guidance.

Myths and Illogical Thinking

There are two myths I would like to dispel. Firstly, that the legal profession as a whole are against non-solicitor advice in court (the Legal Services Consumer Panel is made up of 8 lay people). Second, that there is a diminishing pool of business in family law.

Is this announcement by the Legal Services Consumer Panel about protectionism, or is it committee mentality, of worthy people far removed from the reality of families, who have found a new area to meddle in to support their own, quango like existence.

Their Concerns and Naivity

Dealing with their concerns. Struck off solicitors and shoddy, poor advice, and politically motivated lunatics representing people in court. Those are fair concerns... but there already exists the means to deal with it. Judges have the power to ban people from acting as McKenzie Friends, and are the best placed to reach that conclusion, by observing them in court.

Another concern perhaps relates to the protectionist worry, that McKenzie Friends will take business from solicitors who have spent years studying to qualify as a solicitor. There are two, clearly distinct markets... and markets are shaped by the marketing mix of 'product, price, place and promotion'. Price here, is the key factor. There are a large number of parents who simply cannot afford £200 an hour, and £1,500 a day for a barrister's advocacy in court. Many, however, can afford £25-£40 an hour, which seems the average fee (in my experience) that McKenzie Friends charge. Some may charge more, but these tend to be the McKenzie Friends with years of experience, and experience at all levels of court.

Then there is the issue of reality. Charities have had their funding cut to the bone. The CAB is turning people away. One charity I know has seen its employed staff cut from 24 to 1 full time member of staff. The idea that volunteers can fill the void is simply ridiculous. While phone calls and face to face support meetings in pubs may be held outside of working hours, support in court has to be conducted during the hours of 9 to 5. There are few in a financial position to give up work to support those in need. Like solicitors (unemployed or otherwise), people have mortgages to pay and children to feed. It is a bit rich to expect McKenzie Friends to collect their weekly shopping from food banks. Hence, I tend to view this that this latest debate as one started by the worthy but wholely impractical committee member rather than anyone with common sense.

The Vast, Untapped Market

An article in the Daily Mail today highlights that market, announcing that 32% of separated mothers and  15% of separated fathers wish to cut each other out of their children's lives. This suggests that up to 1 in 10 parents could do with a little legal support! Further statistics on broken contact suggest that between 1million and 4million parents are stopped from seeing their children.

A declining market? Nonsense.... there is a vast, untapped market, and the Legal Services Consumer Panel would be better directing their time, effort and resources at asking the question why these people haven't approached the court. In a previous blog, I dispelled the myth that 90% of parents manage to resolve their differences without the involvement of the court. Aside from being a 9 year old statistic, of those parents, some 40% never reach an agreement. Why do these parents not approach the court?

The Daily Mail article rightly cites the harm caused to children of fatherlessness (we would add harm caused by motherlessness, as some mothers face the same problem). The Government has failed to address this by removing a presumption of shared parenting from the Children and Families Bill. This 'market' is going nowhere, unless there is a range of support, priced accordingly, and properly resourced. Will funding come from Government for either paid or charitable family law support? Be sensible... laughter during the Parliamentary debate on food bank usage and the intention of the Conservatives to cut winter fuel allowance for the elderly in the next Parliament should answer that question. Parliament is just another committee, but on a larger scale.

It isn't just the Legal Services Consumer Panel which has an unrealistic world view. On the other side of the fence are equally naive worthies who feel that courts are barbaric and family separation shouldn't be handled by judges. The fights over children have been going on since the time of Solomon. It's imbedded in human nature, and a good proportion of human beings are possessive, malicious, and self-centered. The Daily Mail indicates up to a third of our species fall into this category, where their possessiveness even outweighs thoughts of their children's welfare. Even if you rename judges as parental facilitators and put flowers in their hair, you will always need someone with the power to tell parents to behave.

Back to that 'untapped market'. The problem isn't that too many people use the courts, but that not enough do! The impact on society, according to research into fatherlessness (there are many studies now) includes  increased teenage pregnancies, increased juvenile crime, increased juvenile mental health problems, increased teenage self harm... to name but a few of the outcomes resulting from contact breakdown.

The Marketing Mix

Looking at that one to four million potential clients for the legal profession, and applying the marketing mix.

Product: have poor outcomes in court dissuaded parents from applying? Are the length of proceedings an issue? Are the adversarial nature of proceedings an obstacle?
Place: 40% of parents have been unable to resolve differences outside of court... the place for them IS court (mediation may help some, but by all means not all... it's a human nature issue!)
Price: many parents are unable to afford solicitors' fees. From solicitors, you currently may find a Rolls Royce or BMW priced product, but some parents can only afford a second hand Ford Anglia, and some must take the equivalent of the bus.
Promotion: here is where bodies that represent solicitors fail abysmally.

I think it fair to say that the legal profession have a poor image... but compare a lawyer to a surgeon. Surgeons are highly paid, and profit from the misery of people. They also perform vital roles which improve the lives of their patients. What you do not see is one surgeon trying to kill the patient, while the other attempts to revive them. The adversarial nature of family law lends itself to criticism.

There should be a rethinking of solicitors' codes of ethics should include a duty on solicitors to promote co-operative parenting and work towards this end. As in the Children Act 1989, child welfare should be paramount. Don't worry... that third of parents will still be about, however they shouldn't be encouraged (and we see too many cases where they are, regardless of whether they receive professional or lay advice, but perhaps the professionals should set the standard?).

There should be far better advertising of how solicitors can help. Consider this... have you heard the following advertisement on television?

'Have you lost contact with your child in the past 5 years? We can help. 

Phone Family Lawyers for You'

Other areas of the legal profession market not only themselves, but the benefits of the services they offer. A factor in the severing of the child parent relationship is a belief that 'you don't stand a chance in court'. With good advice, a sensible, child focused approach, and help through the court's door, there is a strong chance of success. Lower courts may need to be reminded of authorities handed down by the likes of Munby, McFarlane and Parker... but this is something which solicitors can do (as can the paid McKenzie Friend... the case law is on my site).

Solicitors should not be talking among themselves about declining markets, but advertising to the general public that there is greater opportunity to re-establish child contact than ever before. More than this, they should lend themselves to pushing hard for this as a profession. They then may find there are not enough solicitors to meet demand, but that is a problem for another day.

Commercialism can be a good thing... and benefit society as a whole. Perhaps the legal profession need a new year's Resolution - to improve their image, and tap the market. It's all well and good having some advertising on their website, but where is the national television advertising that the personal injury lawyers manage to afford?

Listen...

A powerful video from a young lady called Aimee.



For those who might think she's been coerced into saying what she does in the video, please accept my assurance that she hasn't, and for her, this is her 'reality' of the legal system which kept her apart from her father, and keeps her apart from her sister.

I don't agree with her that the situation has got worse. I think things are improving in the family courts... BUT... for many children, and often regionally, things haven't got any better, and other children's reality will be no different from hers. Improvements aren't universal.

Why? Simply because so much of court outcome is dependent on subjective interpretation of what is in a child's best interests and interpretation (or misinterpretation) of what a child or the parents say. Where decisions are subjective, opinions are informed by perceptions based on our own, personal and historic reality. These may lead people to believe that a child is 'better off' with one parent. It might make us view one gender as more honest and reliable than the other. The motives for someone entering social work or psychology as a profession might be their own bad experiences as a child (which continue to shape their perceptions). Another word for this is bias (but bias often isn't deliberate, but subconscious). Many professionals in the system maintain their objectivity BUT... you only need one to derail the outcome in a case. It may be a CAFCASS Officer, or a social worker, a judge or an expert witness. One opinion, in one report, which becomes evidence... and then may be treated as 'fact'.

Just one opinion... one misinterpretation of what a child has said... one misguided assumption as to motive or intention of a parent... just one opinion, to cause a child like Aimee to spend 11 years waiting to see their father, and harmed by a system which is intended to protect them.

I see cases where the father has successful contact with one child, with no concerns, but is stopped from seeing their other child due to the intransigence of the other child's parents or carers. One mother says they're a good parent. The other casts them as a demon. The courts fail to act. A circus develops of assessment after assessment... contact centres used to appease the hostility of the non-complying parent... and when the non-complying parent refuses to send the child to the contact centre, rather than enforcement, welfare services excuse themselves from recommending enforcement by saying they need to maintain the relationship with the non-complying parent. This causes more delay, and the status quo becomes imbedded. More hearings happen... more judges involved (rather than there being judicial continuity). Years pass. Two children harmed... one parent devastated... a family failed.

There is improvement... but the improvement is not universal, and voices such as Aimee's need to be heard in the family law debate. An example of the high standards which do exist in the family courts is set by Mrs Justice Parker... and an article about a case before her comes as no surprise either in the way she handled it, or that among the social workers involved, allegations of domestic violence had been taken as fact. It takes a judge of her calibre to take an inquisitorial stance to evidence of both parents AND professionals involved in proceedings. This is not a judge who takes things at face measure (but others do, and will be cautious of going against recommendations of welfare officers).

To those politicians who believe the Children and Families Bill, in its weakened form, protects the welfare of children like Aimee... and to those who think that the standards set by judges such as Mrs Justice Parker mean the system is fixed... you're so very wrong.

How often do we hear from children how their lives were affected by the decisions made in court? Rarely... so please listen to this rare voice (and if you think this 'experience' is unique, read this... it's not). Some, in the upper courts are starting to listen... a shame politicians haven't quite got it!

Staying contact - not for children of the low paid, disabled or unemployed

Glued to our home page until election day! Remember, remember, 12th of November...

Last night's (14th November 2013) vote in the House of Commons saw the Government protect its coveted bedroom tax, and in doing so, irreparably harm their manifesto commitments to support shared parenting. The consequences for children of separated parents is likely to be severe.

The bedroom tax affects many people, but today I am focusing purely on the impact on children of non-resident parents and children whose parents share care and need housing benefit.

The consequences for these children and parents is likely to be severe.

Many parents need housing benefit. They may be low paid, unemployed or disabled. If these are non-resident parents, they will see their benefits cut to pressurize them into moving to a one bedroom property or bedsit. Consider too, that even resident parents, where residence is shared, may have this restriction on their accommodation.

The big question... will CAFCASS deem this accommodation to be unsuitable for staying contact?

Not long ago, Lord Freud advised parents affected by the bedroom tax to buy a sofa bed for their children when they stay as the tax would mean they no longer have a bedroom. A parent responded, asking if it was appropriate for his two sons and daughter to share a single bed. The Minister didn't have an answer.

Is it right, that a child's right to family life will be protected if you are wealthy, but not if you are poor, low paid or disabled and on benefits?

The Coalition promise of shared parenting being introduced in law is all but dead. The Children and Families Bill has had that wording removed. A 'presumption of meaningful involvement' for both parents has seen the word meaningful removed, and even now, the presumption of any involvement is being opposed in the House of Lords.

The case for both parents having a full involvement in their children's lives... being parents, having their children stay in their homes... children considering the parent's house as their home... children having a bedroom and their 'own space' is fully supported by child welfare research.

David Davies MP recommended the parents of these children, disabled, on low income, or unemployed, be put in chains for not being able to afford a bedroom for their children. Easy for 75% of MPs to have a withering view of the less fortunate, when they themselves are millionaires. John Major commented last weekend that the Government was at risk of being out of touch and elitist. It is out of touch and elitist.

Dame Shirley Williams, stalwart of the LibDems admits the bedroom tax is a 'mistake'. Charles Kennedy, previous leader of the LibDems voted against the bedroom tax at the party conference, but then abstained when it mattered. Nick Clegg too abstained. Poor Nick seems to have over-applied the yellow colour of his party, as a streak down his back. The ex and current LibDem leaders were joined in this display of poor memory by Vince Cable and another 19 LibDem MPs. How can you know what they stand for, when they themselves don't seem to know?

The United Nations have criticised the bedroom tax. A spokesman on Radio4 said the tax represents a "danger of a retrogression in the right to adequate housing" in the UK and has been designed "without the human component in mind". They recommend its suspension.

The Coalition has handed a powerful weapon to the hostile resident parent who seeks to interfere with children's relationships with the other parent. Court measures to counteract this, defined in case law in cases such as A v A and D v D are now made impractical for the marginalised in society.

Broken contact will increase, parental alienation become easier to manipulate, and the court's options be reduced.

The greatest perversity is that Ian Duncan-Smith founded an institute, the Centre for Social Justice, and their research  found fatherlessness to be a primary cause of Broken Britain. A few years later, IDS introduces a policy which pours petrol on the fire.

Today's Guardian headline, that the LibDems joined Labour in opposing the tax, is a joke. Only two MPs did. Amazingly, John Hemming, the MP who Chairs the 'Justice for Families' campaign group was not among them. He tells opponents that people affected by the bedroom tax can rent out their spare room. For non-resident parents, one wonders how acceptable this would be, for an unveted stranger to be in the house, with the children or parent sleeping in the living room (or should the children and lodger share?). It appears Mr Hemming isn't considering the reality for families affected by a policy he supports, or proposes an arrangement jeopardising child safety.

Only two of John Hemming's fellow LibDem MPs opposed the tax last night, while the rest ignored the majority opposition to the tax expressed at the LibDem conference. One has to question who this man and the rest of the LibDem MPs (bar two) represent. Not their party or his campaign group!

John Hemming does not trust social workers. He believes them to unreasonably interfere in family lives, and sever child/parent relationships. Bizarre then, that he'd seemingly empower them to find thousands of parents' homes to be unsuitable for children to live in. He seems a man with confused agendas.

Andrew George and Tim Farron were the only two LibDem MPs who consider child welfare, and vote with their conscience. Andrew George said:

"The spare room penalty/bedroom tax victimises the most marginalised in our communities, it undermines family life, it penalises the hard working low paid for being prepared to stomach low paid work, it masks the excessive cost and disruption caused to those disabled people who have to move from expensively adapted homes and is Dickensian in its social divisiveness.

I hope that those Ministers who live in multiple spare room mansions and who strenuously oppose the Liberal Democrat "Mansion Tax" will be prepared to look the victims of this policy in the eye. Even where those affected are prepared to move to up root themselves from a long standing family home to a smaller property they tell me they can't find anything within 20 - 30 miles. So to escape the bedroom tax they would have to move many miles from their community, their work place, local school, family and social networks, church etc. and re-establish themselves in a place which they may consider to be completely alien. Or of course they could choose a property in the private sector and cost the taxpayer more!"

I couldn't agree more.

So the unemployed, disabled or low paid non-resident parent has another choice. They can move further away from their children, making contact even less likely. It makes involvement in schooling almost impossible. So much for the DfES research which shows children benefit from both parents being involved with the school.

There is another argument put forward that welfare cuts have to happen. Sure they do, but there is an opportunity cost in any decision. I would point out that Iain Duncan-Smith, the Minister who came up with the bedroom tax, is also responsible for £140million being wasted on the Universal Credit System. That money would pay 10,000,000 weeks of bedroom tax.

Consider too, that the decision to cut the upper tax rate, and decision not to introduce a mansion tax is made possible by the Government forcing children of the marginalised to sleep on floors, or in the worst cases, out of one parent's life completely.

Some MPs didn't vote at all, and I'll give them the benefit of the doubt. The ones who did break their promises, are listed below.

Remember both parties made manifesto commitments to support shared parenting. Please don't vote for these named MPs again. It's not a party political matter, but a child welfare matter, and a matter of trust and priorities.

Not so much 'NONE OF THE ABOVE', but 'NONE OF THE BELOW' come election time.

Conservatives

• Adams, Nigel, Mr
• Afriyie, Adam, Mr
• Aldous, Peter, Mr
• Arbuthnot, James, Rt Hon
• Bacon, Richard, Mr
• Baker, Steve, Mr
• Barclay, Stephen, Mr
• Baron, John, Mr
• Bellingham, Henry, Mr
• Benyon, Richard, Mr
• Beresford, Paul, Sir
• Bingham, Andrew, Mr
• Binley, Brian, Mr
• Blackman, Bob, Mr
• Bone, Peter, Mr
• Bottomley, Peter, Mr
• Bradley, Karen, Ms
• Brady, Graham, Mr
• Bray, Angie, Ms
• Three line Aye
• Bridgen, Andrew, Mr
• Brine, Steve, Mr
• Burns, Conor, Mr
• Burns, Simon, Mr
• Burt, Alistair, Mr
• Byles, Dan
• Cameron, David, Rt Hon
• Carswell, Douglas, Mr
• Cash, William
• Chishti, Rehman, Mr
• Chope, Christopher, Mr
• Clappison, James, Mr
• Clark, Greg, Mr
• Clarke, Kenneth, Rt Hon
• Clifton-Brown, Geoffrey, Mr
• Coffey, Thérèse, Ms
• Collins, Damian, Mr
• Colville, Oliver
• Cox, Geoffrey, Mr
• Crabb, Stephen, Mr
• Crouch, Tracey, Ms
• Davies, David T C, Mr
• Davies, Glyn, Mr
• Davies, Philip, Mr
• Dinenage Caroline, Ms
• Djangoly, Jonathan, Mr
• Dorrell, Stephen, Rt Hon
• Doyle-Price, Jackie, Ms
• Drax, Richard, Mr
• Dunne, Philip, Mr
• Ellis, Michael, Mr
• Ellison, Jane, Ms
• Ellwood, Tobias, Mr
• Elphicke, Charlie, Mr
• Eustice, George, Mr
• Evans, Graham, Mr
• Evans, Jonathan, Mr
• Evennett, David
• Fallon, Michael, Mr
• Field, Mark, Mr
• Freer, Mike, Mr
• Fuller, Richard, Mr
• Garnier, Edward, Mr
• Garnier, Mark, Mr
• Gibb, Nick, Mr
• Gillian, Cheryl, Rt Hon
• Glen, John, Mr
• Goodwill, Robert, Mr
• Gove, Michael, Rt Hon
• Grant, Helen, Ms
• Gray, James, Mr
• Grayling, Chris, Mr
• Green, Damian, Mr
• Griffiths, Andrew, Mr
• Gummer, Ben
• Gyimah, Sam, Mr
• Hammond, Stephen, Mr
• Hancock, Matthew, Mr
• Hands, Greg, Mr
• Harper, Mark, Mr
• Harrington, Richard, Mr
• Harris, Rebecca, Ms
• Hart, Simon, Mr
• Hayes, John, Mr
• Heald, Oliver, Mr
• Heaton-Harris, Chris, Mr
• Hendry, Charles, Mr
• Herbert, Nick, Mr
• Hinds, Damian, Mr
• Hollingbery, George, Mr
• Hollobone, Philip, Mr
• Holloway, Adam, Mr
• Hopkins, Kris, Mr
• Howarth, Gerald, Mr
• Howell, John, Mr
• Hunt, Jeremy, Rt Hon
• Jackson, Stewart, Mr
• James, Margot, Ms
• Javid, Sajid, Mr
• Jenkin, Bernard, Mr
• Johnson, Gareth, Mr
• Jones, Andrew, Mr
• Jones, David, Mr
• Jones, Marcus, Mr
• Kelly, Chris, Mr
• Knight, Greg, Mr
• Kwarteng, Kwasi, Mr
• Lancaster, Mark, Mr
• Lansley, Andrew, Rt Hon
• Latham, Pauline, Ms
• Leadsom, Andrea, Ms
• Lee, Jessica, Ms
• Lee, Phillip
• Lewis, Brandon, Mr
• Lewis, Julian, Mr
• Liddell-Grainger, Ian, Mr
• Lidington, David, Mr
• Lopresti, Jack, Mr
• Lord, Jonathan, Mr
• Luff, Peter, Mr
• Main, Anne, Ms
• Maude, Francis, Rt Hon
• May, Theresa, Rt Hon
• Maynard, Paul, Mr
• Mccartney, Jason, Mr
• Mccartney, Karl, Mr
• Mcintosh, Anne, Ms
• Mcpartland, Stephen, Mr
• Mcvey, Esther, Ms
• Menzies, Mark, Mr
• Miller, Maria, Ms
• Mills, Nigel, Mr
• Mordaunt, Penny, Ms
• Morgan, Nicky, Mr
• Morris, David, Mr
• Mosley, Stephen, Mr
• Mowat, David, Mr
• Mundell, David, Mr
• Murray, Sheryll, Ms
• Murrison, Andrew, Mr
• Neill, Robert, Mr
• Newmark, Brooks, Mr
• Newton, Sarah, Ms
• Nokes, Caroline, Ms
• Nuttall, David, Mr
• O'Brien Stephen, Mr
• Ollernshaw, Eric
• Opperman, Guy, Mr
• Ottaway, Richard, Mr
• Paice, James, Mr
• Parish, Neil, Mr
• Patel, Priti, Ms
• Penning, Mike, Mr
• Penrose, John, Mr
• Perry, Claire, Ms
• Phillips, Stephen, Mr
• Pickles, Eric, Rt Hon
• Pincher, Christopher
• Poulter, Daniel, Mr
• Prisk, Mark, Mr
• Pritchard, Mark, Mr
• Raab, Dominic, Mr
• Randall, John, Mr
• Redwood, John, Rt Hon
• Rees-Mogg, Jacob, Mr
• Reevell, Simon, Mr
• Robertson, Hugh, Mr
• Roberston, Laurence, Mr
• Rosindell, Andrew, Mr
• Rudd, Amber, Ms
• Ruffley, David, Mr
• Rutley, David, Mr
• Sandys, Laura, Ms
• Scott, Lee, Mr
• Selous, Andrew, Mr
• Shapps, Grant, Mr
• Shelbrooke, Alec, Mr
• Shepherd, Richard, Mr
• Simpson, Keith, Mr
• Skidmore, Chris, Mr
• Smith, Henry, Mr
• Smith, Julian, Mr
• Soames, Nicholas, Hon
• Soubry, Anna, Ms
• Spelman, Caroline, Rt Hon
• Stanley, John, Rt Hon Sir
• Stephenson, Andrew, Mr
• Stevenson, John, Mr
• Stewart, Bob, Mr
• Stewart, Iain, Mr
• Streeter, Gary, Mr
• Stride, Mel, Mr
• Stuart, Graham, Mr
• Sturdy, Julian, Mr
• Swayne, Desmond, Mr
• Syms, Robert, Mr
• Tapsell, Peter, Mr
• Timpson, Edward, Mr
• Tomlinson, Justin, Mr
• Tredinnick, David, Mr
• Truss, Elizabeth, Ms
• Turner, Andrew, Mr
• Tyrie, Andrew, Mr
• Uppal, Paul, Mr
• Vaizey, Edward
• Vara, Shailesh, Mr
• Vickers, Martin, Mr
• Walker, Charles, Mr
• Wallace, Ben, Mr
• Wharton, James, Mr
• Wheeler, Heather, Ms
• White, Chris, Mr
• Whittingdale, John, Mr
• Wiggin, Bill, Mr
• Williamson, Gavin, Mr
• Wilson, Rob
• Wollaston, Sarah, Ms
• Wright, Jeremy, Mr
• Yeo, Tim, Mr
• Young, George, Sir Rt Hon

LibDems

• Norman Baker (Lewes)
• Sir Alan Beith (Berwick-upon-Tweed)
• Tom Brake (Carshalton & Wallington)
• Jeremy Browne (Taunton Deane)
• Malcolm Bruce (Gordon)
• Paul Burstow (Sutton & Cheam)
• Lorely Burt (Solihull)
• Sir Menzies Campbell (Fife North East)
• Alistair Carmichael (Orkney & Shetland)
• Edward Davey (Kingston & Surbiton)
• Don Foster (Bath)
• Stephen Gilbert (St Austell & Newquay)
• Duncan Hames (Chippenham)
• Sir Nick Harvey (Devon North)
• David Heath (Somerton & Frome)
• John Hemming (Birmingham Yardley)
• Martin Horwood (Cheltenham)
• Simon Hughes (Bermondsey & Old Southwark)
• Mark Hunter (Cheadle)
• Norman Lamb (Norfolk North)
• Michael Moore (Berwickshire, Roxburgh & Selkirk)
• Tessa Munt (Wells)
• John Pugh (Southport)
• Dan Rogerson (Cornwall North)
• Bob Russell (Colchester)
• Sir Robert Smith (Aberdeenshire West & Kincardine)
• Andrew Stunell (Hazel Grove)
• Jo Swinson (Dunbartonshire East)
• John Thurso (Caithness, Sutherland & Easter Ross)
• Steve Webb (Thornbury & Yate)
• Stephen Williams (Bristol West)

Intractable Contact Disputes: Important New Case Law`

A (A Child) [2013] EWCA Civ 1104
In this case, the court had acknowledged that it was the mother's intractable and unreasonable position which was the bar to contact, but felt helpless to intervene. The case came after years of returns to court. An important judgment, where the trial judge had made an order allowing only indirect contact for the father, restricted to Christmas and his daughter's birthday. This was an intractable contact dispute, caused by the mother's hostility to contact. While not an alienation case per se (albiet the child is clearly torn between her own wish for contact and loyalty to the mother and her opposition), McFarlane LJ upheld the approach taken in Re S (Transfer of Residence) [2010] EWHC 192 (Fam) that while noting the importance of a child's wishes and feelings, the court must consider too whether those wishes and feelings are rational and reasonable.

MacFarlane endorses Munby LJ's guidance in Re L-W (Children) [2010] EWCA Civ 1253 that there needs to be judicial continuity, judicial case management including effective timetabling, a judicially set strategy for the case; and consistency of judicial approach. He goes further in paragraph 60:

´If, as part of that strategy, the court makes an express order requiring the parent with care to comply with contact arrangements, and that order is breached then, as part of a consistent strategy, the judge must, in the absence of good reason for any failure, support the order that he or she has made by considering enforcement, either under the enforcement provisions in CA 1989, ss 11J-11N or by contempt proceedings. To do otherwise would be to abandon the strategy for the case with the risk that a situation similar to that which has occurred in the present case may develop; to do otherwise is also inconsistent with the rule of law.´

The father's appeal was successful. While the outcomes recommended by the trial judge were not necessarily in themselves wrong, the systemic failures over a period of years did amount to a breach of the child´s and father´s right to family life under the Equalities and Human Rights Act and MacFarlane suggested the involvement of a multi-disciplinary team to progress matters. The matter was moved to the High Court for the father´s application for contact to be reheard.

It's important to consider that the Human Rights argument was supported by the unique facts of this case. It would be wrong to assume any inference as to a principle being established that the courts must uphold a father's right to family life (in Children Act cases, child welfare will always be the court's paramount consideration, and the litigant should focus on child welfare arguments first). In this case, the child wanted contact (albeit her loyalty was torn), the mother clearly opposed contact and there were case management failures.

There is a growing body of case law to support a parent faced by the other parent's hostility to contact. Things remain difficult, as the circumstances of this case are not uncommon.

The full text of the cases Re S (Transfer of Residence) [2010] EWHC 192 (Fam), Re L-W (Children) [2010] EWCA Civ 1253 and A (A Child) [2013] EWCA Civ 1104 can be viewed in smartphone/tablet friendly format on our online Family Law Application. We have also included A (A Child) [2013] EWCA Civ 1104 as a download in pdf format should you wish to refer to it in evidence.

The Times Today reports Systemic Failings in the Family Court

There was an interesting article in the Times today, speaking of systemic failings in the Family Court, which refers to a case where the father's contact had been breached repeatedly by the mother, and the father awarded indirect contact as a result. While it's primarily fathers who face such issues, this week I've had occasion to speak to two mothers in the same situation this week. In such cases usually the father is failed, sometimes the mother is failed, but it is always the child who suffers.

Thankfully, in a rare case reported by the Times today, Lord Justice McFarlane ordered the father's case to be re-heard, and in an even rarer judgment, ruled that the father's right to family life had been breached. We would argue, so too had the child's. He goes further by he has never heard of a case where the family justice system had failed a parent so utterly. We have, and many cases.

This week too, I've written other blog articles highlighting concerns that the loose wording of the Children and Families Bill does nothing to address these problems. Worse, the sloppy wording and omissions mean that the (too little used) contact enforcement measures introduced by the Children and Adoption Act 2006 (inserted into section 11 of the Children Act 1989) are not even changed to include the new Child Arrangement Orders, leaving amiguity as to whether these would be covered by this part of the Act. Note that in 2006, Parliament 'forgot' to grant judges additional powers to enforce shared residence orders due to wording which limited these powers solely to enforcing contact orders.

This case is a prime example of how the lack of definition of 'involvement' in the Children and Families Bill will make no difference to such cases, ignores the wishes of the vast majority of the public (some 88% believe the law must change according to a C4 poll), and fails children and families. The Government have failed them, in refusing to address this problem, the courts have failed them, and the campaign and lobby groups have failed so far. We suspect that the House of Lords will fail them too (we are now awaiting the Committee Stage in the House of Lords, to consider the Bill's wording).

Consider too, that the low hurdle of evidence in the family court, where allegations are considered on the low test of a 'balance of probability' rather than a need to prove them 'beyond reasonable doubt' (seen in criminal cases) means that false allegations can stick. A judge can be swayed by crocodile tears, and sever a child's relationship with a parent based on nothing else (the parent's demeanour in court is considered part of 'evidence').

Note that in the featured case, the father had been awarded 'indirect contact' prior to successful appeal (after 10 years of fighting to get justice). Arguably, the new clause in the Children and Families Bill was satisfied, as a letter, a few times a year and receipt of  school report would seemingly satisfy the requirement for 'involvement'. This new Bill serves neither justice or families.

Parliament and the House of Lords should revisit the call for a 'rebuttal presumption of shared parenting' in legislation. This wording allows the court to make other orders where it is found that a child is at risk from one or other parent, but more clearly impresses the public's expressed wish (supported by child welfare research) that shared residence be the starting point and the norm, as it is in society (research carried out by the Equality Commission in 2008 found that care time between mums and dads only differs by 15 minutes a day... shared care is normal, and children of separated parents should not be disadvantaged when compared to their peers).

There is a perception by the public that all in the legal profession are resistant to change. This is not true, and it may surprise people to learn that I get as many emails from legal professionals frustrated by the court system as I do from parents. I also get emails from social workers who want our system to change. Clearly, Lord Justice McFarlance too now accepts that the courts fail to uphold justice for children and families. We see good judgments too, but it is the inconsistency which requires more clearly defined legislation to make justice assured for all. The legal profession's representative bodies need to start listening, as does the Government, and the Family Justice Councils, and the House of Lords.

Time, I think, for the parents and the lobbying organisations and campaign groups who represent them to step up activity, and the Government to finally listen!