Chinese Whisper No.1 - The high incidence of domestic violence
Reading through the Hansard debate, I was struck by Baroness Jones of Whitchurch's stating "the Children’s Commissioner for England has highlighted research showing that around 50% of all private law cases involve domestic violence or child abuse." [Lords Hansard: 16 Oct 2013 : Column GC262].
The context was her motion that mediators be trained in spotting domestic violence.
50%? Really? 50%??
I doubted this, so thought I would check what the Children's Commissioner actually said.
A quick glance at other debates in Hansard showed "A high proportion of contested private law cases already involve child abuse or domestic violence allegations. The Children’s Commissioner for England points to research indicating that this happens in around 50% of all cases." [Public Bill Committee: 14 March 2013: Column number: 264]
That there are allegations in 50% of cases does not surprise me. Parental anxiety may be the cause of the allegation. The allegation may be entirely false, caused by hostility, spite or an attempt to secure legal aid. In some cases, the allegations will be genuine, but to assume that all allegations are genuine is somewhat concerning, and especially when our noble House of Lords are to formulate our laws on Chinese whispers.
I am somewhat puzzled that Baroness Jones seems to wish Mediators to have the same skillset and role as CAFCASS in terms of identifying whether domestic violence has taken place (and finding fact on this?). If one takes this to its natural conclusion, one wonders if the Mediator is also to be a social worker and judge? Nonsense reasoning based on Chinese whispers... but these people are deciding our laws on such a basis.
Chinese Whisper no.2 - The majority of parents resolve disputes without the court
The next whisper was based around the number of parents who settle arrangements themselves (also in the context of mediation and its role, and the role of courts in family dispute resolution).
"Finally, since the majority of parents settle contact arrangements between themselves, the cases which go through to the courts process are by necessity the most complex and the most likely to involve abuse"
Really? Are they sure?
This Chinese whisper has been perpetuated for some years, with an oft quoted statistic that
90% of separating parents reach agreement without the involvement of the courts. Consider how widespread the use of this rather dodgy statistic:
- CAFCASS - Following separation of families 90% decide their own contact arrangements without court involvement and this way of deciding a parenting plan has the best chance of working well.1
- Family Justice Review - 90% of people resolve parenting arrangements for themselves without litigation.
- Resolution (The Law Society) - ONS findings indicate that 90% of separating parents make their own contact and parenting arrangement.3
- Relate - Around 90% of separating couples make their own arrangements by which both parents maintain contact and an active relationship with their children. The other 10% are settled through the court.4
Where does Resolution get its facts from? The Office of National Statistics study did indeed find that in 2007, only 8% of the sample of resident parents (weighted to population) had court-ordered arrangements; but the corresponding figure for non-resident parents was 17%? A further group of 7% of resident parents and 8% of non-resident parents reported that arrangements had been made with the assistance of mediators or lawyers. What about the remainder? Surprisingly, an additional 43% of resident parents and 20% of non-resident parents reported that there was no agreement at all (Lader, 2008, Table 2.9 p.23).
Consider too that a wide range of studies find that within two years of parental separation 25% to 60% of separated parents lose contact with their children (the latter, and higher figure being quoted by Dame Butler Sloss at the Paul Sieghart Memorial Lecture in 2003).
The statistics actually point to a vast number of parents and children not accessing the court (for whatever reason, be it cost, apathy, confusion, lack of financial means etc). An equally unqualified assumption would be that only parents committed to an ongoing relationship with their children approach the family courts. Why do so few parents approach the courts? No-one knows, and no research on this has been done as to why (as no doubt, the Government doesn't want the burden of increased applications).
It may well be that society and child welfare is poorly served by the inaccessibility of the family court, the sparsity of legal aid and high cost of litigation. The statistics relating to post-separation contact breakdown would surely suggest this a strong possibility (as would the Centre for Social Justice's findings on 'Broken Britain' and the increasing incidence of 'fatherlessness' in society).
I do scratch my head in puzzlement as to why I, and not the Law Society, question this 'statistic' that some 90% of parents don't need the assistance of the courts. [Regardless, next time you hear this daft statistic mentioned by one of these bodies, please say 'bollocks']
When is Mediation not mediation?
Baroness Butler-Sloss seeks to take the word mediation out of Mediation,
and Information Assessment Meetings (MIAMs) included in the Children
and Families Bill. Baroness Howarth of Breckwish explains that "The problem with the word “mediation” is that it conveys a range of
different concepts, even within the professional world, and certainly if
you are a warring parent. I am not saying that we should not indicate
what is going to happen in the meeting
and that people may be asked to look at how they can approach their
relationships, if not mend them, but “mediation” is a difficult word for
everybody, inside and outside the profession, and I think that we
should look for another one."
Is the word mediation truly a difficult word to understand and define? I don't think so. A Google search defines it thus:
An attempt to bring about a peaceful settlement or compromise between disputants through the objective intervention of a neutral party.
So what do they propose? Luring the unsuspecting parent into a meeting, and then attempting to get them to agree to enter into mediation? Wouldn't that be mediating towards a mediated meeting? Good grief! Why not add another month or more to a child's broken contact while the parents leap that hurdle too.
The confusion and opposition seems related to the issue that under the Bill, an attempt at mediation is meant to be compulsory unless the case circumstances meet an exemption criteria (little different to the existing pre-action protocol on mediation, which lists 15 exemptions ranging from domestic violence to applications for enforcement of orders). Why meddle with the existing pre-action protocol (which seems pretty reasonable).
An attempt to bring about a peaceful settlement or compromise between disputants through the objective intervention of a neutral party.
So what do they propose? Luring the unsuspecting parent into a meeting, and then attempting to get them to agree to enter into mediation? Wouldn't that be mediating towards a mediated meeting? Good grief! Why not add another month or more to a child's broken contact while the parents leap that hurdle too.
The confusion and opposition seems related to the issue that under the Bill, an attempt at mediation is meant to be compulsory unless the case circumstances meet an exemption criteria (little different to the existing pre-action protocol on mediation, which lists 15 exemptions ranging from domestic violence to applications for enforcement of orders). Why meddle with the existing pre-action protocol (which seems pretty reasonable).
How does Butler-Sloss end her rather confused, perception rather than fact based thinking? With the following statement:
You do not go to court if you can reach agreement. Some 90% do not go to
court or go to court only to obtain an agreed order, 5% can be
persuaded to go through mediation, and probably mediation is just what
they need, but 5% cannot.
She misses the point that far more parents do not go to court who cannot reach an agreement. True, mediation will not work for many, but what solution does she propose for the other parents and children (she later worries about more time spent in court too... read on!). These get ignored during such a critical debate. Lots of statistics, but none of them facts, and most of them nothing more than subjective Chinese whispers, and upon such woolly thinking, family policy is based.
Involvement of Parents?
Baroness Hughes of Stretford breaks ranks, and speaks of September's published judgment in Re A, and in particular systemic failings in the family court contributing to “an unjustified violation of M’s and the father’s rights to respect for family life under ECHR”. She goes on to say "It would be a mistake to regard this case as wholly exceptional. It is exceptional only in that it is now in the public domain."
She goes on to discuss Amendment 53 which would not include parental involvement as a legal presumption (but without definition it is a fairly pointless phrase) in Section 1 of the Children Act but instead inserts into the welfare checklist in Section 1(3) an additional criterion, namely,“the quality of the relationship that the child has with each of his parents, both currently and in the foreseeable future" and that this would "require the courts to focus on the current and future involvement of both parents without making it a legal presumption and therefore subject to the debate."
I do scratch my head somewhat, as one would assume 'the status quo' within the welfare checklist should have achieved the same, but has not! Why not? That question has not been answered (or investigated). Still... further linking the role of both parents within the overall context of child welfare is a small step forwards. However, it seems to me she seeks to remove the rebuttal presumption concerning parental involvement (proposed in the Bill) and replace it with parental involvement being included within the matters a court must consider within the paramountcy principle (child welfare being the paramount consideration). Isn't this really just moving the presumption down a few lines, and including it within the welfare checklist? [If I scratch my head any more, people will think I have lice!]
There are two further proposed amendments.
54. Butler-Sloss asks that the proposal that parental involvement be a (rebuttal) presumption in law be amended to the court paying particular regard, unless the contrary is show, to parental involvement.
55. Baroness Hughes of Stretford and Baroness Jones of Whitchurch (remember, she's the one who seemingly believes that all allegations of domestic violence are true) seek parental involvement to include direct and indirect involvement and that involvement should not be taken to mean any particular division of a child's time. In otherwords, no change whatsoever, and a Christmas card once a year satisfying the courts obligation to 'pay particular regard' to parental involvement.
Butler-Sloss naturally opposed a presumption of parental involvement. She goes positively knock kneed at the thought of shared parenting, citing that the child's welfare must be the court's paramount consideration (no one ever disagreed, and many research studies find the two to be inextricably linked). Other points she raises includes "The courts are already beginning to be clogged up as a result of the absence of legal aid in private family law cases, particularly at district judge level, where, I am told, district judge first appointments, which used to last half an hour, now go on for at least 45 minutes. The backlog of cases is bound to grow. Of course, the children will suffer while the parents go on fighting and carrying on their dispute about child arrangements because it will take longer for these cases to be heard."
She seems to contradict herself. A more certain outcome from the outset makes litigation less likely. It is the very uncertainty of outcome which encourages parents to litigate. If she wants to safeguard child welfare, there needs to be a more inquisitory role by the judiciary, especially with the increase in litigants in person. Statistics suggest many more parents need access to the courts! Further, mandatory mediation would not increase, but lessen demands on the courts if only 1 additional dispute were settled via mediation.
The Children's Society 2010 research points to child depression being 40% more likely as a result of contact denial. Butler-Sloss has previously stated that 60% of children (of separated parents) lose contact with the non-resident parent after two years of separation. Surely, greater access to the courts, and longer hearings, and parents 'fighting' for (or seeking as we prefer to call it) child arrangements might safeguard child welfare. Butler-Sloss fails to see that the paramountcy principle in the Children Act has been diluted by court closures, legal aid cuts, and the inaccessibility of the family courts to so many parents. Also, the historic and systemic failure by the courts to address the issue of contact denial. If welfare, rather than budgets was the issue, she should be arguing as stridently for greater funding for dispute resolution (whether via the court or mediation).
Butler-Sloss goes on... "There is no evidence of bias in the courts in favour of one parent. Therefore, the changes appear to be based on perceived rather than actual bias. I hope that the Minister and those behind him will look at the experience in Australia. At this stage of the evening, I shall not go into that, but it has been unhappy, and it has used similar phraseology. Much of this otherwise admirable Bill is very much based on the Norgrove report, which interestingly does not support a change to the Children Act."
...and once again, we return to Professor Parkinson of the Sydney Law School having condemned Norgrove for his misrepresenting the actual experiences in Australia to justify his opposition to shared parenting (a view which Butler-Sloss shares). Another demonstration of cognitive dissonance by those who make our laws.
Chinese Whisper no.3
The Earl of Listowel wades in at this point, stating 'By the time these cases come to court, there are often mental health or substance misuse issues within the family.' So on top of the 50% of cases which involve domestic violence (let's ignore the matter that this statistic only relates to allegations, and that legal aid is only available where domestic violence is alleged), we are to assume that among the remaining number of parents are a vast swathe of alcoholic/drug taking lunatics.
...and without bothering to look at the proposed amendments, I reach the conclusion that whatever the diluted wording in the Children and Families Bill, the House of Lords bases their reasoning on a mix of hysteria, Chinese whispers, bias and dodgy perceptions rather than fact. Something not uncommon in those who influence our family law.
Reading the Hansard debate raised three questions.
- Does anyone involved in the Children and Families Bill stop to accept and address the matter that family justice remains inaccessible to many (a situation which is becoming worse), and the system's failings?
- Where, within this mess, are the best interests of the child?
- Whose interests are the House of Lords serving?
1. Time for Children
2. Family Justice Review, Final Report, 2011, p.133
3. Proposals for the reform of legal aid in England and Wales: Summary of Resolution’s response to the Ministry of Justice.
4. Parenting troubled teenagers.
