Misconceptions about the new Child Arrangements Orders

Child Arrangements Orders are already causing confusion. Note... Child Arrangements Order to be accurate (not Child Arrangement Order).

There is a belief that the concept of residence and contact has been abolished. This was the intention when it was proposed there be a single order to settle child arrangements, but the concepts of residence and contact remain... it's just rather than being set out in two separate orders, they're now contained in the one.

While the word residence isn't used in the new Children Act 1989, the words 'with whom a child lives' replaces it [Ed: isn't this the same?] and contact is replaced by 'spend time with or otherwise have contact' [Ed: erm... contact surely?].

It's hardly surprising that advisers and litigants are confused, when a Conservative MP who's been pushing for shared parenting claimed that the Conservatives delivered on their manifesto commitment. Nonsense... If you see that same MP in Westminster naked, no doubt he's purchased a very expensive suit, which only appears invisible to the foolhardy. Hans Christian Anderson could have written for this Government.

The only new presumption in the Act is a woolly desire that parents are involved in their children's upbringing so long as it is safe? Surprising to see an MP drunk on success when the liquour is no stronger than water. That involvement can be anything from having the child live with you to a one way letter, once a year. Is that shared parenting? 

Erm... was such weak wording a necessity? Are we to assume that the court was either awarding contact when it was unsafe... or awarding more involvement than a letter once a year? Will the wording cause any attitude shift. Of course not when it's so limp.

Remember one court order instead of two, but little else changed, and you won't be far wrong with understanding changes introduced by the new Child Arrangements Order. 

If I have a contact or residence order, do those orders still stand? 

Yes. However you'll be treated as if you are named in a Child Arrangements Order BUT... your status will still be as a person with whom the child lives, or a person with whom a child visits or otherwise has contact, and the legal rights conferred by each ARE NOT the same. So practically, you're still the resident or non-resident (contact) parent, and it makes no difference whether you have your existing order or the new one... only the name has changed.

If I've applied for a contact or residence order, do I need to make a fresh application?

No. If you applied for residence, you're applying to be a person with whom the child lives, and if you're applying for contact, you're applying for your child to spend time with you. Whichever is granted will be set out in a Child Arrangements Order rather than in a separate contact or residence order.

Do I gain parental responsibility if I'm named in a Child Arrangements Order?

Unless you already had it, only if you're named as the person with whom the child lives. Not if you're named as someone the child spends time or otherwise has contact (unless you already have parental responsibility through some other avenue).

If I'm a non-resident parent, or I get a child arrangements order naming me as someone with whom the child spends time and/or has contact with, can I take the children abroad on holiday for up to one month?

Only with the consent of the parent with whom the child lives (as named in the Child Arrangements Order).

Can the parent with whom the child lives take the children abroad for up to a month without my consent?

Yes, absolutely, unless of course you're also named in a Child Arrangements Order as someone with whom the child lives, but not if you're named in the Child Arrangements Order as someone whom the child spends time, even if it is overnight every week. Not all people named in Child Arrangements Orders are equal.

...and they thought it would be confusing to have parents treated as parents with an assumption of shared parenting (not the same as equal parenting time). Nice to see tey came up with such a simple alternative [Ed: any politicians reading this, please note this is sarcasm].

So why abolish contact and residence orders if nothing's changed at all?

Search us. You'd have to delve into the murky minds of MPs and Lords who are masters of looking like they're running while actually standing still. People wanted change... they didn't, or didn't understand it or understand why, so they fudged it, making it more complex, not less, or they just didn't read what the civil servants wrote. [Ed: We may be unfairly accusing dogmatism and/or stupidity when laziness was the culprit]

Words and the number of pieces of paper have changed (more words, less paper), not rights or status. The litigious warfare which the abolition of contact and residence was meant to achieve was destroyed by the stupid or dogmatic (or both). If this seems overly harsh... why?

As the kids would say... FAIL!

Enforcement

The one area where there is some change is in enforcement, and the enforcement measures will now apply regardless of whether the child lives with you or spends time with you. It was an oddity that parents with a shared residence order could not apply for the same enforcement measures as a non-resident parent. Now corrected.... [Ed: good grief, all that redrafting and something DID actually change].

If a child stays overnight, surely they live with me for part of the time?

Commonsense would say yes... but don't expect it to be universal. Don't assume it, as the rights conferred to those with whom the child lives and spends time with are not the same!

Our new guides, the forms etc will be published on Monday night, in time for the changes. Included are the new rules for mediation, court bundles etc, and the launch of our new family law web app. Watch this space...

Children and Families Bill gains Royal Assent

Announcement from the Ministry of Justice

Today marks a significant step forward in reforming the family justice system, as new legislation has received the Royal seal of approval.

Legislation to reform the system has recently been making its way through Parliament as part of the Children and Families Bill.

Today this Bill received Royal Assent and became an Act, which will lead to significant changes to the way the family justice system functions.

This includes:

• Making it compulsory for people applying to the family courts to consider family mediation first (unless exemptions apply - such as in cases of domestic violence);
   
• Sending a clear signal to separated parents that courts will take account of the principle that both should continue to be involved in their children's lives where that is safe and consistent with the child's welfare;
   
• Introducing a new "child arrangements order", replacing residence and contact orders, and  making changes so that when a child arrangements order is breached, the court can direct the parties to undertake activities designed to help them understand the importance of complying with the order and making it work;
   
• Ensuring expert evidence in family proceedings concerning children is permitted only when necessary to resolve the case justly, taking account of factors including the impact on the welfare of the child;
   
• Introducing a maximum 26 week time limit for completing care and supervision proceedings (except where an extension is needed to resolve the proceedings justly);
   
• Making it explicit that, when the court considers a care plan, it should focus on those issues essential to deciding whether to make a care order;
   
• Allowing the court to make interim care and supervision orders for the length of time it sees fit, up to the point the proceedings are concluded; and
   
• Streamlining court processes in proceedings for a decree of divorce, nullity of marriage, or judicial separation (or, in relation to a civil partnership, for a dissolution, nullity or separation order).

The changes will come into force on 22 April, on the same day that the new single Family Court is launched.
The single Family Court has been designed to ensure that family proceedings, particularly those involving children, will be dealt with more efficiently, with delay being the exception rather than the norm. It will be able to sit anywhere in England and Wales and the appropriate level of magistrate or judge will hear each case. This will enable more effective and efficient use of judges' time and of court staff and buildings.

Why We're Withdrawing from Lobbying Work

Last night I saw Edwina Curry on a television programme about food banks. Her opinion was that food banks are unnecessary, and people on benefits just need to learn to budget better.

Food Banks and Benefit Sanctions

If you're on benefits, you risk a 'sanction' if you don't comply with all the rules. This can mean your benefits are cut for up to three years. Last year 133,000 sanction decisions were overturned on appeal, as administrative errors were responsible for the sanctions having been made. Recovery of unpaid benefits takes weeks. During this time, people starve. That's the reality of our current benefits system, and why food banks have become necessary. We'll see their use increase, as meals on wheels are to rise in price by 56% with benefits limited to only a 1% rise.

A friend of mine recently had his ex-wife die, and his children come to live with him. My friend is disabled and on benefits. It was three weeks before benefits were adjusted, and during this time period his choice was using a food bank and relying on friends' help for food to feed himself and his children. These are the people referred to by our current Government as scum.

Dear Edwina's comments may be better focused on the 77 MPs who haven't paid their Westminster food and drink bills and owe £140,000. No sanctions for them, or three years without a Parliamentary salary for breaking rules. Remember, 75% of MPs are millionaires, and the rest earn a fairly decent salary (topped up by generous expenses).

Demonising the Disabled and Poor

Phrases such as 'workers and shirkers' used to demonise the poor and disabled to win public support for the aggressive benefits cuts are abhorrent. On 22 May 2013, a landmark decision by the courts in a judicial review brought by two individuals with mental health problems ruled that the Work Capability Assessments were not fit for purpose, and that they substantially disadvantage people with mental health conditions. The department of Work and Pensions have admitted that 55% of people who lost their disability benefits after assessments with the french IT company were unable to find employment. 30% were relying on other forms of benefit and only 15% had found a job. A follow up survey of 590 claimants found 43% were still without any form of income. Work Capability Assessments have found patients with brain damage^, terminal cancer, severe MS, and Parkinson's Disease to be fit for work. On 24 April 2013, a woman who was a double heart and lung transplant patient died in her hospital bed only days after she was told, after a Work Capability Assessment, that her allowance was being stopped and that she was fit for work. Government statistics reveal that between January 2010 and January 2011, 10,600 sick and disabled people people died within six weeks of their benefits having been ended.

Bedroom Tax

The LibDems are little better. Their party voted against the bedroom tax at conference but their MPs shafted them when it came to the vote in Westminster. It may interest you to learn that at a tribunal appeal in Liverpool, a father has recently won his case that the bedroom tax breached his and his children's human rights to family life. His children had homes with both himself and his ex-wife. Not legal precedent, but a start...

Lord Freud suggested on radio that non-resident parents have their children sleep on a sofa bed when they stay overnight. A father asked him whether it was appropriate to have his two boys and daughter share a single sofa bed. The stuttering Lord hadn't thought of this (parents having more than one child), but being out of touch and not thinking through the impact of knee jerk changes is at the heart of this Government's policy.

Opportunity Cost

There is an opportunity cost with any Government spending, and in a decent society protecting the poor, disabled and vulnerable should come before other commitments. 

The argument that the Government can't afford the current benefits bill is fatuous. It's a choice. MPs' portraits (£8,000 for Ken's wrinkled shirt), expenses, subsidised lunches, pay rises, junkets and more come at the price of making 90 year olds unable to cook for themselves having to cut back back on food. Failed IT projects (the BBC, DWP, MoD to name but a few departments involved) have cost hundreds of millions of pounds.

Children and Families Bill

The Children and Families Bill is a classic example of feckless Government thinking and waste. The Conservatives committed to shared parenting before the last election. The changes in the Bill have been so watered down as to be meaningless drivel which change nothing. The wording supports some form of parental involvement but leaves it open to be anything from a Christmas card to overnight staying contact so long as there is no risk of harm. What change from the current legislation? Child Arrangements Orders replace contact and residence, but the bill talks in terms of the parent with whom the child lives and parent with whom the child visits (oh, you mean residence and contact then). Tortuous amendments to the wording which actually change nothing at all, but will cost a fortune in new guides, forms, and all rushed in at the last minute as nothing more than (failed) Government spin. Another Conservative promise broken as they wriggle to justify having done nothing other than increase the administrative burden on the courts, legal profession, legal advise services and HMCTS (not to mention confusing the hell out of litigants-in-person).

About the Writer

Am I some radical socialist opposed to Conservatives? No. I have a background working for blue chip companies in management positions... public school educated... have enjoyed shooting and fishing... so am good, traditional Conservative stock but appalled at that party's immorality and ashamed at having voted for them previously. I won't make that mistake at the next election.

My apology for this rant rant, but dear Edwina's TV piece followed by my own MP's asking me to help convince the Scots to stay part of the Union were the final nails in a coffin on opinions on this Government. If I were Scottish, I'd want to be more than geographically removed from Westminster, and removed from a Government which ridicules those who are vulnerable and denies the evidence put forward by those who seek to point out how its policies harm the most vulnerable.

A party for families? Don't make me laugh! 

Withdrawing from Lobbying

If the above matters aren't sufficient motivation to withdraw from lobbying, the final straw was attending the launch of 'Tackling the Advice Deficit' report by the Low Commission at Westminster. Portcullis has a vast, sectioned off area where those in the club can natter... near empty at the time of the presentation. Attendees at the launch were packed into a baking hot room (no seating for the disabled or questions with invitations about the needs of disabled attendees) reminiscent of sheep crammed into a lorry off to the abattoir (another sign of nonsense is a sign on the entrance door reminding people that handguns are not allowed... one wonders how much that cost).

LibDem Lord McNally, one of the speakers at this event jovially poked at audience members concerning funding for services for the vulnerable (the audience included many from charities and advice agencies). "I recognise many of you as people I've said no to" was accompanied by his chortle. What thought to those attending of the impact on them of turning people away who need help, seeing colleagues lose their jobs, and their organisations risk closure and failure as a result of his humorous withdrawal of their funding. Personally, I hope he chokes on his next subsidised steak in one of Westminster's subsidised troughs.

We're withdrawing from lobbying work. What point, when you're dealing with attitudes such as his. Members of Parliament laughing during the food bank debate compounded our opinion that our dear MPs not only don't care, but draw humour from the suffering of others. If they'll ridicule those who point out children and the elderly are starving, they'll hardly be bothered about family welfare.

Please don't vote for them in 2015, and as for the Scottish issue... RUN HAMISH... RUN

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!

The Lords' Children and Families Bill Hansard Debate: Chinese Whispers and Dodgy Evidence

The House of Lords is currently debating the Children and Families Bill.

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

This last comment is on Relate's website citing a 2004 HMG Green Paper as the source. In that same year, an ONS study (Blackwell and Dawe, 2004) found that only 50% to 60% of parents had agreed arrangements and around 30% were dissatisfied with the current position.

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).

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?

The paramountcy principle? Don't make me laugh.

 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.

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!

Let's abolish the Family Justice Council

I wanted to share with you excerpts from the Children in Families Committee (part of the Family Justice Council) written contribution to the Family Justice Review. It is a little old news, but I had missed it, and upon reading it, am somewhat scandalized at the content. I imagine most of you missed it too, as such  things tend to be buried on Government websites. Be prepared for a range of emotions, from surprise, to humour, to shock and perhaps anger. Perhaps their biggest insult was to the judiciary themselves. Read on...

Would you expect 'The Committee' (seemingly of professionals) to be seeking to subvert the principles of judicial discretion, when their basis for doing so is subjective opinion? Consider this...

The Committee feels that some healthy skepticism about the appropriateness of shared residence orders is required to counteract an apparent growing judicial willingness to make such orders in circumstances where they may not be appropriate.1

Have we got this right. The 'Committee' do not trust our judiciary? Surely there must be robust grounds for this? In the same paper, they admit there is no research as to the extent or outcome of shared residence orders being made by the courts. Shouldn't research come before the Family Justice Council (FJC) seeks to subvert judicial discretion?

What was the child welfare research to support such a finding?

The child mental health specialist member of the Children in Families Committee expressed a very firm view, based on her clinical experience, that shared residence orders are rarely in the best interests of children but are much more about meeting the needs and interests of their parents.

Her clinical experience. A single person's experience on the impact on child mental health. The fact that 'her experience' is contradicted by a wide body of educational, psychological and sociological research would have escaped the Committee, as it appears such decisions are made over a cup of tea and a rich tea biscuit rather than the analysis of impartial empirical research. Is this what our laws are based on?

You would hope that the author of the report would question this point him or herself. You would hope that, when advising the Family Justice Review, they would have a regard to accuracy, impartiality, and objectivity. Not at all. The authors dig a hole, and keep going. Consider the ignorance in what they go on to say about shared residence and its application in relocation cases (their words in italics, my criticisms come after):

Current case law means that in practice a parent who has a sole residence order will get leave to relocate to another jurisdiction with the children. Really? Doesn't the outcome turn on the individual facts of the case and arguments presented? What about motive? What about whether plans are reasonable? This seems, at best, a prejudicial opinion not in any way linked to the needs of the child in each individual case and at worst, justifies the view that many have that the courts rubber stamp relocation applications with scant regard to the impact on the individual child. Such prejudicial attitudes resulted in Moore-Bick LJ (the Deputy Head of Civil Justice) being parachuted into the family courts to clear up the mess left by 10 years' rigid adherence to Payne v Payne and Thorpe's beloved 'distress argument' (a review, I might add, that the then President of the Family Courts had declared would not happen in the Court of Appeal... oops!).2 Moving on, the author kept wielding their shovel. In a case where there is an international dimension, obtaining a shared residence order means that the parent who opposes a relocation application will have at least some prospect of succeeding in preventing leave to remove being granted. Are they suggesting that a parent should gain shared residence as a strategy to defeat a future leave to remove application? Ah, the chicken and egg stratagem! Nonsense. Any legal adviser with half an ounce of sense or experience knows that the legal status of 'shared residence' is unimportant, compared to the quantum of care (and the facts of the case!). Perhaps someone should comment to the author of the report that shared residence is not an automatic bar to relocation being granted (but let's not cite more authorities [common law] and rub it in)?3  The lawyer members of the Committee therefore believe shared residence orders may have a place in such cases at least where such an order reflects the involvement of the parents in their children’s life. Ahha... let us look at an actual fact...

The quantum of care time between mothers and father in intact families in society is near identical... differing, on average by only 15 minutes a day. My opinion? Not at all, as some of use do look at research before writing.4 Could there be a correlation between this statistic, and Mostyn J's assertion that shared residence orders were becoming the norm (again, sadly, a view which lacks the statistics to support it).

Again, had the Committee a basic knowledge of case law, they would know it was established in 2002 in Re A (Children) (Shared Residence) [2002] EWCA Civ 1343 that shared residence orders should be made if they reflect the reality on the ground. There are a long line of authorities since.

So if the lawyer committee members are right, that shared residence orders have a place in cases where the order reflects the involvement of the parents in their children's lives, the Family Justice Council should keep their ill informed noses out of the matter, and ideally be put out to pasture.

Still think I'm being harsh? Oh there are more priceless inconsistencies spewed out by this shovel wielding incompetent who seems to have an axe to grind against Sir Nicholas Mostyn (one of our more capable high court judges). Mostyn was Paul McCartney's brief. He was editor of Jordan's International Law. He's undoubtedly intelligent and widely respected by his peers, but his judgment, given in the cited case cast criticism on the thinking of the Court of Appeal, and indirectly, the recently retired Head of International Family Law.5 For a High Court judge to criticise guidance given in the Court of Appeal was rare, and likely unwelcome [could I understate this more?]. As many believe, the thinking of Mostyn was right, and as one of the most respected lawyers in the country before becoming a High Court judge, delivered beautifully (and we suspect, with some personal satisfaction, having had that same Head of International Family Law throw out his appeal only two years earlier).6

As justification for opposing shared residence, the Committee attempts to savage one of the reasons Mostyn views shared residence with favour (and a powerful one, based on a child's human right to family life). In judgment, he had declared:

"If one were to draw up a hierarchy of human rights protected by the ECHR [European Court of Human Rights], near the top would be the right of a child, while or he she is growing up, to have a meaningful participation by both of his parents in his upbringing;...”.

Note the words 'meaningful participation' rather than mere 'involvement' which became the diluted sop in the Children and Families Bill in response to years of outrage by the public at bias in the courts. How did the Family Justice Council seek to confront such a cogent argument? Read on... their inconsistency isn't hard to spot.

Whilst few would disagree with Mostyn J’s statement that a child has a ‘right’, while he or she is growing up, to have a meaningful participation by both of his parents in his upbringing, [but you know they want to] this is not a ‘right’ which children have ever been able to enforce against unwilling parents [shouldn't that be a role for the courts then, and our laws]. Rather, it reflects a moral and potentially legal obligation on the parent with care to facilitate a relationship where the non residential parent wants this [shouldn't our laws support moral and legal obligations]. Consequently, the Children in Families Committee of the Family Justice Council (“CIFC”) questions the implicit assumption that in order to achieve such meaningful participation in a child’s life, his or her parents must have the benefit of a shared residence order made by the court [such orders are sought when parents fail to uphold this human right for their child].

Bravo to the Committee's author on a fine example of cognitive dissonance in practice!

So consider... and let me repeat the where the Family Justice Council got it right... 'few would disagree that a child has a right to a meaningful participation by both of his parents in his upbringing.'

What might strengthen and uphold that right in family law... that a child has the right to shared parenting. Why then, did our Family Justice Council argue so vociferously against it? Why now do we see shared parenting or shared care removed from the Children and Families Bill? Why has the word 'meaningful' been removed and diluted to 'involvement' (which could be anything). Shouldn't our laws reflect societal norms? Shouldn't they be based, one would hope, on child welfare research? It's a little moth eaten now, but we published details of  a wide number of findings some years ago. There's lots more on our website.

http://www.thecustodyminefield.com/SharedCareResearch.html

What of the Committee's conclusion and recommendation in relation to shared residence orders... and this will shock you. They said they wanted to all but abolish shared residence.

The Committee would prefer to see them made only in exceptional circumstances, those where there is potential for relocation or where one parent is resolutely denying the existence of the other’s PR [parental responsibility] and a shared residence order is used to make it clear that either parent could, in the view of the court, provide a home for the child (the implicit threat being that if the recalcitrant parent does not mend his or her ways, a full residence order may be made in favour of the other parent). 

Far from wanting to see a child's right to the meaningful participation of both parents upheld in law, it seems the Family Justice Council wants to all but abolish it, ignoring the authorities which cite the appropriateness of shared parenting (developed over 20 years, and since Butler-Sloss was forced to overturn her own guidance to the courts which limited shared residence orders to exceptional circumstances).7 I suspected the FJC didn't want change. I didn't realise they sought to overturn 20 years of judicial progress!

Another reason why Parliament needs to introduce a presumption of shared parenting in law, because those who influence our judiciary are ignorant of research, ignorant of modern parenting in this century, and seek to impede the development of law even at the expense of judicial discretion.

When we see how the Children and Families Bill has been diluted, it is little wonder when such powerful groups have lobbied the Government (in the guise of 'experts').

Rather than abolishing shared residence, isn't it time we abolished the Family Justice Council, if they lack the dignity to resign.

Notes
 1. Annex 2. The Use of Shared Residence Orders. A Discussion Paper Prepared by the Children In Families Committee of the Family Justice Council as Part of the Family Justice Review (undated).
2. K (Children) [2011] EWCA Civ 793.
3. If you want us to rub it in, it was Re T (A Child) [2009] EWCA Civ 20.
4. Equal Opportunities Commission [2008].
5. AR (A Child: Relocation) [2010] EWHC 1346 (Fam).
6. G (Children) [2007] EWCA Civ 1497.
7. Re A (Children) (Shared Residence) [2002] EWCA Civ 1343

The Children and Families Bill, Parental Involvement and Timescales

Remember the hoo-hah about a change to the law, and there being a presumption of shared parenting in law? Remember the C4 Dispatches programme and the broo-hah following that?  A poll by the TV programme found that 84% of respondents believed that the family justice system favours mothers over fathers, and 88% believed that the law needs updating.

Such matters were due to be addressed in the Children and Families Bill.

Where stands the Bill now, and what does it actually say?

Where stands the Bill now?
Slow progress has been made (at least in terms of timescale, if not of content, where the word 'little' seems more apt than 'slow'), with the next stage being the Committee Stage in the House of Lords. This meeting is set for 9th October 2013. For those with a Tolkeinesque vocabulary, the progress of legislative reform is positively entish.

What next? Then comes the reporting and third reading stages, and we enter the world of ping/pong (this is actually an official term, since the Bill and amendments are subsequently batted backwards and forwards between our two Houses of Parliament).

If it passes this stage, then we see Royal Assent granted BUT, that does not mean that the new legislation immediately comes into force. Consider that the parts of the Children and Adoption Act 2006 concerning contact enforcement didn't come into force until December 2008.

So it's safe to say my, and others' guides, don't need updating yet.


What does the Bill actually say?
You may remember that campaigners' wishes varied. Some called for:

• a presumption of shared parenting; others
• a minimum amount of contact; others
• a presumption of equal parenting time; others
• wished no change; while others
• thought all men were dangerous, and should have to prove they were safe before any contact was granted.

Most campaigners agreed that safeguards needed to be in place to ensure face to face parenting was restricted where there were proven risks to the child. Some believed that the presumption of shared parenting should only be removed where the similar circumstances applied as would require a child being taken into local authority care... where the child was at risk of significant harm, if placed in a shared care arrangement.

My view was a rebuttal presumption should exist concerning shared parenting, and that research showed that shared parenting was routinely in a child's best interests. The 'rebuttal' part allowing a challenge to this, in individual cases, where there was evidence of risk to the child from such an arrangement. Further, I believed both parents should have the opportunity for midweek as well as weekend parenting time, to facilitate involvement in schooling and extra-curricular activities (proven to have positive benefits for child development). If you like, I wanted a definition of 'involvement'.

So back to the sub-heading. What does the bill actually say? Which lobbying group was successful? I'd argue, those who don't want any change at all (with a perceptual exception).

The changes in the Bill which currently relate to presumptions are set out below. Gone is the word 'meaningful' that others argued for. There is no definition of what 'involvement' actually means. I once wrote that without, at the very least, the word meaningful, the word involvement was meaningless.

11 Welfare of the child: parental involvement

(1) Section 1 of the Children Act 1989 (welfare of the child) is amended as follows.

(2) 15After subsection (2) insert—

“(2A) A court, in the circumstances mentioned in subsection (4)(a) or (7), is as respects each parent within subsection (6)(a) to presume, unless the
contrary is shown, that involvement of that parent in the life of the child
concerned will further the child’s welfare.”

(3) 20After subsection (5) insert—

“(6) In subsection (2A) “parent” means parent of the child concerned; and,
for the purposes of that subsection, a parent of the child concerned—

(a) is within this paragraph if that parent can be involved in the
child’s life in a way that does not put the child at risk of
suffering harm; and

(b) is to be treated as being within paragraph (a) unless there is
some evidence before the court in the particular proceedings to
suggest that involvement of that parent in the child’s life would
put the child at risk of suffering harm whatever the form of the
involvement.

(7) The circumstances referred to are that the court is considering whether
to make an order under section 4(1)(c) or (2A) or 4ZA(1)(c) or (5)
(parental responsibility of parent other than mother).”

So the current proposal, as it stands, is that there will be a presumption that parents have an involvement in their children's lives (with the usual safeguards), but without any definition, or emphasis with the word meaningful? At the lower end of the scale, one would imagine involvement would be having been present at the point of conception (whether in person, or via test tube). At the upper end of the scale, what most people understand to be 'shared care', meaning both parents are fully involved in schooling, leisure time, overnights, and all aspects of the children's routine, day in, day out, school week and weekend care as well as having holiday time with the children. This does get granted in some courts, but there continues to be inconsistency from judge to judge and region to region in very similar cases. Well worded legislation cuts down on such inconsistency.

A red herring in this debate was that the presumption would grant parents the right to inclusion in important decisions which affect the children. As any 1st year student in law should know, the existing legal status of parental responsibility already grants that right and responsibility (albeit ensuring that right is upheld is an entirely different matter).

So does a presumption of involvement actually change anything? No. Everything rests on the decision of the individual judge and their selective and personal definition of what involvement means, whether a card four times a year, alternate weekend staying contact, or a mathematical division of the child's time. All could be considered 'involvement' due to such loose legislative wording.

Another part of the bill relates to a change in legal terminology for post separation child arrangements. We see the unpleasant and controversial term 'contact' (and residence) order replaced with 'child arrangement' order.

Aside from the heading on the top of a court order, does this actually change anything? Not really, and questions remain unanswered. A few examples for you:

1. Currently, a parent with contact can make an application for contact enforcement, and the assisting or punative measures set out in the Children and Adoption Act 2006. These measures only apply to contact, and a parent with shared residence cannot apply for 'contact' to be enforced (as they share residence rather than having a right to contact. A fatuous state of affairs, which the new bill doesn't appear to address (unless I've missed it?). With the contact orders disappearing, it would seem that the Children and Adoption Act 2006 will become defunct (sections 11A to 11P of the Children Act 1989 as amended by the Children and Adoption Act 2006), as there is no amendment of wording related to enforcement of orders (whether contact, residence or child arrangement);
2. Under existing legislation, a parent with residence can take the children abroad without the non-resident (contact) parent's consent for up to a month (while the non-resident parent may not). Will either, or neither parent have this right under a child arrangement order (section 13(1)b of the Children Act 1989)? Who knows, as the Bill misses this point.

What concerns me, is that unless I'm missing something, the Children and Families Bill appears to be a sloppy piece of legislation.

The scope of sections 11A to 11P of the Children Act 1989 should ALWAYS have covered shared residence. A parent with shared residence should not be limited to seeking the committal of the parent in breach, which the court is rarely if ever likely to do.

I'm less concerned about whether a change in legal definition impacts on international instruments such as the 1980 Hague Convention on the Civil Aspects of International Child Abduction and Brussels II Revised Regulations, as these make reference to custody and access (replaced by the terms residence and contact). It might however be wise to ensure that the new bill clearly states that the terms custody and access, and residence and contact are encompassed by child arrangement orders, granting equal legal status to both parents (for the avoidance of doubt!). 

The parts of the Bill related to the change in legal status appear limited to:

12 Child arrangements orders

(1) 35Section 8(1) of the Children Act 1989 is amended as follows.

(2) Omit the definitions of “contact order” and “residence order”.

(3) After “In this Act—” insert—

““child arrangements order” means an order regulating
arrangements relating to any of the following—
(a)

40with whom a child is to live, spend time or otherwise
have contact, and
(b)

when a child is to live, spend time or otherwise have
contact with any person;”.

While a single legal status for both parents appears welcome, I imagine we will see the term 'primary carer' used in place of resident parent, as a stick to beat the other parent with. Will parents fight over which is the resident or contact parent? No (yay). Will they soon be back to court when the 'primary carer' (call them what you will... majority carer, parent with care and all those other terms already substituted for resident parent) wishes to limit time with the children as a means of torture, or due to a belief that they are the 'expert' parent, or a whole host of other reasons? We suspect yes (oh!). If the granting of parental responsibility to both parents ensured that both were involved in selection of schools, we'd be less pessimistic.

The Children Act replaced the concepts of custody and access with the terms residence and contact. This didn't reduce separation conflict. The battleground in court will continue to see the parents armed with exaggerated or entirely false allegations. Those who believe that the Bill's weak presumption (or mediation) are a cure to the belief in bias in the courts, or parental warfare are naive. A carrot, without the stick is of little use and especially when dealing with the human nastiness which exists when a couple's relationship implodes.

Unless there are some sanctions for perjury, and you make it so court outcomes are more certain before parties enter, the warfare will continue. There were grounds for more equal arrangements, since the quantum of parenting time between the sexes has balanced since the inception of the Children Act, and a presumption of shared parenting reflects the normal arrangements for intact families. More so, child welfare research confirms shared parenting to be in children's best interests.

What a waste of an opportunity.