The Family Justice Minister, the Marx Brothers, and Parental Involvement

"Who are you going to believe, me or your own eyes" - Groucho

Justice Minister, Simon Hughes, said "We have made bold reforms so that the welfare of the children is at the heart of the family justice system, and there can be no doubt that parents play a very important role in every child's life. Following break up of relationships we are encouraging all parents to focus on the needs of the child rather than what they want for themselves."

Excting isn't it? Isn't it? Before you grab your vuvuzela and have a tootle in the streets, it might just be worth having a look at what the reform, introduced today, means in real terms, and how the Government fought against a presumption that parents play a 'very' important role in their (not every surely) child's life and succeeded in defeating it.

I may criticise his accuracy, his sense of reality, his intelligence, his poor use of spin, but one almost has to admire his imagination.

To suggest that the Coalition have placed the welfare of the children at the heart of the family justice system ignores the fact that this principle has been enshrined in law for decades. Look... it's there at s.1 of the 1989 Act. Perhaps this Coalition invented the wheel too?

His second claim, that there can be no doubt that parents play a 'very' important role in every child's life isn't introduced into family law at all. The level of importance, and involvement was qualified by the Coalition having specifically dropped there being a presumption of shared parenting (a Conservative manifesto commitment), and then further diluted the importance of involvement by removing the word 'meaningful', and finally giving up entirely by saying involvement could be 'direct or indirect' (meaning a Christmas card once a year might surfice).

His third claim that "Following break up of relationships we are encouraging all parents to focus on the needs of the child rather than what they want for themselves" misses the point that if the paramountcy priniciple and welfare checklist contained in the 1989 Act failed to achieve this, how will saying that a post card might be sufficient satisfy the psychological shift that children's needs come first.

Other claims that the notion of residence and contact are abolished are simply wrong. The new Child Arrangements Order dispenses with the word residence, it's true, but replaces that word with the more tortuous phrase "the person with whom the child lives", and contact remains as plain as the nose on my face (which sadly, is a rather large nose, and hard to miss).

So the reform missed in its goal to make child welfare more key (this was not necessary), and missed in its goal to give parents less to battle over upon the point of separation.  What we have is 'look, we've done something' where in reality, they've done nothing other than make the wording a little bit more tortuous, and saddled the courts, HMCTS, the legal profession, legal writers etc with a huge administrative burden by having to rewrite what was there before in a slightly different way. An abject waste of time, money and opportunity.

This lack of a grasp of legislation, which our Justice Minister so ably demonstrates, is also demonstrated by claims that the Coalition have introduced shared parental responsibility. Parental responsibility was shared under the old wording, so long as both parents were named on the birth certificate, were married, or parental responsibility was acquired by formal agreement or court order. Again, no change whatsoever.

While the new wording isn't a cause for celebration, I also don't think it's a cause for panic. Those judges who believed before that children need a proper relationship with both parents will continue to do so. Those who hold a more antiquated view of the man as breadwinner and the woman as care giver are slowly retiring with a younger breed coming through who have a better understanding of parental involvement in today's society. For the dinosaurs, misogynists and misandrysts who remain, the wording does nothing to limit their 'wide ambit of discretion' to decide what they wish (so long as there is some justification for the judgment, which again, was required before anyway).

The Government's belief that mediation and this gentle approach would bring about a sea change in how post-separation disputes are handled shows a lack of understanding of human nature (and history). Since King Solomon's time (and we guess before), some adults are capricious, self-centered, hostile, possessive, angry, anxious, malicious and we could go on and on. Allegations of abuse, at separation, are incredibly common. It never ceases to surprise me that the man or woman who was trusted to babysit and provide childcare throughout the child's life suddenly becomes Myra Hindley or Fred West on the day the parents separate.

The Government are still scratching their heads because, despite mediation being cheaper for the parents, potentially far quicker and less traumatic, the number of parents choosing mediation has fallen since legal aid was withdrawn. I'm still scratching my head at the Government being incapable of understanding that an adversarial legal system encourages parental dispute. A presumption of shared parenting would have more heavily emphasised that parents need to focus on the upbringing of their children, and the role both parents have. It would have given less reason for a prolongued court battle. What a shame Mr Hughes and his Coalition buddies rejected this... despite that a presumption is only that, and if unsuitable due to proven neglect, violence or abuse, would have been rejected if the individual case circumstances merited such.

This Government, by way of the Bedroom Tax, handed on a plate ammunition for malicious, alienating resident parents to thwart contact, being that the children didn't want staying contact because the non-resident parent didn't have a bedroom for them (and weren't entitled to one). Mr Hughes and his colleagues voted against the tax at party conference, but then went on to support it or abstain.  As Groucho said "those are my principles, and if you don't like them, I have others!" (a theme which ran through family law reform and politicians' promises). The gaff beset Lord Freud suggested that children stay on their non-resident parent's sofa bed (even when there are three teenage kids of different gender) which ably demonstrated the lack of practical thought which underpins Government policy, and underlines that child welfare matters not at all.

In light of his fanciful claims, I'm awaiting Mr Hughes announcing that his party is proud of their role in stopping the introduction of tuition fees.

Parental Alienation: The Upper Courts on Viagra

Back in 2004, in the case D (A Child) [2004] EWHC 727 (Fam), Lord Justice Munby took the unusual, and at the time brave step, of being critical of the court's "impotence" in helping in intractable contact dispute. He said:

"2. From father's perspective the last two years of the litigation have been an exercise in absolute futility. His counsel told me that father felt very let down by the system. I was not surprised. I make no apology for repeating here in public what I then said in private:

"He is entitled to. … I can understand why he expresses that view. He has every right to express that view. In a sense it is shaming to have to say it, but I personally agree with his view. It is very, very disheartening. I am sorry there is nothing more I can do."

2004 headlines (from memory) discussed the courts being impotent in contested cases. Munby accepted (at paragraph 8) that children and fathers suffered due to the bias in the system. Fairness dictates us saying we also see mothers being failed and marginalised when the father is handed sole residence and seeks to alienate the child. Few could argue that in all cases, the children are victims, and in most cases the fathers were, given that the court routinely gave sole residence to the mum, and then failed to enforce contact orders. Many fathers left court crying, and there was no follow up to assess the harm done to the children.

This is why we still maintain the courts should make shared residence orders (or their modern equivalent under child arrangements orders). Power corrupts... and the court handed absolute power to the mother in over 90% of cases. The problem though was never gender, but the issue of control exacerbated by a lack of action by the court when the 'parent with care' ignored its orders. The courts lost trust, and lost control, as parents thwarted orders in the knowledge that nothing would happen as a consequence.

Munby was also pushing for more openness, and wider powers for the court. Some of those powers followed when the Children and Adoption Act 2006 was introduced (coming into force in 2008), but the courts were slow to exercise those powers. Too many cases continued to be left unresolved when, if the resident parent opposed contact, the courts and CAFCASS would wring their hands, looking apologetic, and the child would be left, unprotected, in a toxic environment with their relationships severed by a controlling and at times malicious parent.

We said, time and again, parental alienation should be treated as a form of child abuse.

The Change

There has been a shift in the courts. A new wave of Lords Justice and High Court Judges (Mostyn, Ryder, McFarlane, Parker...) have crept in the door... more capable, more critical, more modern and more open-minded. Munby was ahead of his time (for the courts), but he is not alone, and is now President of the Family Court.

There is now a wide range of case law which might significantly arm the lower courts with tools to combat a form of child abuse where there was little to no protection in past years... in cases involving parental alienation. No assumption should be made that the lower courts are aware of these. It is the job of counsel or the litigant-in-person to make use of them, and be aware of them. The legal profession have their own family law libraries... we endeavour to ensure that unrepresented parties have access to this information too, and that relevant information is easily accessible. All major cases related to parental alienation are now wrapped up in a single library.

The most recent judgment, given by Lord Justice Ryder (the second youngest high court judge in 250 years, head of judicial modernisation, and now a Lord Justice of Appeal) gives judgment in W (A Child) [2014] EWCA Civ 772. 

The W (A Child) [2014] EWCA Civ 772 judgment

There was a finding that the child had been abused by the grandfather, but the mother persisted in

allegations against the father, and prompted the child to make allegations in this regard. The judge had given clear warning of the powers available to him:

"[30] At the outset of proceedings I warned both parents of the serious consequences of pursuing this fact finding exercise. Were the allegations now make [sic] of sexual abuse true, then the court would be finding [the child] had been abused twice over, both by the grandfather and, later, by father. It would almost certainly mean, given [the child's] distress, the need for a section 37 report, and probably an interim supervision order, and very careful evaluation of the need to protect, of a risk assessment, and the need to manage, with care, a deeply damaged little girl.

[31] Were the allegations untrue, then mother would be guilty of feeding her with untruthful stories, of an obsessive nature, about sexual abuse. Again, I would almost certainly be directing a section 37 report and making an interim care order, as [the child] would then need speedy removal from an abusive home."

The mother sought to appeal a decision removing her child from her, and placing the child in local authority care via an interim care order.  The mother argued that she posed no risk to the child's safety. At appeal, the court agreed with the trial judge, recognising the emotional harm caused by the mother´s having manipulated the child to make false allegations against the father.

The judgment had been accepted by the local authority and children´s guardian. The father and they opposed the appeal.

The court accepted it was "unconscionable" to leave the child in the mother's care. Worth noting paragraph 21 of the judgment:

"21. I ask the question rhetorically: given the court's findings, how could the judge leave the child with the mother?  No level of sufficient support and necessary protection was described by anyone. To leave the child without protection would have been unconscionable. One has only to consider physical abuse to a child that gives rise to a similar index of harm to understand that such a position was untenable. The submission made on behalf of the mother that her care of the child had in all (other) respects been good or even better than good simply misses the point. More than that level of care was needed to protect this child from her own mother."

Regarding the reasons why the child wasn't placed immediately in the father's care, this is addressed at paragraph 22:

22. The distress that had been engendered in the child, as advised by the children's guardian, sadly made an immediate move to the father impossible.

This, to our mind, is a landmark judgment, with the court, in this instance, placing the emotional harm caused by parental alienation on an equal footing with physical abuse, and accepting that the harm done to the child met the threshold criteria of significant harm.

Caution and Hope

There is no guarantee that such critical examination of cases will be consistent across the country, or even from judge to judge in specific regions. There is no guarantee that the judiciary in the lower courts are aware of what other courts are doing. That said, there is now far more case law to provide litigants and their counsel (if represented) with case law to support arguments and proposals for the court to consider. Whether there will be a just outcome also is also somewhat dependent on their ability to present their case and focus on the strong arguments rather than getting sucked into the minutiae or drawn into tit-for-tat allegations.

What there is now, is some hope for parents and children who face malicious alienation, compared to a decade ago, when there was none.

Click any of the images (except the viagra!) to be directed to content!

Time: Family Law Reform, Advocacy, and Child Welfare

Time is critical in a child's life, and in resolving parental disputes. Long court cases and uncertainty cause stress, depression and other illnesses which can impact on both parents and children (not to mention work and finances, the wider family and the public purse).

The timely resolution of parental disputes was one of the key principles upon which the Children Act was based. yet almost a quarter of a century later, court cases simply take too long.

A Case in Point

Why am I blogging about this today? Another case where a raft of contradictory allegations are unexpectedly dropped into a case at the last minute, alluding to child abuse over years which was never mentioned in earlier proceedings or applications. Given the nature of the allegations, contact is stopped until the allegations can be investigated. CAFCASS have announced they are unable to report for three months. Thoughts of supervised contact are delayed until statements are submitted and future hearings listed, which delays things by at least another month. Supervised contact might be agreed at the next hearing (dependent on the cramped judicial timetable, availability, and in the absence of the CAFCASS report), and then booked, carried out, and reported on... all of which creates further delay. The hoped-for judicial continuity hasn't happened. The Circus has come to town again!

As often happens, there is no independent evidence of abuse. Without going into details, all evidence actually suggests a very happy child, with no behavioural or emotional issues, and allegations are based upon the word of the party who could have raised these allegations on numerous occasions in the past, but didn't. The accuser places themselves in the somewhat surprising position of having sent their child to contact for a long period of time despite 'seemingly' believing abuse was taking place. Forgive me for being a little suspicious... I have little doubt it will be found that there are no welfare concerns when investigations are concluded, but also that there will be no sanctions for false allegations having been made.

...so back to the Children Act 1989, at section 1(2):

In any proceedings in which any question with respect to the upbringing of a child arises, the court shall have regard to the general principle that any delay in determining the question is likely to prejudice the welfare of the child.

How is it that a three month delay, before CAFCASS can report, is acceptable? Why can't CAFCASS report within 7 days. Their resources won't permit it, I know... but the same amount of reporting will still be done by them, the same amount of time spent on meeting parents and writing reports. The delay is caused by their backlog of cases, which needs resolving, and means no officer can be allocated for weeks. 

The problem is we don't expect cases to be resolved quickly. We become used to delays, and it becomes acceptable that the child's welfare will suffer. That's the reality of this case and for this child and many others. The delays are accepted with shrugged shoulders. It's acceptable for child welfare to suffer. 

Broken contact and false allegations, perhaps being two of the most vicious forms of emotional/psychological abuse, aren't treated as domestic violence. Again, a shrug of the shoulders, and a view (with experience) that such things are common in family law cases.

Arguably, our acceptance, the court's acceptance, CAFCASS's acceptance invites the problem to continue, unaddressed.

While understanding allegations need investigating, and that at times the court needs to take a cautious approach, the harm caused to children from a sudden change to the status quo (the cessation of contact) would be mitigated by better case and resource management. Unnecessary delays cause children unnecessary harm. The delays cause harm to both parents (even those who raise false allegations). Also, long cases are arguably more expensive for the public purse, courts and welfare services... but we're used to this situation... shrug.

CAFCASS have previously been censored by the President of the Family Court when cases averaged 40 weeks until a report was prepared. The President should not need to give the CEO of CAFCASS another rollicking. The DfE should be better managing, targeting and improving performance and resourcing.

In the past quarter of a century, we've become used to these failings. Maybe it's time everyone stopped shrugging their shoulders and applied the paramountcy principle to this area too!

The Early, Inquisitorial Approach

In 2012, Mr Justice Ryder (now Lord Justice Ryder) announced that as part of judicial modernisation, the judiciary would take a more inquisitorial approach (see the Fourth Update). I've seen a number of cases in 2013 which were resolved at the first hearing and dispute resolution appointment. I've seen near identical cases take 18 months to resolve. Why the difference?

In the cases resolved without delay, both parties were litigants-in-person, and the judiciary took that recommended inquisitorial approach, questioning both the alleged and the accuser at the first hearing. Cases involved cessation of contact and allegations, but the courts took a firm approach and gave adequate time for both parties to be heard at that first hearing. This wouldn't be achieved in a 15 minute or half hour timetable which is commonplace elsewhere. 

The opinion that litigants-in-person delay proceedings isn't always true. What delays proceedings (aside from poor case management) is insufficient time being allocated to hear evidence at early hearings. Such time, if allocated, needn't place an additional burden on the court, but can and does reduce overall court time when more cases can be resolved on the day by negating the need for further directions hearings and a drawn-out contested/final hearing. 

The courts are using a more inquisitorial approach when parties are litigants-in-person. Arguably, this presents the court with an opportunity for speedier resolution of cases, since the judge will hear oral evidence from the parties from the outset. Where litigants are represented, such an occurrence may not happen until a final/contested hearing (months into proceedings). In early hearings, the advocate acts as a barrier to hearing evidence directly from the client. Hearing and observing the parties is an important part of evidence... so why delay it?

I've little doubt that many litigants wind themselves up as delays cause them to become more stressed. They 'up the stakes', and at times allegations related to historic matters breed, and appear out of thin air during the long pauses in proceedings. 

When the court hears oral evidence at the first instance, directly from the parties, it then has a greater opportunity to make a final order without further delay. This is where the inquisitorial approach can have marked advantages over the adversarial system which remains commonplace in private family law. 

Among the judiciary, there is interest in change. Sir James Munby has now taken over the reins for judicial modernisation following Ryder's appointment as a Lord Justice. The role of the judge as the referee while litigants and their counsel slug it out has been questioned by Lord Judge himself:

'The traditional model of the judge as a passive arbiter, holding the ring between the protagonists, allowing the parties to adduce whatever evidence they wish and however relevant it may be to the ultimate outcome of the case or not, will change.'

We hope that the inquisitorial approach will be consistently applied regardless of whether the parties are represented, and where one or both parties are represented, from the moment the parties first walk into court. This is not a radical idea... it merely takes the preferred approach in public law for a fully inquisitorial system rather than that which exists in private family law... the adversarial fact finding environment... and rolls it out to apply regardless of whether parties are represented. Within that, we would hope for less cross-examination of parties by advocates (at a final hearing), and more instances (ideally universally) where the judge questions the litigants directly (from the outset).

Just imagine an alternative system (which isn't so different from that we're starting to see)...

Statements with evidence are required when the C100 and C7 forms are filed (which should strip at least a month out of court proceedings regardless of whether matters are resolved at the FHDRA). Documents to include a warning that future allegations relating to historic matters will not be accepted unless included within the parents' first statements.

The first hearing and dispute resolution appointment to be held within 21 days of the application being made (and 7 days granted for the respondent's statement), to provide the court with 14 days to assess the evidence on paper.

Litigants to be provided with a paper-based statement template (with a link address where one can be downloaded as an MSWord document). Simple headings included such as:

• Brief History
• Child's Circumstances
• Concerns
• Requests to the Court

From a pre-hearing reading of those statements, a judge allocates sufficient time for the first hearing and dispute resolution appointment.  If CAFCASS involvement is needed, an officer is requested and appointed to the case, to be present at that first hearing. Counsel may accompany their clients and make submissions, but the clients will be directly questioned by the judge at that first hearing, and the responses of the litigants form part of evidence. If a welfare report is required, this should be conducted within four weeks of the FHDRA, and if there needs to be supervised contact to form part of investigations, this to be started within 7 days of the FHDRA.

Radical? I would have thought more radical would be the system we have, where unacceptable delays are commonplace, child welfare is harmed by delay, and unnecessarily drawn-out proceedings put strains on the public purse.

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 Shared Parenting Campaign...

Heavens... heavens... the tombola has stopped spinning, and it's time to look and see whether we've got a winner...

On the whole... yes, but with reservations. 4 or 5 numbers on the lottery ticket, but not the full house. We won't be purchasing our yacht and sailing into the sunset yet. Briefly, we'll set out what the Government has agreed to:

1. A presumption of shared parenting (this does not mean a 50/50 division of time, but a presumption that both parents will continue to be involved in bringing up their children after separation... so long as it is safe for them to do so).
2. We'll be seeing the terms residence and contact replaced with child arrangement orders. Sole residence is set to go... and that horribly demeaning term 'contact' is off to the dustbin too.
3. There'll be new enforcement measures available to judges, including seizing of passports and removal of driving licenses for breach of orders.

All of these things are positive steps forward. Download the proposed legislative amendments

The Opposition

In terms of opposition, which was considerable, charities such as Gingerbread and One Plus One, along with the Law Society and politicians such as Alan Beith have opposed our aims. David Norgrove's Family Justice Review came out against shared parenting too (heavily influenced by the legal lobby). The opponents used some underhand tactics... claiming that the proposals were confusing (they're not), bringing along a very narrow selection of research (which commonly had small to meaningless sample sizes), claiming that shared parenting meant a 50/50 split of time (when they knew otherwise), and that there was no evidence to support that shared parenting supported child welfare (when there was evidence a plenty). There also seemed a lack of understanding as to what a presumption is... it's a starting point, and not an end! Thankfully, our Government didn't fall for it! Yay them!

Also, there were plenty of academics, individuals, and organisations arguing for shared parenting, and you might be surprised that we know a fair number of solicitors and barristers who did not share the Law Society's view (and who are quietly celebrating too... yay but shh).

Disappointment

There will be some who will see the result as a failure in terms of the overall campaign, and here's where we explain why.

Definitions and Interpretation

What does shared parenting mean? The Government's proposals are too open to judicial interpretation, and each judge will interpret what shared parenting means in their own, individual court. Some will argue that the result will be no different to what we have now. One crusty old judge may feel that Sunday afternoons once a fortnight is a 'meaningful involvement', while in the court next door, a judge who was or is more of a hands on parent would see family life and a father's role quite differently. That roulette wheel spins in every case... and opponents of the current legal system want a measure of uncertainty removed by the introduction of more detailed guidance. Perhaps it should be remembered that in 1989, Parliament intended shared residence to be commonplace, but the judicial guidance issued by the President of the Family Division contradicted this.

Domestic Violence and Legal Aid

We, and we hear many in the legal profession sharing this view, believe that the number of domestic violence allegations will skyrocket next year. The reason being that legal aid will be given to parents who claim to be victim of domestic violence, while otherwise, parents must employ a solicitor or represent themselves.

With no penalty for false allegations, the tactic of false allegations to stop contact for a 3 or 6 month period while the allegations are investigated will be appealing to the unscrupulous (as will free legal representation!). The status quo will grow in the their favour, and even if the court believes the allegations to be a pack of lies, there will be no sanction. Many falsely accused could also be forced out of their homes by the use of occupation orders or threatened with jail via non-molestation orders. Without more thought, the situation will be ugly, and many children and parents will suffer. Those genuine victims of domestic violence will see services stretched, and face greater disbelief and obstacles, as the courts try to fathom whether this 'victim' is genuine.

It might be appropriate if courts started awarding costs against those who falsely accuse (including legal aid costs), and treat contact denial based on false allegations (and contact denial in general) as another form of domestic violence and child abuse.

What comes next?

Will the Government's proposals result in real change? Will more children have the benefit of both parents in their lives? Will the court use the new enforcement measures? Who knows... we'll have to wait and see.

The Government were right, that without a presumption of shared parenting there was little incentive for waring parents to enter into mediation. They were right, that shared parenting is fundamentally in children's best interests, and a presumption with a caveat on safety is inextricably supportive of child welfare. The research supports that... and comes from respected academics and experts in child welfare, rather than law (surely, as it should be!).

Much will depend on judicial interpretation. We do not know yet who will be the next President of the Family Division of the Courts, but their guidance on this matter will be crucial. Thorpe is due to retire next year too... so we're to lose the two most senior family law judges, and we're seeing a young topgun (Mr Justice Ryder... 'I'm not the youngest High Court Judge ever... but the second youngest I believe') brought in to oversee judicial modernisation. Add to this the loss of funding for some 45,000 private family law cases when legal aid goes... a large increase in litigants-in-person...  a legal system which remains overly complex and is already stretched... and an increase in false allegations caused by legal aid criteria... and it's a recipe for difficult times...

So celebrate or not?

Today... oh yes! Without opposition to, and credible arguments raised against those who were against shared parenting, we'd have seen no progress. Congratulations and thank you to those who took part. It is a progressive step forward, and one to be welcomed.

To those who remain concerned, skeptical and disappointed... we understand, and you've good reason. So forgive us while we celebrate tonight... too early for champagne, but a glass of pinot gris is welcome. Tomorrow we'll need to roll up our shirt sleeves and carry on. The world is a little brighter today, but it hasn't changed yet... and the forecast for next year is positively stormy!

Giving divorced fathers more rights could be dangerous?

An article in the Daily Telegraph today cites Ken Clarke saying 'Giving divorced dads more rights could be dangerous'. He also suggests that it places judges in too difficult a situation to ask them to set out the times that children spend with each parent following separation.

Dealing with the first point, the Government has vowed to give children the right to a presumption of a meaningful relationship with both parents following separation. If there is risk of harm to the children from one or other parent, the court will still consider this. What we're hopefully moving from is the perverse situation where a parent has to justify why they should see their children, to a situation where the other parent has to justify why they shouldn't.

Why peverse? Parents are routinely being CRB checked when they approach the courts. The greatest risk doesn't come from parents though, but step-parents and new partners of parents but these are not 'vetted' by the state. Neither are parents 'vetted' following conception or the birth of a child... so why when they separate. If we're going to have precautionary measures and heavy handed state involvement in the decision as to whether people are allowed to parent, it's a short step to needing a license before conceiving a child (the principles of the state deciding who is suitable are no different).

An industry has grown up around paranoia and unreasonable state interference in family life. Two years ago I was at a conference where the head of the National Youth Advocacy Service said that of all referrals to their contact centres, 75% of parents end up with unsupervised contact. Of those 75%, how many children were unnecessarily restricted from seeing a parent in the natural setting of home? How many were left with an assumption that their parent may be unsafe? What harm to a child from this? The child's and parent's liberties are removed, often without any evidence being heard... read on!

There's a disparity in law. When parents first go to court, the judge is highly unlikely to make an order as to contact unless the primary carer agrees or until oral evidence is heard at a later hearing (which may not happen for months... e.g. also following a CAFCASS Investigation and Report). This limitation wasn't introduced by statute but by precedent (Family Law Reports (1995) 1 FLR 495 heard by Wall LJ):

"The guiding principle remained the application of the welfare test to the practical facts of the case. The fact that the need to re-establish contact was in the interests of the child did not mean that the court would necessarily make an offer for interim contact. The elementary question had to be asked as to whether it was in the child's interests for there to be an interim order for contact pending a final determination of that question. The greatest care had to be taken in making an interim order and without hearing oral evidence, to ensure that it was in the interests of the child and that the order did not prejudice the issue. It was difficult to envisage circumstances in which an interim order for contact could properly be made where the principle of contact was genuinely in dispute and where there were substantial factual issues relating to a child which were unresolved without the court hearing oral evidence or having the advice of an expert such as a court welfare officer."

This delay is unacceptable, and there are often occasions when the judge hears the primary carer will only agree to any contact if it is in a contact centre (on occasions prompted to this course by their solicitor... and yes, I've heard a solicitor do this when there were no risks of harm being alleged, simply the mother was anxious at their child being away from them). It's hard to maintain a natural relationship with your child in a sterile environment where half the toys are broken and where strangers are viewing your every move. Such restrictions of family life are justified where there is a genuine risk of harm... but the restrictions are imposed on the grounds of an untested allegation, and remain in place for months due to the courts' and CAFCASS's inefficiency and poor case management. It's only a year since we've seen CAFCASS reports take 40 weeks. To add insult to injury for the falsely accused parent, they often have to pay to use the contact centre (and I've heard of costs of £140 per session).

Bear in mind the court assumes there is a primary carer, and the other parent must prove themselves. A child has two parents, and the days when one was a distant bread winner while the other was the live at home carer are gone, but not in the thought process of the judiciary.

Where there are allegations, the First Hearing and Dispute Resolution Appointment should have proper time allocated to it to give respondents the opportunity to answer allegations. These hearings may be limited to a matter of a few minutes where the respondent has no time to defend themselves before the restrictions are applied. The brevity of this first hearing does not serve child welfare, and only adds to the risk of delay and injustice.

On to the second point that Ken Clarke makes, of it being hard on a judge to allocate time between the parents. This is the judge's job in such cases where parents cannot agree, or where one parent is opposed to the concept of contact. Where judges fail to do their job, children lose contact with one parent. 3million children have lost contact with a parent following separation, which is why the Government is looking at reforming the law.

People assume that contact breaks down for serious reasons. In many cases, it doesn't.

I've seen one bizarre case where a child decided they didn't want to go to stay with their father. The reason was that the father took the child to see their grandparents, and the child found this boring, and wanted to play on their X-Box instead. The mother saw this as an opportunity to encourage the child not to attend contact. The CAFCASS Officer took the view 'what can we do if the child doesn't want to go?'. I was with the father when the officer said this, and asked what would happen if the child said school was boring? Would the Officer shrug their shoulders, or question whether the mother was exercising parental control in the child's best interests by allowing the child to do whatever they wanted. A child's wishes and feelings must be considered, but decisions about their lives sometimes need to be taken by adults, who are mindful of their needs. Sometimes, that includes explaining to a child the importance of other people's feelings. Where we don't do this, we end up with a fractured society where 'rights' have no connection with responsibilities.

Other cases where contact broke down often involve a 'contact' parent saying no. Whether it be to wearing inappropriate clothing, or staying up all night, or any number of normal disagreements which parents and children have.

A close friend of mine had a row with her daughter over what her daughter was wearing. She rang me, quite distressed, when she overheard her daughter's friend had run her toothbrush around the toilet bowl and her daughter laughing. Children and teens can do unpleasant things. At times they can be selfish, and at times, they will fall out with one or both parents. The sad thing is, when parents are separated, and when one parent remains hostile and judges sit on their hands, this can lead to a complete severing of the child's relationships.

Most people have a child who says 'I hate you' at some point in their life. For the non-resident parent, a natural part of the child's pushing against a boundary can see the cessation of all contact. The courts are there as a final line of defence to safeguard a child's relationships, and if the job is too hard for some judges, or Ken Clarke, they should do something else. It's a crying shame that Ken Clarke is still defending a legal system which has failed millions, and simply isn't fit for purpose.

Relocation, Family Law, and the call for Reform

In June, we witnessed two remarkable events. First came the criticism by the High Court of the Court of Appeal’s guidance in international child relocation cases. In the High Court, the Honourable Mr Justice Mostyn QC called for the urgent review by the Supreme Court of the Court of Appeal’s guidance. That guidance, from the case Payne v Payne, has stood for 9 years, and reinforced an ideology which originally came from the 1970s. The guidance in Payne heavily influences outcomes in both international and internal relocation cases (where one separated parent seeks to move a considerable distance from the other, and uproot the children).

The second surprise, on 30th June 2010 at 7.30am, was an interview on Radio 4 with Lord Justice Thorpe. I cannot remember a Lord Justice of Appeal going on a ‘drive time’ slot on national radio, but I suppose it may have happened. In answer to the very public criticism of the guidance in relocation cases, he defended himself by saying that the guidance was not his, but the court's. He went on to say that the guidance in Payne was ‘about right’ until challenged by the interviewer. Then there came a seemingly grudging acceptance that there needs to be a review, and more crucially, his guidance (he is, after our, Head of International Family Law) was out of step with international law in the rest of the Commonwealth. I say his guidance, since as he himself said, it was his decision in the case Payne v Payne (albeit supported by Butler-Sloss) to keep in place the guidance which had existed since the 1970s. Finally came his admission that the arguments against that guidance were not hard to articulate. Not hard for anyone else it seems.

At a conference last week entitled "International Child Abduction, Relocation and Forced Marriage", organised by the Centre for Family Law and Policy, Lord Justice Thorpe called for an international consensus on relocation, and on this point, we'd raise the following questions:

Why are the judiciary setting family policy, and since when was this the prerogative of the judiciary and not Parliament? The judiciary are not elected, and not accountable. As you will read further on, even when Parliament has set family policy, the judiciary do not necessarily follow it. Is this acceptable in a democracy?

Why is it necessary for there to be an international consensus before the law changes in this country?

Nowhere in Thorpe's speech does he talk of child welfare, child welfare research, or evidence. Instead, he talks of convention, protocols and consensus among his international peers.

The Custody Minefield, an organisation that provides information to separating parents, has been campaigning against the court’s guidance in relocation cases for some time. Ours was not the first campaign seeking to overturn Payne v Payne. The Poel Group had tried, albeit unsuccessfully, but in the last 5 years, momentum has been slowly growing and reached a tipping point at the end of 2009.

In 2005, 85% of solicitors in a debate by the Law Society agreed that leave to remove applications were too readily granted by the courts. A leading psychiatrist stated there was no evidence to support the assumptions upheld by Thorpe in Payne v Payne. Were the legal or psychiatric professions’ opinion heeded? No.

In 2008, Mr Justice Mostyn QC put forward arguments in G (A Child) which again challenged the guidance in Payne, but his arguments were rejected by the presiding judge. Who was that judge? Thorpe LJ.

In July 2009, a report into Relocation by the charity Reunite called into question the guidance in Payne. That same month, the Centre for Social Justice suggested there needed to be a review. A week after, as reported in the press, a relocation case came before Thorpe (R (a Child)). Thorpe accepted that the father’s plans for the child were concrete whereas the mother’s were ‘somewhat nebulous’. Thorpe found that the child was happy and secure where she was, settled and doing well at school. He pronounced ‘all that would be rendered history’ if she moved, which of course, he allowed. Such bizarre outcomes have been commonplace under Thorpe’s leadership on relocation.

In October 2009, an Early Day Motion calling for a review of Payne was tabled in Parliament. Also came our own Parliamentary Briefing Report, citing the psychological, sociological and developmental research which suggested that the guidance in Payne led to outcomes which were harmful to children. We organised a concerted campaign for constituents to contact their MPs (some 4000 emails were sent by individual members of the public). The campaign was supported by Families Need Fathers, The Find Savannah-Jade Campaign, and JUMP. A response from the family courts, written by Sir Mark Potter, the then President, came in reply, stating that he did not see that Payne needed review until such time as longitudinal studies showed a need. The existing research findings presented in our report were ignored, although neither he nor Thorpe had research to support their own long held ideology. In 40 years, no such research has ever supported their position. It seemed that Payne v Payne would remain until the unlikely day that research was published which might uphold the court’s view. It was hoped that that research might come from an Australian study in 2010. It didn’t.

In January 2010, The Custody Minefield helped write the submissions for an appeal case before the Royal Courts of Justice (D (Children)). We later published the generic argument to assist other parents. Our arguments confirmed there being no need for additional longitudinal studies prior to Payne being reviewed by the Supreme Court. There were ample studies in existence, and indeed a compelling number which showed children suffer psychological, sociological and developmental harm when separated from a parent. The arguments which directly challenged the guidance in Payne were accepted as ‘compelling in the right case’, but the father’s appeal was still refused. When permission to appeal is refused by the Court of Appeal, according to our somewhat perverse laws, a parent is prevented from taking the matter to the Supreme Court. The Court of Appeal has an effective right of veto, and so, the father’s application was blocked. We were privately told that the courts were hoping that the international judiciary would support the UK’s guidance in a new Hague Convention. It seemed there was a hope that the guidance in Payne might be salvaged if it received international approval. It didn’t.

March 2010 saw a meeting of international judges in Washington. The ensuing Washington Declaration on International Family Relocation gave clear, concise guidance for relocation cases, and new guidance which is entirely focussed on child welfare. Thorpe’s favoured ‘distress argument’ was not supported. The last lifeline for the guidance in Payne had evaporated.

June saw a newly appointed High Court Judge, the Honourable Mr Mostyn, savage the ideology of Payne in the case AR (a Child: Relocation). Mostyn J happens to be editor for Jordan’s International Family Law publication, and within a fortnight, Thorpe was on the radio.

In his radio interview, Lord Justice Thorpe said he had been following what was done before. He talks of protocol and procedures. What he misses, which Mostyn doesn’t, is that the paramount duty of the court is not to maintain the status quo for the judiciary and to look back, but to safeguard child welfare and to consider evidence when doing so. The courts’ guidance must be beyond reproach.

It now seems that a review of Payne v Payne is inevitable, and if the new guidance is not based on evidence, then the campaign will switch to calling for the curtailment of judicial discretion and interpretation. Privilege requires responsibility.

In the coming years the Conservatives have committed to a review of family law. Many are calling for shared parenting to be the standard outcome when parents separate. It may surprise you to learn that this was the intention of Parliament and the House of Lords almost a quarter of a century ago. An intention which has until comparatively recently been blocked due to the wrongful judicial interpretation of the Children Act 1989 in contravention of Parliament’s intentions. A bold statement? Consider this excerpt from Hansard: [Hansard Debate (19 December 1988, page 1217 to 1219)]

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

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

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

Parliament also originally intended, when passing the Children Act 1989, that Shared Residence Orders should be commonplace. Parliament's intentions as expressed in 1989, are set out below: [The House of Commons reference sheet 89/5.13 on the Children Bill (26 June 1989)]

"It is intended that another difference between residence and custody orders is that the new order should be flexible enough to accommodate a much wider range of situations.

In some cases, the order will provide that the child shall live with both parents, even though they do not share the same household. If such an arrangement is practicable, there is no reason to discourage it.

More commonly, however, the order will provide for the child to live with both parents, but to spend more time with one than the other...It is a more realistic description of the responsibilities involved in arrangements of this sort to make a residence order covering both parents rather than a residence order for one and a contact order for the other."

How was this interpreted by the judiciary? The President of the Family Courts, in 1991, stated that shared residence orders should only be made in exceptional circumstances. Democratically determined family policy was hijacked and blocked by the judiciary. Shared residence orders have undeniably become more commonplace over the 20 years, but the change has been unnecessarily slow.

Will reform of family law be successful? I believe that things will certainly improve under Wall’s Presidency, and with judges coming to the fore of Mostyn J’s calibre. As we have seen before, statute can be ignored by the judiciary, and there will only be certainty and consistency if there is better judicial guidance and guidance in keeping with Parliament’s intentions. There also needs to be a new Head of International Family Law who can accept that Payne v Payne is not "about right".

This is, perhaps, the judiciary’s last chance to avoid a call for constitutional change, the opening of the family courts and the curtailment of the 'wide ambit of judicial discretion'.