Last week the Family Justice Review released it''s update on Contact and other issues for separated parents
The text of the document is below:
Family Justice Review update: Contact and other issues for parents following separation
In March 2010 the then Labour Government appointed a board, led by David Norgrove, to carry out a review of the family justice system. The Coalition Government that took office shortly afterwards supported the review. The board’s final report was published in November 2011, and the Government response followed in February 2012.
This note provides a brief overview of the Review’s proposals relating to child contact issues and Government’s response to them, as well as the subsequent steps being taken.
Information on the current position in these areas can be found in the Library standard note Children: Residence and contact related matters for parents, grandparents and others after separation, SN/SP/3100. The Library standard notes on Children: Enforcement of Contact orders, SN/SP/3101, and on Parental Responsibility, SN/SP/2827, may also be of interest.
This information is provided to Members of Parliament in support of their parliamentary duties and is not intended to address the specific circumstances of any particular individual. It should not be relied upon as being up to date; the law or policies may have changed since it was last updated; and it should not be relied upon as legal or professional advice or as a substitute for it. A suitably qualified professional should be consulted if specific advice or information is required.
This information is provided subject to our general terms and conditions which are available online or may be provided on request in hard copy. Authors are available to discuss the content of this briefing with Members and their staff, but not with the general public.
1 Family Justice Review and the Government Response
1.1 Proposals relating to contact for children and the Government Response
Grandparents’ application for contact with a child
Child Arrangements Orders
Parental Responsibility and Child Arrangements Orders
Other issues relating to parental responsibility
2 Children and Families Bill
Family Justice Review and the Government Response
In March 2010 the then Labour Government appointed a board to carry out a review of the family justice system, which was also supported by the Coalition Government that took office shortly afterwards. David Norgrove, then Chair of the Pensions Regulator and former economist at the Treasury, private secretary to Margaret Thatcher and Director at Mark’s and Spencer, was appointed to lead the review. The Family Justice Review (FJR) began work in March 2010. It was jointly sponsored by the Ministry of Justice (MoJ), the Department for Education (DfE), and the Welsh Government.
The review board published its final report in November 2011, and the Government published its response in February 2012.
1.1 - Proposals relating to contact for children and the Government Response
The FJR made several recommendations that propose to amend the rules surrounding parental contact with children. A table on pages 65-71 of the Government response set out in full all of the review’s recommendations in this area alongside the Government’s responses to them.
The Government accepted most of the Review’s proposals. However, the Government did not accept the Review’s rejection of ‘shared parenting’, stating that the matter required further consideration.
For ease of reference, the recommendations of the Review that relate to child contact issues and the Government’s responses to each point are discussed in more detail below.
The FJR recommended:
No legislation should be introduced that creates or risks creating the perception that there is a parental right to substantially shared or equal time for both parents.1 1 Family Justice Review: final report, November 2011, p21 2
The Government, as previously stated, did not accept this recommendation. The Government response to the Review stated that further consideration of the matter was required:
The Government fully support the Review’s view that the vast majority of children benefit from a continuing relationship with both parents, and that shared parenting should be encouraged where this is in the child’s best interests and is safe.
The Review’s proposals for better parental education, information and access to dispute resolution services should support this objective.
The Government recognises the careful consideration given by the Review to the role of legislation in supporting shared parenting through a change in parental attitudes, underlined by a clear message that the courts will expect both parents to be involved in a child’s upbringing, unless there are exceptional reasons why this is not possible. We are particularly aware of the recent experience in Australia of shared parenting legislation and the difficulties that can arise.
On careful reflection, the UK Government believes that legislation may have a role to play in supporting shared parenting and will consider legislative options for encouraging both parents to play as full a role as possible in their children’s upbringing. In developing proposals, we will take particular account of the need to avoid the pitfalls which were evident from the operation of legislation in Australia.
The FJR recommended that parents should be “encouraged to develop a Parenting Agreement to set out arrangements for the care of their children post-separation. Government and the judiciary should consider how a signed Parenting Agreement could have evidential weight in any subsequent parental dispute.” The Government accepted this proposal:
Proceedings to resolve family disputes can be lengthy and, where there is high parental conflict, damaging to children. The use of parenting agreements as a means of supporting parents to focus on their child’s needs, and agree practical everyday care arrangements, is helpful. It is our intention that parents will be supported to reach such agreements through dispute resolution services, including targeted parenting programmes, so that as many disputes as possible can be resolved without the need for court intervention. We will also work to better integrate local services to support separated and separating parents so that parents have access to a range of appropriate services when they need them.
The Government supports the Review’s view that there needs to be less emphasis placed on parents’ perceived ‘rights’ of contact with their children. The Government want parents to focus on the responsibilities they have towards their children, and what children can expect from their parents in terms of their care and meeting their needs.
The Government agrees with the recommendation to consider how a signed Parenting Agreement could have evidential weight in any subsequent court proceedings. The Government will need to determine how the court’s procedures and powers would 2 Department for Education and Ministry of Justice, The Government Response to the Family Justice Review, February 2012, p66
3 Family Justice Review: final report, November 2011, p21 3
need to change to achieve this, and ensure there is no conflict with the principle that the court’s paramount consideration must be the welfare of the child.
Grandparents’ application for contact with a child
Currently, grandparents need to apply for leave of the court before making an application for contact with a child, and the Review recommended that this position remained the same. The Government concurred, while emphasising the importance of children’s relationships with their grandparents and its belief that this should be reflected in parenting arrangements:
Currently, when grandparents are required to apply for the court’s permission to start proceedings, and permission is granted, only one court fee is payable. The Government thinks this is reasonable.
The Government agrees with the Review’s conclusions that the leave requirement should remain because it acts as an important safeguard for children and their families. This is consistent with the principle that the court’s paramount consideration must be the welfare of the child.
However, the Government is committed to ensuring that children have meaningful relationships with family members who are important to them following family separation, where it is in their best interests and safe. As a matter of good practice, supporting a child’s ongoing relationships with their grandparents and wider family members should be considered when making arrangements for a child’s future.
The Government supports the Review’s recommendation that the importance of relationships children have with other family members should be emphasised in the process of making Parenting Agreements. The Government will also ensure that a child’s relationship with their grandparents is considered in the bespoke parenting classes for separating parents.
Child Arrangements Orders
The Review made recommendations relating to the development of a ‘child arrangements order’, which would set out the arrangements for the upbringing of the child when court determination of disputes related to the care of children is required. This would involve repealing the existing residence and contact orders provided for under the Children Act 1989. The Government accepted the recommendation to develop child arrangements orders, subject to further work:
The Government sees value in changing the emphasis of court orders to focus on the practical arrangements for caring for the child, and remove the current emphasis on the labels ‘contact’ and ‘residence’.
This is consistent with wider measures proposed by the Review to establish a clear focus throughout the process of dispute resolution on the needs of the child. The Government will bring forward legislation on this issue at the earliest opportunity.6 4 Department for Education and Ministry of Justice, The Government Response to the Family Justice Review, February 2012, p67
6 Ibid., p69
The Review recommended that existing prohibited steps orders7 and specific issue orders8 should be retained for discrete issues where a child arrangements order was not appropriate. The Government agreed:
The Government agrees that there is merit in retaining both specific issues orders, and prohibited steps orders, whilst recognising that the majority of disputes will be resolved through different channels.
Both specific issues orders and prohibited steps orders will be used to resolve less common issues which are less likely to relate to the child’s every day care. The retention of these orders will help ensure that both parenting agreements and consideration of a ‘Children’s Arrangements Order’ remains focused on the child’s day to day care arrangements.
Parental Responsibility and Child Arrangements Orders
The Review recommended that the new child arrangements orders should be available to fathers without parental responsibility, as well as those who already hold parental responsibility, and to wider family members with the permission of the court. The Government accepted this recommendation:
The Government agrees that any new order relating to agreements for care of a child should be available to fathers with and without parental responsibility, as well as to wider family members, where the court has granted leave.
This is consistent with current arrangements for eligibility to apply for a contact or residence order under section 8 of the Children Act 1989.
This position is in line with wider measures to ensure that the child remains firmly at the centre of processes for resolving private family law disputes.10
In its considerations of the development of child arrangements orders, the review recommended that if a father, as a result of a child arrangements order, would require parental responsibility in order to carry out the care set out in that order, the judge will also make a parental responsibility order.
It further recommended that where a child arrangements order requires another family member to have parental responsibility, that person should have parental responsibility for the duration of the order.11 Subject to further work, the Government agreed:
The Government agrees with the Review that where a father without parental responsibility (PR) is effectively exercising PR as a result of a court order, that should be recognised formally by the court through the award of PR. Existing law already means that the majority of parents acquire PR automatically; unmarried fathers who are given PR by the court in this way should not therefore have their PR limited to the duration of the order. 7 Defined on the Direct.gov website as orders that “mean that someone is not allowed, without the court’s permission, to do the thing set out in the order. For example, you may not want your ex-partner to take your child overseas. You can apply for a Prohibited Steps Order if you are worried about this.”
Defined on the Direct.gov website as orders that “make instructions on a specific point about your child that you can’t agree on. For example, if you can’t agree where your child should go to school, you can apply for a Specific Issue Order.”
Department for Education and Ministry of Justice, The Government Response to the Family Justice Review, February 2012, p69
11 Family Justice Review: final report, November 2011, p150 5
Where a wider family member would need PR to fulfil the order, the PR order should be limited to the duration of the order. If PR were to be awarded to wider family members on an ongoing basis, the child’s care arrangements are likely to become unnecessarily complicated.
These proposals are consistent with wider efforts to maintain a clear focus on the child’s needs as well as on the responsibilities of other individuals to meet those needs.12
Other issues relating to parental responsibility
The Review recommended that the Government find ways to strengthen the understanding of parental responsibility. The Government accepted his, subject to further work:
The Government recognises that parents are not always aware of the concept or significance of parental responsibility, nor of the adverse impact on children of prolonged parental conflict.
A greater understanding of a parent’s responsibilities in law towards a child, and of the importance of focusing on a child’s emotional and practical needs, would support wider efforts to help separated parents reach agreement themselves about care arrangements for their children, without recourse to court.
The Government will therefore consider how best to raise awareness of parental responsibility and to support parents in focusing on their child’s needs, both in terms of timing and channels of communication.
The Review recommended that the facility to remove a child from the jurisdiction of England and Wales for up to 28 days without the agreement of all others with parental responsibility or a court order should remain, and the Government agreed “on the basis that it can help avoid unnecessary and uncontroversial court applications.”14
The Review also recommended that the restriction preventing those with parental responsibility from changing the child’s surname without the agreement of all others with parental responsibility or a court order should remain in place, and the Government accepted this.
Children and Families Bill
The Queen’s Speech on 9 May 2012 announced a Children and Families Bill. The Department for Education press notice published on the same day set out the Government’s intentions on legislation relating to family law, which focus on speeding up court processes. The notice announced that the Bill will also contain measures relating to shared parenting:
Ministers intend to strengthen the law to ensure children have a relationship with both their parents after family separation, where that is safe and in the child''s best interests.
The Government believes that this will encourage more separated parents to resolve their disputes out of court and agree care arrangements that fully involve both parents. 12 Department for Education and Ministry of Justice, The Government Response to the Family Justice Review, February 2012, p70
Wikivorce would be very interested to hear your thoughts and feedback on this, and any recommendations you may have.
Then full trial and damning findings against my ex wife and another order.
She then broke it.
Then another full trial + CAFCASS + supervision + further damning findings against my ex wife + appeal court + 15months of high court judge time.
She then failed to turn up + broke every order.
The end position (some 10 years and 40 odd court visits later) was that the court threatened to commit her and remove the children on at least 6 occassions, but, and most crucially but, did nothing.
The overwhelming problem is not the law. The problem is enforcement of that law or most particularly the judiciary''s unwillingness to use it''s sanctions in family law.
Family law is designed (as is all UK law) to deal with extremes. This country recognizes that the effect of imprisonment is profound and therefore should be used only when absolutely necessary. That is the liberal legal framework in which we live. Family law relating to contact is only enforced in extremes - such as violent fathers or drug addict mothers. It is not designed for essentially middle class family disputes.
I have a big problem therefore with all this talk of changing the law. I think it merely obfuscates the core issue - that judges will not enforce contact law.
I would add: I have never been in front of a judge who has not tried his hardest to achieve proper contact between me and my children.
Judges overwhelmingly want children to see their fathers. I have seen virtually every family judge in London - I can attest to how hard they tried for hours, days, months and years to get it to happen.
It really does not need a change in law for them to change their view or endeavours.
It needs just one judge to imprison one middle class, wealthy, well spoken mother for being a pain in the arse and for that to be well covered in the papers and suddenly, as if by magic, you will see a complete change in contact disputes.
To this end, I think the entire efforts of father''s groups is misguided as they seek to change the law not the application of current law.
It is akin to trying to get premier footballers to behave better on the pitch by changing the current rules as opposed to simply applying the current rules and giving them red cards for bad behaviour.
Broadly people will behave badly if they can get away with it - so it does not matter what you change the rules to if you are not prepared to enforce those rules!
Costs could also be imposed on those parents who bring spurious applications before the Court on more than one occasion. If these parents know that there is a very real risk of being landed with the costs, they will think twice before making such applications.
I agree to the extent that the failure to enforce orders is a huge problem. Judges would argue that most of the options for enforcement are not generally in the best interests of the children concerned and that must always be their paramount consideration.
On can obviously argue against the paramountcy principle, but that''s another issue.
Most fathers'' groups approach these matters on a number of fronts; they do not merely campaign for a change in the legislation.
I disagree, however, that the change proposed by the government would not be effective. There is substantial evidence from other jurisdictions that it would increase the number of shared residence orders and reduce overall applications (applications in Australia fell 32% after the 2006 reforms). There is also evidence for a fall in the divorce rate and in the incidence of domestic violence.
What seems often to be forgotten is the public interest in Court orders being obeyed. It may be in one child''s interests that its obdurate parent is not sent to prison but if that sends out a message that orders have no teeth, many other children may be harmed. In my view, once an order is unreasonably disobeyed, it should be the public interest which should be seen as paramount and if that means prison and consequently distress for the children of that particular family, that is a price which has to be paid for the benefit of society generally. However, that is not how the law operates right now.
Courts can and do stop people applying to court with daft applications, the problem is before a judge does this they have probably had many hearings, its a balance between a legal right and what is reasonable.
Rugby, i know what your saying but you can see the problems for the judges, first off they never really know the whole story, mum says this dad says that, who is actually telling the truth?, even when it is obvious that a parent is preventing contact even when ordered the judge has to consider if i list a committal hearing is what impact would a sentence have on the child, so what tends to happen is the judge will sentence and then suspend pending compliance, so it becomes a bluff.
Many years ago my brother spend a fortune on barristers and spent an age in court, his ex was sentenced three times, by the third time she laughed at the judge because she knew fine well she would never actually do time, this was many years ago, i`m told things are much better these days, and some women have actually spent time in prison, as it happens my brothers girl is now a woman as she chooses to see her dad, so yes he missed out on her growing up but kids get older and make their own mind up over what happened, he now gets to do dad stuff, like pay her mobile bill car insurance and holiday money.