Below is the Wikivorce response, based on comments and input from members, on the Government''s Shared Parenting [co-operative parenting] Consultation.
Many Thanks to Forseti for doing the bulk of the work in assembling the response, and to all those who submitted input, comments and full responses. Please select the category which best describes you as a respondent.
Voluntary and Community Sector Please Specify:
Wikivorce is a well-respected and award-winning social enterprise, our organisation helps 50,000 people a year going through divorce and family separation.
We are an all-inclusive community, and our members comprise of those going through family break, both petitioners and respondents, those going through litigation in respect to child contact and residence issues, as well as professionals and knowledgeable laypersons(who have their own experiences of family break-up and divorce) who freely donate their time to assist our members.
1 Which legislative approach will be most effective in meeting the Government''s stated objectives? Please explain your reasons, including any preference for / objection to particular phrases in the clauses (or possible variations described in the explanatory notes)?
X Option 1 (Presumption)
Option 2 (Principle)
Option 3 (Starting Point)
Option 4 (Welfare Checklist)
Few respondents thought the proposed changes would have much effect; they were considered to fall far short of the Government’s stated objectives, of the Conservative Party’s response to the Green Paper of 2004 and of the Conservative Party’s pre-election promises; they do not represent any significant change to what is already law: “There is no real change on the cards; it is going to be business as usual in the family courts for another decade or more.”
This is what they said about each option:
After s 1(2) of the Children Act, insert these words: "[When making orders about children''s upbringing or parental responsibility] the court is to presume, unless the contrary is shown, that the welfare of the child concerned will be furthered by involvement in the child''s upbringing of each parent of the child who can be involved in a way not adverse to the child''s safety".
This was considered the least bad of a poor set of alternatives and the option preferred by respondents; however it was felt by most respondents that it merely reiterates what has already been established by many years of case law.
It was regarded as the only option which properly acknowledges that a child should have a right in law to maintain a meaningful relationship with both parents. Some felt that whilst the child''s welfare is and should always be the paramount concern of the courts, it is currently too often used to justify limited contact or indirect contact. Drawing the court’s attention to the importance of the relationship between the child and the non-resident parent can only be a good thing.
Some felt that the wording was awkward, unclear and poorly-considered; there was a risk that it would be misinterpreted and that it would raise the expectation of a right to an equality of time and thus increase litigation.
Some of the phraseology is redundant: if both parents can be involved “in a way not adverse to the child''s safety” then it will not be possible to prove the contrary; if the contrary can be proved then it will not be possible to involve both parents.
Some felt that the statement should have gone further to include a starting presumption of equally shared parenting.
After s 1(2) of the Children Act, insert these words: "[When making orders about children''s upbringing or parental responsibility] the court shall have regard to the general principle that, irrespective of the amount of contact a child may have with any parent, the child''s welfare is likely to be furthered by the fullest possible involvement of each parent of the child in the child''s life".
Respondents argued that the phrase “irrespective of the amount of contact” implied that the quantum of contact was unimportant and the clause provided a licence to argue for a reduction in contact right down to the bare minimum of indirect contract.
“Fullest possible involvement” was seen as a vague phrase open to interpretation, and questions were asked as to the exact meaning of this phrase; who would determine a parent’s “fullest possible involvement” – the Courts, what the other parent will tolerate, what the parent themselves is capable of, what CAFCASS determines?
Some felt that expressing this clause as a principle ran the risk of undermining the paramount principle of the child’s welfare.
After s 1(2) of the Children Act, insert these words: "[When making orders about children''s upbringing or parental responsibility] the court''s starting point is to be that the welfare of the child concerned is likely to be furthered if each parent of the child is involved in the child''s upbringing".
Again respondents felt that there is room in this clause for misinterpretation which could potentially make matters worse.
The expression “starting point” is vague; is this a presumption or isn’t it? It was feared that any imprecision in the drafting would lead to further litigation.
Like Option 2, Option 3 provides a licence to argue for a reduction in contact.
At the end of the section 1(3) welfare checklist, add the words: "[When making orders about children''s upbringing or parental responsibility] a court shall have regard in particular to enabling the child concerned to have the best relationship possible with each parent of the child".
Respondents felt that this final option was the worst of a bad bunch and too vague to offer anything substantive.
The phrase “best relationship possible” could be interpreted to mean either quantity or quality of relationship; the clause could enable contact to be reduced or even eliminated entirely. 2 Will any of these options change the way that courts apply the principle that the welfare of the child is of paramount consideration? Please explain which one(s) you think might do this and why.
Few respondents thought any of these clauses would make much difference to existing practice.
The most optimistic response was that Option 1 could result in some degree of standardisation regarding how judges decide cases.
Some believed that the proposed legislation would result in a “change in focus” onto individual children and encourage judges to place greater emphasis on the child’s welfare. Others felt the courts already do this.
Non-resident parents considered that current practice of forcing them to apply to court for meaningful contact with their own children is not in those children’s best interests. They hoped new legislation would, “ensure that children who have had the benefit of two loving parents prior to the breakdown of the relationship should have the right to continue to benefit from that love without active interference from either one of the parents.”
It was felt that all other options would actually result in a step backward.
Some resident parents feared that non-resident parents’ solicitors would use the legislation to argue that more contact is in the best interests of the child.
It was pointed out that it is not invariably in a child''s best interest to have contact with both parents and there must be no automatic right of non-resident parents to contact. They emphasised that the welfare of the children must always be paramount. 3 Do you think that any of these options will change the court''s final decision in certain cases? Please explain your answer.
Respondents felt that none of the proposed clauses would bring anything new to the table. They expressed a hope, however, that judges would be encouraged to give greater consideration to the importance of a child retaining a meaningful relationship with his or her non-resident parent. One comment suggested that judges might like to consider the “scientific/sociological evidence which proves that children benefit from contact with both parents”
It was feared that the proposals were too ambiguous to prevent the courts carrying on their business as usual; the intentions behind the proposals were god, but the scope of judicial discretion was such that judges could safely ignore the proposed legislation. 4 Do you think that any of the options proposed give rise to particular risks (other than any you have already mentioned)?
Respondents feared that it would take a number of years and much confusion before the courts could decide how to work with the new guidance. It would require a number of test cases before the ambiguities in the phrasing could be resolved.
In the short term, therefore, the proposed legislation risks increasing conflict as parents may not know where they stand until the law has been tested.
Those who believed the proposals would have no effect warned that conflict would continue because the new law is not clearly defined.
Some considered that Options 2, 3 and 4 might actually risk making things worse. One respondent observed that the intention to remove from litigation the sense of winning and losing by replacing orders for contact and residence with a single one for children’s arrangements would be undermined if the proposed legislation goes ahead.
One respondent noted that changing the terminology was not just confusing but also has the effect of discarding 20 years of case law. The amount of work involved in altering all the information in every guide, every website, every law book, etc. is enormous and costly. The questions the
changing of the terminology raises will not be answered without another decade of case law.
Wikivorce notes that the Government published the draft legislation on Family Justice just 2 days prior to this Consultation actually closing. 5 How will this legislation impact on the numbers of separated parents applying for a court order to determine contact arrangements for their child? Please state whether you think there will be an increase in applications, decrease in applications or no change and explain your answer.
Increase in applications
Decrease in applications
X Not sure
Because the new proposals are so vague respondents felt that there is no increased incentive for parents to agree arrangements without going to court. “Nothing in the changes will make parents realise that it’s in the best interests of their children for them to have a meaningful relationship with both parents (despite the difficulty with parents relationship) and that it’s the responsibility of both parents to work together and that neither can dictate to the other.”
Some felt there would actually be an increase in applications because the proposed legislation is open to interpretation and misunderstanding and that this would provide “fodder for warring parents”.
It needs to be recorded, however, that in other jurisdictions in which similar legislation has been introduced litigation has reduced. Australian legislation, for example, which required the courts to consider “the benefit to the child of having a meaningful relationship with both of the child’s parents”, led to a fall in litigation levels from 18,752 applications in 2005/06 to 12,812 in 2010/11, a fall of 32%. 6 Do you think this legislation will encourage parents to resolve disputes out of court, either of their own accord or through services such as family mediation?
Respondents voiced a resounding “no” to this question: “I don''t think that parents engaged in conflict pay any attention to the wording of the law until they are already involved in the court system. I think that if this is the intention of this legislation then it is unlikely to make much progress.”
7 How can children''s views be taken into account more fully in the court process in a way that is in keeping with the focus on the best interests of the child?
Respondents replied that where the children are of an appropriate age to express their own views CAFCASS should speak with them earlier in the process, for example at the same time as producing their safeguarding report. At present CAFCASS are unlikely to speak to the child until 6 months or so after the start of proceedings, which is too long. CAFCASS also need to talk to children more than once throughout proceedings and to be better trained to carry out evaluations properly in the light of the background and family dynamics.
Some suggested training judges so that children could more often be given the opportunity to speak directly to a judge in confidence. Children rarely feel that CAFCASS represent their views accurately, the Norgrove Report quoted the CAFCASS Young People’s Board, “[CAFCASS] failed them in listening to their views and in supporting them in finding the right solutions for their future”.
Some said that children need to be given more information about their cases to enable them to come to balanced views on what should happen to them. They suggested that children should be made to feel part of the decision-making process and be present at a concluding meeting so that they can hear directly from both parents what has been agreed
Respondents were concerned, however, that involving children more fully in proceedings risked exposing them to their parents’ dispute and even placing responsibility for contact arrangements on their shoulders.
Alternative ways to avoid this were to use family mediation as early as possible and to take into account the views of both parents rather than just those of the primary carer. 8 What further non-legislative action should Government take to support the objective of encouraging both parents to remain involved in their child''s life after separation?
Some respondents felt that there was nothing further the Government could achieve through non-legislative action and that only changes to the existing legislation would be able to achieve the desired changes, such as a legal presumption of equality.
Others suggested that the Government needs to provide public education about family dynamics and family breakdown and its aftermath, starting at secondary school. Non-resident parents need information about how to remain involved in their children’s education or medical treatment.
It was considered that there are popular misconceptions about the law which need to be countered; it was also felt that many professionals within the system need re-educating. This includes schools and doctors’ surgeries which often unwittingly contribute to the exclusion of non-resident parents.
Respondents advocated access to emotional and practical support for parents going through divorce and separation focusing on the needs of their children and on strategies for dealing with conflict.
Some felt that greater resources needed to be put into mediation and that mediation should be introduced right at the start of divorce proceedings where children are concerned. Better training and CPD for mediators was also suggested, along with mediators being able to train solely in family relationship issues, rather than a mish-mash of financial and family relationship matters. A further concern was the glacial slowness of the system and the need for cases to be dealt with expeditiously, particularly where contact between the child and a parent has ceased.
A common theme was a belief in the need for wider, cultural change, particularly including the way in which the family is presented in the media and in soap operas. Enforcement
9 Do you agree that the courts should have stronger enforcement powers to enforce decisions they make about how much time a child should spend with a parent (contact)? Please explain your answer.
The consensus amongst respondents was that the existing powers of enforcement should be adequate but are not implemented.
There is a feeling that the current approach of the courts to enforcement is a joke. Resident parents who flout contact orders operate with near impunity because the courts will not take any action which might be considered detrimental to the child.
Courts need to balance the short term consequences of applying a fine or an unpaid work requirement against the long term consequences of a loss of contact. Failure to enforce orders renders the orders meaningless and seriously undermines the authority of the court.
One respondent said that there should also be sanctions available (perhaps an order for costs) for use against a non-resident parent who applies for contact (or residence) and then fails to take up the contact ordered. 10 Paragraph 7.3 of the consultation document discusses possible changes to courts'' powers to enforce orders related to contact, to mirror powers already agreed by Parliament for enforcing child maintenance payments. Do you agree with this overall approach?
There was scant enthusiasm for giving the courts additional powers of enforcement such as those proposed at 7.3.
Most felt that since the courts do not use the powers they already have there is little point in giving them additional powers. The same objections that apply to using existing sanctions apply to the proposed sanctions: withholding a parent’s driving licence would not be in a child’s best interests, “It is easy to imagine a situation where a parent must give up work or may not be able to take a child to school or extra-curricular activities because of loss of driving licence.”
It was felt that curfews would barely be noticed by parents with young children
Nevertheless, respondents agreed that the enforcement of contact was no less important to child welfare than the enforcement of child support.
Some also suggested stopping maintenance and benefits payments to resident parents until contact is restored, as pledged by the Conservatives prior to the General Election, or widening the use of transfers of residence. 11 Which of the specific measures discussed do you think would be most effective in making sure that parents comply with court orders relating to how much time a child should spend with a parent?
It is not clear whether this question refers to the four options for the additional clause to be inserted into the Children Act or to the sanctions mentioned in paragraph 7.3 of the consultation. Responses were accordingly confused.
Most respondents favoured using a transfer of residence as the most appropriate response to the obstruction of contact.
Some felt other measures should be tried first such as an unpaid work order or the withholding of child support. There was some support for Sir Paul Coleridge’s “three strikes and you’re out” with the final sanction being transfer of residence rather than committal.
The real issue, however, is to prevent cases getting to court and becoming intractable to the point where sanctions have to be considered. This can be achieved through parental education, specifically showing parents what will happen to their children if they continue down the court route (a technique pioneered by the Centre for Separated Families); this can then be followed by mediation. 12 a) How do you think the various measures discussed would impact on the child? Please identify any positive and negative impacts.
The problem with existing sanctions is that none of them is specifically child-focused. Fines and committal are punishments for contempt; they are thus court-focused and have nothing to do with promoting the welfare of the child.
Existing sanctions punish the child as much as the parent; they do not contribute to moving the case forward to a point where contact can happen. We should accept that the courts will not use them and remove them from the courts’ armoury.
While it is important to reaffirm the authority of the court and for the court only to make orders which it is prepared to enforce, the priority must be the child.
Most respondents agreed that it is important for orders to be enforced in order to give the child the security of contact with both parents, but they were unsure how this could be achieved.
Again the issue is dealing with the case effectively before it reaches this point, at which the only real option is transfer of residence, “Confiscating passports and driving licences could prevent children enjoying the opportunity to enjoy a holiday abroad with a parent or make it impossible for children to attend school. Not having a licence may lead to the parent with the majority of care being unable to work so there is less money available for the famil,y and lack of money is a major factor in poor outcomes for children of separated parents. Curfews could prevent children doing activities in the evening and a child''s resentment and rejection of the enforcing parent could be the unintended consequence.” 12 b) How do you think the various measures discussed would impact on parents? Please identify any positive and negative impacts.
Much that applies above to children will also apply to parents.
There was agreement amongst respondents that appropriate enforcement would buttress the law and enable parents to know exactly where they stand legally. Unenforced orders create a fluid situation in which parents have no idea what the outcome of their applications will be.
A culture needs to be established in which parents understand what is expected of them and realise that refusal to work together in the interests of their children will result in swift enforcement and the transfer of residence. Such a culture “would mean a reduction in conflict because neither parent would be able to wield more power than the other”
. 13 Do you think there are any other enforcement options that should be considered? Please explain your answer.
The majority of respondents misunderstood the consultation to be about 50/50 equally shared parenting. Although erroneous, this reflects the belief most have – based on their own experiences – that the courts are weighted against non-resident parents. They believe the law should treat mothers and fathers without favour and that all negotiations concerning residence should be played out on a level playing field beginning with a presumption of shared care which can be varied according to circumstances.
Respondents have little faith in sanction-based solutions to enforcing court orders because courts currently do not and in all probability will not use them because of their perception that they will adversely affect children.
It is clear that the focus of change should therefore be on sanctions which do not impact children negatively and on measures which are applied before disputes reach court. Proposals include:
• Mandatory mediation, and changes to mediator training to make it more child-focused and less biased towards financial resolution;
• Suspending or substantially reducing child support payments;
• Making the Statement of Arrangements for Children legally binding (particularly popular);
• Earlier and more robust intervention when contact breaks down;
• Introducing sanctions against parents who apply for contact but fail to take up the contact ordered;
• A greater emphasis on the relationship between child and parent, and on the parent’s involvement in the child''s upbringing other than through direct contact. 14 Please use this space for any other comments you would like to make.
Most respondents felt that the consultation was little more than posturing and that the Government’s proposals would not effect any real change in high-conflict cases.
Rather than reform the existing law, which the courts are reluctant to apply, the Government’s emphasis should be on preventing parental disputes from reaching court. Greater resources should be put into enabling parents to reach their own agreements.
Parents should be made aware as soon as they engage with the justice system that they are expected to share the responsibility for their children equally, to cooperate, to share residence equally and to pay child support fully and on time when residence is not evenly shared.
Too many cases end up in court; the system starts with an assumption that the case involves welfare issues such as domestic violence and child abuse; most cases do not. It is essential therefore to apply a system of triage to determine which cases fall into the minority in which contact should be restricted, and allowing those case access to the court system. In the case of “normal, everyday families” equal levels of contact “should at least be accorded as a starting point” without dragging these cases through the courts “as some kind of point scoring exercise”.
One respondent commented that the consultation focuses almost entirely on cases in which the parent with care deliberately obstructs the child''s relationship with the other parent. Contact also breaks down because of the behaviour of the non-resident parent; both parents and even the children may sometimes be implicated in the breakdown of contact.
Where a non-resident parent has applied for and been ordered contact, and has not then taken up the contact ordered or has otherwise breached the order, it may be appropriate to make a costs order against that parent.
Respondents felt that “the law really does need to recognise that both parents are equally important and capable of providing invaluable contributions to a child’s upbringing. The current system seems to be far from gender-blind and the assumption certainly appears to be that the mother is more important than the father who is often given contact more as lip-service to say that contact has been awarded”. Two weekends a month and one day in the week is nowhere near sufficient contact for the maintenance of a meaningful relationship.
Not all respondents were happy, however, with the idea of a 50/50 presumption, based on their experience that it is difficult to achieve and requires considerable cooperation. Others pointed out that orders for shared residence have been shown to be effective at reducing parental conflict and that regular handovers can be achieved without parents having to meet.
It was also acknowledged that equal sharing of residence is not always appropriate and can oblige parents to change jobs or accept significant pay cuts. Alternatively they must place their children into child care. Putting a child into child care when the other parent was available to care for the child but could not due to a rigid division of residence was not considered child-centred.
The division of residence therefore needs to be considered carefully and tailored to the individual needs of each family. Most families should be able to work this out for themselves, with only the most intractable cases having to resort to court.
One respondent queried why it is the Department of Education, and not the Ministry of Justice that is running this consultation and drafting family legislation.
Quote from email received from the DoE -
We are expecting a wide range of views and I can assure you that everyone''s comments will be taken into account. The results of the consultation will be available on the Department for Education e-consultation website no later than October 2012.