Introduction to Westminster Dialogue 2017

Family Law on Trial – a case of the system’s failure to protect children from harm?

By Rebecca Giraud and Bob Greig

OnlyMums & OnlyDads is an on-line organisation that works with parents going through divorce and separation.

Parents often don’t know where to go for help when it comes to working things out with the ex.  We all know that there is a wealth of half-baked information on the internet being provided by so called ‘experts’.  We offer something different.

Our organisation offers parents access to the best professional guidance available through our Panel of 120 Resolution-member solicitors and mediators. This gives parents the opportunity to seek some initial, objective, and professional guidance on their options for taking matters forward in a way that keeps the best interests of their children at the forefront of their decision making.

We are not lawyers, or social workers. We have never worked in a court or in the civil service. We have, however, spent 10 years listening to parents – mums and dads – and the difficulties they are facing.

There is one issue that comes up daily and that is the ‘delays in the system’.  It is our contention that these delays can drive already warring parents further apart and more importantly place children at risk of harm.

The “denial of contact” resulting from the delays in the system is pernicious. The detrimental impact on the non-resident parent will be known to those in this room. The negative impacts on the children being denied contact with one of their parents may be less well documented. 

What we hear is that if a resident parent decides they simply don’t want the other parent to see the children, without there being any safety issues, it will take the non-resident parent 4, 5, maybe 6 months to get a court order enabling them to see their children again, if by that stage it is not already too late. In too many cases, this pattern of – contact stopped, mediation, followed by court hearings, contact re-established only to be broken again a few months down the line – can be repeated year after year and results in whole childhoods blighted by irregular ad-hoc stressful contact with a loving parent.

Our question today is this. Where there is no “evidence” of the non resident parent being a risk to their child, why can’t the courts – “the system” – order the re-establishment of contact within a matter of days?

Equally, where a relationship breaks up and one of the parents gets involved with a violent partner, in what way can the system be changed to recognise and deal with that risk? In this situation the court needs to respond quickly to protect the child.  As we heard last year from Polly Neate, the then CEO of Women’s Aid, too many children experience domestic violence in the UK. As a parents’ organisation we simply don’t understand why, when one parent sounds the alarm bell, it takes the system months or even years– or a violent incident – before facts are established and action taken.

An analogy

Should you leave this event and trip over outside and hurt your arm you would end up at a doctors. They deliver a triage system to assess what needs doing, They would undertake an initial assessment and if a break was suspected you would be directed to a casualty department. There (within hours) you would be examined by a specialist. There would be investigations. Medical history, X-rays, possibly a scan. Bespoke treatment would be offered. Within a day you would be sorted.

I know the comparison doesn’t fit neatly- but let’s say you leave this room to go and pick up your children only to receive a text saying you are not going to see them this week and indeed not until further notice.

You might turn up at a family court with legitimate concerns about your child’s welfare and there will be immediate confusion as to who you would need to talk to. You may be offered booklets and a form or two. Weeks later you would find yourself attending a MIAM. If that doesn’t work you will find yourself back at the Court picking up a C100 form to fill in. That’s 20 pages to fill out and a six page checklist.

Once completed you will need to photocopy it three times and pay over £200 to again wait weeks for a court appointment…need I go on.

Conclusion

We are NOT calling for radical change. Rather we are asking for the 1989 Children Act to be fully implemented to do what it sought to achieve. To do this we need to zoom in on how to keep the welfare of the child paramount.

We have two questions which look at process rather than the wording of the legislation per se:

  1. Can we improve the court’s initial risk assessment and preliminary hearing systems – there are many anecdotal case studies that suggest they are not robust enough or quick enough, and
  2. Are the courts consistent in their appreciation of what “harms” children?

We took these questions to our Chair, Norman Hartnell, MD of The Family Law Co and Chairman of our Steering Group.

Westminster Dialogue Norman Hartnell Response

Family Law on Trial

  1. The question for consideration

1a Is the present law and process fit for purpose?

  • Does it provide protection for children and vulnerable adults in all cases where it is needed, or is it framed in response to gender based pressure groups emphasizing one form of harm over another as if they are mutually exclusive?
  • Is it able to respond with sufficiently speed to address the issues before the delay inherent in the present system itself creates new problems?

1b) Let’s be clear, the tightening up of PD12J to heighten the judiciary’s awareness of the impact on those affected by domestic abuse is very welcome; further change, when a change in legislation allows, to prevent an alleged perpetrator of domestic abuse perpetuating the harm by personally cross examining the victim is also overdue.

1c) However I suggest that even the revamped PD12J does not sufficiently recognize or prevent “harm” to children where harm exists in cases other than domestic violence. In particular it does not adequately deal with those cases in which all contact is denied unjustifiably, or indeed other circumstances in which too narrow a view of what amounts to “harm” may prevent effective intervention where needed.

1d) The law has of course been changed to recognise that the continuing involvement of both parents in the life of a child is deemed beneficial unless unsafe, but that must mean that it’s corollary – namely behaviour which prevents that – ought to be deprecated and addressed. It ought therefore to follow that an unjustified withholding of contact thus denying such continuing involvement is by definition “harmful”.

1e) The recent debate has focussed on arguing for the existence and recognition of this by the term “parental alienation” as another form of harm which should be recognised. That label has historically been met with reluctance on the part of the judiciary to give encouragement to those making such allegations in such terms, perhaps because of the very emotive nature of the label and inherent suggestion of conscious malicious motivation rather than a description of the behaviour itself.  Has that focus on the suggestion of proving malicious intent itself delayed an objective recognition of the behaviour?

1f) Perhaps even the title to the PD12J “Domestic Violence and Harm” suggests that there is only one form of behaviour (domestic abuse) which causes the latter effect (harm). If so that may be the key to understand how titles / definitions themselves may limit our thinking.

1g) As Bob has alluded to however, there are many examples of cases where the current law and processes do not recognise potential harm or meet the needs of those involved, so from now on reference will be to the Residential Parent (RP) and Non-Residential Parents (NRP) to avoid any further polarisation in this argument on gender lines. It is not the gender of the relevant parent which matters, it IS their behaviour, so for example

  • when a NRP is denied contact unjustifiably for example where the RP wishes to have a separate/new life/nothing to do with the NRP;
  • where an RP’s grievance against the NRP arising from the ending of their relationship which has no or marginal relevance to parenting issues results in the RP exercising the power they have by reason of being the RP to “punish” the NRP by the withholding of contact
  • where the RP forms a relationship with a new partner who the NRP believes presents a risk to the child – there is currently no means of having this urgently checked out save for a referral to Social Services, there is no mechanism for intervention in private law proceedings.

There may well be other examples of situations in which behaviour which causes “harm” does not fall within the current ambit of PD12J, which in its very title suggests that “harm” is connected to cases of domestic abuse. There are also gaps in the system, so for example, where any form of risk is alleged in mediation which necessitates a curtailment to mediation; at present there is no mechanism for any referral to any form of risk assessment through Cafcass or elsewhere save through a court process, thus rendering the mediation process redundant in many cases and forcing parents into the court arena

  1. The key issues

To my mind, the key issues arising from this can be summarised by asking the following questions:

1). Whether the unjustified withholding of contact of the child to the other parent amounts to harm to the child which should fall within a wider definition of “harm” in statute/practice directions. Should the heading to PD12J be amended to refer to “Cases involving an allegation of harm to a child or other adult” We know that such definitions can be changed, witness the recent change to the PD12J and the previous change to incorporate recognition of a child witnessing domestic abuse as harmful in itself.

2). Whether the delays inherent in the current litigation processes cause or add to rather than detract from the problems by reference to  the numerous stages of a Court process and what can be changed to make them more responsive to the needs of children.

3). Whether there is sufficient training in place for the judiciary who are dealing with these issues on a day to day basis, and an accepted body of clear messages from research

4). Whether the adversarial approach is the most constructive way of identifying and addressing such issues? The fear of an alleged perpetrator as to how admissions may be used to deny all contact can prevent any admissions at an early stage,  resulting in a wholesale denial of responsibility which if addressed at the outset may not grow into an intractable dispute. Can the court approach be changed to encourage an acceptance of responsibility? What resources are available to help those who demonstrate a commitment to change, which is often the best outcome for the child?

5). Whether the availability of CAFCASS to conduct risk assessments could be expanded beyond court proceedings to assist in ADR processes

  1. My suggestions of what can be done for further comment

1.) The broadening of the definition of “harm” in PD12J to include an unjustified withholding of contact to a NRP which will bring such within the following suggested revisions.

2.) The revision of the court process in relation to ALL situations where “harm” is alleged to allow for a triage type hearing before a District Judge with Cafcass officer present within 7 days of the application being filed. If delay is at the root of some of the problems then the answer to those must be early intervention.

3.) For there to be a “normal” default position in which recognition is given to maintaining any pre-existing relationship between the child and the parent in as close as possible terms to that which the child had experienced but for the cessation of contact, by the making at the first hearing of immediate presumptive Orders for contact unless a limitation or the contrary is proved necessary.

4.) At that first hearing for the court to make such orders for the protection of children and vulnerable adults as are required to address any risk identified. Including for example the continuation of contact by supervision.

5.) For a follow up hearing to be set to take place within 4 weeks to review the operation of the order made on the first occasion possibly with a brief report from Cafcass to enable the Court to regulate the future direction of the case to ensure that the process as set in train by the Court is being followed and to ensure accountability on both parties sides and a recommendation of any change required.  In answer to the inevitable “resources” issue, the response is that if intractable cases can diminish by early intervention then the long term benefit of a reduction in the more time consuming cases will more than pay for itself.

6.) The avoidance of the need to attend a MIAM would follow from 1.

7.) The establishment of an effective country-wide protocol with the police and social services to enable the Court to obtain urgent safeguarding information direct and within the 7 days before the first hearing rather having to wait 8 weeks for a Cafcass enquiry.

8.) The devolved non-means tested granting of Legal Aid to both parents for all cases involving an allegation involving of harm or meeting such an allegation (as it is currently available in all care proceedings where “significant harm” is alleged).

9.) The withdrawal of Court fees involving an application where allegations of harm are made. This will recognise as a public policy matter the state’s responsibility towards children.

10.) A change in the role adopted by Cafcass to (1) enable risk assessments to be undertaken when a referral from a recognised mediator is made; and (2) more of a “hands on” role to facilitate contact happening after the triage appointment depending on their advice as to whether it can be safely conducted on a supervised or other basis, in turn depending on the nature of the allegations and setting at the very outset of the case (before children’s “expressed” wishes and feelings become crystallized)  a method of maintaining the relationship with their NRP to avoid parental alienation.

11.) The court / Cafcass to maintain and operate a database of all facilities available for the Court for supervised or other contact by either the NACCC, Cafcass or accredited third parties.

Norman Hartnell

The Family Law Company by Hartnell Chanot

Chair of the Steering Committee of the Only Mums / Only Dads Family Law Panel