Month: September 2017

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

2. 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

3. 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