ACTION ON FAMILY JUStICE

In a far-reaching initiative announced today, the Conservative Shadow Secretary of State for the Family pledged to end the misery of the family courts. Unveiling a strategy for radical institutional change, Theresa May said:

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Ed Ward
edwa...@cox.net
STAN...@yahoogroups.com
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October 17, 2004

"We Conservatives recognise what the experts and common sense have always told us: that the best parent is both parents. It is time for a family court system that protects children and respects parents.

Children who go through divorce - 146,914 of them in 2001 - have already lost out. We must not add to their distress with a court system that means they forfeit one of their parents as well. Under the next government, there will not be another generation of parents without children, and children without parents. Everyone - including the lawyers - accepts the time for change is overdue."

Theresa May underlined that the programme was a practicable reality in advanced discussion within the legal profession, child development experts and parenting groups. She said:

"Too many families have been torn apart by divorce and separation. Not just because the adults' relationship has ended, although that is painful enough. But because the bond between parent and child, or grandparent and grandchild has been broken.

Our Country deserves a better system of family justice: one that is open, fair and accountable; that protects children and respects parents; but above all, that recognises that the best parent is both parents. "

Institutional Change

Under the proposals, CAFCASS, the Children and Family Court Advisory and Support Service, will be abolished. Theresa May said:

"CAFCASS has been a disaster from Day One. Its officers write tens of thousands of trivial reports each year - on decent families caught up in divorce. CAFCASS breeds heartache and delay. CAFCASS clogs up the system. It's the bottleneck in the divorce system wasting hundreds of millions of pounds a year."

Theresa May underlined her respect for the hard-pressed Guardians ad-Litem co- opted by Labour into CAFCASS.

"The Guardians in CAFCASS provide an invaluable service to children in real need. But this part of the service is under-funded. Resources that should go to cases of real neglect are squandered by CAFCASS on matters which should not be dealt with by the courts. CAFCASS has got it back-to-front."

Other measures include:

- legislating the presumption of reasonable contact

- adopting the 'good reason' principle

- implementing Section 11 (iv) of the Children Act for co-parenting

- accrediting court-approved mediators and facilitators

A Restructured Court System

For parents who have reached the stage of issuing legal proceedings about contact, Conservative proposals include:

- clear guidelines prepared by child development experts and stakeholders in conjunction with the judiciary to outline the range of beneficial post-separation arrangements

- mandatory mediation before the first hearing conducted in the knowledge of what the Courts are likely to order

- family courts working to expert guidelines acknowledging that the child's needs are best served by "frequent and continuous" contact with both parents

- court-backed mechanisms, including mandatory information sessions, to make these court-backed guidelines available to parents before the hearing

Establishing Clear Expectations

Theresa May said:

"Children don't need frequent and continuous litigation. They need frequent and continuous contact - with both parents. We must end the era where parents litigate for years just to see their children for two hours a fortnight. Yes, we need more mediation. But mediation must take place in a clear context. Parents have to know what the courts are likely to order. Predictability is so important in the months before a case starts.

We want parents to sort out their differences without resorting to unnecessary litigation The Courts should be the last, not the first resort"

Conservative proposals mean that most contact disputes should be settled before the first hearing, as happens abroad. Theresa May explained:

"At the moment there is simply no information available. Separating parents have no way to find out what to do about their children. No-one tells them what the Courts are going to order. Then they find that the Government will pay their costs to continue arguing in court. Labour is fighting fire with petrol."

The Conservative scheme represents a radical departure from recent Government proposals. Labour's Consultation Paper (Cm6723) pays lip-service to the idea of guidelines. But the first step remains untaken. Theresa May said,

"The Government has failed to offer families a system that works. You have to start by bringing the judges, experts and stakeholders on board to agree what sort of orders the Courts should make. That way, you know what you're trying to deliver. Then you build a legal system to deliver it. The Government never did its homework. It forgot the foundations. It's the same old gerry-building: 'anything goes.'

Theresa May said she could not condone the tactics of pressure groups like
Fathers For Justice, but added,

"Let's not forget that there is a legitimate grievance. Can any parent - hand on heart - imagine anything more terrible than losing their children? What would you do to see them? We're going to build a proper system of justice"

"It is not just the parents who have had enough with a third-rate service. It's the professionals. We found that the lawyers, judges and experts have been calling for radical change too. Their proposals go into Whitehall in perfect order; they come back from Margaret Hodge's DfES in tatters - with CAFCASS back in charge. At the end of the day, the issue is really very simple. What do children want: one parent or two?"

----- Original Message -----
From: GRIFFITHS, Andrew
Sent: Wednesday, October 06, 2004
Subject: Family Justice

Dear Mr Mortimer,

As requested, I also attach the briefing note issued by Mrs May yesterday.

Regards

Andrew Griffiths

Chief of Staff to Theresa May MP

Shadow secretary of State for the Family

020 7219 2823

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CONTACT: BACKGROUND BRIEFING

a.. Presenting the Children Act to Parliament on 27 April 1989, the Minister affirmed, "New orders are introduced to reflect our emphasis on encouraging parents to participate fully in the child's upbringing"

a.. Under Section 8 of the Act, the Court can make an order for 'contact'; under Section 11 (iv) the Court can make an order for 'shared residence'.
____________________________________________

The Problem

It takes ordinary parents far too long to secure far too little contact through the Courts. To have a child stay overnight can take years even under perfect circumstances. Common outcomes are (i) decent parents allowed almost no contact with their children (ii) parents who abandon their children after protracted rebuff in the courts.

'Contact'

'Contact' means any contact at all. Parents allowed to see their child for a one-hour visit each month have contact. Sunny government statistics that contact is 'almost always ordered' gloss over the key issues: (i) how much contact is ordered (ii) how long it took to attain. Orders of two hours a fortnight are routine. Overnight contact may never be allowed.

The Law

There is no right for parents to see their children after divorce or separation; and no right to reasonable contact. The Act confers a right to apply for contact; case law adds that all contact should not be stopped without good reason. There is no bar against the stoppage of almost-all-contact without good reason. Parents seeking more contact must prove in court that more contact will 'benefit' the child.

Resident and Non-Resident Parents

A separating couple is considered as two legal components: the 'resident parent' and the 'non-resident parent' (who does not live with the child). Save for the right to apply for contact, the 'NRP' has neither significant rights nor significant presumptive rights over his / her children. This is a one- parent model of family justice.

Gender Issues?

It is normally the father who leaves the home. So normally the father is disadvantaged as the NRP. Mothers who leave home become equally disadvantaged as NRPs. Both parents are disadvantaged by a court system working under the 'every case is different formula' laying down no groundrules and no expectations. Contact is not a gender-issue. Contact is an issue for families about the way the legal system treats them and their children.

Every Case is Different

Family law functions under maxim that 'every case is different'. This means that there are no general principles and can be no training. No case like this has happened before. No case like it will happen again. Case law has no application. Any outcome can flow from any facts. Any 'sentence' can be imposed for any 'offence'. There is no link between a perfect parent and normal contact. There is no concept of normal contact. There is no general principle whereby contact should be raised.

How Cases are Decided

Cases turn upon the recommendation in the CAFCASS report. It is difficult to overturn a CAFCASS recommendation. The CAFCASS report sets out how often and for how long a parent can see his/her child. A low recommendation in Year One sets the trajectory for a low recommendation in Year Two.

There is almost no right of appeal against contact decisions. Appeals are only allowed if the judge is wrong in law or exceeded his discretion. Under the 'every-case is different principle' there is almost no law and little limit to judicial discretion. Appeals cannot be entertained on the basis that contact is disproportionately low.

Delay

If the resident parent stops contact - for whatever reason - this stoppage is liable to stay in place for the year before it reaches the first substantive hearing; during this period, there is little pressure to increase contact. Judges work on the basis that they cannot rule without hearing the facts and having a CAFCASS recommendation; CAFCASS works on the basis that it is for the judge, not CAFCASS, to make the ruling. Hence nothing can be done. The result of a year's litigation could be an hour's more contact a week.

CAFCASS (Children and Family Court Advisory and Support Services)

CAFCASS, proposed by Jack Straw on 16 February 1998, started on 1 April 2001. CAFCASS staff dealing with contact cases were drawn from probation officers untrained in welfare work. No training on what sort of recommendation its officers should make was available. CAFCASS writes some 33, 000 reports on contact each year (03/04: 32,803). The purpose of these reports is to recommend, by units of time, how much contact to allow. Staff receive no guidance on this topic. Every case is said to be different.

When investigating a case where contact is 2 hours a week, staff do not know whether this is likely to be too high or too low. As a result, contact tends to be set at the maximum the resident parent will allow, which is what prompted the dispute in the first place. The agency does not arrange contact. The agency prepares reports.

CAFCASS's caseload also includes the 'Public Law' cases - involving children in genuine need. Previously self-employed Guardians ad Litem were co-opted into CAFCASS. This valuable part of the service is under-funded, under-resourced and mismanaged.

The majority of CAFCASS budget - some 65% - seems to go on 'private law' divorce / separation cases where there are no child protection issues. Requests for public law reports, where there is a valid reason for state involvement, stood at 13,470 in 2004, i.e., 35% of its caseload.

CAFCASS and The Press

On 2 May 2000, Times Law reviewed the prospects for CAFCASS under the heading, 'Bill within a bill makes Bad Law'. It said, "A chance to set family law straight is being used to pile chaos on chaos. whether it capsizes in Parliament, the courts or the media, CAFCASS is doomed. The Bill's implementation should be deferred until there is sight of a sensible training manual."

CAFCASS has been embroiled in continuous and escalating controversy ever since.

Its budget is £107 million (2004). It employs some 1,200 practitioners

CAFCASS and Training

On 3 April 2002, CAFCASS's Director of Operations re-confirmed in a letter to the Dispute Resolution Consultancy, "CAFCASS does not currently have guidelines in relation to the amount of time a child should spend with a non-resident parent." This situation has not changed. CAFCASS's latest guidelines (16.8.04) re-iterate that 'every case is different' without indicating what sort of recommendation should be made in any of those cases. Evaluation of CAFCASS is complicated by its policy of not keeping records on how much contact it recommends.

Scale of the Problem

146,914 children in England and Wales experienced parental divorce in 2001. In 2002, 65,192 parents issued contact applications. This puts the annual input to the courts at around 130,000 parents and 130,000 children a year. CAFCASS reports are only produced after an application has been lodged in the legal system for around six months. CAFCASS prepares 33,000 reports on approximately 65-70,000 children a year.

CAFCASS (Head Office):

Wyndham House, 189 Marsh Wall, London EC14 9SH

Tel 020 7510 7000; Press Office 020 7510 7036

Ed Ward, MD, MT.
http://thepriceofliberty.org/ward.htm
ML http://thepriceofliberty.org

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