27 October 2003
"We give more for donkey sanctuaries than for children in need," said Dame Elizabeth Butler-Sloss, president of the Family Division of the High Court, in a speech at King's College London last April. She went on: "Sixty per cent of fathers have little or no continuing relationship with their children post-separation... I'm as worried about parents who fade from the lives of their children as that small group whose litigation makes the life of children a misery."
Several pressure groups to support fathers and even grandparents have recently evolved. One of these, Families Need Fathers, aims to ensure that children benefit from "a full and rich involvement of both their parents". So strongly do they feel that the family courts are rife with gender discrimination that in June they protested outside the Principal Registry of the Family Division, the largest specialist family law judicial centre in the country. And only last week the most militant group, Fathers for Justice, staged a rooftop protest at the Royal Courts of Justice over the treatment of fathers in the family courts.
A new book entitled Children and Their Families includes a chapter by Bob Geldof named 'The real love which dare not speak its name: a sometimes coherent rant'. Geldof complains that "the law is creating vast wells of misery, massive discontent, an unstable society of feral children and feckless adolescents who have no understanding of authority, no knowledge of a man's love and how different but equal it is to a woman's."
Existing legislation should, in theory, prevent loss of contact. Under the Children Act 1989, the child's welfare is the paramount consideration and any delay is likely to prejudice the welfare of the child. Contact may be direct or indirect, for example by telephone or in writing, and may be supervised.
So why is the system breaking down? Common criticisms are inadequate resources, the absence of judicial continuity and lack of court time. Cases take too long to come to court and substantial delays are detrimental to children and parents.
Parents, lawyers and the judiciary appear to agree that there is immense room for improvement in this most emotional of areas. It is a mammoth task to get it right. On 8 February 2002, the Lord Chancellor's Department's (now the Department for Constitutional Affairs) paper 'Making Contact Work' on the facilitation of arrangements for contact between children and their non-resident parents and the enforcement of court orders for contact, was produced. On 15 February this year, there followed a 'Making Contact Work' conference at which Lord Justice Wall said: "People who are charming and reasonable on every other subject appear to take leave of their senses over the arrangements for their children's contact with the other parent... The risk, of course, is that both lawyers and the judge treat the symptoms and not the illness."
A case that fuelled the fire was C v C , which came before the Court of Appeal in June. A father acting in person appealed a decision to end his contact order with his two daughters. The case raised issues regarding the factors that prevented the children from having contact with him. Was it the children's own wishes (they were 16 and 14)? Had their mother 'poisoned' them against him? Moreover, was contact in their best interests?
Butler-Sloss chose a forward-thinking approach to the matter. She declared it was not her role to apportion blame, but to try to facilitate a relationship between the father and his daughters. The father's appeal was allowed to the extent that his application for contact with his two daughters was reinstated, but adjourned generally. Contrast this with Lord Justice Balcombe's decision in Re J (a minor) (contact) , that a parent's "implacable hostility" should not prevent contact.
Another speaker at the 'Making Contact Work' conference, consultant psychiatrist Dr Hamish Cameron, advocated that the three key components of reform were early hearing dates, parenting education classes and alternative parenting plan resolution sessions. Perhaps the closest the English legal system has come to this is the scheme in place at the Principal Registry, which aims to resolve disputes in a less confrontational manner. Here, residence and contact disputes are referred to a conciliation appointment. Orders can only be made by agreement. The parties are assisted by a Children and Family Court Advisory and Support Service (Cafcass) officer who helps the district judge discuss a resolution with the parties. Children aged nine and over come to court to be seen by the Cafcass officer and, if appropriate, have their views canvassed. Unfortunately, this is not available outside London - possibly through lack of funding.
At www.lcd.gov.uk/family/leaflets/parentplan, guidelines are available on 'parenting plans', where parents are encouraged to complete a post-separation plan. Topics include living arrangements, contact, schools, holidays, health, changes in care arrangements and financial matters. This plan is not binding and it is accepted that whatever is agreed will need to be adapted from time to time. Obviously, it is not appropriate in all cases, particularly where there has been domestic violence, but it is a good starting point and focuses the parents' minds.
Notably, domestic violence need not automatically rule out contact. Four relevant cases were determined by the Court of Appeal in June 2000. These were Re: L, V, M and H (Contact: Domestic Violence). In each case, the father had sought direct contact but had been refused and so appealed. All four appeals were dismissed. Butler-Sloss held that where such allegations exist they must be adjudicated upon and found proved or not proved. If proved, it did not necessarily mean no contact, but this would be one of the factors to be considered by the court in its discretion under the welfare checklist in the Children Act 1989. It would also consider the effect of the violence on the child and the residential parent, any risk of harm to the child, the motivation of the parent seeking contact and the ability of the offending parent to recognise his past conduct.
Some proponents of reform are looking to overseas models. Oliver Cyriax is a father who has campaigned for years for a more modern approach to contact in the English courts. Through his organisation 'New Approaches to Contact' he urges a comparative review of the procedures abroad, particularly in Florida. He also recommends that parenting plans should be adopted and delays in the court system reduced.
The Florida statute 61.13 (1982) states: "It is the public policy of this state to assure that each minor child has frequent and continuing contact with both parents after the parents separate or the marriage of the parties is dissolved and to encourage parents to share the rights and responsibilities, and joys, of childrearing." Under a shared parental responsibility act, both parents continue to share the rights and responsibilities of child rearing, irrespective of whether they are married, in contrast to England, where this is automatically acquired by fathers only if the parents are married when the child is born.
Lord Justice Wall's belief, expressed at the 'Making Contact Work' conference, is that "the adversarial court system is not well suited to contact disputes, and the powers of facilitation and enforcement currently available to the court are limited and were not designed to deal with breaches of contact orders." He points out that imprisonment is a last resort and should only be used "where there have been flagrant and intentional breaches of court orders without any genuine excuse".
The courts have to undertake a fine balancing exercise that may not always be fully appreciated. The cases referred to above concern a child who has de facto residence with one parent, often called the "primary" carer, and contact with the non-resident parent. However, there are cases where shared residence is the appropriate arrangement. In D v D (shared residence order) , Butler-Sloss cast aside the previous view that it was necessary to show the existence of 'exceptional circumstances' before such an order would be granted. She held that the right test was to demonstrate that a shared-residence order was in the interests of the child. Nevertheless, such orders are still the exception rather than the norm.
There is evidently scope for reform of the issue of enforcement and how disputes concerning children are dealt with. Meanwhile, the resounding body of opinion seems to be that early intervention is the key. Increasing parents' awareness in relation to the level of contact that should be afforded, thereby helping to manage expectations, might help prevent cases from coming to court in the first place. Otherwise, we are frequently trying to shut the door after the horse has bolted.
Ann Northover is a partner at Gordon Dadds and was assisted on this article by assistant solicitor Eva Huckle