The issues of residence and contact have both featured heavily in the media over the last few months. The interest has, in part, been generated by the stance carried out by groups such as Fathers 4 Justice and pronouncements by individuals including Sir Bob Geldof. This, in turn, has now encouraged all three main political parties to give the matter a prominent place within their manifestos for the forthcoming general election.
One of the major fears is that courts tend not to support fathers. Such perceptions are often created by high-profile Court of Appeal cases that catch the public attention and are reported in both the media and in law reports. In this emotive context, it becomes important to have a realistic understanding of how lower courts deal with contact and residence issues on a routine and daily basis. For example, are lower courts, which deal with the vast bulk of cases, in reality dismissive of fathers’ claims?
Much of the recent media attention has focused on contact disputes. It would therefore appear reasonable to assume that contact cases comprise the bulk of cases. However, a recent survey carried out by the University of Leeds has found that the majority of cases (59 per cent) are in fact residence cases. It is also worthy of note that it was almost invariably the case that the person applying for residence already had the child living with them. When fathers apply for residence, it tends to be in circumstances where the mother was said to be incapable of caring for the child because of mental health problems or substance abuse.
By contrast, for the purposes of the survey, a contact case was defined as one that began with an application for a contact order or for contact together with a prohibited steps, specific issue or parental responsibility order. The most usual contact case was initiated by a father who felt that contact was being curtailed or was not working satisfactorily. It was further revealed that contact disputes take longer on average to conclude than residence cases, further reinforcing the impression that the Family Courts are dealing mainly with contact issues rather than residence.
What, then, is the attitude of the lower courts when a contact order has been made, but one party, normally the mother, is in breach? As the law presently stands, where a mother is in breach of a contact order the main sanction available to the court is to apply a penal notice. Should the mother still remain in breach, an application can be made for her committal to prison. Research tends to suggest that even in instances where the mother has been in flagrant and continual breach, a custodial sentence is rarely imposed. The reasons for this are readily comprehensible to practitioners.
Changes to both law and practice may well be on the way, although it is uncertain how far reforms will go and, in particular, the extent to which the principle governing the making of contact orders will be altered, as opposed to the measures for enforcement of orders already made. In its consultation paper entitled Parental Separation: Children’s Needs and Parents’ Responsibilities (July 2004), the Government affirmed its belief that “both parents should have responsibility for and a meaningful relationship with their children after parental separation – with the important proviso that this is safe” (paragraph 40). The paper nevertheless concludes that “no change in the law (ie the Children Act 1989) is needed. What is needed is changes in adult behaviour in settling their disputes and significant changes to the system to provide more effective help to enable them to do so” (paragraph 43).
By contrast, Theresa May, the Shadow Secretary of State for the Family, stated on 5 October 2004 that legislation to be published within the first two months of a Conservative government would create a “legal right” for both parents to be involved in raising their children and a “presumption of co-parenting” (The Times, 9 October). Given its stance against a legislatively expressed presumption of contact, the Government may face a dilemma in deciding whether the UK should sign and ratify the Council of Europe Convention on Contact Concerning Children, which contains as its first principle (in Article 4), to be applied by judicial authorities, that children and parents have the right to obtain and maintain regular contact with each other. Some concerns have been expressed about the compatibility of the Contact Convention with current domestic law. The Department of Constitutional Affairs (DCA) has issued its consultation paper on the Council of Europe Convention on Contact Concerning Children (see  International Family Law).
Calls for reforms to the procedures for handling contact disputes, and for the enforcement of orders, are gath0ering momentum and display considerable, albeit not entire, consensus as to the best way forward. In a number of recent and high-profile decisions, Family Division judges have highlighted the defects, delays and the “futility” of the current court-based system, the frustration experienced by many applicants for contact orders (a disproportionate number of whom are fathers, despite the law’s formal gender neutrality, since the resident parent is most commonly the mother) and the unsatisfactory enforcement mechanisms.
The proposals contained in the DCA consultation paper ‘Parental Separation’ include: restructuring legal aid and supporting the Family Advice and Information Service (FAInS) “to incentivise early dispute resolution”; an in-court conciliation system; a shift in the focus of the Children and Family Court Advisory and Support Service (Cafcass) from report-writing to “active problem-solving”; supporting agreements promoting judicial continuity; new measures for the enforcement of court orders, including the “referral of a defaulting parent… to a variety of resources…”; an imposition of community-based orders; and the award of financial compensation, eg for lost holiday costs.
The style and language of the ‘Parental Separation’ paper is highly reminiscent of the 1999 White Paper ‘A New Contract for Welfare’, in particular their subtitles (that of the 1999 paper being Children’s Needs and Parents’ Responsibilities). But every member of the judiciary and the practising profession knows that what is important in delivering reforms to the family justice system, whatever the context, is not upbeat rhetoric and stirring generalisations in attractively-presented publications, but rather a firm Government commitment to increased resourcing. It is still too early to tell whether such a commitment exists.
Kevin Hand is head of family law at Kidd Rapinet and Rebecca Bailey-Harris is a barrister at 1 Hare Court