Despite the changes in terminology brought about by the Children Act over 10 years ago, 'access' and 'custody' are still alive and well – at least in the minds of many people seeking legal advice for a private law dispute about children.
This landmark piece of legislation aimed to change the way we think about children, not as a matrimonial asset to be fought over, but as young people with a need to feel secure in their family relationship and who generally benefit from a continuing relationship with both parents in the event that the parents no longer live together.
We know that children do best where the parents cooperate and make sensible arrangements to map out how they will carry out their role and make decisions about the child's future. Guidelines from the Lord Chancellor's Department (LCD) and mediation services encourage parents to reach flexible and enduring arrangements for joint parenting after separation.
But for the family lawyer committed to a constructive approach to resolving contact and residence disputes, the latest Children Act Report (2001) does not make for easy reading. It shows a marked increase in the number of Section 8 orders made by the courts in 2001, most notably in the number of contact orders, which rose by almost 9,000 that year. The question that the policymakers in the LCD must now grapple with is whether this represents a failure in the strategy to encourage agreement, or whether there are other factors at play.
One possibility is the decreasing availability of legal aid in family cases, resulting in more litigants in person with little or no grasp of what it is realistic to expect a court to order.
Although contact disputes form a significant part of a family lawyer's workload, it is unlikely that there are any who will take any pleasure at all from an increase in family litigation. Family practitioners live in the real world and recognise that agreement is not always possible, often for very good reasons. Resorting to the courts is not always a failure as far as the welfare of the child is concerned. It is perfectly possible for two loving parents genuinely to hold diametrically opposing views about a particular issue – for example, where a child should go to school, or which adult is better able to look after a child on a day-to-day basis. When that happens, what is needed is a thorough investigation of the evidence supporting each view and then a decision, which is the court's role and one which, on the whole, is performed well.
The Children Act welfare checklist provides a flexible framework to decide cases strictly on the individual circumstances of a particular child, whose welfare is placed at the centre of the process. It is often very difficult for parents locked in conflict to take a similar perspective.
The Family Court system and many of those who work within it are subject to unprecedented levels of public criticism by individuals and organised campaigns for reform. There are usually contact and residence cases at the root of these complaints. The courts stand accused of sexism and secrecy, failing fathers and operating behind closed doors to conceal their failings, all of which are very serious allegations that must undermine public confidence in those reliant on them to bring justice in the most sensitive of private disputes. Because the welfare of children is the focus of such proceedings, rather than the 'rights' of either parent, the adults involved can walk away feeling like winners and losers; and the feeling of having lost is, for some, compounded by the inability to draw the public's attention to the perceived sense of injustice.
Proceedings are conducted in private, but not in secret. Some cases are reported, but most are not. The Children Act prohibits the publication of any material likely to identify a child as being the subject of Children Act or family proceedings as a measure to protect that child's welfare and right to privacy. However, this does not prohibit a public debate. It is important that such a debate takes place, and in a manner that protects individuals' privacy.
The allegation of secrecy allows rumours to flourish. Many press reports of family cases have claimed that the courts discriminate against fathers and that the manner in which a parent cooks chips is an important consideration in awarding contact. It cannot be helpful to a father who may be considering an application for contact with a child he has lost touch with and cares for deeply. The fact that this impression was drawn from the reporting of the outcome in an individual case, based on a specific set of facts, will not matter much if he assumes he will fail and abandons attempts to see the child. The child may have the most to lose.
There is now an open and shut case for greater openness in the family courts. If judgments were routinely given in open court, while preserving the anonymity of the parties concerned, there would be a much clearer understanding of the care and thought that goes into deciding these difficult cases, and the public would appreciate that decisions are not made arbitrarily.
But why are contact cases so difficult for family lawyers? The answers are many and varied, but undoubtedly interrelated.
Some of the most difficult contact cases arise where there has been domestic violence in the family, so there is therefore an understandable fear for the safety and well-being of the child if contact with the abuser is proposed. Historically, some courts took the view that violence between the adults was a separate and distinct issue, which did not impact greatly on the benefit of contact to the child. Of course, we now know that is not the case and children can be harmed by witnessing or overhearing violence against a loved one.
In 2001 new guidelines were issued following a report by the Children Act Sub-Committee of the Lord Chancellor's Advisory Board on Family Law. However, a survey of their use and effectiveness this year found that, although they were seen as effective where they were in use, their use was far from universal. Family practitioners reported a lack of awareness in some courts, and Women's Aid presented evidence to the Government of cases where survivors of domestic violence felt that they were coerced into allowing contact where they had a real fear of the effect this would have on children whose lives were already blighted by what they had witnessed.
In March this year, the Adoption and Children Bill, currently in its passage through Parliament, was amended to ensure that when a court is considering whether an order is in the best interests of a child, it must consider the harm a child has suffered, or is at risk of suffering, through seeing or hearing the ill-treatment of another person. This legislative change, combined with the very detailed and thoughtful approach in the leading Court of Appeal case LVM and H, should bring a consistent approach to these issues alongside the other considerations when making decisions in domestic violence cases.
Also ranking very highly in the difficult aspects of contact cases is the question of enforcement. In practice, enforcement is very difficult without causing harm to the child.
Following on from its report on contact cases involving domestic violence, the Children Act Sub-Committee of the Advisory Board on Family Law, under the chairmanship of Mr Justice Wall, examined a whole range of issues that contribute to the difficulties in this area, and published its final report, 'Making Contact Work', in February this year.
On the subject of enforcement, it said: “Whatever the intellectual force of the argument that it is in a child's interest to enforce a contact order because the order for contact was made on the basis that it was in the child's interest to have contact, the simple fact remains that it is very difficult to see how it can ever be to the benefit of children for their primary carer to be sent to prison.”
The report concluded that the interventions that are likely to be most effective in making contact work are those which happen much earlier on in the process. The starting point should be the provision of information to separating parents, outlining the benefits of contact to the child. While acknowledging the crucial question of funding and resources, the report recommended an expanded role for the newly-created Children and Family Court Advisory and Support Service. It was suggested that it could fulfil more fully its support function by providing information to parents, supporting the making of negotiated agreements and operating family assistance services that would run education programmes and monitor the implementation of contact orders.
The question of enforcement should be addressed by legislation that gives the courts additional powers to take a more flexible two-stage approach. At the first stage, the approach should be non-punitive and allow parents to be ordered to attend parent education programmes or receive psychiatric advice. At the second stage more flexible sanctions, including community service or probation, could be imposed, with fines or imprisonment available as a genuine last resort.
There is a great deal of activity among policymakers, in Government and in the courts, aimed at finding solutions to the complex problem of making contact work. There are also a large number of largely voluntary sector organisations providing very valuable services to individual families. It is crucial for every family practitioner regularly working on private law children cases to get to grips with recent developments and be aware of the range of possible solutions available.
Jane Craig is the chairman of the Solicitors Family Law Association