Kim Beatson, Partner
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Kim Beatson gives an overview of the recent Green Paper on reforming child proceedings
The long awaited government Green Paper was published on Wednesday 21 July, 2004. This is a joint endeavour from the Department of Constitutional Affairs (DCA), the Department for Education and Skills (Dfes) and the Department for Trade and Industry (DTI).
The Government’s stated commitment is to ensure that outcomes from family relationship breakdown are improved especially for the children of the family and to ensure that both parents continue to have a meaningful relationship with the children after separation as long as it is safe to do so
The key proposals contained in the paper include:-
- Greater access to information and advice about the effect on children of relationship breakdown
- Greater use of parenting plans that illustrate how the Courts are likely to deal with parenting disputes
- Front loading of legal aid payments so that solicitors are incentivised to encourage clients to resolve matters before bringing Court proceedings
- A new accreditation scheme for specialist family lawyers
- Continued support for mediation and exploration of a publicly funded Collaborative Law system
- Development of an in-court conciliation system to be provided by CAFCASS
- Improvements in judicial case management and specifically judicial continuity
- New post-order support and enforcement measures
Cynics suggested that the paper would appease such groups as Fathers 4 Justice but, if that was the intention, it did not have the desired effect. The Government specifically rejected the call for the law to deliver new "rights" to fathers and rejected the notion that the Courts and the law are biased against fathers.
To keep matters in perspective, it should be noted that around 90% of parental arrangements are not subject to a Court Order and the reality is that most children are primarily cared for by one parent (usually the mother). Furthermore, less than 1% of applications for contact are rejected by the Courts. The Green Paper does, however, recognise changing patterns of parenting and the fact that fathers are spending much more time with their children than they were even ten years ago. Inevitably this will lead to more shared parenting arrangements. Significantly, the Green Paper does state that parents are equal and that both have a duty to sustain parental relationships for the sake of their children.
The Government rejected the notion of creating a statutory presumption in favour of contact with the non-resident parent by referring to the criteria in the Children Act 1989 and the fact that the child’s welfare must be the paramount consideration. This contrasts with the Solicitors Family Law Association’s position as stated in their publication "Practical Steps to Co-Parenting". The SFLA believes it would be helpful to have a statutory presumption stated explicitly in the legislation to make it crystal clear to parents what is expected of them. The SFLA does, however, agree with the government’s rejection that legislative change should give parents equal rights to equal time with their children after parental separation. This can work by agreement between the parents, but it is unworkable in most families. In the words of the SFLA publication "children should not be treated as "time-share", to be split in given measures".
For the significant minority of parents who have no alternative but to apply for relief from the Courts, the proposals to improve case management are long overdue. The fact that a more active problem-solving approach is expected of CAFCASS, will reduce the frequency of full CAFCASS reports, although the number of short, specific-issue reports may increase. This in itself should improve the listing of cases.
Greater judicial continuity is another important aim coupled with rapid return to Court where needed. The Government did not feel able to give target times, although these should be developed by 2005. To coincide with the publication of the Green Paper, the President of the Family Division, Dame Elizabeth Butler Sloss, issued a private law framework document. In it, she refers to the introduction of an early first hearing (a first hearing dispute resolution appointment) for every private law application commenced in the County court within 4 – 6 weeks of issue. By way of "informal guidance" the President instructs family judges to encourage the extension of conciliation schemes, judicial continuity, urgent review by judges, monitoring and enforcement hearings.
None of this is any comfort unless there is effective enforcement of contact orders. Orders for parenting time can fail for many reasons, ranging from bloody-mindedness by one parent, real fear of violence, irrational fear and a desire on the part of the parent with whom the child lives to limit or even end the other parent’s relationship with the child. Failure may also be explained by a change of circumstance, such as re-partnering of one or both parents, the arrival of half-siblings or a move to another part of the country. In the Green Paper the Government heeded the SFLA’s calls for more effective and diverse enforcement mechanisms including:-
- Referral of the defaulting parent in a contact/residence case to a variety of resources, including counselling and parenting programmes
- Referral of a non-resident parent who has been violent to a relevant educational programme
- Attachment of conditions to orders which may require attendance at a class or programme
- Imposition of community based orders with programmes designed to address the default in contact
- The award of financial compensation from one parent to another (for example, where the cost of a holiday has been lost)
At the heart of a group of measures to promote, encourage and support parental agreement is the already announced Family Resolutions Pilot Scheme, which was launched in September 2004 in London (Wells Street Family Proceedings Court), Brighton and Sunderland. First time applicants for contact orders in these Courts will receive an information pack which explains the timetable of the pilot scheme. Where there are allegations of harm, there will be a finding of fact hearing to decide whether the case is suitable for inclusion in the scheme. The parents will then attend two group sessions with couples split into separate groups of mixed gender. In the first of these sessions parents are shown a video featuring children discussing their experience of parental separation. The second group session will enable parents to discuss conflict resolution, the effect of conflict on children, how to maintain contact successfully after separation and typical parenting arrangements. The final session involves the parents working together as a couple with the assistance of a CAFCASS officer and preparing a parenting plan which will, if they wish, be embodied in a Consent Order. From experience of the Family Law Act research, people require "tailor made" advice and will usually have seen a solicitor by the "group appointment" stage. Such appointments can easily be hijacked by the most embittered parents, rather than embracing the needs of the audience – and those needs will be disparate. It will be interesting to monitor whether this aspect of the pilot scheme is what parents need.
I hope that the proposals in the Green Paper will mark a very real advance in improving the resolution process for those parents who are, for whatever reason, unable to arrive by themselves at an agreement for the division of parenting time. How quickly the reform is achieved will depend on the speed at which the Government brings forward the necessary legislation and whether the funds will be in place to make these proposals work.
For further information email Kim Beatson or call 020 7940 4000.
