A report emerged a few days ago which should have been gold-dust to fathers’ groups, proving what they have been saying for years, though strangely none of them other than the Foundation for Children and Families seems to have picked up on it.  Collectively fathers’ groups are suffering from ennui; they won the argument long ago but haven’t succeeded in achieving anything substantial.  Yet another report which proves them correct is no longer worth what it used to be.

To understand the report’s significance we need to return to 2004 and the case of V v V [2004] EWHC 1215 (Fam) in which Mrs Justice Bracewell lamented the–

intractable contact disputes which drag on for years with little or anything to show for the outcome except numerous court hearings, misery for the parents, who become more entrenched in their positions, wasted court resources, and above all serious emotional damage to the children.

Bracewell outlined the difficulties for the court in what has become a defining narrative,

Enforcement of contact orders creates insuperable problems for the courts.

Currently, there are only four options available to the court and each is unsatisfactory:

One, send the parent who refuses or frustrates contact to prison, or make a suspended order of imprisonment.  This option may well not achieve the object of reinstating contact.  The child may blame the parent who applied to commit the carer to prison.  The child’s life may be disrupted if there is no one capable of or willing to care for the child when the parent is in prison.  It cannot be anything other than emotionally damaging for a child to be suddenly removed into foster care by social services from a parent, usually a mother, who in all respects except contact is a good parent.

Two, impose a fine on the parent.  This option is rarely possible because it is not consistent with welfare of a child to deprive a parent on a limited budget.

Three, transfer residence.  This option is not necessarily available to the court, because the other parent may not have the facilities or capacity to care for the child full-time, and may not even know the child.

Four, give up.  Make either an order for indirect contact or no order at all.  This is the worst option of all and sometimes the only one available.

Perhaps reluctantly, Bracewell chose to transfer residence; as she noted, this option is not ideal, because now the unfortunate child is cut off from the mother instead of from the father.  The rationale is that the parent to whom residence is transferred will enable contact with the other and the child will have satisfactory relations with both parents restored.  Transfer of residence is preferable to committal or simply giving up, which is what the courts do in far too many cases.  Generally judges will avoid committal; it isn’t considered in the best interests of the children, it isn’t necessarily effective and it hands children a weapon they should never wield: if they agree to contact they can save their mother from prison; by refusing they condemn her.  In many cases judges censure mothers for flouting orders but fail to do anything about it (F v M [2004] EWHC 727; A v A [2004] EWHC 142 (FAM); C v C [2004] EWCA Civ 512); this is how two judges excused themselves [1],

How can you send to prison a mother with several children?  It goes through stages; we are encouraged to be bold enough to send mothers to prison.  But on a practical basis it doesn’t work.  And you’re dealing with these mothers who will tell the kids as they’re coming out of the front door with their bag, ‘I’m going to court, your father is getting me sent to prison’.  And how is that going to assist the relationship?

Once you’ve done that you’ve spent your powder as a court, really and in a way you’ve surrendered your jurisdiction to the mother.  You’ve punished her but you haven’t achieved anything; you’ve given her the power to control the case.  I think it’s a defeatist thing to do, quite honestly.

The case of Re K (Children: Committal Proceedings), [2003] 2 FCR 336 established that imprisonment would infringe the human rights of a mother and her child and that committal must be justified under Article 8(2) (the right to freedom from state interference in one’s private life).  Other remedies such as further contact orders, fines, family therapy and transfer of residence must be tried first (Re M (Contact Order: Committal), [2004] EWCA Civ 1790).

A 2004 government report, Parental Separation: Children’s Needs and Parents’ Responsibilities [2] had comprehensively identified the problems within the Family Courts including the failure to ‘give non-resident parents, usually fathers, the relationship with their child that they should have’ and that ‘court ordered contact is poorly enforced and some cases go back to court repeatedly, with the courts being unable to resolve them’.

One of the consequences of this report was the Children and Adoption Act 2006 which provided at last the sanctions for which the judiciary had been pleading.  Under the new legislation the courts could:

  • order parents to attend information and assessment sessions about mediation
  • order parents to attend Parent Information Programmes (PIPs);
  • order parents to attend programmes aimed at addressing violent behaviour;
  • impose an ‘unpaid work requirement’ (this used to be called Community Service);
  • award financial compensation from one party to another; and
  • direct CAFCASS to monitor compliance with contact activity directions and contact activity conditions.

There is ample anecdotal evidence to show that these provisions are not being used by the courts; a Freedom of Information request revealed that in 2010 a thousand applications were made for Enforcement Orders, but only 55 orders were made, with a derisory 4 orders for compensation; in 2012 only 53 Enforcement Orders were made.  Finding of fact hearings – which are often the only option for a father to challenge the false allegations made against him – are reputedly as rare as hens’ teeth.

Which brings us to last week’s news.  The relevant document is a memorandum of evidence submitted to the Children and Families Bill committee by Professor Liz Trinder, Alison McLeod, Julia Pearce and Hilary Woodward (of Exeter University) and Joan Hunt (of Oxford University’s notorious OXFLAP).  Some of these names will be familiar to campaigners as academics implacably opposed to shared parenting.  The submission represents preliminary findings of a study funded by the Nuffield Foundation – another organisation consistently associated with promoting research arguing against fathers’ involvement in their families.  Here are some of the findings:

  • 85% of applications for enforcement are brought by non-resident fathers;
  • the resident parent was alleged to be blocking all or some contact in 67% and 29% of cases respectively;
  • unpaid work requirements were made in only 4 cases – 2 were suspended; there was no mention of orders for compensation;
  • the most common court response – in 62% of cases – was to make a new order similar or identical to the original one;
  • the courts relied heavily on meagre Schedule 2 reports – in 91% of cases;
  • more detailed Section 7 reports were made in only 36% of cases;
  • expert reports were ordered in only 3 cases;
  • no finding of fact hearings were held;
  • in some cases the courts were proceeding without sufficient information where serious allegations – for example, of sexual abuse – had been made;
  • insufficient use was made of therapeutic intervention; and
  • little use is being made of the courts’ power to order CAFCASS to monitor contact, and there is thus no information available on the outcomes of orders.

Despite the clear bias of the authors who are constitutionally opposed to any enforcement of orders against mothers, the interim report is useful in showing that the courts are still very reluctant to use the powers available to them.  This includes both the powers to enforce contact and the powers to investigate what is going on in a case when contact is resisted and serious allegations are made.  Instead they are simply making duplicate orders which have already been shown to be inappropriate.  These findings confirm what fathers’ groups have claimed for years – particularly regarding the failure to monitor outcomes; but they also confirm what mothers’ groups have said: that contact is being ordered where it is unsafe to do so.

The inability of the courts to respond to new legislation is profoundly worrying given the dire situation of the family justice system now and the huge changes about to be introduced.

Tomorrow will see the end of legal aid provision except for litigants who can prove they are the victims of domestic violence.  The Ministry of Justice explanation of these changes on its website is at odds with what the Legal Aid Agency says, and implies furthermore that male victims of DV will not qualify.  To add to the confusion, the official definition of DV changes today.

More pressure will be placed on the courts – especially in cases involving 2 litigants in person.  Greater pressure on the courts will mean cases being dealt with more hastily and with even less attention paid to gathering evidence and assessing risk.  New rules on costs will also mean LIPs will be more likely to have to pay their ex’s costs in civil cases.  The rules on appeals will be tightened tomorrow, enabling judges to refuse an appeal without holding a hearing and making it more difficult to appeal a poor decision.  Next Easter will see the introduction of a presumption of parental involvement and the merging of contact and residence orders into a single child arrangements order – expect more confusion as existing case law becomes obsolete and LIPs squabble over the interpretation of legislation without the assistance of a lawyer.

Expect utter chaos if the courts cannot rise to the challenge.

Notes

Hunt, J., & Macleod, A. (2008). Outcomes of applications to court for contact orders after parental separation or divorce. University of Oxford, Oxford Centre for Family Law and Policy, Department of Social Policy and Social Work. Oxford: University of Oxford.

Departments for Education and Skills; Constitutional Affairs; Trade and Industry. (2004). Parental Separation: Children’s Needs and Parents’ Responsibilities. London: HMSO.

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