The Dead Parrot Sketch
The reforms to family law proposed by the Government’s adviser on families reads like some poisonous feminist tract from the Sixties.
David Norgrove’s Family Justice Review is a misguided piece of outdated, sexist nonsense which enshrines in law a mother’s unassailable right to raise her children — alone.
Amanda Platell (Platell, 2011)
In the dying months of Gordon Brown’s premiership Ed Balls, Labour’s minister for Children, Schools and Families, commissioned a review of the family justice system. Launching it, Jack Straw, the Minister for Justice, confessed,
We know that for many families the current family justice system is proving far too complicated, and its adversarial nature can lead to bitter, lengthy court hearings, prolonging what is already a stressful and emotionally draining experience.
Labour’s terms of reference were carefully prescribed and bound the review panel to comply with those constants already deemed essential to family law, however controversial, such as the welfare principle. They defined the role of the court, which ‘should be focused on protecting the vulnerable from abuse, victimisation and exploitation and should avoid intervening in family life except where there is clear benefit to children or vulnerable adults in doing so’. They promoted information, mediation, a clearly negotiated system and the minimisation of conflict. Labour sought reform in only two core areas: ‘the promotion of informed settlement and agreement; and management of the family justice system’. They ruled out consideration of legislation, or examination of financial resolution between separating couples (despite the evidence that considering financial and children disputes together leads to stronger and more enduring agreement). They asked the panel to consider the extent to which the adversarial nature of proceedings enabled resolution of conflict and what alternatives might better do so; to examine a more inquisitorial approach; to look at a more administrative process of conflict resolution and to examine how the disparate agencies and professionals who make up the system interact and cooperate. The aim was to come up with a system which would be quicker, simpler, fairer and, above all, cheaper.
The choice of panellists was equally circumscribed. With the sole exception of its chairman, Sir David Norgrove, sacked board member of Marks and Spencer and Chairman of the Pensions Regulator and the Low Pay Commission, the panel represented interests vested in the family justice system and child protection and was seen to represent the system itself, not families and children; they were John Coughlan, Director of Hampshire Children’s Services and best known for his secondment to Haringey Council following the death of ‘Baby P’; Andrew McFarlane, the Family Division Liaison Judge for the Midlands, co-author of Children: Law & Practice and best known for representing the Government at the European Court of Human Rights in the scandalous case of P, C & S; Dame Gillian Pugh, chairwoman of the National Children’s Bureau and former Chief Executive of controversial children’s charity Coram; and Keith Towler, Children’s Commissioner for Wales, and formerly with Save the Children and NACRO.
Despite complaining the remit was ‘inadequate and not far reaching enough’, after the General Election the Conservatives embraced it and added Baroness Ritchie to the panel, Councillor for Brompton Ward, Royal Borough of Kensington and Chelsea, campaigner for women’s rights within the Conservative Party and board member of CAFCASS. No one on the panel represented parents, and all had been remunerated directly or indirectly by the family justice system.
The panel delivered an Interim Report (Family Justice Review Panel, 2011a) at the end of March and their Final Report in November (Family Justice Review Panel, 2011b). The review was much as parenting groups had expected and appeared to be driven by two fundamental presumptions. The first was that reform of the management and bureaucracy of the system took precedence over promoting informed settlement; the second was that parents, the main users of the system, were the problem and cause of its failings; as Norgrove wrote in his foreword, ‘children come into contact with the system mostly because of problems with adults’.
The review’s dominant finding was what a shambles the family justice system was; it was fragmented, management was haphazard, there was no strategic leadership, no financial control, no judicial continuity, no effort by the numerous agencies which constituted the system to integrate or cooperate, and no feedback or research. Norgrove summarised,
The system does not work coherently. Organisations plan together only spasmodically… There are few means of mutual learning and feedback. The lack of IT and management information is astonishing, with the result – among other things – that little is known about performance and what things cost. The system, in short, is not a system.
Instead there was a variety of overlapping organisational structures, and decisions were made for which no individual accepted leadership or accountability. ‘There is a lack of shared objectives and control. Decisions are taken in isolation, with insufficient regard to the impact they might have on others… There is an almost unbelievable lack of management information at a system-wide level, with little data on performance, flows, costs or efficiency available to support the operation of the system’.
Perhaps the most significant finding was hidden away as Annex E at the back of the Final Report which listed the ‘data gaps’, including acknowledgement that the system had no data on the outcomes either of mediation or of court intervention. After decades of blindly making decisions which no one monitored for compliance or efficacy the system knew no more about itself than the FCWS had done. ‘Information flows around the system largely on paper, as though computers and the internet had not been invented. We have rarely attended a court hearing when all the relevant information was available’. This fundamental failing of the system went deepest, and affected its every aspect. The panel’s guidance, ‘court orders should only be made if they positively promote the welfare of a child and are better for the child than making no order at all,’ could not reasonably be followed, because it wasn’t known where a child’s best interests lay and the outcomes for children were not recorded. Without this most basic data it was impossible for the system to learn – ‘we have not found examples of learning from case studies’ – or for evaluators to measure performance against targets. It was also impossible to determine the system’s cost, ‘The lack of data and unit costs has made it impossible to consider the costs and benefits [of our recommendations] to the system as a whole’ (Family Justice Review Panel, 2011b). The House of Commons Justice Committee was even more damning of the inability to record data,
We were extremely disappointed by the serious gaps in data that we and the Family Justice Review found during our inquiries. It is a concern to us that major changes to the system are being contemplated when there are such gaps in the evidence base… without such evidence, reform of the family justice system could be fatally undermined before it has even begun (House of Commons Justice Committee, 2011).
‘It is remarkable,’ said the Interim Report, ‘that figures for unit case costs are not available. A special exercise had to be mounted even to discover total and average expenditure on experts’. No one knew how much the family justice system cost, it wasn’t recorded, but the panel estimated the cost to Government at £1.5 billion in 2009/10. The bulk of this derived from public law, as private law was substantially paid for by the litigants themselves, though the panel made no attempt to calculate the amount. There was no budget and no budgeting, and decisions made in one part of the system could have a negative impact on another. There were no criteria to determine the allocation of judicial resources to family work, and the Courts Service did not monitor how much time judges allocated between civil and family work.
The Panel’s proposed solution to the management problems was a new layer of bureaucracy: a Family Justice Service, under the aegis of the Ministry of Justice, which would ensure the restricted vision in the original remit would be put into action. The Service would be led by a Chief Executive able to ‘command respect among Ministers, judges, lawyers, local authority managers and social workers, as well as the Service’s own staff’. But not parents: the panel appeared oblivious to the lack of public confidence in the system, demonstrated by the fact that it was Norgrove himself who in July 2012 was appointed to the one-day-a-week role: nothing in his CV qualified him for the post. The proposals for reform were administrative and procedural rather than principled, advocating the same procedures, more efficiently applied. Much of the proposed reorganisation – described in some detail – amounted to no more than rearranging deckchairs: the ship was still sinking. The issue was whether the system’s failings were caused by the lack of an additional administrative layer, or by a deeper, cultural, malaise.
The panel called for ‘a more co-ordinated system-wide approach to research and evaluation’ and acknowledged there needed to be more research – particularly longitudinal research – into outcomes, and that it needed to be more widely disseminated, and linked into training programmes. The Family Justice Service would be expected to monitor certain performance indicators such as cases per judge, court and area, case lengths, etc. The panel made clear, ‘By feedback, we do not mean an assessment of the quality of decision-making or the appropriateness of decisions’ and stated that monitoring would be confined to ‘performance, cost [and] efficiency’. It seemed the plan was to improve the system for its staff and not for its users, who still needed to find the best way to enter the system, locate the support and information they needed, and resolve their disputes. It was difficult to see how better administration could achieve this without cultural change to recognise that making decisions about children in the absence of research and feedback can never lead to good outcomes.
The criticisms made of the system by its users and others have become familiar: delay, secrecy, gender bias, CAFCASS, etc. For the most part, however, the Panel skirted these issues; they recognised the extent of delay in the family courts, recording that delay in public law cases had reached an average of 57 weeks in the county courts. The number of children waiting for a public law decision at the end of 2010 – 20,000 – had doubled in only 2 years. Of private law delay the panel said, ‘It is not uncommon for private law cases involving children to last for three years or more… the system is not working. Cases now take a length of time that is little short of scandalous, some cases should not be in court at all and the costs are huge… our court processes lead to children living with uncertainty for months and years’. The panel, however, ascribed delay to deficiencies of structure and was blind to the tactical exploitation of delay to advantage one party over the other.
No criticism of the family justice system unites critics more than condemnation of its secrecy laws, and the issue of secrecy, or its opposite, ‘transparency,’ formed part of the panel’s remit; yet they recorded merely that ‘our own work has not led us to share concerns that arbitrary or ill-founded decisions are taken’, concluding, ‘we have not taken evidence on the controversial issue of public access and none of our recommendations affects, or needs to affect the openness or otherwise of the family courts’. And that, shamefully, was all they had to say on the matter. Unsurprisingly the panel was equally dismissive of claims of gender bias, suggesting instead that solicitors’ advice was based on ‘court norms and typical case outcomes’, but failing to explain why these particular outcomes had become the norm.
Unbelievably the question of CAFCASS didn’t form part of the Interim Report and, despite the promise that it would be, was mentioned only evasively in the Final Report, ‘It has not been for us – and we were not equipped – to review Cafcass effectiveness in the depth that would be needed to establish the rights and wrongs of these arguments’. The panel did remark that no one seemed sure what role CAFCASS should play – whether it should serve the child or the court – and that it trespassed on the territory of social services; confusion about accountability is prevalent throughout the system. The panel’s recommendation was to transfer responsibility for CAFCASS back to the Ministry of Justice from the Department of Education, and this was effected in April 2014. There was no mention of the 1996 crisis which led to the formation of CAFCASS, the 2008 crisis which caused it to be transferred to Education, nor of the Public Accounts Committee’s finding that it was ‘not fit for purpose’.
The panel recorded, ‘There is no appraisal of family judges, nor measurement of how each judge goes about his or her business’: it was unheard of for a judge to be disciplined, or removed from his post, and yet, as we learn when cases reach the Court of Appeal, many judges make terrible decisions, and apply the law incorrectly; this is the only feedback to which we have access. Judges work in isolation with the consequence that different courts and areas of the country work in different ways; although guidance has been introduced, such as the Public Law Outline and Private Law Programme, it is not consistently followed, and there have been no evaluations. Further pilot projects have been introduced by CAFCASS and others and scattered around the country but, again, there has been no consistency and no evaluation. One of the targets of the review was to achieve judicial continuity. Lack of continuity is wasteful of judges’ time because several judges must read the documentation on the same case; it is also an obstacle to justice because it can take several hearings for a judge to get a feel for a case and understand it. The panel acknowledged, however, that some courts already achieve continuity, so they were incorrect that new management structures were necessary to achieve this. The panel also recommended new legislation to achieve stronger case management, but it wasn’t clear how this would be achieved.
The panel’s collective experience in child protection was reflected in their attempt at a definition of private law which interpreted its challenges in public law terms, ‘The issues in private law disputes – parents raise serious welfare concerns in over half of all contact cases – can mean that the threshold for public law intervention is met, or that immediate action must be taken to safeguard the child’. This revealed an ignorance of what drives private law disputes which more often stem from a difference in parenting styles or from personality disorders. President of the Association of Directors of Children’s Services, Matt Dunkley, warned this would result in more referrals and a massive increase in the workload of social workers for which additional funding would be necessary.
The panel were generally confused about the effect of the court process on conflict, stating on the one hand that ‘the processes are designed to reduce this impact. The focus at all times is to ensure, as far as possible, that parties come to an agreement’. On the other hand they acknowledged that ‘many [parents] fail to resolve conflict independently and turn to court for judicial determination’. They admitted this often leads to ‘a lengthy adversarial process with conflict potentially becoming more entrenched’ and that the adversarial nature of proceedings can exacerbate conflict. ‘People enter the system because they are either forced to or are unaware of other ways of finding a resolution’, and then find that far from resolving their differences, the system actively makes them worse. The panel accepted that litigants found the system ‘confusing and characterised by legalese’, but the submission chosen to illustrate this point demonstrated a different problem,
More concerning, is the sense that these processes can have a life of their own that gets lived between solicitors and that once initiated it can seem impossible to get off the court merry go round. When these processes are operating with a life of their own it makes it harder for the individuals involved to take responsibility for their role in the process and a cycle of blame is cultivated further.
They failed to recognise the extent to which it is the structure itself which keeps litigants – backed by their legal teams – on this merry-go-round, making negotiated agreement less achievable than a court-imposed settlement, and impoverishing families, though they did understand that parents sometimes withdraw when they run out of money, despite no resolution having been reached; indeed, this was claimed to be one of the principal reasons for eventual loss of contact, though this isn’t what the research tells us, and the belief derives from analysis of children’s perceptions. It’s no use telling parents they should only use the system as a last resort when they are already inextricably entangled, and alternatives are expensive, of unproven worth and few and far between.
Parents, generally, were seen as a problem; the panel blamed them for initiating proceedings, and accused them of having too high an expectation. They recommended that parents be encouraged to reach parenting agreements through the use of more sustainable and less costly alternative dispute resolution such as mediation, collaborative law and Separating Parents Information Programmes (PIPs). They ignored the fact that parents end up in court because that is where current structures lead them, and that they expect the courts to resolve their disputes because that is the service they offer and are funded to deliver.
On forced adoption the panel noted that decisions are irrevocable, and extinguish parental authority permanently, adding with considerable understatement, ‘The parents do not usually consent to the proposed course of action’. They asserted, ‘We now have a culture, created by pressures from parents combined with decisions from the Court of Appeal (and perhaps part of a national trend), where the need for additional assessments and the use of multiple experts is routinely accepted’. This, it held, placed additional stress on the system and risked elevating parents’ rights over those of children, ‘Too often we believe adult rights are being asserted at the expense of children’s best interests’. Social workers, the panel observed, do not like to have their assessments checked by expert witnesses and the courts – this duplicates work they should be trusted to do themselves. Trust was undermined when personnel from one part of the system checked the work of another, and reports from experts and local authorities could proliferate in a vicious cycle. ‘The consequence is a vicious circle both of mistrust and, now, of some work not being done by local authorities before a case comes to court because they know the court will order the work to be repeated’. So parents who entirely reasonably demanded scrutiny of the decisions to snatch their children were held responsible for the system’s delays. This was despite the fact that the panel had access to the report by Jane Ireland – not released to the public until 6 months later – indicating that 90% of expert witnesses were inadequately qualified (Ireland, 2012).
A proposal to limit the involvement of courts in care applications to the question of whether a child should remain with its parents, be placed with family or friends, or be taken into care came under fire from the Family Rights Group, ‘This detail is really important to children’s lives; there should be more judicial scrutiny, not less… What happens if a local authority doesn’t get it right? What redresses and safeguards are there? It’s dangerous and a backwards step’. An unnamed children’s guardian echoed the warning, ‘Local authority practice is so variable that often those extra checks are needed’. The Group also expressed concern the panel hadn’t waited for the outcome of the Munroe review into social work (which reported in May 2011). Local authorities welcomed the proposals while Nicholas Wall, President of the Family Division, said he wanted more power for judges to monitor progress.
Parenting groups were bitterly disappointed. Early press coverage, by the Telegraph, for example, presumably prepared prior to the Report’s publication, reported that, as anticipated, the panel recommended lifting the requirement for grandparents to seek leave of the court before making contact applications (Whitehead, 2011). The panel did not, as it turned out, recommend this, and offered nothing for grandparents. The media were still making this error weeks later (Carroll, 2011). The panel had been asked to look at proposals for stronger enforcement of breached orders and in the Interim Report suggested the suspension of maintenance payments in cases where contact was continually frustrated; in the Final Report, however, they advised against this move and against any other means of strengthening enforcement, despite calls from all sides including the judiciary for stronger sanctions. There was a similar change of mind over a presumption of shared parenting, with the proposal in the Interim Report excised from the Final Report; we shall discuss this core aspect of the Family Justice Review in greater detail in Chapter Thirty. Inevitably a panel so disproportionately drawn from a child protection background saw the role of the system in terms of protecting children from parental harm, but family law is not always necessitated by abusive parenting.
A more enlightened report from OFSTED into the child protection system just a week after the Interim Report stated, ‘A common theme… has been the tendency for agencies to overlook the role of fathers, male partners and other men living within the families’ (OFSTED, 2011). The report took as an example a case in which a baby had suffered head injuries when in the sole care of his alcoholic mother. ‘Despite the fact that information was gathered from other relatives in this case, they did not include the father, even though he was living with the mother. The review found that the father had been marginalised.’ This tallies with observations made of social workers by Jonathan Scourfield of the Cardiff University School of Social Sciences while gathering research for a book on gender and child protection, ‘Men were seen as a threat, as no use, as irrelevant and absent – and there was a whole host of reasons given for not engaging with them’ (Scourfield, 2009). OFSTED recommended that social services ‘routinely involve fathers and other male figures in the family in assessing risk and in gathering all the information needed to make an assessment’.
John Hemming, MP for Birmingham Yardley and outspoken critic of the child protection system, responded to the Interim Report by launching a highly critical Early Day Motion which observed ‘that a report written by a panel dominated by the family justice establishment was unlikely to challenge the status quo’ and called ‘for the report to be scrapped and a new review established with a balance on the review between those people who make a living from the system and those people who use the system’. It attracted only twelve signatures, which was disappointing given how well he summarised the Report’s shortcomings. The Government line was that the review had been properly conducted and had consulted widely.
Sir Paul Coleridge, too, dismissed the Review for being concerned only ‘with money saving procedures not principles’ and condemned successive governments for failing to grasp the nettle of legislative reform, allowing law to be made up by the judiciary in notable precedents such as White v White and Radamacher v Granatino (Coleridge, 2011). Current family law, he said, was essentially based on principles from the 1950s: it was ‘a dead parrot’, and he called for the establishment of an independent commission to take a fresh look,
Why an independent Commission? Because it has to be completely non-political, independent and authoritative. This is not the stuff of a page or two in a party political manifesto.
No political party, by itself, has the will to make the changes because any change will attract flack from one quarter or another, or maybe all four simultaneously. And everyone has a point of view and an agenda. Despite brave attempts and good intentions government has shrunk from reforming both the law of divorce and cohabitation; it is simply too hot to handle and very consuming of parliamentary time.
Divorce reform is long overdue for attention by Parliament. They need to put their minds to these issues, don’t you think?
Carroll, H. (2011, April 20). Victory in sight for grandparents: A million are denied access to their grandchildren – but their torment may be ending. Daily Mail.
Coleridge, P. (2011). Does Family Law Shape Society or Vice Versa? Westminster: Care.
Family Justice Review Panel. (2011a). Family Justice Review: Interim Report. Ministry of Justice; Department for Education; Welsh Assembly Government.
Family Justice Review Panel. (2011b). Family Justice Review: Final Report. Ministry of Justice; Department for Education; Welsh Assembly Government.
House of Commons Justice Committee. (2011). Sixth Report of Session 2010–12:Operation of the Family Courts. London: Stationery Office.
Ireland, J. (2012). Evaluating Expert Witness Psychological Reports: Exploring Quality. Preston.
OFSTED. (2011). The voice of the child: learning lessons from serious case reviews.
Platell, A. (2011, November 5). Do fathers no longer have ANY rights at all? Daily Mail.
Scourfield, J. (2009, April 9). Lurking in the Shadows. Retrieved from Community Care.
Whitehead, T. (2011, March 30). Grandparents will get legal right to see grandchildren after divorce battles. Daily Telegraph.