Legislate in Haste…



Society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent… some children will experience disadvantage and harm, while others flourish in atmospheres of loving security and emotional stability.  These are the consequences of our fallible humanity and it is not the provenance of the state to spare children all the consequences of defective parenting.

Mr Justice Hedley  (Re L (Care: Threshold Criteria), 2006).



Following the 2010 General Electionthe Coalition embarked on a major programme of reforms to family law.  Fathers’ groups were hoping for an alternative to the ruthlessly adversarial system with its divisive winner-takes-all outcomes, the more effective enforcement of breached contact orders, and a rebuttable presumption of shared parenting.

What emerged, however, was a haphazard and impulsive approach, clearly driven by the necessity of shaving 23% off the family justice budget in a climate of acute financial crisis.  The outcome would be two major Acts of Parliament: the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), which would effectively end the provision of legal aid in family cases, and the Children and Families Act 2014, a bizarre mishmash of new law covering everything from Children Act reform to the design of cigarette packaging.

There is no question that the family justice system had become horrendously costly, both for individuals and for the public purse; Norgrove had recognised this but had been unable to quantify it.  The Government became convinced that the public costs could be reduced if couples could resolve their differences without going to court, and to this end it proposed to cut the availability of legal aid and to encourage couples to mediate.

In the summer of 2011 the Government announced the removal of legal aid from all family cases save a narrow range including those in which there was evidence of domestic violence.  Lawyers’ associations were incandescent: Bar Council chairman Peter Lodder said, ‘We already get far too many unjustified allegations of this sort and our fear is that there is going to be an enormous increase of this sort of allegation… What is particularly unfortunate is that children are often going to be involved.  That is going to lead to the whole panoply of them being interviewed by social workers and so on because it is very difficult to dismiss such allegations out of hand, even if they appear totally unfounded’ (Bentham M. , 2011).  He additionally warned of an increase in litigants representing themselves, and a corresponding rise in delay.  After being forced through LASPO came into force in April 2013.

Despite the theoretical availability in domestic violence cases, accessing legal aid proved to be almost impossible and a Freedom of Information request revealed that between April and June 2013 only one family case had been granted funding – the Government had effectively terminated public funding.  CAFCASS reported a rise in cases in which both parties were self-representing from 18% to 42% and that both parties were represented in only 4% of cases.  The union NAPO reported devastating consequences to 68,000 children a year, a decline in the use of experts and an increase in delay; one law firm they quoted was turning away 50% of litigants who would previously have been eligible for legal aid.

The alternative proposed by the Government to publicly funded litigation was mediation; they believed mediation had major advantages over litigation and was under-used, one advantage is its lower cost and the Government cited figures showing the average cost of legal aid in non-mediated cases involving children was £2,823, compared with £535 for mediated cases.  A report by the National Audit Office for the Legal Services Commission had shown that only 12.7% of disputes taken into the Family Courts between October 2004 and March 2006 had employed mediation, and that publicly funded solicitors were failing in their duty to advise their clients of its availability (National Audit Office, 2007).  Edward Leigh, chairman of the Commons Public Accounts Committee, proclaimed they were ‘cashing in by keeping quiet’ (Verkaik, 2007).  He urged a crackdown on fat-cat lawyers who were ‘happy to jump straight into the courtroom, leaving the taxpayer to pick up the bill’ (Hickley, 2007).  A further report in 2009 showed solicitors were over-claiming by £18.3 million for the work they had done; Leigh said,

the overpayments are as a result of solicitors making claims for payment against the wrong kind of work – resulting in their receiving more money than they are due, or for claiming payment for work without evidence that it is eligible for legal aid support (Daily Telegraph, 2009).

The first step was the Pre-Application Protocol for Mediation Information and Assessment, introduced from April 2011, which obliged couples to consider mediation unless there were exempting circumstances.  There was predictable opposition both from the lawyers whose livelihoods were threatened and from feminists who believed it put women under pressure to agree, but there is good evidence it can be effective.  Analysis of the success of mediation programmes is necessarily subjective, and it is seldom the case that families who partake in a programme can be compared with a control group.

In one of the few studies which attempted this, parents were assigned randomly to a group participating in mediation and to a control group whose outcomes would be determined by a judge (Emery, Sbarra, & Grover, 2005).  The parents were followed up at intervals of one year and 12 years.  At one year there was little significant difference between the groups, but after 12 years three times as many fathers in the mediation group had regular weekly contact as in the control group.  There was far more direct and indirect contact in the mediation group, and many fewer fathers without any contact at all.

A UK study looked at the effects of mediation on financial and property matters as well as on children issues (Walker, McCarthy, & Timms, 1994).  The study contributed significantly to the debate which followed publication in 1993 of the Government Green Paper, Looking to the Future: Mediation and the Ground for Divorce, in preparation for what was to become the ill-fated Family Law Act 1996 (Lord Chancellor’s Department, 1993).  The study found that ‘all-issues’ mediation resulted in significantly higher rates of agreement than mediation on child-related issues alone, with 80% reaching some agreement.  Couples using all-issues mediation were more likely to feel the process had been helpful in improving communication, reducing tension, aiding negotiation and clarifying areas of disagreement.  A three year follow-up confirmed the advantages.

All-issues mediation offers substantial benefits.  Normally the financial aspect of the divorce is not even addressed until after the residence and contact aspects have been finalised.  In some cases this has meant that the family’s financial assets are frozen for many years while lengthy residence and contact disputes are fought over.  This leaves both parties financially paralysed and leads to the amassing of unnecessary debt.  This failure to manage cases as a single issue is financial suicide for families at a time when they need the best advice and support.  By addressing the financial aspect of the divorce from the outset financial pressures and dependency on outside agencies such as housing benefit, income support, the CSA and legal aid are relieved.

There were significant problems with the Government’s plans’ however.  The first was that the new law makes mediation mandatory only for the applicant, but it takes two to mediate.  In any jurisdiction which operates an adversarial system of litigation mediation can never work effectively as long as an uncooperative party can get a better deal in court.  The second is that mediation is a catch-all term which can be applied to a wide variety of interventions; the Government’s training material provided to mediators frankly isn’t very impressive: the emphasis is on financial resolution rather than on children’s matters.  The third problem is the limited availability of mediation: the Government claimed the change would remove thousands of cases from the courts, but while around 120,000 cases had gone to court in the previous year, only 10,000 had been resolved through mediation; the idea that mediation could take up the slack was optimistic.

The Government’s most glaring error, however, was its failure to understand that it had been lawyers who were referring clients to mediation; the loss of legal aid meant this was no longer happening.  A survey by Resolution showed the protocol wasn’t being followed: there was wide variation in practice between courts, court staff did not regard the protocol as mandatory, courts were not assessing if mediation was appropriate and litigants were not being referred  (Resolution, 2012).  By 2014 applications for contact and residence were up 27% and mediation was down 60%: funding was still available for mediation but because people were not seeing solicitors they were not being referred (Family Court Unions Parliamentary Group, 2014).  ‘In the meantime,’ NAPO predicted, ‘the courts will combust!’  A further study by the MoJ showed that solicitors had no incentive to refer clients to MIAMS if there was no legal aid available to represent them in court (Ministry of Justice, 2014).

The pressure on the courts didn’t slacken; the Government, however, continued to press on with its reforms as if the figures were responding as predicted: in London the number of family courtrooms was reduced from 32 to 25 and principal registry judges from 20 to 12; the institution of the Judge of the Day, whose job was to deal with emergency applications, was abolished.  Lawyers feared the Government intended to take care applications out of the courts entirely, to be decided by tribunals, and warned of an impending ‘perfect storm’ (Baksi, 2013).  The Children and Families Act enabled local authorities to place a child with a prospective adopter without there even having been court proceedings and without the parents having had access to legal advice, and the Pre-Application Protocol was replaced by a new Child Arrangements Programme.

The likely first port-of-call for a parent encountering a serious family crisis has hitherto been Relate, their doctor, a mediation service, a solicitor or Citizens’ Advice (Jones, Burgess, & Hale, 2012).  Others might consult a website, or a friend or colleague with experience of the system.  It shouldn’t be this nebulous; parents need a more straightforward solution: a ‘one-stop shop’ for all family problems whether it is the first step in securing a divorce, a dispute over contact, how to access benefits, arranging supported housing or how to obtain extra support for a disabled child.

One of the most constructive ideas to come out of the fathers’ movement was the proposed establishment of a network of ‘Family Centres’ to replace the existing Contact Centres and offer environments in which parents and children would be able to spend time together in conditions more like family homes, and where trained parenting advisors would be on hand to manage handovers (O’Connor, Burch, & Cox, 2005).  This idea was developed further in 2007 by Iain Duncan Smith’s Centre for Social Justice which proposed an Australian-style network of ‘Family Services Hubs’ as the first port of call for parents unable to resolve parenting disputes between themselves (Social Justice Policy Group, 2007).  In 2009 solicitors Mishcon de Reya proposed the establishment of Conflict Clinics ‘for separating families to provide them with therapeutic input to resolve disputes and enable successful co-parenting’ (Mishcon de Reya, 2009).

The Australian Family Relationship Centres are government-funded and staffed by independent, professionally qualified practitioners offering information and advice for families at all stages in their lives.  Where families separate, the Centres provide information, advice and dispute resolution to help people reach agreement on parenting arrangements without needing to go to court.  Their practitioners come from a variety of backgrounds including social work, social sciences, and counselling, and are able to offer advice on parenting after separation and to help parents focus on the needs of their children.  The similar concept of the Family Services Hub was to provide a ‘one-stop shop’ for information, services and support for vulnerable families in moments of stress, such as ‘relationship-orientated dispute resolution services’ post-separation, as advocated by Liz Trinder, or for families with disabled members.  They were to focus on local, community-based provision and provide a greater degree of service integration to maximise the efficiency and coordination of professionals and voluntary sector providers in the best interests of the nation’s families.

Typical service provision would include relationship support; parenting support and education; family and couple therapy; individual therapeutic interventions where the aim is to strengthen families – for example, therapy for post-natal depression, debt counselling, and mental health support; family law advice and information – with particular focus on prevention, such as the provision of mediation, as well as advice on the legal aspects of child support and child contact; information and services for families with disabilities; temporary accommodation and supported housing; any particular local need, such as a teenage pregnancy or domestic violence specialist – a number of family hubs within a region could choose to share specialists.

The emphasis made by the Centre for Social Justice was that every family matters, not just every child (this is a challenge to the best interests principle), and that this vision can be facilitated through a significant improvement in the range, quality and accessibility of services to families (Centre for Social Justice, 2009).  Such hubs would concentrate support for parents in their children’s first three years with an enhanced role for health visitors in preventing dysfunction in very young children’s cognitive and emotional development.  Rather than prescribe precisely how each and every Family Centre was to be set up, the proposal was for local authorities to be required by law to provide the full range of services, but to have a high degree of autonomy in how they chose to deliver them.

Much of this provision would utilise services already available within each community, so that the need for new infrastructure in some areas would be minimal.  Some organisations already operated comparable services in existing facilities, some owned and operated by them, some rented and shared.  The network could build not only on the existing network of 350-or-so contact centres but also on the network of 3,500 SureStart Centres.  Other services could be relocated to enable better coordination.  Central Government grants would be available for new buildings where necessary; the Centre for Social Justice estimated the cost of all this at a relatively modest £86 million.  At the time the Breakthrough Britain report was written five hubs had already been established which provided a good model for what was proposed.  Once full capacity was reached the report envisaged targeting services to 800,000 vulnerable families every year.

This represented the sort of radical, creative thinking necessary to transform the family justice system.  It won’t happen now, though.  Norgrove’s report downgraded the hubs to an online service and a telephone support line which would provide parents with support and advice at the beginning of the process.  The panel recommended that where this couldn’t provide all the support required and further intervention became necessary, parents should be referred to mandatory mediation with a view to achieving a sustainable Parenting Agreement.  Only where welfare concerns were raised would the case be transferred to court which would operate a two-track system for simple and complex cases.  The Government eroded the concept still further in November 2012 to a ‘widget’ embedded on the websites of a number of charitable support organisations such as Relate, National Family Mediation, Mumsnet, Dad.info, Gransnet and Wikivorce.  It cost only £300,000 – compared with the £240m the Government hoped to save on legal aid – and was described by its critics as good as far as it went but rather like placing a Bandaid on an amputation.  Lawyers condemned its obsessively lawyer-free approach when some of the issues it aimed to address could be resolved only in court.  The very disparate range of organisations meant that received advice could be contradictory and the list included campaign groups likely to exacerbate conflict for their own ends.  By June 2013 it was acknowledged the widget was not working and was referring parents to inappropriate services, but it remained the first step in the Government’s 2014 Child Arrangements Programme.

By the 20th anniversary of their introduction the Family Courts had issued well over a million orders for contact.  Between 75% and 86% of these followed applications from fathers (Hunt & Roberts, 2004), and fathers make up 95.3% of so-called ‘non-resident parents’ (Department for Work & Pensions, 2013).  Most contact orders are obstructed to some degree; one study showed that 40% of mothers admitted to obstructing contact as a way of punishing their former partners (Department for Social Security, 1998).  Another revealed that half of parents deliberately prolonged proceedings, and a fifth made them as unpleasant as possible for the other party (Mishcon de Reya, 2009).  As a result many children lose all meaningful contact with their ‘non-resident parent’ over time – estimates range from 15% to 28% (Blackwell & Dawe, 2003), up to 40% within two years (Bradshaw & Millar, 1991), to as high as 60% overall (Butler-Sloss, 2003).  The courts do little to prevent this calamity unfolding: contact orders are not monitored for compliance nor for their efficacy, and fewer than 2% of resident parents defaulting on orders face any consequence (Hansard, 2006).

In 2013 an evaluation was published of the measures for enforcement introduced in the 2006 Children and Adoption Act.  It was already common knowledge that the provisions were not being used; in 2010 a thousand applications were made for Enforcement Orders, but only 55 were granted, with a derisory four orders for compensation (Family Justice Review Panel, 2011a); in 2012 only 53 Enforcement Orders were made.  Finding of fact hearings – which are often the only option for a father to challenge the allegations made against him – were reputedly as rare as hens’ teeth.  The report was prepared by a group of feminists well-known for their opposition to shared parenting – Liz Trinder, Alison McLeod and Joan Hunt – and funded by the equally mistrusted Nuffield Foundation (Trinder, McLeod, Pearce, Woodward, & Hunt, 2013a):

  • 85% of applications for enforcement in the sample were brought by non-resident fathers;
  • the most common court response – in 62% of cases – was to make a new order similar or identical to the original one;
  • unpaid work requirements were made in only 4 cases – 2 were suspended;
  • expert reports were ordered in only 3 cases;
  • no finding of fact hearings were held; and
  • little use was being made of the courts’ power to order CAFCASS to monitor contact, and there was thus no information available on the outcomes of orders.

The report concluded, contrary to the admissions of judges, that ‘implacably hostile’ mothers were a rarity and that further enforcement measures were superfluous.  The report was seriously flawed: the data on which it was based had been made available to the report’s authors, but to no one else.  Peer review was impossible and the conclusions were not verifiable.  Most seriously, in the sample cases utilised by the report a court had already considered the facts and evidence in each case, concluded that contact was safe and in the child’s best interests and made an order accordingly.  The mothers had neither appealed those orders, nor applied to vary them.  In these circumstances, if the fathers were asserting correctly that the mothers were not complying, then implacable hostility to contact must be the most likely explanation.  The principal conclusion drawn by Trinder et al, therefore, that ‘very few enforcement cases fit the popular media image of the implacably hostile resident parent’ was not sustainable, nor was the allegation of an ‘over-rapid, “cookie-cutter” case processing’ or that ‘in some cases, risk was inadequately assessed and/or managed’.  The lack of fact finding and risk assessment linked to enforcement proceedings could be explained by the fact that this process had already taken place when the original order was made.

Despite the clear bias of the authors against the enforcement of orders, the interim report was an admission that the measures introduced in the 2006 Act and the protocols introduced under the Private Law Programme to expedite family proceedings and make them more efficient had failed.  The report revealed how reluctant the courts were to use the powers available to them.  This included both the powers to enforce contact and the powers to investigate what is happening in a case when contact is resisted and serious allegations are made.  Instead they were simply making duplicate orders which had already been shown to be ineffective.  These findings confirmed what fathers’ groups had always claimed – particularly regarding the failure to monitor outcomes: at a time of great pressure on the system, rapid change and unpredictable consequences, the failure of the courts to respond to the requirements of new legislation was troubling.

Trinder also provided an evaluation of the PIP scheme which she herself had devised; she showed it provided some increase in levels of contact, but did not reduce parental conflict or duration of court cases (Trinder, et al., 2013b).  Trinder had a unique access to court data, provided to her by CAFCASS, who were themselves trained using Trinder/McLeod/Hunt material funded by the Nuffield Foundation, and she then monitored the use and efficacy of this training.  It was unsurprising that she recommended wider use of PIPs, more training, a further suite of programmes, new follow-up mechanisms, etc. – all measures which potentially involved and benefited her.  Such circularity is harmfully incestuous.

In November 2010 the outspoken judge Paul Coleridge had warned that the authority of the family courts was undermined by the refusal to obey orders promptly or fully, and it was time authority was reaffirmed.  While rejecting the belief that the system was on the point of collapse he referred to the ‘emerging crisis’ and declined to speculate about where the system would be in five years.  The take-it-or-leave-it approach to orders and the failure of the courts to enforce was leading ‘to ever more hearings and ever more interventions by guardians, social workers, CAFCASS officers and child experts of all descriptions.  And this is extremely expensive of time (both in and out of court) and so money and both are, as I say in ever scarcer supply.  We simply can no longer afford it’  (Coleridge P. , 2010),

Parents need to be given the clearest understanding of the consequences of their flouting court orders especially in the field of contact.  A clear process or system of enforcement, generally appreciated and understood by all parties, is essential for the reaffirmation of the court’s authority, the efficient disposal of cases and the saving of huge amounts of public time and money.

If I were to call it “three strikes and you are out” it sounds antediluvian and insensitive but something like it, perhaps, should be the norm in the interests of clarity for all separated parents.  In other words if an order is disobeyed, say, three times the residence of the child should normally be transferred to the other parent.

In September 2013 judge Andrew McFarlane insisted there must be judicial continuity across such cases and a consistent approach where orders are breached,

If, as part of that strategy, the court makes an express order requiring the parent with care to comply with contact arrangements, and that order is breached then… the judge must, in the absence of good reason for any failure, support the order that he or she has made by considering enforcement… To do otherwise would be to abandon the strategy for the case…; to do otherwise is also inconsistent with the rule of law (Re A (A Child), 2013).

The following month James Munby, now President, issued an even sterner warning – apparently addressed to litigant and judiciary alike – and condemned the—

deeply rooted culture in the family courts which, however long established, will no longer be tolerated.  I refer to the slapdash, lackadaisical and on occasions almost contumelious attitude which still far too frequently characterises the response to orders made by family courts.  There is simply no excuse for this.  Orders, including interlocutory orders, must be obeyed and complied with to the letter and on time.  Too often they are not.  They are not preferences, requests or mere indications; they are orders (Munby, 2013b).

The family justice review panel had been asked to consider additional options for enforcement of breached court orders including the suspension of driving licences, electronic tagging and the reversal of residence orders.  They considered, however, that these would have little effect in a regime in which existing sanctions were not used.  They were also asked to consider the alteration or suspension of child support as a possible sanction, as suggested in the Green Paper, Strengthening families (Department for Work and Pensions, 2011).  The panel raised the familiar objection that the child’s welfare would cease to be the paramount consideration; sole-parenting lobbyists Gingerbread claimed, with characteristic contempt for non-resident parents, ‘The implicit argument in the Green Paper is that the prospective loss to a child of contact with the other parent should weigh more heavily than the withdrawal of child maintenance’.  Recognising ‘the distress and sense of unfairness felt by parents who are continually refused contact by their former partner and yet have to pay maintenance’, the panel recommended enabling the courts to order reductions or suspensions in maintenance payments, but no direct link between maintenance and contact; the Government rejected this, arguing that contact and maintenance were not ‘commodities to be traded’, but it also condemned the panel’s rejection of alternative sanctions (Ministry of Justice & Department for Education, 2012),

The Government does not agree with the Review’s conclusion that additional enforcement measures are not the answer.  Whilst the courts already have a number of enforcement powers… there are practical and evidential hurdles which in practice mean that these sanctions are little used.  The Government therefore intends to explore the feasibility of providing the courts with wider enforcement powers so that in appropriate cases these can be used to address wilful disobedience in respect of the court’s order.

As things turned out, the Children and Families Act contained no new measures for the enforcement of breached orders, despite the Government’s apparent condemnation of the take-it-or-leave-it approach: the tradition of the courts issuing orders which it cannot or will not enforce will continue.

What the Government did instead was to develop one of the Norgrove panel’s more radical suggestions which was that parents should no longer have access to residence or contact orders and ‘disputes over the division of a child’s time between parents should instead be resolved by a specific issue order’.  This, they believed, would eliminate the concept of winners and losers in proceedings.  The Government proposed a slightly different solution and chose to abolish contact and residence orders and replace them with a combined ‘child arrangements’ order, regulating either ‘with whom a child is to live, spend time or otherwise have contact’, or ‘when a child is to live, spend time or otherwise have contact with any person’.  It was difficult to imagine how this prolix drafting would play out in practice, and it was likely to result in child arrangements orders which looked like residence orders and child arrangements orders which looked like contact orders.  Twenty-five years after the Children Act changed the terminology from ‘custody’ and ‘access’ to ‘residence’ and ‘contact’ the old terms are still in common use.

Whatever caused Norgrove to misrepresent the research, fabricate evidence and perform a U-turn on the shared parenting presumption, it wasn’t the Coalition Government, which accepted the bulk of Norgrove’s recommendations but rejected his findings on shared parenting,

The Government believes that there should be a legislative statement of the importance of children having an ongoing relationship with both their parents after family separation, where that is safe, and in the child’s best interests.  We have established a working group of Ministers to develop proposals for legislative change, which will be brought forward for wide debate and consultation later this year (Ministry of Justice & Department for Education, 2012).

The ministers – Tim Loughton, Maria Miller, Iain Duncan Smith, Jonathan Djanogly and Sarah Teather – set up a steering group consisting of representatives from organisations well-known to oppose shared parenting, such as Gingerbread, or groups with no experience in private family law proceedings, such as Barnado’s and the NSPCC.  The only unambiguous support for the continuing involvement of two parents came from the Centre for Separated Families.  The committee met only twice, made no decisions and was largely cosmetic.  The ministers launched a consultation into cooperative parenting which presented four options for consideration; 214 responses were received, of which 66% supported change; of these, 52% preferred Option One, which appeared to be the most robust of four ineffectual choices.

F4J’s reaction revealed the increasingly irrational behaviour of its leader.  It initially refused to file a response to the consultation, pouring odium on all organisations which had accepted invitations to give evidence.  It then launched a Facebook campaign demanding that it be invited by the House of Commons Justice Committee to give oral evidence, arguing that with a claimed membership of 36,000, F4J was the largest shared parenting group in the country and the only one which could plausibly represent fathers and their families.  F4J’s paid-up membership, however, was only about 180 at the time.  Generously invited by the Committee to submit written evidence after the deadline had expired, F4J again refused.

Option One was incorporated into Clause 11 of the Children and Families Bill with the avowed aim that ‘both parents should be involved with their child’s upbringing as fully as possible’.  There was the ubiquitous, and revealing caveat, ‘where it is safe and in the best interests of the child’ (Department for Education, 2012).  The final Bill presented to Parliament suggested merely,

A court… is… to presume, unless the contrary is shown, that involvement of that parent in the life of the child concerned will further the child’s welfare.

The clause would apply to a parent only they could be involved in a way that did not put the child at risk and if there was no evidence presented to the court to suggest their involvement, whatever its form, would put the child at risk.  This was a pusillanimous retreat from the ‘strong and influential role in children’s upbringing after separation’ which had been heralded and a far-cry from the presumption of shared parenting for which fathers had hoped.  The final elimination of any beneficial impact the clause might have had was achieved by an alliance of anti-shared parenting organisations including Coram and the NSPCC, perversely calling itself the Shared Parenting Consortium, which successfully lobbied to ensure that the presumption did not imply any division of time, thus ensuring their favoured group would retain the lion’s share of parenting time.

Another coalition was cobbled together by a bunch of tabloid agony aunts and Duncan Fisher, of the Family Matters Institute and Dad.Info, who was determined to be seen as the friendly face of the fathers’ movement and the antithesis of Fathers4Justice.  His campaign, Kids in the Middle, was a marketing opportunity to enable agencies like CAFCASS, Resolution and National Family Mediation to push their services at children and brought together Families Need Fathers – which had once spear-headed the shared parenting movement but was now without effective leadership – and Gingerbread, the sole-parenting lobby group which consistently and wickedly sought to portray shared parenting as a danger to children.  Rather than use his own fundraising skills, Fisher cynically exploited the children themselves to do the necessary fundraising.  Millions of pounds which might otherwise have been used constructively poured into this campaign to help keep shared parenting off the statute book.

By the time the Children and Families Bill had passed through the House of Lords, where the former President of the Family Division, Baroness Butler-Sloss, represented the anti-shared parenting view, Clause 11 had picked up an amendment clarifying that involvement ‘means involvement of some kind, either direct or indirect, but not any particular division of a child’s time’, thus ensuring that the courts’ hands would remain tied on the one aspect of parenting over which they had some control.  Fathers would be even worse off, with ‘contact’ reduced to ‘involvement’.  One of the lessons of the Australian experience had not been learnt: the publicity had been mismanaged and fathers would be going to court, in all probability representing themselves, and demanding equality in the mistaken belief it was now on offer.  The cynicism of fathers’ groups was well placed: Lord Justice Ryder, the judge charged with modernising the family courts, said the clause would have no effect on practice, while Tory MP Edward Timpson admitted nothing would change and the exercise was merely designed to correct the perception of anti-father bias (Timpson, 2013).  Shared parenting supporters were distraught,

I am astounded, truly and utterly astounded at the absolute resistance in government to supporting fathers, men, boys, males, anyone who isn’t female in fact.  Even under a coalition supposedly supportive of the family, the same anti-male, anti-family outcomes have been arrived at.  And yes, I suppose no group supporting separated fathers was actually funded but to look and see that the illusion is still intact and in fact strengthened because now no-one has any opportunity to say that the emperor has no clothes on is quite something.  Quite something indeed. This is, for me, about actually deeply understanding the level of refusal to support fatherhood unless it conforms to the expectations of women (Woodall, 2013).

At the time of writing no Commencement Order has been issued for Section 11 and this impotent clause may never see the light of day.


Works Cited

Baksi, C. (2013, March 18). Family courts cuts will create ‘perfect storm’. Law Society Gazette.

Bentham, M. (2011, January 4). ‘Fathers at risk’ in Government’s legal aid cut. London Evening Standard.

Bjarnason, T., & Arnarsson, Á. (2011). Joint Physical Custody and Communication with Parents in 37 Western Societies. Journal of Comparative Family Studies, 42, 871–890.

Blackwell, A., & Dawe, F. (2003). Non-Resident Parental Contact. Department for Constitutional Affairs.

Bradshaw, J., & Millar, J. (1991). Lone parent families in the United Kingdom, DSS Research Report No 6. London: HMSO.

Butler-Sloss, E. (2003). Paul Sieghart Memorial Lecture. British Institute of Human Rights. London: King’s College.

Cameron, D. (2011, June 19). David Cameron: Dad’s gift to me was his optimism. Sunday Telegraph.

Cashmore, J., & Parkinson, P. (2011). Parenting arrangements for young children: Messages from research. Australian Journal of Family Law, 25, 236–257.

Centre for Social Justice. (2009). Every Family Matters: an in-depth review of family law in Britain. Centre for Social Justice.

Chisholm, R. (2009). Family Courts Violence Review.

Coleridge, P. (2010). Let’s hear it for the child; Restoring the Authority of the Family Court, Blue skies and Sacred cows. 21st Annual Conference of the Association of Lawyers for Children. Southampton.

Daily Telegraph. (2009, October 29). Lawyers overpaid £25m in legal aid, finds National Audit Office. Daily Telegraph.

Department for Education. (2012, May 9). Email to Nadine O’Connor of Fathers 4 Justice.

Department for Social Security. (1998). Children First: a new approach to child support.

Department for Work & Pensions. (2013). Child Support Agency Quarterly Summary of Statistics for Great Britain March 2013. London: Stationery Office.

Department for Work and Pensions. (2011). Strengthening families, promoting parental responsibility: the future of child maintenance. . Department for Work and Pensions.

Emery, R., Sbarra, D., & Grover, T. (2005). Divorce Mediation: Research and Reflections. Family Court Review, 1, 22-37.

Family Court Unions Parliamentary Group. (2014). The impact of legal aid cuts on Family Justice.

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.

Halla, M. (2011). The Effect of Joint Custody on Family Outcomes. Journal of the European Economic Association.

Hansard. (2006, July 4). Harriet Harman in written answer to John Hemming.

Hansard. (2006b, March 2).

Hickley, M. (2007, March 2). Divorce lawyers ‘steer couples to court for profit’. Daily Mail.

Hunt, J., & Roberts, C. (2004). Child contact with non-resident parents, Family Policy Briefing 3. Oxford: Department of Social Policy and Social Work, University of Oxford.

Jones, R., Burgess, A., & Hale, V. (2012). The Fathers’ Journey: a survey of help-seeking behaviour by separating and recently separated fathers . Fatherhood Institute and Families Need Fathers.

Kaspiew, R., Gray, M., Weston, R., Moloney, L., & Qu, L. (2009). Evaluation of the 2006 family law reforms. Australian Institute of Family Studies.

Kelly, J. (2006). Children’s Living Arrangements Following Separation and Divorce: Insights From Empirical and Clinical Research. Family Process, 46(1).

Lamb, M. E. (2012). A wasted opportunity to engage with the literature on the implications of attachment research for family court professionals. Association of Family and Conciliation Courts.

Local Government Lawyer. (2013, March 27). Top district judge warns on burdens caused by rise in litigants in person. Local Government Lawyer.

Lord Chancellor’s Department. (1993). Looking to the Future: Mediation and the Ground for Divorce. London: Stationery Office.

Ludolph, P. S., & Dale, M. D. (2012). Attachment in child custody: An additive factor, not a determinative one. Family Law Quarterly, 46, 1-40.

McIntosh, J. E., Smyth, B., & Kelaher, M. (2010). Parenting arrangements post-separation: Patterns and developmental outcomes, Part II. Relationships between overnight care patterns and psycho-emotional development in infants and young children. In J. McIntosh, B. Smyth, M. Kelaher, Y. Wells, & C. Long, Post-separation parenting arrangements and developmental outcomes for infants and children: Collected Reports (pp. 85–168).

McIntosh, J., & Chisholm, R. (2008). Shared Care and Children’s Best Interests In Conflicted Separation – A Cautionary Tale from Current Research. Australian Family Lawyer, 20(1), 3-16.

Ministry of Justice & Department for Education. (2012). The Government Response to the Family Justice Review: a system with children and families at its heart. London: Stationery Office.

Ministry of Justice. (2014). Mediation Information and Assessment Meetings (MIAMs) and mediation in private family law disputes: Qualitative research findings.

Mishcon de Reya. (2009). Policy Briefing Paper: Parental Separation, Children and the Courts.

Munby, J. (2013b, October). View from the President’s Chambers (7): The process of reform: changing cultures .

National Audit Office. (2007). Legal aid and mediation for people involved in family breakdown.

Nielsen, L. (2013b). Shared residential custody: A recent research review (part two). American Journal of Family Law, 27, 123–137.

Nielsen, L. (2013c). Infant and toddler overnighting after parents separate: A review of research.

Nielsen, L. (2013d). Woozles: Their role in custody law reform, parenting plans, and family court. Psychology, Public Policy, and Law.

Öberg, B., & Öberg, G. (2011). Skiljas – men inte från barnen (2nd ed.). Stockholm: Mardeld.

O’Connor, M., Burch, G., & Cox, M. (2005). A Blueprint for Family Law in the 21st Century: the case for urgent, radical reform. Fathers 4 Justice.

Overington, C. (2009a, June 3). Family Law experts slate shared-parenting. The Australian.

Overington, C. (2009b, June 4). Fathers still chasing equal time with children. The Australian.

Palmer, A. (2011, April 6). Britain’s Family Justice system isn’t working. Sunday Telegraph.

Parkinson, P. (2012a). Meaningful Reform to the Children Act 1989: learning from the Australian experience. Family Law Presentation. London: Centre for Social Justice & International Family Law Group.

Parkinson, P. (2012b). Written evidence. Justice Committee – Pre-legislative scrutiny of the Children and Families Bill.

Parkinson, P., & Cashmore, J. (2011). Parenting arrangements for young children: A reply to Smyth, McIntosh and Kelaher. Australian Journal of Family Law, 25, 284–286.

Partington and Cade, (No 2) [2009] FamCAFC 230 (Australian Court of Appeal 2009).

Re A (A Child), [2013] EWCA Civ 1104 (Court of Appeal September 6, 2013).

Re L (Care: Threshold Criteria) (Family Division October 26, 2006).

Resolution. (2012, April 4). First anniversary of Mediation Assessment Meetings marked, as survey reveals they are not working as they should.

Social Justice Policy Group. (2007). Breakthrough Britain: Ending the costs of social breakdown.

Timpson, E. (2013). Making the justice system more effective. Speech to local family justice boards. Department for Education.

Trinder, L., Bryson, C., Coleman, L., Houlston, C., Purdon, S., Reibstein, J., & Smith, L. (2013b). Building bridges? An evaluation of the costs and effectiveness of the Separated Parents Information Programme. Department for Education.

Trinder, L., McLeod, A., Pearce, J., Woodward, H., & Hunt, J. (2013a). Children and Families Bill: Memorandum of evidence. Nuffield Foundation.

Turunen, J. (2013). Shared Physical Custody and Children’s Experience of Stress. Stockholm: Stockholm University Demography Unit (SUDA), Department of Sociology.

Verkaik, R. (2007, October 16). Divorce lawyers ‘put fees before clients’. The Independent.

Walker, J., McCarthy, P., & Timms, N. (1994). Mediation: the making and remaking of cooperative relationships. Relate Centre for Family Studies, Newcastle University.

Warshak, R. (2012). Securing children’s best interests while resisting the lure of simple solutions. Parenting in practice and law: Terminology, rhetoric, and research, conference conducted at the Center for the Study of Child Development. Haifa, Israel.

Woodall, K. (2013, March 18). Karen Woodall. Retrieved from FaceBook.