Earlier in the week Glen Poole very kindly gave me space on his Inside-MAN site to give my views on the commencement of Section 11 of the Children and Families Act 2014. For those who aren’t aware (and there seem to be many of those) this section inserts into Section 1 of the Children Act 1989 what for brevity we can call the presumption of parental involvement. Judges are now advised that a parent’s “involvement” is likely to further their child’s welfare.
Unfortunately Glen had allowed me only 500 words (I went slightly over) so I had intended in my own blog to expand at rather greater length on what I had then written. Fortuitously the Government has just announced further developments, so I shall include those as well in this post.
Before we start, please note that the Children Act only covers the English and Welsh jurisdiction, contrary to the impression that may have been given in the Inside-MAN article.
We now need to step back in time to 2010 when Jack Straw introduced the Family Justice Review with the words,
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.
I was privileged to give both written and oral evidence to the review panel chaired by Sir David Norgrove; he commented that our observations on the family justice system were fairly unique and not shared by his other witnesses. We replied that this was an artefact of his narrow choice of witnesses, most of whom were ideologically opposed to the continuing involvement of fathers after family breakdown.
The Interim Report referred to our concerns as a “perception” and clearly didn’t take them very seriously. Nevertheless, it advised that, “A statement should be inserted into legislation to reinforce the importance of the child continuing to have a meaningful relationship with both parents, alongside the need to protect the child from harm”.
As is widely known, the Final Report removed even this meagre concession to a shared arrangement and stated without explanation, “We remain firm in our view that any legislation that might risk creating an impression of a parental ‘right’ to any particular amount of time with a child would undermine the central principle of the Children Act 1989 that the welfare of the child is paramount”.
This was a rejection of the importance of the child continuing to have a meaningful relationship with both parents and a rejection of the impact such a presumption is known to have had in other jurisdictions in reducing parental conflict and litigation. Quite why the panel performed thus U-turn I don’t know (perhaps someone does and could tell me), but clearly it didn’t impress the Coalition which responded, “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”.
A working party was established and consultations held. Four possible options were presented and most pro-shared parenting groups favoured the first, which read,
the court is to presume, unless the contrary is shown, that the welfare of the child concerned will be furthered by involvement in the child’s upbringing of each parent of the child who can be involved in a way not adverse to the child’s safety.
The response from Wikivorce was fairly typical of those from parenting groups, this was “the least bad of a poor set of alternatives and the option preferred by respondents; however it was felt by most that it merely reiterates what has already been established by many years of case law”.
Matt O’Connor, founder of the notorious campaign group Fathers4Justice, which claimed to represent some 40,000 families, petulantly refused to comment at all, then, when the consultation had closed, complained he had been denied the opportunity to do so and launched a Facebook campaign. Offered a generous second chance, again he refused. Astonishingly, F4J seem to have missed the fact that the law has now changed, and there is no mention from them of this reform or any other recent development.
The preferred option became Clause 11 of the Children and Families Bill 2014, by which time it had picked up some baggage. A parent was redefined as someone who could be involved in his child’s life only if it did not put the child at risk of suffering harm. This meant that a parent could justifiably be excluded if his involvement caused conflict between the two parents of a nature which would potentially be harmful to the child; it would not be necessary to show that the parent himself would directly harm the child.
A further clause allowed exclusion of the parent if “some evidence [could be placed] before the court in the particular proceedings to suggest that involvement of that parent in the child’s life would put the child at risk of suffering harm whatever the form of the involvement”.
Despite the meticulously imprecise wording, some reformers clearly believed that Clause 11 could be used to encourage the paternal involvement which they believed to be so harmful to a child, and they established the perversely-named Coalition for Shared Parenting, headed by former president of the family division, Elizabeth Butler-Sloss.
By the time Clause 11 emerged from the House of Lords it had been further emasculated by a redefinition of “involvement” which now meant “involvement of some kind, either direct or indirect, but not any particular division of a child’s time”. Since the division of time is about the only thing a court can rule on, this rendered the clause effectively impotent.
It must be recognised that this miserable prepuce of legislation began life as the entirely noble hope that the courts would be encouraged to regard a father’s parenting as the equal of a mother’s. What we have been given not only fails absolutely to deliver even a shadow of that, it actively hands judges further opportunity to exclude fathers, or any parent unfortunate enough not to be designated the “primary carer”.
Decades of campaigning, the hopes of generations of parents and their children, lie trodden in the dust. This is, in my view, the end of the line for a legislative solution to the problem of parental exclusion.
Notwithstanding that, many decent parents will continue to campaign for a 50/50 presumption, but for two reasons I don’t believe they will succeed. First: as the progress of the Children and Families Bill proved, opposition to shared parenting is just too strong, too well-funded and too well-organised. Second: however desirable such a presumption might be, it is inseparably associated with the less savoury fathers’ groups who think shared parenting will be achieved through hectoring and intimidation rather than careful argument. No government can afford to be seen to surrender to them because it would encourage more campaigning of a similar kind.
In the good old days before LASPO successive governments used to claim that only 10% of separating parents took their disputes as far as court. It was quite easy to disprove this figure, and prove the real one was at least twice as high: applications to the courts increased steadily up to 2010, but now it may well be closer to the truth. In a year court applications have fallen by a quarter; contrary to government intention, the take-up of mediation has also fallen by 45%, for the simple reason that most referrals were by lawyers, and without legal aid people are not using them.
In a recent post legal blogger John Bolch estimated that 79% of parental disputes were once settled by negotiation between lawyers, without the parties having to go to court. I have no idea of the accuracy of his figure, but it is certainly the case now, since the loss of legal aid, that this option has evaporated. This is not just the consequence of LASPO: fewer and fewer people can afford the rising court and lawyers’ fees. Most parents will have to resolve disputes between themselves or not at all.
The result is that many fewer cases are passing through the family justice system, and yet family breakdown, and the numbers of excluded parents continue to rise. We cannot accuse the courts of being the main driver in this.
I seldom discuss my own case, because it is pretty boring to me, let alone to anyone else, but I want to make an observation. At the heart of the case was the false belief that I was responsible for the emotional and sexual abuse heaped upon my son by his maternal grandmother. His mother believed this, and members of her family, and her friends and neighbours. His doctor believed it, and child counsellors and psychologists. The social workers believed it, as did the CAFCASS officers and the police. The lawyers and barristers believed it, and a whole succession of judges. There were times when even I began to doubt myself.
Now, many of these individuals and the organisations and agencies to which they belong are dominated by leftist, feminist group-think and political correctness, but that can’t be the whole story. These views are generally reflective of society and our culture. It is as a society, therefore, that we need to treat fathers better, to value them more; to learn that a couple of nights a fortnight isn’t parenting, that mothers have no place to “allow” fathers contact according to a schedule convenient only to them, that a father can care for a sick child just as well as a mother, that staying overnight with Dad won’t cause a child any harm, contrary to the vicious dogma of self-styled parenting gurus, that Mum’s level of child support should be determined by her child’s need for contact, and not the other way around.
The supporters of shared parenting are notorious for squabbling amongst themselves and allowing their political opponents to dominate, while they have proved time and again that they cannot agree on the simplest thing. And yet there have been three instances where almost unanimous agreement has been reached. The first is the ungainsayable belief that fatherhood is every bit the equal of motherhood, the second was with the ill-fated Early Intervention programme, which received the endorsement of the Minister at the Department of Constitutional Affairs, the President of the Family Division, the family judiciary, the Family Law Bar Association, the chairman of the Solicitors Family Law Association (now Resolution), the Coalition for Equal Parenting, Fathers Direct, Families Need Fathers, leading child development consultants, and other leading stakeholders.
The third consensus concerns what most people call “hubs”, conceived as a national network of local “one-stop shops” for information, services and support for vulnerable families in moments of stress. These were fisrt established in Australia with UK pilots in Leeds and elsewhere, advocated by Fathers4Justice in their 2002 Blueprint, developed further in 2007 by Iain Duncan Smith’s Centre for Social Justice, and extolled as Conflict Clinics by solicitors Mishcon de Reya in 2009. Even feminist academic Liz Trinder was in favour. The CSJ estimated the cost of establishing this network, which would utilise existing services and premises, at a relatively modest £86m.
The Norgrove report, however, downgraded the hubs to an online service and telephone support line. The Coalition eroded the concept still further in November 2012 to a “widget” embedded on the websites of a number of charitable support organisations. It cost only £400,000 – compared with the £247m the Government hoped to save on legal aid – and was described by its critics as good as far as it went but akin to placing a Bandaid on an amputation. 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 last June it was acknowledged the widget was not working and was referring parents to inappropriate services.
Justice minister Simon Hughes’s announcement on Thursday was clearly in response to this failure, but he is hopelessly out of his depth, his £2m solution is flawed and he has failed to consider many of the implications. What he has announced is a six-month pilot project for a helpline run by universally distrusted CAFCASS, and a network of advice centres manned by law students. It is, as Marilyn Stowe states on her blog, “a recipe for pandemonium”. Handing out legal advice is not a job for students: it is an enormously responsible undertaking where the wrong guidance can destroy a child’s life or send a parent to suicide. Furthermore, as Stowe recognises, it can take a huge toll on the advisor, who needs proper professional emotional support: “what impact this will this have on the volunteers. Are they really equipped to deal with the kinds of emotional outbursts that are common in these kinds of cases?”
The programme of reform is now hopelessly derailed. Hughes doesn’t know what he is doing any more than his government. The Norgrove report has gone out of the window; Hughes’ idea has no provenance. Piecemeal reform follows ill thought-through initiative, and every move is determined by the need to save more money, though its consequences will inevitably cost a great deal more in the long run. Remember the imbecilic Love Nuggets, or the proposal, now thankfully dropped, to double the fee for divorce? It isn’t surprising if the fathers’ groups have just given up and fallen silent. For as long as the obvious solutions are shunned because they are ideologically unacceptable to the political establishment nothing will change for the better.
Separating parents have to learn the hard way that the system cannot help them or their children, and it is certainly true that they are abandoning it in their droves, though whether they are reaching effective agreements is anyone’s guess. But just imagine what could have been achieved with a robust presumption of shared parenting, a return to the EI initiative and a nationwide network of family hubs.