Wednesday, 13 June 2012

Parenting Law Reform - Issues for the Justice Select Committee

This post offers 4 questions that I would be asking Tim Loughton and Jonathan Djanogly this morning if I were a member of the Justice Select Committee.

It's a big day for family law. Not only will the Consultation Paper on the Children and Families Bill be launched, but the Justice Select Committee (JSC) is calling the relevant Ministers of State (Tim Loughton and Jonathan Djanogly) to give evidence about the Bill. I'll write about the Consultation Paper in a few days, when I've had time to think about its contents (though they are pretty well leaked by now), but meanwhile here are some key questions that we should hope to see pressed home by the Justice Select Committee.

1. Why has the government decided to legislate about parenting when its own independent Family Justice Review specifically recommended against any change to the law in 2011?

The Family Justice Review conducted a long and careful assessment of family law and the family justice system in this jurisdiction over about 12 months. The panel members were initially attracted to the idea of legislating to promote positive parent-child relationships after divorce or separation. However, after looking carefully at the experience of similar law reforms in Australia, they concluded that any changes would likely do more harm than good.

There is plenty of evidence to support this conclusion, though some people are trying to attack the FJR for misunderstanding the Australian experience. I've given a summary of the research evidence, most of which comes from Australia, here before. If that weren't clear enough, we had a visit from the Chief Justice of the Australian Family Court in May, who told us of her concerns about the Australian legislative experience. Even a 2011 reform re-emphasising the importance of protecting children's safety hasn't resolved the problem, as can be seen from the fact that, on 31 May 2012, the Australian Parliament passed a motion introduced by Independent MP Andrew Wilkie calling for a complete review of Australian family law in light of on-going concerns there.

2. Is legislation needed to achieve the government's stated aim?

It's fair to say that the government's aim of promoting parent-child relationships is laudable, and will probably attract considerable support. I don't disagree with the aim at all, and nor does anyone else I know in the family law community. When it is safe and appropriate, children should have as much input from both of their parents (and other important people in their lives) as possible.

The question, though, is whether legislation is an appropriate way to pursue this aim. My question about this arises from the Conservative Party's own pre-election infatuation with the 'nudge' approach to social policy. Nudge got a lot of attention, not all very positive, but the basic idea is interesting enough - it's about providing people with signals and gentle encouragement towards a particular desired outcome, but not trying to force them with coercive measure.

In areas of social policy like family law, the nudge approach is ideally suited. Forcing parents to do things in particular ways is not only difficult but also likely to be too rigid given the diversity of parents and children. Encouraging certain behaviours, on the other hand, is a good idea. There are lots of ways that the state can signal that strong involvement by both a child's parents are important for children in most cases. Examples would include:
  • improving parental leave so that dads can spend more time with their children in the early parts of their lives - see this article in the New York Times about the Swedish experience
  • running information campaigns encouraging dads to be at work less and with their children more, as a number of foreign governments have done over the last 20 years
  • improving the enforcement around child support payments - the latest figures I can find quickly come from 2008, but then there was some £3.8bn of unpaid child support. £3.8bn! If the government is committed to showing that parental responsibilities are shared and continue after divorce, how about spending some time and money getting dads - and it is almost all from dad - to pay up for their children's upbringing?
These kinds of things - and many others - could be used to signal the importance of both parents to their children. These messages need to kick in long before the child is born. By the time we're talking about post-divorce child care, it's too late to start intervening to promote positive parenting relationships. If they aren't being encouraged and fostered early on, it's not likely that there'll be conjured up by the law or by a judge in the difficult months after parents separate from one another.

3. How will the government draft reforms that won't be misinterpreted?

Assuming that there is going to be legislation of some kind, the next question is how the changes will be made without risking their being misinterpreted. As a large swathe of family law experts (including me) explains in today's Times letters page, a law intended to promote shared parenting will be easily confused with an aim of shared time for children.

Shared time can work for some children, but is positively damaging for others - and the small minority of families who end up in court (rather than arranging things privately outside the court) tend to have the characteristics which will make shared time harmful. (See more on this on my previous blog post.)

The law at the moment, as set out in the Children Act 1989, requires the court to look at each individual child as an individual and work out what arrangements will be best. There is no one-size-fits-all model. Children are different, and what works for one may not work for another. Parents are different too. Arrangements which one set of parents can make do-able, another set of parents would find impossible.

Legislating about these issues is complicated. It takes time to work our how the law will be interpreted by the courts, and then, of course, many people do not ever go near a court. They do what they think is best, guided to some extent by a general idea of what the law says. At the moment, that general idea is usually distilled (accurately enough) as "do what's best for the kids". The risk of any change, however well-meaning, will be to shift that focus and encourage a new norm of "split the kids between the parents". That's probably not what the law will actually say, but that will become the folk myth, and that will be a powerful norm.

4. Why is the Consultation Paper being launched so late?

Those of us who have been looking out for the Consultation Paper have been hearing the words "next week" for so many weeks now that it's become almost funny. But for the JSC, it isn't funny at all. They scheduled this committee meeting with the Ministers weeks ago, with the expectation of having time to study the Consultation Paper in advance and ask meaningful questions about it. Instead, the Consultation is being launched on the same day as the committee meeting. If I were on the JSC, I'd be livid.

According to the rumours that I've heard (which might not be true, of course), the Ministry of Justice specifically refused to release an advanced copy of the Consultation Paper to the JSC. One can only think that this timing is therefore deliberate, and is designed to allow the Ministers to answer any difficult question with "that issue is addressed in the Consultation Paper" while also not having to answer any real questions about the content of the paper itself. This brazen disregard for the authority of Parliament, in the guise of the Select Committee, is appalling - but not that surprising. If I were on the JSC, I'd have some pretty tetchy things to say about all this.

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