Debating Family Law with Fathers4Justice

2.7.12: Updates about this post. First, anyone reading it should note the comments below that it provoked, mostly starting about a week after the blog was posted. Second, the 'debate' with F4J that I refer to in the title was the radio interview that started this episode: the point of this post is to illustrate what happened after I debated family law with F4J. Third, I took the unusual step of closing the comments on this post on 26.6.12. I have left the comments up to that time on here because they illustrate my point better than the original post, but personal attacks are not a legitimate part of any debate and future comments like this will be removed.

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This week I had a radio debate with Nadine O'Connor from Fathers4Justice. This post discusses some of the correspondence that I've received from people associated with F4J since that interview, and leaves readers to reach their own conclusions about what it might say.




I've had a strange experience this week - it's the first that I can recall receiving hate mail. Who is sending me hate mail? Angry dads. Why are they angry at me? Basically because they don't like some of the things that I said in an interview on BBC Radio Solent on Monday morning about proposals to reform family law. Until Sunday 24 June, you can listen to the interview, which features me and Nadine O'Connor from Fathers4Justice, on the BBC website - our bit starts about 12 minutes into the broadcast.

From what I can tell, the interview itself was fairly unremarkable. Mrs O'Connor and I didn't agree about much, but that's to be expected - why have two people there unless they have different views? She was reporting the experiences of F4J based on the people who get in touch with them, and I was talking about the research evidence in so far as it is relevant to the family law reform question.

I would imagine that most people who get in touch with F4J have had difficult experiences with their former partners, the family courts, or both, and the perspective of those people is, of course, one of the many that we should be listening to when thinking about possible reforms. But we should also bear in mind that their voice is only one voice, and it is right at one end of the spectrum - and this is where I hit some nerves of some F4J members.

Consistent findings from at least 3 different research projects have suggested that it is around about 10% of separating couples that end up in court when making arrangements about children's upbringing. (A lot more than that get legal advice - something like 80%, I think - but only about 10% end up in court - lawyers are quite good at negotiating settlements.) But anyway, whether it's a study by the Legal Aid Board in 1998 (para 3.6), a study for the Department for Constitutional Affairs in 2003 (p 39), or a study by the Office for National Statistics in 2008 (p 12), the findings are consistent - about 10% end up in court. The important thing with the ONS study is that it is based on a nationally representative sample which started out with 7,000 interviews. Most people in the sample are not separated parents, of course - they're 7,000 people who, between them, reflect the population of the UK, which means that there is no pre-selection of people based on their court experiences. When this study says that about 10% of people end up with court orders about their children, there's no reason to think it's not right. Obviously we don't know absolutely for certain, but it's reasonably clear that only a small percentage of disputes about children end up being decided by a judge.

I say all this just to set the context, and to explain why it is that I think I was on fairly strong ground with what I said in the interview. I've had a couple of emails back and forth with Mrs O'Connor  about this which, for the avoidance of doubt, have been nothing but courteous. Less pleasant, though, have been other emails that I've received and comments written about me by other people associated with F4J. As Mrs O'Connor herself noted in a comment on her public F4J facebook page, some people and organisations refuse to appear at media events alongside F4J because they consider the people associated with F4J to be "bullies". (Since Mrs O'Connor puts links to this F4J facebook page on her Twitter feed, I assume there's no problem with anyone looking at it and with me quoting from it.)

Having set the scene, I'm not going to annotate this story much more, because I think it tells itself. Below, I have reproduced, in full and with no changes or omissions, two emails that I received on Monday from Mr Barry Gaynor and Mr Pete Nicholls. My favourite part about them is the way they are signed off so politely at the end...

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Monday 18 June, 13.52

"Hello Robert

I note that have you used inaccurate data on BBC Radio Solent this morning you claimed that only 10% of cases go to Court to sort out contact, you misquoted inaccurate data by Hunt and Macleod of 2006 which references the incorrect data of the 2003 report by Alison Blackwell and Fiona Dawes ie this data is from a study of contact which was working, not those parents making Applications to Court.

Your work and people like you damage children, I hold you and your ilk responsible for the separation of children from their fathers based on lies. For too long this practiseof quoting lies has been quite common amonst your colleagues.

And am still shocked that this tactic is still allowed and that people with positions of high standing are allowed to poison to debate and spew such damaging and false statistics without any remedy, Until you are held accountable or an apology issued, I will ensure that your name be tarnished throughout the Internet for your mideeds.

Kind Regards

Barry Gaynor"

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Monday 18 June, 13.57

"Dear Rob,

Having heard you on BBC Radio Solent this morning I felt compelled to write.

Do you actually know anything about which you speak as a so called expert, and what compelled you to come on the radio so devoid of facts? Humiliating I would have thought.

The 10% you and so many other lazy and frankly ignorant journalists / academics (so called experts) quote is, as Nadine of F4J stated, based on the 2003 Blackwell Dawes report and regurgitated in 2008 by Hunt and Macleod.  The 10% figure was wrong in 2003, it was wrong in 2008 and it is still wrong despite an academic who's never been divorced, had children or more importantly lost them to the corrupt courts repeating it. I do wonder if repeating false statistics for so long can really be ignorance, or adherence to some nefarious social engineering agenda. It's just that academics are supposed to be concerned with facts and so few in family law are. One might reasonably ask what's going on. We'll find out soon enough. 

I shudder at the thought of an apparently uniformed academic researching relocation in family law due to report later this year. What are our chances? What hope have we that you might actually do the job right, that you might actually realise the human agony of one relocation let alone thousands - or the actual affect upon small children? from being forcibly removed from a loving/loved parent Here's one for you to chew over. As a mother moves around the country, so too the court which hears the case. So if mother continues to move, and forces the case to be transferred repeatedly, how might you go about stopping that without infringing her human rights - rights that in the real world damage children. Of course we could simply resolve the issue as have other states by providing equal status to both mother and father. It stops one parent (read mother) intentionally moving for their own selfish reasons and means the child is guaranteed stability - they can move only when both parents agree. That old idea of cooperation, for the benefit of the child. That's too simple though Rob, doubt there's much research income from that. I see your problem, I really do.

Anyway, I wanted to make sure you knew your were spouting bull re the 10% so I've done my job here today. Hope you had a lovely weekend Rob. Many fathers did not. Having been stopped from seeing their kids without good reason - on Fathers Day. Wonder how many took their lives this year? Now there's a piece of research that's worth doing but I doubt you'd get much funding or kudos in the brave new world of anti-family social engineering.

Kindest,

Pete"
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I didn't reply to either of these two emails. I consider them to be rude and bullying, and I am not interested in trying to defend myself against personal attack when the issues in question are nothing to do with me personally. (These emails may be contrasted with Mrs O'Connor's emails, which were perfectly polite and focused on the research findings, and to which I have replied.) There's obviously lots that I could say about the points raised in these emails, but let's hold fire because there's more to be found when we look at the comments posted on Mrs O'Connor's F4J facebook page.

Mr Nicholls features a number of times. His first contribution to the feed follows from two questions that I was asked in the interview, namely whether I've ever been divorced (no) and whether I have children (no):

"Academics are dangerous. I work with them all the time and am continually astounded by how little they know. Good thing he admitted he's never married or had kids, or stepping inside a family court room. One can see why he's an expert then. Wonder if he's ever considered become a court expert witness, he's more than under qualified for the job."

Just to clarify, Mr Nicholls knows nothing about my relationship status, only that I have never been divorced; and I have, in fact, been in many family courts. The first time was 12 years ago, the most recent was last November, with many visits in between. In any case, my claim to expertise comes from research and study, not from personal experience - on which, see this blog post on research and anecdotes that I wrote a while back.

Mr Nicholls seems very concerned with aspects of my person (as if that affects the Office for National Statistics' research). After finding a link to my Law Faculty webpage, he says: "Its Dr Rob George here, doesn't look old enough to shave let alone father a child". Mr Nicholls then notes from my profile page that I am researching relocation disputes (on which see my earlier blogs on internal relocation and my current project). With reference to the President of the Family Division of the High Court, Sir Nicholas Wall, Mr Nicholls says this:

"By the way, he's had special dispensation from old Nick (No, not the devil, Sir Nicholas Wall - oh, hang on...) to conduct a study on relocation as a follow up to Payne vs Payne. I wonder what he's going to come out with, one can already guess which way this highly uninformed and biased 'Dr' is going to go."

The funny thing about this comment is that I'm fairly clear in what I've written about relocation before, both in academic writings and here on my blog, that I think there's a good case for reviewing the law and asking more serious questions than the law does now about whether relocations ought to be allowed to go ahead. But hey, in order to know that, Mr Nicholls would have had to bother finding out something about me and my work before going ahead and making his defamatory remarks.

The delightful Mr Gaynor also features briefly on the facebook wall, asking if anyone has my contact details (though he seems to think I'm called Brown):

"Does anyone have Prof Brown's contact details. I would like to bombard him with up to date data regarding this issue and generally take him to task on what he intends to do in order to correct this cruel and damaging error."

So this was my Monday, basically. I spent 10 minutes on the radio and then much of the rest of the day getting abusive emails and disparaging facebook comments. Why have I put it all up here? Because I think it's important that people know that this is going on, and so you can see the extent to which people attempt to attack and discredit individual researchers in order to try to undermine sound research findings which happen not to fit with their own experiences and views.

The implicit and explicit threats made against me in those emails, and the personally and professionally disparaging remarks made about me on the facebook page, speak for themselves.

Initial Thoughts About the Cooperative Parenting Consultation

The Government this week launched its consultation on proposed changes to family law as part of the Children and Families Bill. This post give some of my initial thoughts about the contents of the consultation paper. Put shortly, I think that case for reform has not been made, and some of the suggested amendments in the Consultation Paper are not well thought through. However, with appropriate amendments, there is scope to find positive outcomes within the government's suggestions.


One of the aims of the Children and Families Bill 2012 is to strengthen the relationships between children and their parents after divorce or separation. That's a perfectly laudable aim, and one that I think everyone I know who works in the family justice system would say they are pursuing anyway. Still, there it is, and now we have the benefit of a fairly short Consultation Paper about how this aim should be achieved.

My aim here is to discuss the contents of the CP in its own terms. I'm not really addressing the bigger, and prior, question of whether there is any need for reform at all. That's a matter for another day, though it is an important question and one that the Justice Select Committee rightly put to the Ministers when they appeared before it on Wednesday of this week. But the focus here is just on providing an over-view of the CP itself.

General comments:

The first feature that I notice about the CP is how many bald claims it makes about things which I think there is little or no evidence to support. For example, in both the introductory paragraph and in para 3.2, the CP says: "When disputes about these arrangements [i.e. children's upbringing] arise, however, there is a risk that children's needs are overlooked."

I'm not sure what the evidence for this claim is. The Children Act 1989 is entirely focused on the individual child who is the subject of the case, and that child's welfare is the "paramount consideration" in any decision. The whole aim of this provision is to keep the attention on the child and stop court cases from being about parents' rights and their demands.

Moreover, it is not clear how the CP intends to increase anyone's focus on the child's needs. The Children Act currently says that the court shall "have regard in particular" to, amongst a number of other factors, the "physical, emotional and educational needs" of the child - but there is no mention of any such factors in the CP.

The CP also focuses almost entirely on cases where the resident parent (usually the mother) deliberately obstructs the child's relationship with the other parent (usually the father). There are cases where this happens, of course, though in a system dealing with tens of thousands of children it is important to be aware that it is a very small minority of cases. That's not to say that we shouldn't do something about them, obviously. The CP contains discussion about improving the enforcement of court orders in family cases as well, and that aim is also laudable. Indeed, if anyone has good ideas about how to do this without actually harming the children involved, I'm sure we'd all like to hear them.

But my real point here is that we need to be careful not to focus too much on one parent. It is true, as Minister Tim Loughton told the Justice Select Committee on Wednesday, that about one in three children lose contact with one of their parents (usually their dads) after parental separation. But this number must not be equated with the number of cases where mothers deliberately push dads out, as the Minister seemed to imply. That's simply not the case at all. The majority of those children lose contact because their dads choose not to see them. There are lots of reasons why this happens.

Sometimes the whole situation is so difficult that dads give up, and that is obviously a bad outcome and we should think about how we can use the law and other mechanisms to help those children and their parents to make things work. Sometimes the fathers just get on with their lives and their children fall to the side - things like work, new relationships, new children and moving home all contribute to a loss of relationship with the child.

And sometimes - and this is the elephant in the room, entirely unmentioned by the CP - sometimes parents are dangerous. Either parent can be dangerous to a child or the other parent, but more often it's men. Levels of domestic violence are very high in family court cases - a Ministry of Justice study by Aris and Harrison in 2007 (not currently on the MoJ website) found there to be allegations of DV in 94% of family court cases, and independent evidence to support those allegations in about 70% of cases.

Finally in my general comments, it is worth noting that the CP seems to be asking only how the new legislation should be done, not whether there should be any at all. My view is that the if question ought really to be given some serious thought before we turn to the how question, but there we are.

Context and the Need for Legislation:

This is where we ought to find out why the government is in favour of legal reform. The CP is not, however, terribly informative. There is an assertion that 'too many parents are drawn into the court process', though there is no explanation of what this means (too many compared with what?) nor what the basis for the claim is. It is about 10% of separating parents who end up in court about their children's upbringing, and many of those agree the outcome during the course of the litigation.

This is very standard - in countries with legal systems like ours (such as Canada, Australia and New Zealand), it is always between about 8 and 12 % of cases that end up in court. These cases are just hard. They often involve high levels of conflict, allegations of domestic violence, drug and alcohol abuse, and mental health issues. Wishing that these cases would just settle amicably is a futile exercise.

We can also see, from para 3.1 of the CP, that the real issue here is how the general public understands the law to work. According to the government, the mere fact that the Children Act does not say explicitly that parents are important to their children "has contributed to a perception that the law does not fully recognise the important role that both parents can play in a child’s life". Three points arise from this.

One is that the detailed contents of an Act of Parliament are rarely known by the general public. How many people other than lawyers and law students sit down and read statutes? The public understanding of the law comes in other ways, not least from the media. The media, in turn, has been very poor at educating the public about child law in this country. For example, both print and broadcast media continue to refer to parents' rights to 'custody' and 'access' of their children (see this from Wednesday's Guardian and Wednesday's Telegraph; I heard similar things on BBC Radio 5 Live's discussion of the law on Wednesday morning) - but those terms (and any focus on parents' rights) were specifically abolished by the Children Act 1989.

The second point is that the law in this country does not only come from statutes. The decisions of our senior courts are just as much part of the law, and the Supreme Court and Court of Appeal have been perfectly clear over the last 20 years that both parents are important in their children's lives, and that the court will make orders for either shared residence or the maximum amount of contact that is possible in any case where the parent seeks that and where it is safe.

Given this, the third point is that this mis-perception by parts of the public calls for education about the law, not a change in the law. The law is already doing what it is meant to do, and we should tell people that rather than tinkering with the law itself in the hope that people will suddenly start reading statutes.

The Four Draft Clauses:

The CP presents four possible options for a legislative amendment. In the consultation response document, one question asks simply which option respondents would prefer - which is an odd question, given that the options themselves contain a number of possible variants. It is also annoying since the four options do not progress logically from one to the next - there are elements of one that might be combined usefully with different elements of another, which makes it hard to see how choosing the 'best' option will work.

Anyway, here's my brief thoughts about the options.

OPTION 1:

After s 1(2) of the Children Act, insert these words: "[When making orders about children's upbringing or parental responsibility] 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".

I think from the explanatory notes that the government thinks that this wording is very clever. For my part, I find it both ugly and hard to understand. (So much for helping the general public to get a clear picture of what the law says.)

The most positive thing to say about this option, compared with the other three, is that it makes explicit reference to the child's safety. This qualifying phrase is, for no given reason, absent from the other three options. My legal criticism of the clause is that I think it is using the word 'presumption' in a non-expert sense, meaning 'default outcome'. I'm not going to go into technical matters, but there are plenty of lawyers who would say that that isn't what the word means in law, though the practical effects of that might be small.

One concern I have is that the effect of this clause, as pointed out in para 10.3 of the CP, is that it will put a burden on a person seeking to resist contact. Since most cases where a mother resists contact involve safety concerns, there are obvious dangers in making the task facing that parent (appear to be) onerous. Asking whether a default outcome is inconsistent with the child’s welfare is likely, in general terms, to produce results which are different from asking, with no default, what outcome is consistent with the child’s welfare. While this may indeed be the government’s aim, I fear that we are staring at ‘unintended consequences’ here as safety concerns may get overlooked in the borderline cases which almost go to court but don’t in fact.

OPTION 2:

After s 1(2) of the Children Act, insert these words: "[When making orders about children's upbringing or parental responsibility] the court shall have regard to the general principle that, irrespective of the amount of contact a child may have with any parent, the child's welfare is likely to be furthered by the fullest possible involvement of each parent of the child in the child's life".

To me, phrase ‘fullest possible involvement’ is very concerning. The word ‘possible’ has such different connotations from, say, ‘fullest appropriate involvement’. I don’t much care for the word ‘fullest’ either, though. The CP states explicitly that these proposals are not about how much time the child spends with each parent, but I can't see that in practice there will be any other way to measure 'full' involvement.

From a legal point of view, having the word ‘principle’ in here is apt to create great confusion. At the moment, the Children Act contains only 1 core principle – the s 1(1) welfare principle – plus a ‘general principle’ in s 1(2) that delay is likely to be bad for children. The government might say that option 2 will behave much as the ‘no delay’ principle does now – complementing the welfare principle. The difference is that everyone agrees that delay is always bad for children, and so regardless of any other factors, it will be better for each child to resolve his or her case as quickly as is feasible.

That is not true of the parenting provisions. It will usually be true, but not inevitably be true (unlike the delay clause, which is always true). So the problem is that when you have more than one principle and they are not always compatible, sometimes there will be a clash of principles, and when they clash there is no way to resolve the problem other than for one of them to take priority over the other. (There was a similar experience in Australia with their two 'primary considerations' about parent-child relationships and children's safety - when they clashed, one trumped the other, and the one that lost was safety until the Australian Parliament stepped in in 2011 to change it.)  

OPTION 3:

After s 1(2) of the Children Act, insert these words: "[When making orders about children's upbringing or parental responsibility] the court's starting point is to be that the welfare of the child concerned is likely to be furthered if each parent of the child is involved in the child's upbringing".

My only real question about this clause is what, as a matter of law, a 'starting point' is. Obviously we can all see what it means in a lay sense, but I don't know that when those words are put into law they have any defined meaning. Since one of the government's aims with this legislation is to reduce litigation, it seems unhelpful to introduce new terms into the law which will inevitably require significant amounts of litigation for the courts to reach a settled interpretation.

Other than that, I find this clause fairly unobjectionable. The expression 'involved in the child's upbringing' is broad enough to encompass the many and varied ways in which a parent might contribute to the child's welfare, and carries little risk of being misinterpreted as a push towards shared time arrangements, which are suitable for some children but not all.

The words 'is likely to' will place some level of burden on a parent seeking to say that the other parent should not be involved, or should be less involved, in the child's life, but that is more or less where the law stands now anyway. Moreover, the word 'likely' recognises, and allows judges to say, when it is appropriate to do so, that although it is generally likely that children will benefit from having both parents involved, it is not actually so in this case.

OPTION 4:

At the end of the section 1(3) welfare checklist, add the words: "[When making orders about children's upbringing or parental responsibility] a court shall have regard in particular to enabling the child concerned to have the best relationship possible with each parent of the child".

I like the idea of putting this clause into the welfare checklist, which is a list of factors which the court takes into account when making decisions about children. The words 'in particular' are somewhat superfluous in the clause, since the checklist factors are already described as things 'the court shall have regard in particular to', but no great harm there.

The bigger concern with this clause is the phrase 'best relationship possible'. The word 'best' will be very hard to measure, and is likely to be interpreted in practice as meaning 'most' - in other words, the qualitative provision will be interpreted in practice in a quantitative way, because quantity is much easier to measure than quality.

Conclusions:

This is just an initial run through the CP, but my conclusions at this stage are two-fold. One is that I am not yet persuaded that there is any need for the changes which the CP focuses on about parental involvement in children's upbringing. I think they are as likely to confuse matters as to improve them. At the same time, in the area where there is scope for improvement (enforcement of orders), the CP has absolutely no practical suggestions. I don't have any ideas either. Enforcement is hard, and while many people agree that more should be done, no one has any ideas about what that should be.

My second conclusion is that, although I see no need for a legal change here, with some appropriate tweaking the CP's third option might work well, though I would prefer to place it within the welfare checklist in the way envisaged for option 4.

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.

NJDB v JEG: What the Supreme Court Didn't Say

The Supreme Court gave judgment in a parenting dispute on 23 May 2012 - but you wouldn't know it from reading the judgments, which focus entirely on procedure. This post comments on the important family law issues that the Supreme Court failed to address.



The Supreme Court doesn't hear many cases about the upbringing of children, so the tediously-named Scots case of NJDB v JEG [2012] UKSC 21 ought to have been quite exciting for us family lawyers. But it wasn't. It has its own kinds of interest, I suppose, but somehow the fundamentally important family law questions - about children's welfare, parental conflict, and parent-child relationships - were entirely sidelined in a judgment that ended up being all about procedure.

I don't want to be unfair to the Supreme Court Justices hearing this case. The relevant rules of appeal procedure limit appeals in this type of case to points of law, and so the findings of fact from the courts below were not open to question. But even with that in mind, there were some really very important issues which the Supreme Court could usefully have taken the opportunity to pass comment upon. So here's some of what the Supreme Court didn't say.

The Facts:

NJDB was a very long-running case. The 12-year-old child, whom I am going to call Sam (not his real name), was born from a fairly short-lived relationship between the parents. He had an older sister from the mother's previous relationship, and a younger brother from the mother's subsequent relationship. After the parents' relationship ended, Sam initially had staying contact with his dad; this was later affirmed by an interim court order, followed by what we South of the Border might call a consent order in 2004. (It was in fact a minute of agreement [MoA]: as I understand my Scots law, an MoA is filed with the court and is then legally binding.)

Although residential contact continued, disputes between the parents began almost at once and, in July 2004, the mother sought to retract the MoA and stop contact. The father, in response, tried to have her committed for contempt of court - so things were going well. Absurdly long court proceedings then began which - 6 years later! - eventually wound up in the Supreme Court. The end result was that the Supreme Court affirmed the first judge's decision, which involved not ordering any contact between Sam and his dad because i) there was so much conflict between the parents that it would harm Sam, and ii) Sam, now aged 12, did not want any contact. (I don't have any Scots statistics, but in England and Wales there were precisely 300 cases where that happened in 2010, out of 95,460applications [see Table 2.4 of this MoJ report] so Sam's is an exceptional case.)

Perhaps unsurprisingly, the Supreme Court spent much of its judgment criticising the process which had allowed a relatively simple case to take so long and to cost so much. (Even before reaching the Supreme Court, the case was estimated to have cost over £1m.) But in amongst the rather dry discussion that Lord Reed and Lord Hope offered in their judgments (Lady Hale, Lord Clarke and Lord Wilson agreeing with both), there were glimmers of the (for a family lawyer) rather more interesting aspects of this case that went by unmentioned.

The relevance of parental conflict:

When I was writing about the research evidence related to shared parenting arrangements a few weeks ago, one of the key messages that came from all that data was that kids do not do well in shared care if their parents are in a highly conflicted relationship. What about cases where shared residence isn't the issue, though? Sam's case wasn't about shared residence - it was about contact, but still for the judges below the Supreme Court the parental conflict was an important factor. The trial judge said this:

"If contact between [Sam] and [the father] were to occur, handovers would take place amid an atmosphere of hostility, assuming that [Sam] willingly attended for contact. ... It would probably distress him and involve him again in the continuing conflict between the parties. ... It is not in [Sam's] best interests that he is exposed to such conflict."

There is a hugely important questions here. What is the relevance of inter-parental conflict when assessing a contact case? And so what did the Supreme Court say about this question?

Well, nothing. The section that I quoted above was used to illustrate that the trial judge had understood that this case was about the welfare, or best interests, of Sam (which the father said the judge had failed to realise). But nothing - nothing - was said about the substance of whether or nor, and if so when, inter-parental conflict might in itself be so harmful to the child as to justify stopping all contact between the child and one parent.

Sam's views about the matter:

Again, I'm not sure about the Scots view, but in England and Wales many commentators think that the courts give rather inadequate weight to the views of children in court proceedings concerning them. Sam's views about contact with his dad were discussed by the trial judge:

"Were a contact order to be made, [Sam] would be unwilling to attend. It is probable that he would refuse to attend.".

When this was said, the boy was 9 years old. The question is how much weight could or should be placed on the views of a child that age about what he or she wants to do. This is part of a large debate in family law, of course, but this was an opportunity for the Supreme Court to give us some insight, but again we got nothing.


The effect on the child of losing contact:

Later in his judgment, the trial judge noted the possible effects on Sam of not having any contact with his father, in spite of the conflict issue and Sam's own apparent opposition to contact:

"There is the danger, of course, that if no contact order is made and [Sam] does not see his father now, there may be emotional consequences of a psychological nature as he reaches adolescence. He might resent his mother and consider her responsible for cutting his father out of his life..."

All credit to the trial judge for at least mentioning this issue, which again did not feature in the Supreme Court beyond a passing reference in para 22. There is also the small matter of the European Convention on Human Rights and, as I understand it, fairly clear European Court rulings saying that the state has a positive obligation to take reasonable steps to protect parent-child relationships as part of its obligation to respect people's private and family life. These were again mentioned in passing by Lord Reed in para 22 of the judgment as part of his Lordship's criticisms of the delay in Sam's case; but there was no significant engagement with this issue. Nor was there any discussion of the real chance that, given the state's complete failure to grasp the issues earlier on in proceeding, and the end result of the father being refused all contact with his son, the UK might end up paying damages if this case went to Strasbourg.

Discussion:

It's fair to say that, as it was presented to the Supreme Court, Sam's case wasn't really about these substantive family law issues. But parenting disputes about such (legally) mundane things as contact orders rarely justify the attention of the country's highest court, and it is very disappointing that, having got this one there at huge public expense (the case was legally aided), the Justices did not engage with these important issues. There is so much to say, and so much complication and scope for debate, that there would have been great value in hearing what the Justices - especially Lady Hale and Lord Wilson, the family law experts - thought about the matter. Instead they remained silent, deferring to the procedural questions on which the two Scots judges on the court had greater expertise. What an opportunity lost.

This post was amended to correct an error in the penultimate paragraph,

regarding the Supreme Court's discussion of the ECHR issue, on 25.5.12.

Internal relocation: have kids, will travel (barring exceptional circumstances)

Internal relocation cases are disputes between separated parents about a proposed move to a different geographic location within the UK. In this post, I discuss the law and some research that I did with legal practitioners in 2009, and suggest that it is time to think again about the courts' current approach to relocation disputes.



One of my barrister colleagues at Harcourt Chambers has a case coming up about internal relocation. Relocation cases are disputes between separated parents that arise when one of them proposes to move to a new geographic location with their child or children and the other parent objects. The 'internal' part means a move within the United Kingdom, rather than internationally.

Families obviously move house all the time after separation, but internal relocation disputes that end up in court are pretty rare for a number of reasons. Some of those reasons are obvious - separated parents work things out for themselves when one of them wants to move, or the move isn't far enough to justify the kind of expense and aggravation that a court case involves. There are less obvious reasons, though, which relate to the law itself.

The Law on Internal Relocation:

Like all parenting disputes about children's upbringing, internal relocation disputes are governed by the Children Act 1989. The heart of the Act is that in all decisions about a child, that child's welfare must be the paramount consideration. In practical terms, that means that any relevant information can be taken into consideration, but only things which directly or indirectly affect the child will be considered relevant. This 'welfare principle' is then guided by case law as it develops in relation to particular types of case.

The first litigated internal relocation case that reached the Court of Appeal (and so started to matter more generally to the law) was a case reported as Re E (Residence: Imposition of Conditions) in 1997. In that case, the mother was providing the main care of the children, and the father sought an order from the court preventing her from moving with them from London (where they had lived before separation) to Blackpool (where the mother's extended family lived). The Court of Appeal refused to make the restrictions on the facts of that case, and set out some general guidelines for future decisions.

In the leading judgment of Lady Justice Butler-Sloss, it was noted that although the Children Act contains a power to impose conditions on a residence order, it would 'not sit easily' with what was meant by a residence order if conditions were routinely imposed. A residence order, which determines the person or persons with whom a child shall live, would normally come with significant flexibility about how to raise the child while in that person's care. As the judge went on:

"A general imposition of conditions on residence orders was clearly not contemplated by Parliament and where the parent is entirely suitable and the court intends to make a residence order in favour of that parent, a condition of residence is in my view an unwarranted imposition upon the right of the parent to choose where he/she will live within the UK or with whom. There may be exceptional cases".

This final point, about exceptional cases, was clearly intended by Butler-Sloss LJ to avoid any overly rigid rule, but with the advantage of hindsight it was perhaps unfortunately expressed. In subsequent cases, other Court of Appeal judges began to refer to the 'highly exceptional' circumstances which might justify stopping an internal relocation, and then of the 'truly exceptional' nature of an order stopping an internal relocation.

In the most recent reported case, Re F (Internal Relocation) in the summer of 2010, Lord Justice Wilson expressed 'puzzlement' at this development of the law. As the judge noted, it is hard to see any legal justification for an exceptionality test. All decisions about children's upbringing are governed by a single principle, namely that the welfare of the child is the paramount consideration. If a welfare analysis suggests that internal relocation is not in the child's interests, why should there be a requirement that the case be in some way 'exceptional'?

It might be argued that this label is purely descriptive: as a matter of fact, cases where restrictions on relocation within the UK will be the exception. (That is what I think Butler-Sloss LJ probably meant in Re E.) That might be fine. As the Supreme Court said in another child law case, it is okay for the outcome of decisions more often to be X rather than Y, but not okay for there to be a starting point or presumption in favour of X.

However, the way that the law in this area has developed means that the label is not really descriptive, but is actually a test which presents a high hurdle for someone seeking to stop an internal relocation to cross. Lord Justice Wilson was clearly unhappy about this state of affairs in Re F, but thought that the Court of Appeal was not able to do anything about it:

"It is now too late ... for [the Court of Appeal] to rule that, in internal relocation cases, the analysis of the child's welfare ... should not be conducted through the prism of whether the circumstances are exceptional. ... But for the reasons given, I believe that, had I not felt bound by authority, I might have wished to suggest that a test of exceptionality was an impermissible gloss on the enquiry mandated by section 1(1) and (3) of the [Children] Act."

While I think that the Court of Appeal could, in fact, have removed this undue gloss on the welfare principle, Wilson LJ nonetheless makes the argument for a re-think clearly.

Relocation Research

Similar ideas were found in my research into relocation disputes in 2009, when I interviewed lawyers and judges about their experiences of the law. One judge whom I interviewed and who, like Wilson LJ, was uncomfortable with placing an exceptionality gloss on the welfare principle, said this: "If the welfare analysis suggested that it would be best for the welfare of the children for them to stay, ... the court should have the power to make that happen."

Other participants pointed out the strangeness of having a different approach to moves inside the UK (allowed unless there are exceptional circumstances) and moves outside the UK (where there is a multi-stage test, albeit a controversial one). Many participants noted that maintaining regular contact after a move from London to Perth or Bangor would be a lot more difficult than after a move from London to Paris or Brussels.

However, even for shorter moves, some lawyers and judges were concerned about the effects that an internal relocation might have. As one solicitor said, "you might be talking about only a one-hour or two-hour journey, but [such moves] are still equally destructive [of contact]". It was these consequences of the decision that led one barrister to stress the importance of making the judge see why the case was important and more difficult than a normal contact case:

"You have got to look at this much more carefully and say, if I make this decision to [allow the parent to] relocate internally miles away ..., what is the medium- to long-term effect of that? Is it going to be reasonable [to continue] to have fortnightly contact? Often it is not, if the distance is vast and involves huge amounts of driving."

This is the reason why relocation cases call for a broad all-factor child-centred approach, not restricted by the straitjacket of an 'exceptionality' test.

Discussion:

Relocation law, both internal and international, is long overdue for a re-think. As one senior barrister said in my research, it is not necessarily even that the Court of Appeal has got it wrong at the moment (though it may have), but rather there are just so many people who are unhappy with the law as it is that the courts should review it with an open mind as to what the outcome will be.

There is lots I could say about how the law should be changed, but there's one overarching point that I think comes from this discussion. It seems increasingly difficult to justify having a legal approach in which so much depends on the proposed destination of the relocation. To be honest, I'm doubtful whether having a different rule for moves within the UK versus moves elsewhere would prove to be EU-law compliant if challenged in the European courts. (The rule appears to favour moves within the UK and therefore disfavour moves elsewhere within the EU, thus de facto discouraging people from exercising their rights to free movement within the Union.)

The Court of Appeal has often stepped in before to remove other glosses on the welfare principle that grew accidentally over time, and it should do the same with internal relocation. Failing that, then it is time for the Supreme Court to get involved, preferably with a combined appeal involving both internal and international relocation cases so that the legal principles of the two sides of relocation law can be considered together.

In an article published in the Journal of Social Welfare and Family Law in 2010, I suggested a series of questions that might be considered when dealing with a relocation case:

(1) What is the reality of the existing care arrangement, including consideration of the various contributions which are being made to the child’s welfare and wellbeing?

(2) Why does Parent A wish to relocate, and, in particular, is the relocation a covert attempt to disrupt the child’s relationship with Parent B? In terms of practicalities, are the plans to relocate well considered and reasonably realistic? Similarly, why does Parent B oppose the relocation?

(3) Taking into account the answers to (2), is Parent A able and willing not to relocate if the child cannot move? Conversely, is Parent B able and willing to move as well if the child does move, so as to continue the present care arrangement in a different location? Assuming one (or both) of these options to be possible, consideration must be given to whether it would be in the child’s interests to adopt that course, taking into account the likely effect on each parent and, directly and indirectly, on the child.

(4) If the options in (3) are impractical or undesirable, what would be the advantages and disadvantages for the child, either of going with Parent A or of remaining with Parent B? This assessment should take into account factors like (a) the realities of the existing care arrangements; (b) the effect on the child of moving with Parent A while Parent B remained, or of remaining with Parent B while Parent A moved (including the effect on the child’s relationship with the each parent, with other family members, and with friends and community more generally); (c) the possibility for maintaining a strong on-going relationship with whichever parent the child was not with; (d) the general disruption involved with moving (new school, etc) compared with remaining in the current location; and (e) any significant material advantages or disadvantages either way.

(5) What are the child’s own views about the matter, taking into account the child’s age and maturity?

This approach probably isn't perfect, but it might be a place to start in re-thinking relocation law.

For more detailed discussion, see my two case 

commentaries on internal relocation cases in the

Journal of Social Welfare and Family Law: (2010)

32 JSWFL 71-80 and (2011) 33 JSWFL 169-174

Shared Parenting in Australia - Notes from the Chief Justice's Talk

The Chief Justice of the Family Court of Australia, Diana Bryant AO, spoke about the lessons to be learnt from the Australian shared parenting reforms of 2006 at the Annual International Family Law Seminar in London on 1 May 2012. The Judge highlighted possible dangers of following a similar path in England and Wales, and offered practical tips to avoid the major pitfalls. This is an unofficial report of the Judge's paper based on the notes that I took; Bryant CJ will, I believe, be publishing her full paper in International Family Law later this year.

It is hard to imagine a more timely moment to hear Australia's most senior family court judge talking about the lessons that would-be law reformers in England and Wales can learn from the Australian experiences of shared parenting legislation. In her excellent paper, Chief Justice Bryant reflected on the 2006 changes to Australian family law, and commented on their relevance to current proposals to amend the law of England and Wales.

Before we get to the Chief Justice's talk, a very brief summary of the Australian law relating to children after parental separation may be helpful. The Australian law is complicated, so this is a rather simplified account (i.e. don't rely on this for anything - it's just to put the rest of the post in context) but in summary the 2006 reforms had the following effects:

• parents are presumptively given equal shared parental responsibility for their child, meaning the legal powers and responsibilities of raising him or her [which is basically the same as the law in England and Wales]
• if both parents have equal and shared parental responsibility, legal advisers and mediators have to discuss with the parents, and the court must consider, in turn each of the following options and decide whether they would be in the child's best interests:
• spending equal time with both parents
• spending 'substantial and significant time' with both parents (meaning at least some of all the following time: weekends, holidays, normal weekdays, and significant days like birthdays or Christmas)
• having other contact with the non-resident parent.
• through all of this, the child's best interests are informed by two "primary considerations", namely:
• the importance to the child of having a meaningful relationship with both parents
• the importance of the child's safety

Somewhat alarmingly, these last provisions had to be amended in 2011 to make clear that safety is more important than the meaningful relationship provision, which one would have thought to be so obvious as to go without saying - but apparently not.

So, what did Bryant CJ have to say about all this? After discussing the background to the Australian shared parenting reforms, her Honour offered three key pieces of advice for those seeking to reform the law in England and Wales:

1. Be clear what is intended by any reforms. Without clear and well-explained aims, any reform would risk misinterpretation by the public, regardless of any official interpretation by judges and lawyers.
2. Have available and make proper use of good research evidence. Bryant CJ was concerned that the Australian government had not had a good evidence base for its 2006 reforms and had instead relied on unrepresentative anecdotes. She also noted that the findings of the excellent Australian research done since the 2006 reforms [much of which I summarised in my post on shared parenting last week] have been resisted by many pro-shared parenting advocates because it does not match up with what they wanted it to say - and they have been effective in that resistance because the findings go against an established narrative that shared care is always good for children which those anecdotes had established before the reforms. Much of that research is important here, but Bryant CJ highlighted the importance of protecting children from violence and other conflict as being especially relevant. [I wrote about the importance of using research and not anecdotes when looking at law reform last week, so you can imagine that this was music to my ears!]
3. Avoid complex language in the legislation, because complexity leads to confusion. I won't go into the details about the Australian law that the Judge gave, but it covered the intricate relationship between "the best interests principle", the "primary consideration" of the importance of "meaningful relationships", and the statutory guidelines about "equal time" and "substantial and significant time". [If you're bored and have 5 minutes to spare, take a look at the complete pig's ear that is the much-amended Family Law Act, starting at s 60A and with a focus on the key provisions of s 60CC, s 61DA and s 65DAA.]

Bryant CJ then turned her attention to David Norgrove's Family Justice Review (2011) and the relevance of the Australian experiences to the shared parenting debate in England and Wales. Norgrove noted that the Australian focus on "meaningful relationships" had led to a degree of confusion and, in particular, was often conflated with there being a presumption of shared time. While the Chief Justice was quick to point out that the Australian courts have focused on the quality of parent-child relationships and not on time, she conceded that it was hard to know what the general population thought. She also observed, as Professor Helen Rhoades has noted, that many people saw the law as containing a de facto presumption of equal time.

One real danger of law reform, therefore, lies in the effect that it can have on people who make arrangements outside the courts, based on what they think the law is. If the law's message is not entirely clear, a perceived presumption in favour of equal time can take hold in the public consciousness, even if that is not what the law says.