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.

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.