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Contact: Where are we now?

A review of the latest proposals by District Judge John Mitchell

A review of the latest proposals by District Judge John Mitchell

District Judge John Mitchell, Bow County Court

The Government's 'agenda for action' on contact, Parental Separation: Children's Needs and Parents' Responsibilities: Next Steps ('Next Steps) (1) was published in January and accompanies the Private Law Programme (2) issued by the President of the Family Division in November. The third part of the triangle is the draft Children (Contact) and Adoption Bill ('the Bill') published in February. Together they form a programme whose aim is to ensure that both parents continue to have a meaningful relationship with their children after separation

'In time it needs to become socially unacceptable for one parent to impede a child's relationship with its other parent wherever it is safe and in the child's best interests. Equally, it should be unacceptable that non-parents absent themselves from their child's development and upbringing following separation.' (3)

Non-Judicial Resolution of Problems

The key to the proposals is that, so far as is possible, parents should be helped to resolve their disputes rather than relying on adjudication. In September 2004 a Family Resolutions Pilot Project was launched in Brighton, Sunderland and Inner London with the aim of raising parents' awareness of children's needs and to help them agree parenting arrangements appropriate to their own situation.

When a parent applies for contact, they and the other parent will be sent an information pack including guidance on how courts view contact cases. They will be directed to attend, separately, two facilitated group sessions to discuss how difficult separation and disputes can be for children and how these might be lessened. The final stage involves their attending together one or more parent planning sessions with a CAFCASS Family Court Advisor before the matter returns to court (4). In areas where the Pilot is not operating, Designated Family Judges are encouraged to introduce a local scheme. Details of a model scheme are given in the Programme.

Even where the Pilot Project is not operating locally, parents will be expected to mediate before or when applications are issued.

'The court to which an application is made will always investigate whether a family has had the benefit of [advice and assistance of information and advice, e.g. through the Family Advice and Information Service ('FAInS')] or similar services and whether any available form of alternative dispute resolution can be utilised.' (5)

Wherever possible a CAFCASS officer will be available at the court at the First Hearing to facilitate early dispute resolution. Unless immediate agreement is possible, save in exceptional circumstances (e.g. safety) the court will direct that the family is to be referred for support and advice to the Pilot Project or locally available resolution services.

Even after the initial stages of a case, parties can expect that judges will continue to urge mediation or therapy. In Re S (Unco-operative Mother) (6) there was a long history of litigation over contact, the father alleging that the mother was implacably opposed to contact. The parents had attended three sessions of therapy without success. A year later in the Court of Appeal Lord Justice Thorpe commented that:

'Manifestly there are between these adults unresolved areas of conflict which, unless resolved, will continue down the years to resound to the prejudice and harm of these two children. A process of family therapy is infinitely more likely to lead to resolution than continuing litigation between them.'

So, although the mother could not be ordered to re-engage in therapy,

'If it emerges…that…proposals, reasonable as to time and location have been advanced for the revival of the family therapy and she has continued to refuse, then she must understand that the court may draw adverse inferences against her.' (7)

In order to assist mediation and to avoid the worst excesses of litigation the Bill aims to insert a new section, s 11A into the Children act 1989 ('the Act) which will give a court power to direct that a party to the proceedings take part in a 'contact activity' defined as attending an information session or taking part in 'a programme, class, counselling or guidance session or other activity' devised for the purpose of assisting a person to establish, maintain or improve contact with a child.' Only a parent can be directed to attend and no sanction for non-compliance appears in the Bill. Presumably a parent who applies for contact but disregards the direction may find it more difficult to obtain an order.

When a contact order is made the Bill provides by way of s 11B to the Act that a condition may be added to the order requiring any party (and not just a parent or a party in whose favour an order has been made) to take part in a contact activity.

By virtue of s 11D the court will be able to require CAFCASS to monitor compliance with the direction or condition.

Delay

Courts must, of course, have regard to the fact that 'any delay in determining the question [of the upbringing of this child] is likely to prejudice the welfare of the child.' (8). Not only is a cessation of contact after separation or a period of contact likely to impact adversely on a child, studies have suggested that well-defined visiting schedules established immediately after separation are more likely to be adhered to over a period of time.(9)

To this end the Programme states that the overriding objective of cases involving children (10) will safeguard the welfare of the child by effective court control. At the First Hearing which should be held within 4-6 weeks of the application being issued, the court must identify the aim of the proceedings, establish the timescale within which the aim can be achieved, the issues between the parties, the opportunities for resolution by referrals for support and advice and any other steps which may be required. Thereafter there must be continuous and active case management including judicial continuity and the avoidance of unnecessary delay by the early identification of issues and timetabling of the case from the outset. Each order must record not only the issues which are determined, agreed or disagreed but also, for the first time, the aim of the order, agreement, referral or hearing which is set. The order must also identify how monitoring of the outcome is to be secured. Such monitoring can include urgent relisting before the same court within 10 days of any request by CAFCASS.

Domestic Violence

There is a risk of domestic violence in a significant number of contact cases. One study found indications of physical or emotional violence in almost a quarter of cases (11). In another which examined cases where a CAFCASS report had been ordered (12), a third of children interviewed said they had witnessed violence. A key note of both Next Steps and the Programme is the need to have regard to the safety of the child and the parties. However, like the Court of Appeal in Re L, Re V, Re M, Re H (Contact: Domestic Violence (Re L) (13) the Government has declined to create a presumption against contact where there is domestic violence.

'The Government does not believe that any kind of blanket statutory presumption of no contact will work in cases where allegations of harm were made. It is essential that court-ordered contact should be safe for all involved but this does not mean that a parent who has been violent may never have contact with their children-but that any contact should be safe and in the children's best interests.'

The welfare check list requires to the court to have regard to any harm which a child has or is at risk of suffering. The definition of 'harm' in s. 1 1(3)(e) of the Children Act 1989 has been amended to include 'impairment suffered from seeing or hearing the ill-treatment of another' (14). In order to assist the court in assessing risk a new application form C1 (in use from the 31st January) asks the question:

'Do you believe the child(ren)…have suffered or at risk of suffering any harm from any of the following: any form of domestic abuse, violence within the household, child abduction, other conduct or behaviour by any person who is or has been involved in caring for the child(ren) or lives with or has contact with the child(ren).'

An applicant answering 'yes' (or respondent if allegations are made) has to complete a new form, C1A, giving details of incidents, medical treatment or assessment and steps thought necessary to protect the children. Under the model scheme an application for contact will be faxed to CAFCASS on the day it is issued and CAFCASS will undertake a paper risk assessment with a view to advising the court at or before the First Hearing that a particular case has risk or safety issues. If allegations are made, the court has to decide whether, if proved, they would be relevant to the issue of contact. Do they suggest a risk of future abuse of the child or carer or that past abuse has made the child or carer fearful?

'If the allegations might have an effect on the outcome, they must be adjudicated upon and found proved or not proved. It will be necessary to scrutinise such allegations which may not always be true or may be grossly exaggerated…In cases of proved domestic abuse, as in cases of other proved harm or risk of harm to the child the court has the task of weighing in the balance the seriousness of the domestic violence, the risks involved, the impact on the child against the positive factors (if any) of contact between the parent found to have been violent and the child. In this context, the ability of the offending parent to recognise his past conduct, be aware of the need to change and make genuine efforts to do so will be likely to be an important consideration.' (15)

Re L hearings to try any disputed allegations may still be necessary but, as in public law cases (16) where preliminary issues are tried, it is very important that the same judge should hear the case throughout.

Monitoring and enforcement

The Green Paper promised that the government would 'provide effective follow-up of court orders by ensuring that families are contacted by a CAFCASS officer soon after an order has been made, to check that it is being implemented in practice.' Next Steps is less forthright.

'CAFCASS will target its resources where needed and will liaise with the judiciary with a view to ensuring that its interventions add value.'

Nonetheless the Bill inserts s 11F into the Act allowing a court to direct CAFCASS to facilitate and monitor compliance for a period of not more than twelve months and to report non-compliance to the court. The Programme states that that orders should indicate 'if a particular agreement or order is to be facilitated or monitored and whether particular arrangements for enforcement are provided for e.g. that the first handover…did in fact take place, who is to inform CAFCASS, whether, in what circumstance and how CAFCASS is to inform the court…and whether, how and when the matter is to be listed in the event of non-compliance.' It should be made possible for a party or CAFCASS to bring the matter back to the court for enforcement within ten days.

Next steps stated that the Government intended to legislate 'at the earliest possible opportunity' to provide additional enforcement powers including referral of a defaulting parent to a variety of resources including information meetings, meetings with a counsellor or parenting classes designed to deal with contact disputes. This proposal which originated in Making Contact Work (17) has been criticised as displaying 'a rather chilly authoritarianism, perhaps reflecting a greater concern to prevent judicial orders being scoffed at than to fulfil children's interests' (18). A more practical concern is that the early experience of such a scheme in Australia suggests that its effectiveness has been hampered by poor planning and 'by its embodiment of conflicting policy objectives which are reflected in the contradictory views and various resistances among its service providers and consumers.' (19)

In fact, the Bill does not go as far as the Next Steps proposals. Section 11G provides that if the court is satisfied that a party to the proceedings has, without reasonable excuse, failed to comply with the order it may make an enforcement order imposing an unpaid work requirement of not less than 40 and not more than 200 hours to be performed during a twelve month period or a curfew order that the party remains in a specified place for no less than two and no more than twelve hours a day for a period of no more than twelve days. Both orders can be suspended.

In the meantime in appropriate cases where a resident parent fails to comply with contact orders there is the possibility of residence being transferred to the other parent (20), if necessary under an interim care order (21). Next Steps states that courts will continue to have the power to impose fines or commit the defaulting party. In Re D (Intractable Contact dispute: Publicity) (22) Mr Justice Munby said that 'a willingness to impose very short sentences…may suffice to achieve the necessary deterrent or coercive effect without significantly impairing a mother's ability to look after her children'. But such steps are draconian and are recognised both by the Government and the judiciary as being very much a matter of last resort.

Moving away

An important factor governing the frequency of contact is the distance between the home of the child and the non-resident parent and one reason contact diminishes is parents moving away from the neighbourhood of the other (23). In an immigration case, Edore v Secretary of State for the Home Department (24), the Court of Appeal held that deporting a mother and her children who were emotionally dependent on their father breached their art 8 rights. However as practitioners are aware it remains very difficult to obtain orders preventing a parent with residence moving elsewhere within the United Kingdom or abroad. There are cases where such orders have been obtained (25) but these are the exception. Next Steps has nothing to say on the issue. Payne v Payne (26)has never been considered by the House of Lords. Would leave to appeal be refused or would the decision be the Children Act version of White v White?

Notes

1 - Cmd 6452 (2004) Department of Constitutional Affairs

2 - (2004) Dame Elizabeth Butler-Sloss www.dca.gov.uk

3 - Ministerial Foreword to Next Steps

4 - The Green Paper, Parental Separation: Children's Needs and Parents' Responsibilities July 2004 ('Green Paper') paras 68-72. See also The Family Resolutions Pilot Project [2004] Fam Law 687.

5 - Programme

6 - [2004] EWCA Civ 597 [2004] 2 FLR 710

7 - Op cit at paras 20-21

8 – s. 1(2) Children Act 1989.

9 - See, for example, Children's Adjustment in Conflicted Marriage and Divorce: A Decade Review of Research Kelly [2000] J.Am.Acad. Child Adolesc. Psychiatry 3.98 963

10 - Defined as the court dealing with every child case justly, expeditiously, fairly and with the minimum of delay in ways which ensure as far as practicable that the parties are on an equal footing, the welfare of the child is safeguarded and distress to all parties is minimised and, so far as is practicable, in ways which are proportionate to the gravity and complexity of the issues and to the nature and extent of the intervention

11 - Residence and Contact Disputes in Court vol 1 Smart (Department of Constitutional Affairs 2003)

12 - Families in Conflict Buchanan (Policy Press 2001)

13 - [2000] 2 FLR 334

14 - s31(9) as amended by s120 Adoption and Children Act 2002 with effect from the 31st January 2005

15 - Re L at 341-2 per Butler-Sloss P

16 - Re G (Care Proceedings: Split Trials) [2001] 1 FLR 872

17 - The Advisory Board on Family - Children Act Sub-committee (2002) Lord Chancellor's Department

18 - Children's Rights and the Developing Law 2 ed. p 406 (2003) Fortin

19 - Contact enforcement and parenting programmes- policy aims in confusion? Rhoades [2004] CFLQ 1

20 - As in V v V (Contact: Implacable Hostility) [2004] EWHC 1215 (Fam), [2004] 2 FLR 851

21 - As in Re M (Intractable Dispute: Interim Care Order)[2003] EWHC 1024 (Fam), [2003] 2 FLR 636

22 - [2004] EWHC 727 (Fam), [2004] 1 FLR 1226

23 - See, for example, Non-Resident Parental contact Blackwell and Daws (2003) Office of National Statistics

24 - [2003] EWCA Civ 716

25 - For example, Re S (A Child) (Residence Order: Condition) (No 2) [2002] EWCA Civ 1795 [2003] 1 FLR 1066 and B v B (Residence: Condition Limiting Geographic Area) [2004] 2 FLR 979 (United Kingdom) and Re C (Leave to Remove from Jurisdiction) [2000] 2 FLR 457 (removal abroad)

26 - [2001] EWCA Civ 166 [2001] 1 FLR 1052