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A mixed welcome to the government's response to Family Justice Review

Organisations emphasise that the welfare of the child must be paramount

The government's response to the Family Justice Review has itself been met with a mixed reaction. For a detailed analysis of the response, see Norgove - The Response Considered by Sally Gore of 14 Gray's Inn Square. 

Children's Commissioner for England
Maggie Atkinson, Children's Commissioner for England, commented:

"We welcome the Government's commitment to ensuring the family justice system places the best interests of the child at the heart of decisions in both public and private law court cases. We concur with the Government that this interest must be paramount in all proceedings.

"Many children are caught up, through no fault of their own, for months at a time in a system that is hindered by delays and still fails to give them an adequate voice. A statutory six-month time limit on care and supervision proceedings will mean speedier decision making and resolution for the children involved. We recognise the challenge in ensuring that all essential evidence is placed before the court within this timeframe.

"Any change to shared parenting arrangements must be undertaken in terms of the rights of the child, in accordance with the UN Convention on the Rights of the Child. In principle it is important, where appropriate, to support a child's continuing relationship with both parents after separation when it is absolutely safe. We welcome the Government's confirmation that legislating in this area will focus on parents' shared responsibility for their child and it is not about guaranteeing each parent an equal amount of time with children. Encouragement, support and advice on sharing parenting and making it work in the child's interests will also depend on adequate mediation services which can build on good parenting skills.

"We are pleased that the Government has upheld the recommendation in David Norgrove's Independent Review for a co-ordinated family justice system, with the courts and key agencies working closely in the child's best interest and giving them a voice to make their views known in decisions that affect them. We support the plan to establish a Family Justice Board and we will work with children to bring their views and wishes to the forefront of the Board's agenda to shape the changes to come.

"Children must be helped to understand decision making processes. Creating a system and culture in which agencies and professionals work together better to improve the experience and outcomes for children and families is definitely the right place to start."

Association of Lawyers for Children
The Association of Lawyers for Children says that it has awaited with anticipation the government's response to the recommendations of the Family Justice Review.

The Association has commented as follows on the response:

Some aspects of the response are positive. For example, the stress on the United Nations Convention on the Rights of the Child (UNCRC), an intention to create a single Family Court, a clear statement that there should be no link between child contact and maintenance, and an end to the requirement that local authority adoption panels must consider the suitability for adoption of a child whose case is before the court. This latter amendment will be effective in reducing the length of care proceedings where the plan for the child is adoption.

However, other parts of the government's response are, at best, disappointing. The government rejected the Review's finding that the substantial fees paid by local authorities to initiate care proceedings should be abolished. These fees operate to deter underfunded local authorities from issuing care proceedings. It also rejected the Review's finding that legislation should not create a perception that there is a parental right to substantially shared or equal time for both parents. It is difficult to understand the logic of this rejection – when placed alongside government's stated position on the importance of the UNCRC in this field of policy. The welfare of the child is the important and determining consideration, not parental rights.

The overwhelming impression of the government's response is that, contrary to both aims and expectations, it intends to do very little. Reforming the family justice system in the interests of children requires time and investment. This government intends to provide neither; indeed the plan is to reduce both.

Hence the response: 

Acceptances of many of the Review's proposals are qualified in such a way as to show that it is not so much children and families that are at the heart of the government's proposals as a drive to reduce costs. The Review recommends retention of the tandem model of representation of children but states it needs to "consider what further action can be taken to ensure that the tandem model is applied optimally, within the limits of the available resources." The Review recommended that there should be a right of immediate access to a court in the situations currently set out in the Pre-Action Protocol, but the government "will consider the effect of streamlining the exemptions and whether they could be narrowed further."

Throughout the work of the Family Justice Review, the Association of Lawyers for Children has consistently opposed two of the Review's recommendations for reducing the time taken to conclude care proceedings, namely setting a statutory time limit, and cutting down the court's powers to scrutinise the local authority's plan for a child. We note that, in accepting the Review's proposals, the government appears to show a measure of realism and understanding that social work reform and improvement has a long way to go. At present, local authorities still bring 40 % of care cases to court without an up-to-date core assessment of the family. Therefore the information available to the court at the outset is often of poor quality. Basic social work tasks have not been undertaken. There has often been no sustained attempt to effect change in the family. Expert evaluations of matters such as parental learning disability or substance abuse are not addressed until the case is in court. These matters must be assessed, and the family's capacity to change must be properly evaluated, before the court can decide that the child's welfare requires him to be separated permanently from his family of origin. No judge is asked to make more serious and life-changing decisions than these.

The judge trying the case has more information about the child, his needs and his family than anyone else. S/he is best placed to scrutinise the child's care plan and ensure that it is the best plan that can realistically be achieved. Family judges cannot be asked to abandon the paramountcy of that child's welfare in order to meet a six-month time limit, nor to turn a blind eye if the local authority's plans for the child are vague, unrealistic or unsatisfactory.
We await the detail of the government's proposals with interest.

Nagalro
Nagalro
, professional association for court guardians, has welcomed the government's commitment to reducing delay in the family justice system but warns that it risks harming children's interests by ill-thought out change.  The association says that courts provide vital protection that ensures adult agendas do not ride roughshod over children's needs.

Ann Haigh, chair of Nagalro said:

"We support the drive to establish a more coherent interdisciplinary family justice system where services work together more effectively, as long as it does not lead to a lesser service for children."

The association made the following observations.

Six month time limit on care proceedings
Pressures on the family justice system have been exacerbated by the recent large increase in care proceedings cases brought by Local Authorities.  The increase indicates that many children suffer abuse and neglect in their own families and need to be protected through care proceedings. Court scrutiny is the best protection for these children and it is vital that this safeguarding system is not dismantled.

A six months time limit for care proceedings is easy to propose but hard to deliver.

Ann Haigh added:

"A six month limit is simply not workable without an increase in resources at the front line to cope with demand.  A rigid timescale will work against the interests of justice and children's rights. Social workers and children's guardians will be criticised when unrealistic deadlines are not met, but it is children who will suffer when wrong decisions are made on insufficient grounds." 

Professor Eileen Munro has recommended scrapping such arbitrary deadlines for social workers.

Court scrutiny of care plans is essential to ensure the local authority assessment and planning is sound. Vulnerable children will suffer miscarriages of justice if their cases receive only a cursory glance. The government shows a touching faith in the capacity of local authorities to be all things to all children when evidence shows their performance is extremely variable. The interests of children are often at odds with the financial interests of local authorities.  Children need their guardian and solicitor as their truly independent protectors against poor social work practice. Change should follow, and not precede, demonstrable improvement in local authority performance.

Cafcass
Nagalro is concerned that the Family Justice Review and the government's response gloss over significant problems in Cafcass. Our members report that the Cafcass 'proportionate model' is failing children. This sanctions a lower level of scrutiny by children's guardians, which can lack sufficient rigour and challenge to local authorities. Cafcass waiting lists have disappeared, but only at the expense of children.  Cases are allocated to hugely over-burdened workers regardless of whether they can do any work on them.

Ann Haigh, Chair of Nagalro said:

"The Cafcass 'proportionate model' is a dangerous one for children. It is alarming to see 'proportionate working' becoming embedded and accepted by the government when it is failing children."

In principle Nagalro supports the transfer of Cafcass to the Ministry of Justice. Cafcass will benefit from being part of an agency that understands the law and from being more fully integrated with the family justice system. But this transfer can only work as long as resources follow the children.

Nagalro, along with the IAC (Interdisciplinary Alliance for Children), recommended that services are more closely aligned at the local court level to create a less top-heavy, more flexible family justice system responsive to the needs of families and children.

Shared parenting in private law cases
Nagalro agrees with the Norgrove enquiry's view on shared parenting. Courts already take very seriously the need for children to have continuing relationships with both parents. Current legislation supports this principle. The paramount welfare of the child must remain the overriding consideration when making decisions.  It would be a retrograde step to bring in legislative change that will increase conflicts about children.

It is regrettable that there is a lack of creative and practical approaches to ensure children are central to decisions about their lives when parents separate.  Children in private law lack direct ways for their voices to be heard. Too often adult concerns dictate the agenda; too often children in private law are passive casualties rather than active participants. Children have strong feelings about contact with their siblings in private law as well as public law and they need the means to be heard on these matters.  

The proposals for a child arrangements order agreed between parents can exclude court scrutiny of the child's position.  To simply say that children should have a voice is not enough – they require access by right to independent representation so that they can be heard by the court before decisions are made.

We call on the government to develop coordinated approaches that will provide a stronger voice for children in private law cases and provide practical help that is easily accessible by children themselves. Existing legislation(s 122 of the Adoption and Children Act 2002), if implemented, would give children in high conflict cases rights to independent representation of their views and situation.

Cafcass
Cafcass
has commented on the suggestion that the service will be absorbed within the Ministry of Justice:

"We are very happy at DfE, who have always been very supportive of us but would be equally happy with MoJ. The Government has emphasised that we operate within an interlocking, multi-disciplinary system, that includes local authorities, and that in order to improve this system for children and families we all need to develop closer and more effective joint working. As an example of this, I have recently spent time with Directors of Children's Services and our links with them are stronger than ever – just as they always have been with Designated Family Judges and we'll continue to work closely with both."

Since the response states that the transfer will take place by the end of this spending review period, it could be as late as 2015.

Families Need Fathers
Families Need Fathers has welcomed the Government's response to the Family Justice Review. It says that although there is much work to be done to ensure that the family justice system provides better outcomes for children and families in practice, the Government's proposals mark a clear step forward for private family law in the UK.

Families Need Fathers agrees that disputes about parenting arrangements are best settled out of court, and supports the Government's proposals to increase the frequency and strength of private family arrangements. However, it says, there will always be a sizeable minority of intractable cases where court becomes unavoidable, and it is in these cases that today's recommendations mark a positive development for the family justice system. Key proposals include the intention to introduce a legislative statement on the importance of children having an ongoing relationship with both parents following separation wherever possible, and a desire to strengthen enforcement sanctions where court orders are breached.

Ken Sanderson, CEO of Families Need Fathers, commented:

"The proposals announced today will help to improve public confidence in the family justice system. By reinforcing the law's commitment to ensure children benefit from the love and support of both parents following separation, the Government will help to ensure that it is not children who continue to be punished when acrimony between separating parents is played out in the courts.

"This is not a question of equally dividing time, but of ensuring that children get to benefit from the full involvement of both parents following family breakdown. We support the Government's belief that developing legislation emphasizing the importance of both parents in a child's life is complimentary to the welfare needs of the child, and hope that this will be the beginning of a process of reform that will see the development of a family justice system fit for the needs of children and their families."

The association says that other important proposals include the replacement of 'contact' and 'residence' orders, which encourage a 'winner takes all' mentality in private family law disputes, with 'child arrangements orders', which are more child focused. However, the decision to continue requiring grandparents to apply for permission before they can make an application to court to see their grandchildren indicates that there is still work to be done to ensure that the rights of children to a relationship with their wider family are adequately protected.

Grandparents' Association
Lynn Chesterman, Chief Executive of the Grandparents' Association, said:

"Whilst delighted that the response recognises the importance of grandparents in children's lives it is disappointing that the Government reneged on its manifesto promise prior to the 2010 general election when it undertook that the requirement for grandparents to seek the leave of the court in contact cases would be removed. This followed an identical assurance in the previous Government's Green Paper published in February 2010.

"The response has concluded that grandparents should still jump through this particular hoop to stop vexatious actions and that very few are denied. If this is so, why extend the period that a child is forbidden to see its grandparent? The court still has the power to stop vexatious actions and the removal of such a requirement would ensure that fewer cases are going to court – surely the object of the review. We all agree that the welfare of the child is paramount but, as long as it is safe for them to do so, grandparents and children should not be the victims of parental disputes and this about turn by the Government has allowed this to continue."