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One act, two regimes: why?

On the thirtieth anniversary of the Children Act, Anarkali Musgrave of Coram Chambers considers the differences of application in public law and private law.

Anarkali Musgrave, barrister, Coram Chambers


Background

This year the Children Act turned 30. Applied almost universally to cases involving children's welfare, the vast majority of child-focussed cases in court commence by way of Section 8 or Section 31 applications for private and public law respectively. When determining these applications (and the case management of these applications) the courts are consistently referred back to the principles found at Section 1. Practitioners will know it to contain the welfare paramountcy principle, a statement that delay is inimical to a child's interests, and the welfare checklist.

Any common or garden family lawyer will advise that Section 1 and the welfare checklist apply to all children who are subjects of Children Act applications. What is harder to explain, however, is the discrepancy between the way the system treats the children in the different spheres of public and private law, specifically in relation to contact and delay.


Public law

Contact must be actively promoted under Section 34; this is a baseline assumption upon which the proceedings run. During the course of proceedings contact is often actively reconsidered and it is not unusual for changes to be made. If a Local Authority believes that it is not in the child's interests to promote contact then it must make a s34(4) application when situations arise whereby the risks arising out of direct contact cannot be managed in a contact centre.  These are generally the exception rather than the rule.

In public law cases, contact between a child and his/her family is almost invariably subject to professional oversight, considered within a care plan and typically contested to a greater or lesser extent during a trial. More to the point, during the life of the trial it is extremely unusual for a child not to have contact with a parent either a few times a week, or per month if the child has not been familiar with that parent.

The benefits of this stance are that consistent and regular contact facilitates an all-options approach at final hearing. Parties can explore their, and each other's cases fully, including contact observations and the relationship between the parents and child. Interestingly, it is not unusual for reparative work to be done with children, as significant amounts of professional resources are typically spent persuading recalcitrant children to see parents. For context, these are parents who can have presented such a high level of risk that the child's safety has demanded their removal. Crucially, the children's presenting feelings are not expected to define for ever the relationship between that child and its parent – a longer view is taken. Children are encouraged to work through their feelings, sometimes with therapy, and develop their relationships with their parents at the very least for identity purposes. The reader will note that in this way both the child's article 8 and all the parties' article 6 rights are preserved.


Private law

This background contrasts strikingly with the approach to the way in which courts typically manage the issue of contact within private law proceedings. The introduction of PD 12J has made courts more cautious about ordering contact, even at contact centres, while investigations into allegations of domestic violence or harm against the child take place. Practitioners will be aware that once schedules of allegations have been ordered, organised and responded to, it is not uncommon for children not to have seen their non-resident parent for at least a year or more.

The perspective of the child is strikingly absent from the Practice Direction.  No provision has been made for how the children are to be supported during a time of sustained parental loss, and nor are there guidelines for how contact is to be reintroduced after a prolonged period of time. What is notable about PD 12J is the lack of the focus on the child's experience and how this is to be managed during the proceedings. It is hard to understand why the court is not directed either specifically or in terms to the Sturge and Glaser work for a more fully explored analysis of the risks and benefits of direct contact with alleged perpetrators. On the face of it, there seems no reason for suspending contact in private law when in public law contact is maintained in similar circumstances.

Much of this can be put down to a lack of professional resources. However, underfunding cannot be said to account for a situation which has been in existence for an extremely long time now; and well before the more swingeing cuts were introduced. Part of the difficulty with the current situation is that PD 12J appears to focus more on the safeguarding risks of contact taking place than the child's article 8 rights. The non-resident parent's article 6 rights are included, but somewhat brusquely and with little rounded consideration of such. Plainly, in such cases a balancing exercise of competing rights does need to be undertaken; but in practice what is often missed is the importance of the preservation of an ongoing relationship, however uneasy, between the non-resident parent and the child.

Within PD 12J there is, curiously, no discussion of how to manage the ongoing absence of a parent in a child's life for such a significant period of time or what effect this is likely to have on the child and on their ability to resume a relationship with that parent.   There are further implications too: if a non-resident parent has not seen their child for over a year a combination of common sense and practicality means that it is going to be very hard to effect a successful transfer of residence if the court is interested in exploring this as an option at final hearing. The recent case of Re: A (children) (parental alienation) [2019] EWFC is a good example of just this problem, where by the time the court had ordered a lives-with order to a non-resident parent, the father had not seen his children for years. Although this did not stop the court from exploring (and ultimately trying the option, albeit unsuccessfully), the fact that the mother had had total control of the narrative in an absence of all meaningful contact with their father meant that the transfer was both high risk and ultimately extremely painful.

The reader will also be familiar with Re J (contact orders: procedure) [2018] EWCA Civ 115, where the contumelious delays of the court, and the way in which the father had not been given the opportunity to have contact with the children for a long period of time meant that there was in fact no meaningful choice for the court at appeal except to lament that a no contact order was really the only order it could make. It is worth noting, perhaps as an aside, that it is really only those bolder first instance judges who are prepared to risk a transfer in those circumstances (as found in the cases of Re L [2019] EWHC 867 (Fam), Re H (Parental Alienation) [2019] EWHC 2723 (Fam) and Re A (above)).


Timetabling/delay

One of the points both judges in Re A and Re J lament is that PD 12J was not adhered to and a fact-finding did not take place sooner. In both cases the timescales were deeply concerning and indicate a drift from which we can, perhaps unkindly, infer both poor case management and a lack of available court time. These cases went on for 6 and 3 years respectively, timescales almost unheard of now in the current public law regime of 26 weeks. In situations such as these, and particularly in an over -stretched court system, the delay principle at s 1(1) of the act, which is more fully embraced in public law, can appear almost entirely absent in private law. It is perhaps both trite and worth pointing out that the Act itself makes no provision for the difference.

Practitioners may agree that the changes in public law cases which had the effect of tightening timescales whilst preserving interim contact have not been mirrored in private law. The tripartite model of FHDRA, DRA and Final Hearing has tended to reduce the ability of the court to review cases on a discretionary basis.  This structure, however, which appears to be based on the more successful financial remedies prototype, suits better a rather more static financial situation. It is not so effective at managing the change and development of a growing child's emotional responses over the course of litigation. When one combines that with the rise of the number of litigants in person and the delay and reduced court oversight built into the new process it is easy to see how an unintended side effect of these procedural outcomes could be a compounded difficulty for the child of having missed out on a relationship with their parent. It is striking that decisions about interim contact in the private law sphere are so often made without any professional analysis of how those particular children are likely to respond to an absence of a parent from their lives and what the implications of such may turn out to be.

This, however, is not the whole story. For the purposes of this article let us indulge the courts with the power to travel back in time. If the judges of Re A and Re J had scheduled fact-finds into a standard time frame (ie within the first 12 to 18 months from the date of issue) would the outcomes have been any different? It seems extraordinarily unrealistic to suppose so. The reason for this is the resident parent's intention to exclude the non-resident parent combined with the absence of the non-resident parent for such a long period of time. Although Re A and Re J are about alienation it is not hard to see how an absence of even 3 to 6 months with less extreme resident parents is hard to come back from. The rejection that children internalise by way of significant periods of court-sanctioned absence are not easily overcome, however well intentioned the court's approach. Letters, presents and regular cards cannot be expected to fill the gap and preserve the relationship.


Conclusion

The nub of this is a simple point: once contact has stopped it is so much the harder to start it up again. This understanding is recognised in public law but does not appear to have been embraced or even particularly acknowledged by the current regime in private law, where orders are made suspending contact without professional involvement or even any particular knowledge of the children involved.  It feels all the more discombobulatory as the Children Act guides judges to determine all cases according to Section 1; therefore one should surely expect a degree of parity in the way the same issues are determined. Yet in practice we are faced with widely divergent systems and outcomes for children.  It prejudices the parties' ability in private law cases to put their cases; but more crucially, it is deeply prejudicial to the children themselves, a discrepancy which seems even more unfair when we have a public law system which manages to mitigate the damage.  

No child seeks to make itself the subject of proceedings; nor can it ever be fairly said that they deserve them. Proceedings, and crucially their effects, rather like the now ceaseless school assessments we also inflict on them, are ordeals which children bear because the adults refuse the burden of resolution. The Children Act, soon to turn 31 years old, would seem to exhort us to do better
 
 19.12.19