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Meeting the real needs of separated familiesNick Woodall: The Centre for Separated Families

The core principle of the 1989 Children Act – that the welfare of the child is paramount - is one that's difficult to argue with. And it's a principle that's as relevant outside of the family justice system as it is within it. The notion that the well being of children takes precedence over the 'rights' of parents is one that sits at the very heart of everything that we do at the Centre for Separated Families. Its an approach we've used for the past decade and it is one that brings positive outcomes for both parents and their children. What can easily be overlooked when we're considering changes to the family justice system is that the majority of parents, also, just want to do the best for their children. Why then, do so many find this difficult or impossible to achieve and why do so many end up bogged down in low level conflict. Or worse, in protracted and damaging court battles? In many respects, its not a difficult question to answer, particularly when you work directly with the messy part of people's lives as we, the Centre for Separated Families, do on a daily basis. Divorce and family separation is almost always a painful

process that involves hurt, loss and, often, a lack of trust. Little wonder so many parents struggle to build new, co-operative parenting relationships. Given that, you'd think that the legal and policy structures that parents encounter, along with the support services that they look to for help, would seek to engage with them in ways that would orientate them away from the adversarial and towards the collaborative. Instead, what we see is a legal framework that divides parents and accords them unequal status. We see policy and practice that responds to myths and stereotypes rather than real lives. And we see voluntary organisations that play out at policy level what parents themselves play out at the domestic level – organisations that work to uphold parent's rights rather than support co-operation. It's these divisions of parenting status and a the adversarial framework within which parents have to operate that leads, too often, to poorer outcomes for children. We need look no further than the notions of 'care' and 'contact', enshrined within Section 8 of the Children Act, to see how parents are divided into what we might call the 'proper parent' and the 'other parent'. We can see no need for this division in status. Parents simply need to be helped to work out how each of them will have a positive parenting

family law review: getting it right for children

Policy Seminar Report - 15 July 2010

On 15 July 2010, the Centre for Separated families, the Centre for Social Justice, Fatherhood Institute and Fawcett Society hosted a seminar to look at the key themes of the Family Law Review and, in particular, how the justice system and the support services that surround it can help families work together to reach agreements and how children can maintain relationships with both of their parents, and other significant adults, after divorce or separation.

The seminar, which was sponsored by John Glen MP and chaired by Anthony Kirk QC was attended by policy makers, practitioners, members of the legal profession, academics, charities, advocates and others with an interest in the impact of family law on families and children.

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role in their children's lives and how each will discharge their ongoing responsibilities. But, even those parents who go nowhere near the court process – and that's the vast majority of parents – find their choices constrained by the legal framework. Child benefit, statutory child maintenance, child tax credits, housing allocation, in fact, virtually all of the things that separated parents encounter, divide them into the 'proper parent' and the 'other parent' – the Parent With Care and the Non Resident Parent - and all of the provision of services, all of the support, all of the interaction with parents is framed around this model.

And it's this model that serves to heighten the division between parents rather than build collaboration. At the Centre for Separated Families, we'd like to see these divisions consigned to history because we know that they don't serve children well.

We'd like to see a statutory maintenance system that assesses the capacity of both parents to contribute.

We'd like to see a tax and benefits system that can take account of the parenting input of both parents.

And we'd like to see services that engage with parents in ways that are respectful, empathic and impartial. Services that support co-operation and the aspirations of both parents to continue their parenting and providing responsibilities. We're delighted that the Coalition intends to look at the wider context of family separation and, in particular, supporting relationships. And, where families do separate, finding alternatives to litigation. It's important, however, that such initiatives don't fall foul of simply delivering more of same, as so many have done before. What we need is not more of the same, but services that are more sophisticated. And these need to be co-ordinated so that they're easy to access and available to both parents, locally. Whilst existing services such as mediation are an essential component in the wide range of support that parents need, these must be delivered in ways that meet the changing aspirations of mothers and fathers and the choices that they make about the care and provision for their children when they separate. It's the failure of our existing approaches to offer parents the ability to make such choices that creates so many of the barriers that they have to

overcome in order to bui ld co-operat ive relationships. We can't, for example, on the one hand, encourage fathers to be more involved in hands-on parenting and then expect them not to want to continue offering that when the family separates. It's imperative that we move away from the labels of the 'lone parent' and the 'non resident parent'. They fail children and straight jacket parents. We welcome the Centre for Social Justice's proposals for Family Relationship Hubs. These would help with family relationships and parenting, provide preventative relationship support and help separating families to achieve workable parenting arrangements. These could play a vital role in providing the earliest possible support for separating families by bringing together the multiple services that parents need – education, information, therapeutic input, facilitation of post separation relationships and supported parenting relationships with children. All of which are essential in helping separating parents build co-operative relationships that put their children's needs first. A decade ago, the Centre for Separated Families began working with the whole family after separation – supporting mothers and fathers to rebuild their parenting relationships. Many people said that it wasn't possible to do. What we know is, that not only is it possible, it's what most parents want and, most importantly, it works. By working with the real needs of families, we've been able to translate our understanding of the blocks and barriers that parents face into the development of services such as Child Maintenance Options, an information service that's available to both parents to help them make choices about child maintenance. The access ib le , empath ic , empowering way in which Options delivers its information could serve as a model for new services that would help parents to make choices about the ways in which they'll each parent after separation. It's fair to assume that there'll always be parents for whom no amount of support, however well delivered, will prevent from taking the adversarial path. For these families, the paramountcy principle is as relevant today as it was when the children Act was passed in 1989.

However, the family law framework and the policies and practice that we put around it can move people away from demanding their rights and towards better parenting relationships where the needs of children come first.

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Reforming Family Law through principles not prescription Dr Samantha Callan: The Centre for Social Justice

The backdrop to this seminar is the Coalition programme’s statement: We will conduct a comprehensive review of family law in order to increase the use of mediation when couples do break up, and to look at how best to provide greater access rights to non-resident parents and grandparents.

One of the CSJ’s many claims to fame is that we started a trend in family law reviews. One proposal of the seminal Breakthrough Britain report (published in 2007) was that there be a review of the relationship between the law and family breakdown and lega l aspects of marr iage, d ivorce, cohabitation, parental rights and the rights of the extended family – and we acknowledged the complexity from the outset. Shortly after we began that Review, in 2008, David Cameron announced that the Conservative Party would also conduct a review on similar issues and finally, in 2010, the Labour government joined in the fun with David Norgrove’s Enquiry and the Lib Dems put family law reform into their manifesto.

This unprecedented level of interest from across the political spectrum is the best indicator that the time is ripe to be making changes in what has previously been considered something of a political no-go area. Indeed, some non-resident parents’ (NRP) lobby groups giving evidence, to our FLR, argued that ‘the Children Act 1989 might be past its sell-by date.’ As groundbreaking as it was in its day, the Children Act was drafted in an era when the assumption was that courts were faced with a binary choice between two alternative homes – the mother’s home and the father’s home. Contact/access was what the loser received in the residence/custody dispute. Now in many cases the level of contact between parents is really the issue. Both parents often want to have far greater involvement in day-to-day decisions concerning children’s lives before and after separation. Par l iament therefore needs to address a significantly changed social and parenting context since the Children Act 1989 was drafted and, we concluded, to lay down principles rather than

enshrining new (albeit rebuttable) presumptions in law which would introduce inflexibility into the system and hamper judges’ discretion in a way that could conflict with the paramountcy principle.

Section 11 of the Children Act, currently headed ‘General principles and supplementary provisions’ does not offer any particular principles concerning how to decide the case. This was where we recommended laying down principles rather than profoundly amending the Act by introducing any of the various presumptions suggested. For example, the presumption of shared care/parenting with the possible starting point that both parents would have an expectation of an equal right to parenting time. We were aware that Australia had very recently introduced Shared Parental Responsibi l i ty legislation with the effect on the ground that many parents now expect to negotiate on the basis of equal time. This has made it more difficult for mediators and others dispute resolution specialists to create practical contact arrangements. The public expectations created for any change in legislation as well as the actuality of the changes must always be taken into account.

Others argued for a presumption of reasonable contact and Government proposals have in the past been made for parenting plans which would outline what full and frequent contact meant in terms of time. In Florida, parenting plans setting out cycles of contact in average cases meant that American parents knew what kind of order a court was likely to make, reducing the likelihood of litigation. However we were aware that there are already pressures on lawyers and parents in this country not to litigate but to settle. The small percentage of those that do make it to the inside of the courtroom need to be concluded by a final hearing.

Finally, the more extreme and prescriptive presumption of shared residence was suggested with parties negotiating from that starting point. Again, looking at Australia, there has been concern voiced in the academic literature that the children who are most likely to be in a shared residence/equal time arrangement may actually be those where parents are most conflicted, are most tenaciously holding onto a sense of their rights and not treating the child’s interests as paramount. However, we outlined principles as guidance for judges that parents should be considered as having equal status in their children’s lives following separation, unless the contrary was shown – equal status but not equal time, the latter is merely one

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way in which parenting can be organised – in appropriate cases. Also that children are most likely to benefit from the substantial involvement of both parents in their lives subject to the need to protect them from abuse, violence or continuing high conflict and that this may be in the form of a joint (or shared) residence arrangement. The court would still have regard to the ‘welfare checklist’ in s.1(3) of the Act, and factors that would indicate that substantial involvement is contraindicated will no doubt emerge from a consideration of those factors.We also made deliberate reference to financial provision as a good indication of whether a non-resident parent really is committed to their child.

We felt that the redrafted section 11 offers much to both mothers and fathers. It addresses the concerns of many caring and involved non-resident parents (mostly fathers), while also addressing the concerns of parents’ groups about violence, abuse, and high conflict. It also meets concerns about parents who will litigate to enforce their ‘parental r ights ’ wh i le f requent ly neg lect ing the i r responsibilities. It builds on the 2006 legislation with the importance of good contact actually taking place for the benefit of the child with the non-primary residential parent. It is a constructive and positive provision, which gives much more guidance to courts than the present Act and, we believe, modernises it in an appropriate way.

Children in separation and divorce: safeguarding their best interestsRob Williams: Fatherhood Institute

The Fatherhood Institute believes that the statutory commitment to safeguarding the best interests of the child should be paramount in all processes supporting separating families, including court processes; and that how this is best achieved for the maximum number of children should be the central question for the Family Justice Review.

One of the Fatherhood Institute’s key roles over the past ten years has been to pull together research on how men impact on their children and their children’s mothers; and much of this research will be relevant to the Family Justice review. Separation does not guarantee poor outcomes. There are five important variables:

• the child’s own characteristics • money and housing (fathers, mothers and

children) • the level of conflict between the separating

and separated parents • the quality of parenting by the resident parent • and last but not least the quality of the

relationship with the non resident parent.

This depends in part, as does the quality of relationship with the resident parent, on parenting quality. But a non-resident father-child relationship also needs to substantial and normative if it is to be positive.

Father and child need to engage together not only in recreational activities as tend to happen at weekends, but in everyday interactions: getting ready for school, being taken to and from school, having friends round, helping with homework, reading bedtime stories. More than these, a child needs to feel a sense of belonging in his or her father’s life, and that’s only achieved through substantial and routine interactions. It’s for these reasons that researchers are increasingly sceptical about the value of what’s been called ‘standard’ contact: that is, every-other-weekend and tea one evening during the other week. While sometimes such an arrangement is the only possibility, this kind of contact almost ensures that the child will remain an add-on to his or her father’s life, and will not be fully integrated into it.

All this is important because a strong relationship with a non-resident father is associated with higher attainment at schools, fewer behavioural problems, less internalisation of problems, and less risky behaviour during adolescence. What’s more, there is a strong correlation between low levels of contact with a non-resident father and depression in the child. And the effects continue: young adults who rarely or never see their separated fathers still suffer substantial anger and self-doubt relating to this; and are less likely to experience a smooth pathway into their own romantic relationships. These are important differences in outcomes, with big implications for the best interests of the child.

This is also common sense. And it is recognised in international law. Article 9 of the United Nations Convention on the Rights of the Child outlines states’ responsibilities to ensure that children are not unnecessarily separated from their parents, to give both parents the opportunity to take part in

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legal proceedings involving their children, and, most importantly:

“States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child's best interests.”

While In the UK, 11% of separated parents share the care of their children more or less equally (Peacey & Hunt, 2008) and this is usually positive, too many children (an estimated one-in-three) lose contact with their fathers altogether or have too little contact with them to be of any real significance. That’s a lot of children – at any one time, more than a million. Ninety-one percent of resident parents are female (Office for National Statistics, 2005) – a figure that has not changed in 40 years. Nor does this mean that the 9% of separated families headed by a lone father are headed by separated dads: very many lone fathers are widowers..Are all the fathers with low or no contact the kinds of men that children would do better without? No. Only 4% of children in separated families have negative attitudes towards contact with their dads; and research suggests that among the no-contact fathers, only 1 in 6 is so seriously troubled that contact with him would not be productive for the child. Would these fathers have drifted away anyway, even under a d i fferent system? Undoubtedly some would. However, in countries which value and support both parents, the picture is very different: in Sweden, for instance, one child in three lives with both their parents in a 30% - 50% split. That’s three times the number in the UK.

Indifference to the child is rarely a factor. Far more influential are factors such as the child living in another town, father or mother not understanding the father’s importance; father feeling he has no influence on his child’s life; father poor and/or poorly educated; high levels of parental conflict, failure to deal with the emotional aspects of the separation, poor physical or mental health, including over-use of alcohol/drugs (often in a vain attempt to self-medicate).

Poverty is key. I t ’s the poorest fathers, overwhelmingly, who are the most likely to lose contact. Yet their financial circumstances are never considered. Unlike in Australia, where both separated parents are deemed ‘single parents’, here

in the UK, it is only the resident parent’s financial circumstances that are taken into account through tax credits and benefits, including housing benefit. Fathers whose housing cannot support overnight stays by their children, are far more likely than other fathers to lose touch.

Separated fathers also talk of a lack of information not only about support and services but also about their child. School communications go, typically, only to the resident parent; nurseries turn them away; they know nothing about their health needs – sometimes, even the name of their child’s doctor or his or her medical conditions. The information circle closes in around the mother whilst the father struggles to keep in touch with what his children are doing when they are not right in front of him.

The court processes themselves present significant barriers to sustained fatherhood. While it is claimed (Hunt & Macleod, 2008) that only around 10% of separations involve the courts and of these an even smaller number go to a contested final hearing, court decisions – and perceptions of these decisions – have a wider impact. Out of court negotiations are carried out, as we all know, in the ‘shadow of the law’. And whilst Hunt and Macleod found that in the majority of cases that came to court the claimant (normally the father) was awarded the amount and pattern of contact he was requesting, this masks the reality that fathers normally only ask for what their lawyers advise; that delays and failure to reserve the case for the same judge undermine outcomes; and that failure to enforce is endemic, with British judges far less willing than Canadian judges, for example, to switch residence. So what should policy be aiming to achieve?

• children who have the benefit of meaningful and positive relationships with both parents

• mothers and fathers who can keep conflict between themselves to a minimum and either (at best) cooperate or else parent ‘in parallel’ without seeking to disrupt the relationship between their child and his or her other parent

• mothers and fathers who are capable of looking af ter themselves financia l ly, emotionally and physically and providing well for their child, financially, emotionally, and physically.

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When we look at possible processes that would support such objectives important issues are likely to include:

• cases should not be allowed to get to a judicial process before separated or separating couples have received good quality, unambiguous information about the realities of separation and divorce, the impact on children, the importance of fathers, mothers and grandparents to child wellbeing, the impact of conflict and how to reduce it, families need time and opportunities to consider what will work for them

• clear protocols are in place to ensure that everyone across the Family Law professions is working towards the same aims and objectives, including conciliatory rather than adversar ia l and l i t igat ion remedies, minimising opportunities for parents to become embroiled in allegations and disputes (family lawyers have a very important role to play here and collaborative law processes seem to have much to recommend them)

• fathers as well as mothers are treated as central to decision-making and encouraged to participate equally in parenting

• finding ways of hearing the voice of the child and developing ways in which children can b e s u p p o r t e d a n d c a n c o n t r i b u t e appropriately

• cases to be reserved for the same judge• early intervention as soon as contact orders

are breached• a presumption that couples in dispute (not

just those on legal aid) will have a meeting with a mediator to explore options and clarify issues prior to litigation. Some will agree to mediate and other will not. Mediators should be flexible and offer different kinds of meetings, including separate meetings for parents when they wish. This provides an opportunity to reinforce messages about the impacts of separation and of conflict, and to support parents in taking difficult steps

• give considerat ion to the mer i ts of introducing child-inclusive approaches to mediation, as in Australia, and to the interesting programmes for high conflict cases in Canada: early research evidence is promising in terms of outcomes for children and for mothers and fathers

• pilot parenting education and special programmes for children experiencing

separa t ion , wh i le ensur ing tha t a l l professionals involved understand their value and promote them seriously to parents.

• develop multi-agency programmes (lawyers, mediators, counsellors, CAFCASS officers, court staff, judges etc) – as in the new Australian project to promote collaboration in family law system

• taking a whole family, family centred approach which looks at the needs and issues facing parents and children and other family members, including new partners, rather than simply looking at individual interests.

• ensuring that there are places in communities where mothers, fathers and children can go to talk about and process family breakdown and garner support

Should there be a presumption of equal parenting time? Absolutely not. Presumptions of anything threaten the best interests of the child. And the issue is not about time but about meaningful relationships, which is a much more nuanced concept.

However, shared residence orders in this country are rare and the proportion of decisions which end up with the mother having residence is unchanged since 1989. This despite the fact that men’s involvement in the care of their children has increased exponentially during the last 30 years. We need to do something (even many things) to decrease the numbers of children growing up without a father.

It seems likely that if discussions about the future for children in separated families were to take shared (but not equal!) parenting as their starting point a real shift might occur. So how could this change come about – that courts use shared parenting as a starting point for discussion? To be honest, we do not yet know. Others will be better placed to advise on whether a legislative change would be necessary; or whether this could be achieved by protocols alone.

We hope that this will be a matter that the Family Justice Review will investigate seriously. The evidence says that this is important for children. And the current system shows us that a lot of children are missing out.

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Considering the rights of the child and gender equalityAnna Bird: Fawcett Society

Like everyone round the table, Fawcett supports the idea that children should, except in very exceptional cases, have contact with both parents and their wider family network – and vice versa.

Fawcett does have concerns that the need to extend access for non-resident parents has been set up as a struggle for rights for fathers versus rights for mothers. Women’s and men’s rights should not be pitched against each other in this proprietary way of looking at things - which tends to lead to a situation where children’s rights are forgotten or ignored. The key principle where families separate is, and must always be, that decisions are made in the best interests of the child, and that those decisions must protect both children and any vulnerable adults from risk of harm.

In this debate, we recognise there are a number of factors at play, including different moral arguments, belief systems and political ideologies. Fawcett is keen to take an objective view, situated in the human rights framework, which should help steer the course of the debates and decision-making. It should mean that what ensues is fair and upholds human rights principles for all involved; men, women and children. I am not a lawyer, and what I raise is not intended to be a trot through the law. It’s as I say a helpful, objective framework through which to understand our obl igations and responsibilities.

The paramountcy of Best interests of the child is explicit in current family law and can be traced to the UN Convention on the Rights of the Child where it is enshrined in Article 3:

“In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”

Article 9 of the UN Convention is also clear that children should have the right to maintain contact with both parents:

“States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child's best interests.”

The same rights are enshrined in the Convention on the Elimination of all forms of Discrimination Against Women:

Article 16 1.“States Parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular shall ensure, …:

d)“The same rights and responsibilities as parents, irrespective of their marital status, in matters relating to their children; in all cases the interests of the children shall be paramount; “

In terms of rights for parents, the State also has an obligation under Article 8 of the Human Rights Act which states that everyone has the right to respect for his private and family life – that includes, for fathers and mothers, for their enjoyment of their family roles and responsibilities to be upheld. The State can only interfere in certain circumstances but then only in a proportionate way – so restricting contact rights unduly should be considered in this regard. These obligations are essential and non-negotiable. In terms of introducing a principle to the Children’s Act to assume the involvement of both parents or an explicit statement of equal status of both parents, the question should be applied - does it distract from or compromise in any way our obligations to act in the child’s best interests? Fawcett would be concerned that changing the law might unduly influence the need to assess the needs, wellbeing and best interests of the child on a case by case basis.

In terms of the current situation, I’d like to make a few small points which we mustn’t lose sight of. Fawcett is wary that there is a danger that in agreeing the need to look at how to improve access for fathers and grandparents, we might jump too quickly to a conclusion that current law is failing or flawed. So just to situate the debate in some facts, in terms of residency, there is no legal presumption that the child will stay with the mother when parents divorce. It’s true that women are granted sole residency in the majority of cases. But it would be a

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mistake to interpret this as a failure to provide for equal rights of the mother and father to access when families divorce. Other factors at work in our society make it more likely for women to be identified as the primary carer.

Some of the things that are relevant are that women are more likely to be in part-time work, or to have given up work to care for their children. Men, by contrary, are less likely to have made more flexible working arrangements to suit the rhythm of their children’s lives. This is about:

• opportunity – it is often harder for men to get access to flexible working arrangements

• culture – it is more acceptable and expected for women to change their working life when they become parents

• economics – the continuing gender pay gap and the fact that women are more likely to be in less well-paid work often leads to a pragmatic decision that the mother should take on the majority of the childcare responsibilities while the father protects his income

Since one of the leading factors in assessing the best interests of the child is the need to cause minimum disturbance, these existing factors in terms of men’s and women’s lives will be an important consideration for the judge. Whether you think this situation – in terms of the roles of men and women - is right or wrong, judges can only work within the actualities of the society we live in. If our goal is to encourage more equal parenting these things are probably stronger drivers than a change in the law in terms of affecting decisions when families divorce.

In terms of access and contact for the non-resident parent, again, on average, only 1% of applications for contact (under the Children Act 1989) are refused. Contact is usually granted even where there has been a history of serious abuse. Where there is a challenge to contact rights, it is usually about the extent of access granted to the non-resident parent. In terms of how contact decisions are made, we need to look at the circumstances of the case and here things like domestic violence are important factors. Domestic violence is an issue in up to 70% of family proceedings cases. Contact arrangements can be used by an abusive partner to

continue the abuse after the relationship has ended. Around three quarters of separated women report suffering post-separation violence. But this is not about seeing women as victims and all fathers as violent, and basing law around that. It could quite easily be the other way round – that the mother is emotionally or physically abusive or seeks to manipulate the situation for her own gain. So what’s important in law is that there must not be an automatic presumption that “one size fits all”, without looking at all the facts of the case at hand. The rule must always be safe, positive and appropriate contact. Any move which detracts from the best interests of the child is likely to lose sight of these principles. The key here is perhaps in improving how we ascertain what is in the best interests of the child in individual cases. We should consult more with children rather than setting out principles before we have met them.

One last point, I’d add that we need to recognize that for many single parent families – often a lone mother, but not always – the challenges can be huge. They include balancing the children’s needs and the responsibility and time involved in caring for a child with work and often other caring responsibilities. In many cases, increasing the contact rights of the non-resident parent and/or grand-parents may reduce the burden on the single parent (and of course parenting is not always a burden, but it is hard work and responsibility). But in some cases the demand for contact for more people or at more frequent intervals can cause added complexity to that parent’s life, and might cause added stress and anxiety. That’s not to say it shouldn’t happen. Fawcett would argue that in these circumstances the only way to weigh the needs and rights of both parents fairly is through a thorough consideration of the needs and best interest s of the child.

To conclude, Fawcett’s view is that if the goal is about fathers being able to play a fuller role, I think we all agree that fathers having a greater role is crucial and in most cases good for women, men and children. But a legal remedy probably won’t make the kind of change we are looking for. Actually what we need is much more fundamental policy change at the social, economic, cultural, and structural level to enable and encourage fathers to fulfill their role in children’s lives.