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All this happens before the first Directions Appointment. Judicatures already using this model show the anticipated results: more safe contact and less litigation.

The Commodity in Dispute
Section 8 orders are not open-ended discursions on the child’s best interests; they concern the apportionment of time in the child’s best interests. Parenting Plans can embody this information in a few sentences. Once a view is taken in line with the Act on the common issues (e.g. the age when children are generally ready to stay overnight) the overall objective of Section 8 litigation becomes simple: - to deliver that-sort-of-contact in appropriate cases.

The effect of fore-knowledge on procedure can hardly be over-estimated. The current pattern of extended retrospective litigation after the first hearing is replaced. Instead, normal contact is restarted pre-emptively before the first hearing - unless it can be established that normal contact should be stopped.

Nuts and Bolts
On first receipt of an application, courts will respond with information and leaflets about the sort of outcomes generally considered desirable. Parents unable to agree will be mandated to a group ‘Parent Education’ session on their responsibilities. Those still unable to settle find themselves in ‘mediation’ - but not mediation as we know it. Pilot Project mediation is backed by knowledge of what the courts are liable to order.

Within weeks of issue, many standard cases should resolve. The remainder, with serious or genuinely complex issues, are processed in the normal way.

Changing Outcomes
To take some points briefly: - it is not the law but the way the law works which undergoes change. Second, every case is still different; the Parenting Plans’ ultimate function is to underline the principle that reasonable contact will not be withheld without due cause. Third, enforcement becomes a peripheral issue; prevention is better than retrospective cure. Fourth, mediation moves centre-stage. Fifth, improved screening is provided for DV and the like: the issue can be raised before the case reaches court, and go to specific investigation and determination there-and-then. Sixth, incipient conflict is avoided with the Draft Convention on Contact Concerning Children, now open for signature.

Convention on Contact
Paragraph 41 of the Convention’s Explanatory Report affirms, "The more the right of contact is to be restricted, the more serious the reasons for justifying such restriction must be". As things stand, Britain’s presumption of contact provides a safeguard against elimination of all contact, but, once there is contact, there is no general principle to support an argument for more contact. The ‘no-order principle’ of Section 1.5 involves applicants in showing that contact which is not happening has a benefit - in excess of whatever activity it replaces - in a context where the definition of benefit does not include reasonable contact. In such an arena, any supposed blemish in the applicant's bearing can be fatal. The maxim that ‘every-case-is-different’ is the antithesis of proportionality; as things stand, there is no safeguard against the stoppage of almost all contact for almost no reason.

The Law in Practice
In practice, the issue of quantum is generally settled by the CAFCASS recommendation; and CAFCASS, like its FCWS predecessor, asserts that there are no general principles by which quantum can be evaluated. To quote: "CAFCASS does not currently have guidelines in relation to the amount of time a child should spend with a non-resident parent, nor does it have detailed written-down guidance on the factors to be taken into consideration on time-based recommendations” (3 April 2002, Interim Assistant Director of Operations to the Dispute Resolution Consultancy).

The Act’s Intention
The general upshot, whereby contested cases frequently proceed on a footing of deferral and almost-no-change, was not what The Children Act envisaged. Preliminary research discloses three direct statements on the Act’s governing intention. The Minister, presenting the Bill on 27 April 1989, affirmed (italics added), "New orders are introduced to reflect our emphasis on encouraging parents to participate fully in the child's upbringing", and later comments from both the Lord Chancellor and his Department follow this line. The Act “seeks to encourage both parents to continue to share in their children's upbringing, even after separation or divorce"; “parents have a shared responsibility for the upbringing of their children… This reflects the Government's belief that children generally benefit from a continuing relationship with both parents."

The Act cannot deliver on these intentions in the absence of an agreed framework on what the child’s best interests are in relation to the issue before the court. An appropriate framework already exists: in professional consensus; in research; in society at large; and this understanding dovetails with Parliament’s ascertainable intentions.

Background
The Early Interventions initiative, eight years in the making, dates back to 18 May 1995 and the first seriously-prosecuted complaint against the Family Court Welfare Service. At issue was a report supporting the resident parent in opposing contact because the resident parent said s/he supported contact. It transpired that no previous FCWS report had undergone evaluation as to its core recommendation: quantum. On 10 June 1996 the district ACPO wrote that the Service did “not regard it as appropriate or feasible” to form an opinion on whether recommendations by its officers were reasonable.

From this seed of doubt grew an oak of reform. By late 1997 a rota of some thirty constituency MPs were raising awkward questions of the Home Office; on 16 February 1998 the Home Secretary announced preparations to transfer the Service out of the Home Office. In proportion as it became clear what checks-and-balances were not there, so it became clearer what should be there. The NATC’s 2002 Conference, “Early Interventions: a Framework for Contact”, outlined the broad theory; the April 2003 Conference detailed the Pilot Project.

Full Circle
The pilot takes comfort from the Norwegian and American systems - and thereby hangs a tale. In 1986, Law Commission Working Paper 96 recited the difficulties which the 1989 Act set out to address. The problems and solutions aired by the family law community then are the same as the problems and solutions aired now. Readers with long memories will recall Part 4, especially 4.33 and Footnotes 161 and 178.

Para 4.33 noted: "There may be two ways the law could make a greater contribution… First there is at present little or no guidance as to what constitutes 'reasonable access…'”. The footnotes directed readers to the American and Norwegian systems. These concepts, temporarily overlooked, were explored twenty-six years later at the 2002 Conference.

The desire to avoid dispute, which underpinned the 1989 Act, was not matched by machinery to avoid it. Parenting Plans make that omission good