ACTION
ON FAMILY JUSTICE
On 17th October
2004 the Conservative Shadow Secretary of State for the Family, Theresa
May, pledged to end the misery of the family courts. Unveiling a strategy
for institutional change.
“We
Conservatives recognise what the experts and common sense have always
told us: that the best parent is both parents. It is time for a family
court system that protects children and respects parents.
Children
who go through divorce - 146,914 of them in 2001 - have already lost
out. We must not add to their distress with a court system that means
they forfeit one of their parents as well. Under the next government,
there will not be another generation of parents without children, and
children without parents. Everyone - including the lawyers - accepts
the time for change is overdue.”
Theresa May
underlined that the programme was a practicable reality in advanced
discussion within the legal profession, child development experts and
parenting groups. She said:
“Too
many families have been torn apart by divorce and separation. Not just
because the adults’ relationship has ended, although that is painful
enough. But because the bond between parent and child, or grandparent
and grandchild has been broken.
Our Country
deserves a better system of family justice: one that is open, fair and
accountable; that protects children and respects parents; but above
all, that recognises that the best parent is both parents."
Institutional
Change
Under the
proposals, CAFCASS, the Children and Family Court Advisory and Support
Service, will be abolished. Theresa May said:
“CAFCASS
has been a disaster from Day One. Its officers write tens of thousands
of trivial reports each year - on decent families caught up in divorce.
CAFCASS breeds heartache and delay. CAFCASS clogs up the system. It’s
the bottleneck in the divorce system wasting hundreds of millions of
pounds a year.”
Theresa May
underlined her respect for the hard-pressed Guardians ad-Litem co-opted
by Labour into CAFCASS.
“The
Guardians in CAFCASS provide an invaluable service to children in real
need. But this part of the service is under-funded. Resources that should
go to cases of real neglect are squandered by CAFCASS on matters which
should not be dealt with by the courts. CAFCASS has got it back-to-front.”
Other measures
include:
- legislating
the presumption of reasonable contact
- adopting
the ‘good reason’ principle
- implementing
Section 11 (iv) of the Children Act for co-parenting
- accrediting
court-approved mediators and facilitators
A Restructured
Court System
For parents
who have reached the stage of issuing legal proceedings about contact,
Conservative proposals include:
- clear guidelines
prepared by child development experts and stakeholders in conjunction
with the judiciary to outline the range of beneficial post-separation
arrangements
- mandatory
mediation before the first hearing conducted in the knowledge of what
the Courts are likely to order
- family
courts working to expert guidelines acknowledging that the child’s
needs are best served by “frequent and continuous” contact
with both parents
- court-backed
mechanisms, including mandatory information sessions, to make these
court-backed guidelines available to parents before the hearing
Establishing
Clear Expectations
Theresa May
said:
“Children
don’t need frequent and continuous litigation. They need frequent
and continuous contact - with both parents. We must end the era where
parents litigate for years just to see their children for two hours
a fortnight. Yes, we need more mediation. But mediation must take place
in a clear context. Parents have to know what the courts are likely
to order. Predictability is so important in the months before a case
starts.
We want parents
to sort out their differences without resorting to unnecessary litigation
The Courts should be the last, not the first resort”
Conservative
proposals mean that most contact disputes should be settled before the
first hearing, as happens abroad. Theresa May explained:
“At
the moment there is simply no information available. Separating parents
have no way to find out what to do about their children. No-one tells
them what the Courts are going to order. Then they find that the Government
will pay their costs to continue arguing in court. Labour is fighting
fire with petrol.”
The Conservative
scheme represents a radical departure from recent Government proposals.
Labour’s Consultation Paper (Cm6723) pays lip-service to the idea
of guidelines. But the first step remains untaken. Theresa May said,
“The
Government has failed to offer families a system that works. You have
to start by bringing the judges, experts and stakeholders on board to
agree what sort of orders the Courts should make. That way, you know
what you’re trying to deliver. Then you build a legal system to
deliver it. The Government never did its homework. It forgot the foundations.
It’s the same old gerry-building: ‘anything goes.’
Theresa May
said she could not condone the tactics of pressure groups like Fathers
For Justice, but added,
“Let’s
not forget that there is a legitimate grievance. Can any parent - hand
on heart - imagine anything more terrible than losing their children?
What would you do to see them? We’re going to build a proper system
of justice”
“It
is not just the parents who have had enough with a third-rate service.
It’s the professionals. We found that the lawyers, judges and
experts have been calling for radical change too. Their proposals go
into Whitehall in perfect order; they come back from Margaret Hodge’s
DfES in tatters - with CAFCASS back in charge. At the end of the day,
the issue is really very simple. What do children want: one parent or
two?”
