Father
time
The
Lawyer - 27th October 2003
http://www.thelawyer.com/cgi-bin/item.cgi?id=107414&d=pndpr&h=pnhpr&f=pnfpr%20
Trying to keep all parties happy post-divorce often seems impossible.
Ann Northover looks at how fathers are helped and hindered by the law
"We give
more for donkey sanctuaries than for children in need," said Dame
Elizabeth Butler-Sloss, president of the Family Division of the High
Court, in a speech at King's College London last April. She went on:
"Sixty per cent of fathers have little or no continuing relationship
with their children post-separation... I'm as worried about parents
who fade from the lives of their children as that small group whose
litigation makes the life of children a misery."
Several pressure
groups to support fathers and even grandparents have recently evolved.
One of these, Families Need Fathers, aims to ensure that children benefit
from "a full and rich involvement of both their parents".
So strongly do they feel that the family courts are rife with gender
discrimination that in June they protested outside the Principal Registry
of the Family Division, the largest specialist family law judicial centre
in the country. And only last week the most militant group, Fathers
for Justice, staged a rooftop protest at the Royal Courts of Justice
over the treatment of fathers in the family courts.
A new book entitled
Children and Their Families includes a chapter by Bob Geldof named 'The
real love which dare not speak its name: a sometimes coherent rant'.
Geldof complains that "the law is creating vast wells of misery,
massive discontent, an unstable society of feral children and feckless
adolescents who have no understanding of authority, no knowledge of
a man's love and how different but equal it is to a woman's."
Existing legislation
should, in theory, prevent loss of contact. Under the Children Act 1989,
the child's welfare is the paramount consideration and any delay is
likely to prejudice the welfare of the child. Contact may be direct
or indirect, for example by telephone or in writing, and may be supervised.
So why is the
system breaking down? Common criticisms are inadequate resources, the
absence of judicial continuity and lack of court time. Cases take too
long to come to court and substantial delays are detrimental to children
and parents.
Parents, lawyers
and the judiciary appear to agree that there is immense room for improvement
in this most emotional of areas. It is a mammoth task to get it right.
On 8 February 2002, the Lord Chancellor's Department's (now the Department
for Constitutional Affairs) paper 'Making Contact Work' on the facilitation
of arrangements for contact between children and their non-resident
parents and the enforcement of court orders for contact, was produced.
On 15 February this year, there followed a 'Making Contact Work' conference
at which Lord Justice Wall said: "People who are charming and reasonable
on every other subject appear to take leave of their senses over the
arrangements for their children's contact with the other parent... The
risk, of course, is that both lawyers and the judge treat the symptoms
and not the illness."
A case that
fuelled the fire was C v C [2003], which came before the Court of Appeal
in June. A father acting in person appealed a decision to end his contact
order with his two daughters. The case raised issues regarding the factors
that prevented the children from having contact with him. Was it the
children's own wishes (they were 16 and 14)? Had their mother 'poisoned'
them against him? Moreover, was contact in their best interests?
Butler-Sloss
chose a forward-thinking approach to the matter. She declared it was
not her role to apportion blame, but to try to facilitate a relationship
between the father and his daughters. The father's appeal was allowed
to the extent that his application for contact with his two daughters
was reinstated, but adjourned generally. Contrast this with Lord Justice
Balcombe's decision in Re J (a minor) (contact) [1994], that a parent's
"implacable hostility" should not prevent contact.
Another speaker
at the 'Making Contact Work' conference, consultant psychiatrist Dr
Hamish Cameron, advocated that the three key components of reform were
early hearing dates, parenting education classes and alternative parenting
plan resolution sessions. Perhaps the closest the English legal system
has come to this is the scheme in place at the Principal Registry, which
aims to resolve disputes in a less confrontational manner. Here, residence
and contact disputes are referred to a conciliation appointment. Orders
can only be made by agreement. The parties are assisted by a Children
and Family Court Advisory and Support Service (Cafcass) officer who
helps the district judge discuss a resolution with the parties. Children
aged nine and over come to court to be seen by the Cafcass officer and,
if appropriate, have their views canvassed. Unfortunately, this is not
available outside London - possibly through lack of funding.
At www.lcd.gov.uk/family/leaflets/parentplan,
guidelines are available on 'parenting plans', where parents are encouraged
to complete a post-separation plan. Topics include living arrangements,
contact, schools, holidays, health, changes in care arrangements and
financial matters. This plan is not binding and it is accepted that
whatever is agreed will need to be adapted from time to time. Obviously,
it is not appropriate in all cases, particularly where there has been
domestic violence, but it is a good starting point and focuses the parents'
minds.
Notably, domestic
violence need not automatically rule out contact. Four relevant cases
were determined by the Court of Appeal in June 2000. These were Re:
L, V, M and H (Contact: Domestic Violence). In each case, the father
had sought direct contact but had been refused and so appealed. All
four appeals were dismissed. Butler-Sloss held that where such allegations
exist they must be adjudicated upon and found proved or not proved.
If proved, it did not necessarily mean no contact, but this would be
one of the factors to be considered by the court in its discretion under
the welfare checklist in the Children Act 1989. It would also consider
the effect of the violence on the child and the residential parent,
any risk of harm to the child, the motivation of the parent seeking
contact and the ability of the offending parent to recognise his past
conduct.
Some proponents
of reform are looking to overseas models. Oliver Cyriax is a father
who has campaigned for years for a more modern approach to contact in
the English courts. Through his organisation 'New Approaches to Contact'
he urges a comparative review of the procedures abroad, particularly
in Florida. He also recommends that parenting plans should be adopted
and delays in the court system reduced.
The Florida
statute 61.13 (1982) states: "It is the public policy of this state
to assure that each minor child has frequent and continuing contact
with both parents after the parents separate or the marriage of the
parties is dissolved and to encourage parents to share the rights and
responsibilities, and joys, of childrearing." Under a shared parental
responsibility act, both parents continue to share the rights and responsibilities
of child rearing, irrespective of whether they are married, in contrast
to England, where this is automatically acquired by fathers only if
the parents are married when the child is born.
Lord Justice
Wall's belief, expressed at the 'Making Contact Work' conference, is
that "the adversarial court system is not well suited to contact
disputes, and the powers of facilitation and enforcement currently available
to the court are limited and were not designed to deal with breaches
of contact orders." He points out that imprisonment is a last resort
and should only be used "where there have been flagrant and intentional
breaches of court orders without any genuine excuse".
The courts have
to undertake a fine balancing exercise that may not always be fully
appreciated. The cases referred to above concern a child who has de
facto residence with one parent, often called the "primary"
carer, and contact with the non-resident parent. However, there are
cases where shared residence is the appropriate arrangement. In D v
D (shared residence order) [2001], Butler-Sloss cast aside the previous
view that it was necessary to show the existence of 'exceptional circumstances'
before such an order would be granted. She held that the right test
was to demonstrate that a shared-residence order was in the interests
of the child. Nevertheless, such orders are still the exception rather
than the norm.
There is evidently
scope for reform of the issue of enforcement and how disputes concerning
children are dealt with. Meanwhile, the resounding body of opinion seems
to be that early intervention is the key. Increasing parents' awareness
in relation to the level of contact that should be afforded, thereby
helping to manage expectations, might help prevent cases from coming
to court in the first place. Otherwise, we are frequently trying to
shut the door after the horse has bolted.
