Conciliate or else

The vociferous fathers’ lobby and changing expectations of
fatherhood generally made reform of post-separation contact
arrangements inevitable. That the government has taken a pragmatic
view, ignoring those fathers’ groups that would insist on a 50/50
split in parental contact, is to its credit. And it was also right
to announce the measures in the context of wider changes to the
family courts.

Wisely the Department for Constitutional Affairs has tried to
put the emphasis on mediation and conciliation, although it might
be asked whether this is based on a pious hope or a serious
appraisal of the circumstances in which parental separations come
to court in the first place. Only one in 10 separations where
children are involved go to court at all, often when all hope of a
sensible dialogue has vanished. Lord Falconer, the constitutional
affairs secretary, says mediation will be voluntary, but when this
option fails the only alternative will be a court hearing, in all
likelihood followed by one of a new panoply of enforcement

There will also be misgivings about the role of the Children and
Family Court Advisory and Support Service. Even as Falconer talked
about extending Cafcass’s role to in-court conciliation in child
custody proceedings, children’s minister Margaret Hodge told the
Commons constitutional affairs committee that this could detract
from its public law work with vulnerable children.

While there will be more emphasis on fathers, the measures stop
short of a legal presumption of co-parenting, a proposal put
forward by the Conservatives. Such a step would only deepen concern
about contact where families have a history of domestic violence
and make it harder to contest the claims of violent fathers on
their children. But the government should have gone further in the
other direction. It has allowed courts to be informed about
domestic violence at the beginning of a case, but it should also
have insisted that contact could only occur after it had been
explicitly assessed as safe.

In general, though, this shake-up of the family court, combined
in the longer term with greater openness of its proceedings, will
do much to restore confidence in the system.

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