News

The Children Act sub-committee of the advisory board on family law has published a report for the Lord Chancellor called `Making Contact Work`. The report notes 'a general dissatisfaction with the legal process as a mechanism for resolving and enforcing contact disputes'.

It is recommended that at an early stage information should be provided for separating parents and their children about the likely effects of the separation, the difficulties they are likely to encounter, and the means whereby those difficulties can be addressed. Problems should be addressed by a wide range of different mechanisms, which are not based on court proceedings. An application to the court for an order should not be the first response but, if anything, should be the remedy of last resort, although the risk of fruitless negotiation or mediation is recognised.

The report notes: 'But - and although we have said this many times it needs saying again and again - CAFCASS must be properly funded. The idea that the amalgamation of the Court Welfare Service, the Guardian ad Litem Service and the children's arm of the Official Solicitor's Department is cost neutral when many additional and necessary functions have been given to CAFCASS is, in our view, untenable. CAFCASS is there to provide a vitally necessary service to children and families. If the government is serious about providing an effective children and families court advisory and support service, CAFCASS must be properly structured and funded.'

'We firmly believe that a properly functioning CAFCASS is not only necessary for the proper running of an effective family justice system: we believe that an expanded role for CAFCASS is likely to produce valuable savings elsewhere in the system, notably in a reduced number of contested court proceedings, with consequential substantial savings in both time and money spent in court, without counting the more intangible emotional benefits to children and families brought about by the amicable resolution of contact disputes.'

The main reasons given for finding the current procedures unsatisfactory are:

1. There is insufficient court time and resources: cases take too long to get to court, and often have to be rushed when they are in court.

2. There is no judicial continuity. As a consequence cases are delayed and there are too many judicial fingers in any one case. This leads to an inconsistency of approach on the part of the bench. One respondent cited his experience of 10 different judges in one case.

3. Too much pressure is put upon parents (mothers in particular) to agree to contact - sometimes at non-molestation hearings.

4. Overall, litigation is counter-productive and entrenches positions. It puts particular pressure on the divided loyalties of children. The timescales are wholly inappropriate for children: from their perspective the cumbersome and pressuring court process is disastrous. Their lives are put in limbo and sometimes their whole development put on hold (or regresses).

5. The problems of enforcement.

6. Delay is exacerbated by the length of time it takes to obtain a CAFCASS report (sometimes up to 20 weeks).

7. Proceedings remain adversarial, stressful for the parties and are often protracted; no professional input from CAFCASS is available at interim hearings.

8. The courts are not well placed to meet the on-going and changing needs of children involved in contact disputes, which should be regularly reviewed.

9. There is a concern that guidelines on domestic violence in contact cases are being implemented inconsistently.

10. Poor quality of reporting by court welfare officers.

11. The litigation process and the coercive context of the court are not conducive for sorting out private disputes. There is likely to be an increase in conflict, and a further deterioration of communication in these circumstances, which can be damaging for future co-operation over children.

12. There is no filter system prior to litigation to enable appropriate cases to be dealt with by mediation or other means, so that the court would only hear the cases where the parties were being intransigent.

13. There is a need to use experts more creatively in a therapeutic rather than an adversarial sense: the court should be a last resort.

14. There is a lack of swift and robust action on the part of the court to protect the child's relationship with both parents.

15. There is insufficient representation of the children's interests, which include but go beyond their wishes and feelings.

The full report is well worth reading. It ought to receive an urgent and positive response from the Lord Chancellor's department.

Richard White

White and Sherwin Solicitors