Lord Chancellor told courts not the answer in contact disputes

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