RESPONSE TO QUESTIONS FROM OLIVER LETWIN
1. When is the Bill due to be presented to the House?
- The Children and Families Bill was introduced in to the House of Commons on Monday 4 February and published the following day. It is currently in Committee Stage in the House of Commons. The Bill’s progress through Parliament can be followed at: http://services.parliament.uk/bills/2012-13/childrenandfamilies.html
- Further information about the Bill is available at www.education.gov.uk/childrenandfamiliesbill
2. Is it still intended that there will be a right, a presumption in law, that both parents cab have equal contact to see their children after divorce or separation?
- Clause 11 of the Bill amends the Children Act 1989 to require courts to presume, unless the contrary is shown, that the involvement of both parents in a child’s life will further the child’s welfare. The presumption only applies to a parent if he or she can be involved without posing a risk of harm to the child and would be rebutted if the court concludes that the involvement of the parent concerned would not further the child’s welfare.
- Clause 11 does not give parents a ‘right’ to contact. Nor does it establish any right or expectation of equal or substantially shared time. The welfare of the child must remain the paramount consideration of the court in reaching a decision about the child’s care. As now, it will be for the courts to take account of the individual circumstances of the case in reaching a decision about what is best for the child concerned.
3. Will the presumption be to the benefit of the child or to the resident parent requesting, due to their presumption that the absent parent should not have contact? It must be taken into account that is the mother requests no contact for the father this ensures that the mother receives full amount of maintenance payments, which is sometimes an incentive to request it. This is the policy of the CSA.
- The court will take a reach a decision in the light of the individual circumstances of the case; in doing so, it will – as now – have the welfare of the child as its paramount consideration. The Government’s amendment is about what is best for the child, it is not about parents’ perceived rights or entitlements.
4. Will mediation be compulsory before any case can be heard in the Family Court? And if so, will the agreements made in mediation be mandated in Court if the case subsequently goes there?
- Mediation will not be compulsory in any family cases – mediation can only be carried out on a voluntary basis. Only the parties concerned can agree to mediate.
- However, clause 10 will create a legislative requirement for prospective applicants in matters concerning arrangements for children or a financial remedy to first attend a Mediation Information and Assessment Meeting (MIAM) before starting proceedings, unless they meet one of the exemptions. Those exemptions include where there is evidence of domestic violence.
- The first step towards mediation involves attendance at a Mediation Information and Assessment Meeting (MIAM) where information will be given to the parties about the process of mediation and its benefits. The mediator conducting the meeting will assess with the parties whether mediation would be an appropriate way to resolve the dispute. Parties usually attend the MIAM together but they can, if they wish, attend separately. It is attendance at the MIAM which we are seeking to achieve in order to ensure that mediation is given proper consideration prior to court proceedings. Whether to enter into mediation will remain a decision for the parties alone to make.
5. Is there any suggestion that the Family Courts be made more open and accountable?
- The Government agrees that there is a need for greater openness in the family courts and that it is important that we make progress so as to ensure public confidence in the Single Family Court on its creation.
- Ministers from the Ministry of Justice and the Department for Education have been in discussion with the President of the Family Division about how progress can be made via changes to Rules of Court, which will further the public understanding of family proceedings, whilst respecting the right to privacy of vulnerable individuals and children in particular.
- Ministers have agreed in outline that the President of the Family Division should progress this work. The President will announce his vision for reform after the Easter break
6. Will there be a clause with regard to the resident parent moving the children away? In the USA the children cannot be moved away without the authority of the court, here the resident parents can move the children away with no consideration made as to the disruption this can make to the contact with the non-resident parent.
- The Bill does not include provision to change existing arrangements in this regard. Section 13 of the Children Act 1989 states that, where a residence order is in force with respect to a child, no person may remove him from the UK without either the written consent of every person who has parental responsibility for the child, or the leave of the court. However, this does not prevent the removal of the child for a period of less than one month by the person in whose favour the residence order is made. Clause 12 of the Bill would replace existing residence orders and contact orders with a child arrangements order. Consequential amendments will be made to section 13 to reflect this, but will not change the policy effect.
7. Will there be a time frame or i.e. 6 months to resolve contact, at present it can be up to 2 year within which time the absent parents has minimal if no contact, especially when very young children are involved, where they can miss important stages of their development, especially those involving bonding with the absent parents.
- The Bill does not introduce a time frame within which parents must resolve their disputes. The circumstances of family breakdown are unique to the family concerned; in some cases, for example, a dispute may only arise a significant time after a child’s parents have separated; in others, the child’s parents may never have been in a relationship. Nor does the Bill introduce a timeframe within which the courts must resolve private law disputes; disputes may be ongoing if, for example, a parent does not comply with a contact order.
- The Government is, however, introducing a wider package of measures aimed at supporting parents to reach agreement themselves without the need for court intervention. This will include improved advice and information; increased availability of targeted parenting support programmes; the introduction of parenting agreements, to help parents focus on the needs of their child in resolving their dispute; and compulsory attendance at a Mediation Information and Assessment meeting (see answer to question 4 above) before any court application can be made.
- Where breach of court ordered arrangements for children leads to enforcement proceedings within the first 12 months of an order being made, cases will return to court more quickly – wherever possible,- to the same judge. The focus should be on helping parents to make contact work so that children benefit from the involvement of both parents in their life, where this is appropriate and safe. Where stronger encouragement is needed, the courts will be able to make full use of powers to direct a parent who is in breach of an order to participate in an activity designed to address their behaviour. Where there is wilful obstruction of contact, the courts will be able to make use of existing enforcement powers for unpaid work, the award of financial compensation and, if appropriate, committal to prison or a fine.
8. What provision will be made with regard to grandparent contact?
- The Government has no plans to amend legislation with regard to grandparents’ contact with children. At present, grandparents may apply for contact with a child with the leave of the court. The Family Justice Review panel found that this current system acts as an important filter to protect children from vexatious contact applications and those that are not in their best interests. The panel also found that applying for child contact is not unreasonably slow or expensive for grandparents. Therefore the panel did not recommend legislating in this area; the Government accepted this recommendation.
- However, the Government is currently developing a non-legislative package of support to encourage and enable separated parents to resolve disputes outside of the courts, and to reach amicable agreements about the care of their children. The importance of children’s relationships with their grandparents will be reflected in these support measures, for example, through parenting programmes and in parenting agreements.
9. At present if the resident parent has full custody and then has a new partner there are no restrictions on the new partner having access to the child, which is at present restricted to the non-resident parent. There is available evidence that shows that children are more at risk from abuse or neglect from live-in lovers and even step parents than birth parents. How will the new law support the birth parent so they do not have to go through the protracted and painful, often damaging process of the courts to gain access to their own child? Can you answer why it is ok for anyone to see a child but the birth parent?
- In the majority of cases, parents do not seek the help of the courts following family breakdown. Legally, a non-resident parent’s contact with their child is only restricted if a court has ordered it. During child contact cases, the court will make decisions about who the child should see and when, based on all of the facts and circumstances of each individual case.
- In reaching its decision, the court must have the child’s welfare as its paramount consideration. It is guided in doing so by the ‘Welfare Checklist’ in the Children Act 1989, which sets out the factors to which the court is to have regard. These include any harm which the child has suffered or is at risk of suffering. Additionally, Cafcass conduct risk assessments which are supplied to the court to inform its decisions with regard to the child’s safety and welfare.
10. At present it has been known for a father, non-resident parent, to have to resort to using a barrister to have their side of the story heard on an equal footing. This may be a cost of up to £10,000. This is to ensure a final hearing due to Judges who often elongate the process, in requesting further reports which will increase the time the absent parents has minimal contact with their children. Will the mediation process help to ensure all reports are gathered prior to a court setting, with the Bill supporting equal parenting access to ensure stability for the children at this time of divide?
- Clause 13 of the Bill will ensure that expert reports are commissioned only when they are necessary to resolve the proceedings justly, and applies to both public and private law cases involving children. The purpose of the clause is to tackle the over-use of expert evidence which can be a cause of delay. The court will have to consider specific factors, including the impact on the welfare of the child and on the timetable for proceedings when deciding whether to permit an expert to be instructed, a child to be examined or assessed in order to obtain expert evidence, or expert evidence to be put before the court.
- Mediators are impartial facilitators whose role is to help the parties communicate and negotiate in order to come to an agreement. The mediator has no role in collecting information or commissioning written reports about the family’s circumstances. Those are matters for statutory agencies acting under the supervision and authority of the courts. It would be wholly inappropriate for such intrusive enquiries into private family matters to be made when the parties are attempting to reach a consensual agreement without court involvement.
11. Will the Bill ensure that evidence from the absent parent showing the input and care they had bestowed on their child/children prior to the divide is taken into account to ensure equal parent contact from the outset?
- The intention behind clause 11 of the Bill is to ensure that children are able to maintain a continuing relationship with both of their parents following family separation. The legislation does not offer parents a ‘right’ to contact with the child; nor does it offer parents an equal share of the child’s time or a prescribed level of contact. Every child is different and so are their circumstances. The law cannot assume that equal parent contact is appropriate or practical for all children and their families.
- The courts currently take account of all of the facts and circumstances in each individual case, and make decisions based on what is in the best interests of the child at the heart of the dispute. The Government is not changing this.
12. What training have CAFCASS officers in the support of ensuring equal parenting access and not become part of a biased view?
- It is not the role of Cafcass officers to ensure equal parenting access. Cafcass has a duty to protect children and ensure that their interests are looked after during family court proceedings. Where requested to do so, Cafcass officers will report to the court on matters relating to the child’s welfare and may make a recommendation to the court on the course of action they think is in the child’s best interests.
- In child contact cases, the court must make the child’s welfare its paramount consideration and will make a decision based upon all of the facts and circumstances of each individual case.
- The family justice review panel found no evidence of ‘bias’ towards one parent or another in the family court system. However, the Government appreciates that there is a widely-held perception of bias and that this is an issue for many parents involved with family court proceedings. One of the aims of the Government’s parental involvement legislation is to help dispel this perception by sending a clear signal to parents that they remain jointly responsible for their children following separation.
13. It is agreed that evidence/proof of abuse (i.e. criminal record) by one parent, that would have a detrimental and harmful effect on the child should be taken into account and equal parenting may not be advisable for the safety of the child. Any verbal statements of abuse should, though, be regarded equally from either parent and be subject to the burden of proof.
- The law does not differentiate on grounds of gender. The burden of proof will be on the complainant, and the standard of proof will be on the balance of probabilities, regardless of which parent makes the allegation. Courts are required to have the welfare of the child as their paramount consideration in reaching decisions about a child’s upbringing. In doing so, they will take account of all the relevant evidence before them. This legislative change will not increase the risk to children or adults. There are existing safeguards in place and these will continue. For example, Cafcass is under a statutory duty to safeguard and promote the welfare of children, and judges are guided by the ‘welfare checklist’ in section 1 of the Children Act 1989. The wording of the clause was amended following the Government’s consultation to strengthen the safeguarding aspects. The presumption will not apply to a parent who cannot be involved in the child’s life without posing a risk of harm.