Written evidence from Families Need Fathers (CFA0104)

HOUSE OF LORDS CHILDREN AND FAMILIES ACT 2014 SELECT COMMITTEE INQURY

FNF Written Submission to the Children and Families Act 2014 Committee

call for evidence

About Families Need Fathers

Families Need Fathers – ‘because both parents matter’ is a registered national shared parenting charity focused on providing support to ‘non-resident’ parents in relation to arrangements for their children. We receive approximately 20,000-25,000 calls a year to our Helpline and over half a million visits to our website. We are a stakeholder of Cafcass, the Department of Work and Pensions, Ministry of Justice and other government agencies. We regularly liaise with them on matters related to family separation.

Overriding Comments

Our concerns with the Children and Families Act is mostly in relation to private law relating to separated parents, focused on sections 10, 11 and 12. Our experience and evidence is that these sections have unfortunately failed to produce any real change in how children’s interests are protected when their parents cannot agree about child arrangements; and in some ways, the sections have made matters worse. This is because those sections were too limited in their ambition, and insufficient thought was given to private law proceedings generally.

For private law proceedings to be effective in protecting the welfare of children whose parents have separated, there needs to be a detailed holistic view of how the legal system deals with such cases. These cases affect far more children (84,000) that public law children cases (27,000) and tacking a few sections into a Bill that it mainly about public law cases and SEN was never going to produce a practical change for those children. Given the harm experienced by children when their important attachment figures are removed from their lives, this is a serious matter and there is a need for a wholesale review that focuses on family separation and private law proceedings.

Summary of Specific Evidence and Recommendations

1.                                                                                                                                                                                        FNF consider all children whose parents are unable to reach an agreement on child arrangements to be vulnerable and those families require urgent support.
2.                                                                                                                                                                                        The Children Act 2014 has made very little, if any, difference to the outcomes for children in private family law proceedings. It’s focus on public law proceedings may well have had a detrimental effect on private law cases.
3.                                                                                                                                                                                        The introduction of MIAMS has not had the desired effect of taking people out of court and, if anything, has added to conflict and delay. It is not that mediation is not a good thing, but the way it was introduced made it counterproductive.
4.                                                                                                                                                                                        The presumption of parental involvement, unless shown to the contrary was too weak and made no distinction between arrangements for joint care (broadly defined as a minimum of 35% of parenting time), shared care with direct contact and indirect contact (there is no meaningful data as all are recorded as ‘contact orders’).
5.                                                                                                                                                                                        The 1989 Children Act introduced the paramountcy of the best interests of the child the principle cornerstone of family proceedings and this remains the leading guidance on decisions made.
6.                                                                                                                                                                                        The ‘presumption’, such as it is, is currently being challenged by women’s domestic abuse agencies and a panel has been set up to look into this[1].

It of note that when a stronger presumption was introduced in Spain in, in five regions, the incidence of intimate partner violence were found to have been almost halved in those regions (see below).

7.                                                                                                                                                                                        Changes to legal under LASPO, have resulted in a fundamental injustice whereby
8.                                                                                                                                                                                        It is our experience that family courts often make final orders for indirect contact only. Too often, this is having previously made orders for direct contact i.e. where there were not safety concerns, but where the parent with whom the child lives at the time has failed to comply with orders. We are concerned that there is no basis for the making of such orders or failing to enforce orders made in the interests of children.
9.                                                                                                                                                                                        Data is inadequate to be able to make well-evidenced policy decisions. For example:

9.1.                                                                                                                                                                                  There is no information on the number of contact orders for indirect contact only.

9.2.                                                                                                                                                                                  It is not known how long private law cases take from a child’s perspective, given that 30% are repeat cases treated as new. Generally, repeat applications are for enforcement or variation of orders due to non-compliance.

9.3.                                                                                                                                                                                  It is not known what proportion of allegations of domestic abuse in family courts are found to be:

•                                                                                                                                                                                            True
•                                                                                                                                                                                            False, but mistaken by the complainant
•                                                                                                                                                                                            False and malicious
•                                                                                                                                                                                            Unable to be determined
•                                                                                                                                                                                            Situational – i.e. provoked by the dispute over child arrangements
•                                                                                                                                                                                            Irrelevant to the welfare of the children
•                                                                                                                                                                                            Mutual abuse in the dynamics of the relationship

9.4.                                                                                                                                                                                  It is also unknown what difference one party being represented and the other a ‘litigant in person' has on court findings and outcomes for children. What we do know from our experience and research is that parents in litigation are under extreme pressure. It is fundamentally unjust to parents and children alike that one party is represented and having to manage their own litigation particularly when dealing with finding of fact hearings, whilst being experiencing chronic, clinical levels of stress.

Article 6 of the Human Rights Act entitles citizens to have the right to a fair trial or hearing where a public authority is making a decision that will impact on their civil rights. Providing funding only to one party in contested proceedings is driving a coach and horses through this.

10.                                                                                                                                                                                   Thousands of children each year being denied relationships with their parents and half of their families – effectively infringing on their right to a private life under Article 8 of the European Convention of Human Rights. The balance seems to be wrong and the adoption of this article and appropriate levers for its implementation must be considered for legislation in an updated Children and Families Act.
11.                                                                                                                                                                                   Family Separation and divorce are estimated to cost the economy £51bn. Over a third of parents separate before their children reach 16 years of age. 38% of these families end up in the family justice system, involving 84,000 children a year.

The negative consequences of family separation have become a major public health issue.

There is a need for a coherent strategy for separated parents that

•                                                                                                                                                                                            reduces conflict
•                                                                                                                                                                                            promotes both caring and financial responsibility by both parents
•                                                                                                                                                                                            provides post-separation education
•                                                                                                                                                                                            ends the adversarial nature of family separation, especially in court
•                                                                                                                                                                                            keeps parents out of court
•                                                                                                                                                                                            encapsulates Early Intervention – current processes are not on a child-appropriate timescale.
•                                                                                                                                                                                   Pre court, compulsory Separated Parenting Programmes which are over a number of weeks with the outcome being a mediated Parenting Plan prior to the first court hearing. The opportunity for reports from professionals involved in this programme to report to the court would provide an early indication of whether parents are genuine in seeking to collaborate and put the needs of their children first. More opportunity for safe contact arrangements prior to court hearing. Such process could include a mediated settlement supervised by court professionals PRIOR to the first court hearing. Primary barriers to such a route would be
•                                                                                                                                                                                            Cost - offset by the current cost of extended court proceedings.
•                                                                                                                                                                                            A lack of trained experienced staff. This could initially be supplemented by current experienced volunteers in the charity sector with appropriate guidance and supervision.
•                                                                                                                                                                                            A significant reduction in the average length of proceedings – currently cases involving a Cafcass children’s guardian are on average taking 92 weeks.
•                                                                                                                                                                                   The United Nations Convention…. Should be adopted into law in England.
•                                                                                                                                                                                   The Act should provide for the necessity of restoring/maintaining, safe child arrangements with parents in private law, as is the case in public law.
•                                                                                                                                                                                            Such steps need to be time-specific – weeks not months and years as is the case now
•                                                                                                                                                                                            Parents should be required to submit their parenting plan proposals and substantive issues before a first hearing so they can be determined or interim arrangements made at the first hearing.
•                                                                                                                                                                                            Interim arrangements must be funded as they are in public law e.g. child contact centres/supervision pending further investigations or support being put in place.
•                                                                                                                                                                                   Steps must be taken to equalise independent maternity and paternity leave.

The evidence from Scandinavian nations is that the earlier fathers are involved with provision of care with their children, the more likely are joint care arrangements after separation. Spain has in 2021  introduced equal, independent, funded parental leave whilst the UK has the biggest differential between statutory maternity and paternity leave in the world – at 52 weeks and 2 weeks.

16.                                                                                                                                                                                   There is a need for Cafcass (and the whole family justice system) to become more evidence-based. Key Performance Indicators (KPIs) need to be based on outcomes for children rather than on processing measures as is often the case.

More detailed submissions relating to the Children and Families Act 2014

and the questions posed by the Committee

1.             To what extent has the Act improved the situation for the most vulnerable children, young people and families in England? To the extent that it has not, is this because of the Act itself, its implementation, or challenges which subsequently emerged, whether lasting or temporary?
    

1.1.        FNF consider all children whose parents are unable to reach an agreement on child arrangements to be vulnerable. Consequently the number of vulnerable children is growing as the number of one parent families increases. This is backed by considerable research data. Anecdotally we have found more serious cases of contact denial which are taking longer to resolve. We are also experiencing reports of more serious allegations of domestic abuse than we used to in the past and these take longer to resolve. There are more cases where future contact is limited to occasional letters. CAFCASS’s typical reactions to allegations of DV is ‘no contact’ despite regular parenting opportunities being in place prior to the court hearing rather than allowing the judge the opportunity to explore safe contact arrangements.

1.2.        The Children and Families Act introduced the concept of a presumption, unless the contrary is shown, that involvement of each parent in the life of the child will further the child's welfare. We welcomed this presumption at the time as it sent the right message in terms of the best route forward for children. The Act meant that previous precedents on these issues could not be relied upon afterwards. In reality, as each case is treated on its own merits, this change was of symbolic significance, but had a marginal effect in reality.

We did not notice a positive change in the orders or arrangements that would have improved children’s welfare. Other changes in the workings of private family law have, in the meanwhile, significantly had an adverse effect on shared care arrangements. (See more detail below).

1.3.        Change in Language

Section 12 (child arrangement orders): This section was intended to change the language used in the Family Court so that it was no longer implicitly dismissive of the ‘non-resident parent’.

1.3.1.                                                                                                                                                                          Unfortunately, it has failed to achieve this, as terms such as ‘contact’ and ‘residence order’ are still used routinely in the Family Court, despite section 12. The fundamental problem is that the courts often continue to have in mind a model whereby one parent (usually the mother) is identified as the ‘primary carer’, whilst the other parent may ‘spend time with’ the child. Terms such as ‘residence’ and ‘contact’ are the used as short forms to denote these two forms of parental status.

1.3.2.                                                                                                                                                                          Further, the legislative reform was inept because a ‘residence order’ still has legal significance in that it allows the parent who holds such an order to temporarily remove the child from the jurisdiction without the other parent’s consent.

1.3.3.                                                                                                                                                                          Language is important because it affects how courts deal with cases, and it can create bad feeling and a ‘power imbalance’ between parents which is prone to generate resentment and conflict. A more appropriate approach would be to require courts to make child arrangement orders identifying when the child should “spend time with” each parent: this could be 100% of the time, or it could be some division of time, but the language of “spending time with” would still be used. The concepts of a ‘residence order’ or ‘live with order’ should be consigned to history, and replaced with terminology that recognises that each child has a number of parents who share in caring for them at different times and in different ways, whether collaboratively or separately.

1.3.4.                                                                                                                                                                          Furthermore, other government departments e.g. the Department of Work and Pensions continue to classify parents as the ‘Parent With Care’ (PWC) and ‘Non-Resident Parent’ (NRP). The same happens in relation to child benefits, that cannot be shared, housing support, etc.

1.3.5.                                                                                                                                                                          The challenges posed by the lack of a coherent policy or language for separated parents across all areas of government are enormous. The evidence from us and independent research and data is that low-income parents are particularly vulnerable into reliance on an adversarial family justice system with poor outcomes for them and their children.

1.3.6.                                                                                                                                                                          It is our experience that many child arrangement disputes parents are driven by anxieties about finance. Inevitably, this affects the poor in particular who struggle to maintain two homes rather than one. Furthermore, co-parenting is financially that much more difficult as the ‘non-resident’ parent is treated by DWP as a ‘single adult’ with only entitlement for housing support for a room in a shared house.  The only specific recommendation in relation to financial support that the SSAC’s 2019 report made was for housing support to be available to both parents with caring responsibility after separation. FNF’s service users are predominantly in the low-income category as they have few other sources of support in relation to their children after separation. Recent Nuffield research highlighted that those in the bottom 20% of depravation are twice as likely to be in family courts as those in the top 20%[2].

2.             If there were to be a Children and Families Act 2022, what should it include and what might be the barriers to implementation?

Family Separation and divorce are estimated to cost the economy £51bn. Over a third of parents separate before their children reach 16 years of age. 38% of these families end up in the family justice system, involving 84,000 children a year.

The negative consequences of family separation have become a major public health issue.

There is a need for changes in the way Family Courts operate and a coherent strategy for separated parents.

2.1.                                                                                                                                                                                  Changes Needed in Family Court Proceedings

2.1.1.                                                                                                                                                                          The President of the Family Division has recognised that the Family Court’s handling of private law Children Act cases is in a state of crisis and needs urgent reform. The report of the Family Solutions Group, ‘What About Me?’[3], is directed at helping divert cases away from the court, towards traditional or hybrid mediation, where this can safely be done. But that will make only a modest contribution to reducing the huge delays that have built up in the Family Court, leading to many thousands of children suffering literally years of interruption of their relationship with a loving and safe parent.

2.1.2.                                                                                                                                                                          That is because the delays in the Family Court are being driven by the huge rise in the proportion of cases in which domestic abuse allegations are being made – allegations which may be true, false, exaggerated or irrelevant to the welfare of the child, but which need to be considered by the court and which therefore mean non-court dispute resolution may be inappropriate. The courts and the family justice system need to deal with those cases much more quickly than they are currently doing. There are three main changes that are needed:

1.              The courts’ handling of private law Children Act cases needs to be front-loaded so that the main problems can be identified as early as possible in the proceedings, and a clear pathway sketched out for understanding and solving those problems. This is likely to save court time and resources overall. First Hearings (FHDRAs) should take place before a district judge, not a bench of magistrates or a legal adviser, so that cases can be efficiently triaged and case managed effectively. Any allegations of domestic abuse should be set out early in the proceedings, not introduced at later stages so as to cause delays.

2.              A proportionate approach needs to be taken to cases, including to allegations of historical domestic abuse between the parents. Whilst domestic abuse between parents can be very harmful to children, not every incident of alleged abuse between parents is likely to be relevant to the court’s assessment of what future practical parenting arrangements are appropriate for furthering the child’s welfare. This is something the Court of Appeal recently emphasised in its judgment in K v K[4], but is not reflected in the approach of many Family Court judges, or by Cafcass. This is the principal reason why the backlogs and delays in the Family Court have grown as they have done.

3.               There needs to be a culture change within the Family Court and Cafcass which recognises the harm to children – and also the emotional harm to one of their parents – if a parent is shut out of the child’s life for a long period, such as whilst court proceedings take between 2 and 3 years to resolve (as is currently common). Many Cafcass officers take the approach of effectively assuming that the parent with whom the child is currently living is ‘safe’, and then requiring the other parent to jump through multiple hoops to prove they are a good parent.

This is unbalanced and does not serve children’s interests. No parent is perfect. What most children need is as full as possible a relationship with each of their ‘good enough’ parents and their wider maternal and paternal families. At present, the threshold for a parent being excluded for a long period of time is far too low; and the harm that such exclusion constitutes for the child is minimised by Cafcass, whose approach is institutionally biased against the ‘non-resident parent’.

It should, as the President of the Family Division has said, be borne in mind that private law Children Act proceedings should not be a form of adversarial competition between parents about who is the better parent, but for resolving practical problems where the parents cannot agree about a matter of parental responsibility. These are cases that fall below the threshold for state intervention, and in which the starting point is that ‘parental responsibility is joint and equal’. Unfortunately, that is simply not the approach of Cafcass (whose recommendations are usually followed by busy magistrates and judges struggling to manage bulging lists).

2.2.                                                                                                                                                                                  Longer-term - Strategy for Separated Families

Changes to family justice and the way Family Courts work are vital. However, there is also a need to address the wider issues in every government department that deals with children and parents. This is important so as to create the conditions where family difficulties are minimised everywhere they may occur and so as to minimise reliance on Family Courts.

The Social Security Advisory Committee (SSAC), a statutory government body, identified in 2019[5] the lack of a strategy for separated parents as a key issue. FNF have begun to draw up what some of the components and considerations of such a Government-wide strategy might comprise[6]. There is a need to be much clearer what the policy objectives of Child Maintenance and other related child benefits are e.g.

•                                                                                                                                                                                            Minimising conflict between parents.
•                                                                                                                                                                                            Minimising court proceedings for child arrangements (38% in the UK rely on family courts – just 2% in Sweden).
•                                                                                                                                                                                            Promoting shared care.
•                                                                                                                                                                                            Provides post-separation education
•                                                                                                                                                                                            Ensure that both parents can afford housing so their children can continue to benefit from the love and care of both parents.
•                                                                                                                                                                                            (The state currently considers any parent with more than 50% of care time or being in receipt of child benefit as a ‘single parent’ and the one with less than 50% a ‘non-resident’ parent who only qualifies for support as a ‘single adult’, even when care is shared 4 nights to 3 per week. Housing support for both parents was the one specific policy recommendation of the SSAC in 2019.)
•                                                                                                                                                                                            Avoiding poverty of children – including in new relationships after separation
•                                                                                                                                                                                            Promoting joint responsibility for childcare and family finances amongst parents
•                                                                                                                                                                                            Encouraging both parents to work
•                                                                                                                                                                                            Ensuring that children have a minimum standard of living
•                                                                                                                                                                                            Promoting responsibility amongst non-resident (or resident) parents.
•                                                                                                                                                                                            Keeping parents out of court
•                                                                                                                                                                                            Putting an end to the adversarial nature of family separation that is made worse when emotions and feelings of hurt be high after breakup.
•                                                                                                                                                                                            Promoting joint, independent, funded parental leave (as is typical in Scandinavian nations and more recently in Spain). The results show that such policies result in heathier children and more joint care both in intact and separated families. It also maintains a richness of family support from two sets of grandparents and wider family members.

For such a wide-ranging inter-departmental changes to be progressed, we propose the appointment of a trusted figurehead by all stakeholder organisations who would report directly to the Prime Minister to coordinate the approach.

2.3.                                                                                                                                                                                  Post-Separation Parental Education

Where a court is relied upon, pre-court, compulsory Separated Parenting Programmes which are over a number of weeks with the outcome being a mediated Parenting Plan prior to the first court hearing. The opportunity for reports from professionals involved in this programme to report to the court would provide an early indication of whether parents are genuine in seeking to collaborate and put the needs of their children first. More opportunity for safe contact arrangements prior to court hearing. Such process could include a mediated settlement supervised by court professionals PRIOR to the first court hearing. Primary barriers to such a route would be

•                                                                                                                                                                                            Cost - offset by the current cost of extended court proceedings.
•                                                                                                                                                                                            A lack of trained experienced staff. This could initially be supplemented by current experienced volunteers in the charity sector with appropriate guidance and supervision.

We are aware of objections to such programmes being compulsory for parties who allege domestic abuse. However, we consider that an effective programme of education and support would benefit all parents, including those who may have experienced domestic abuse, which, according to some research, is bi-directional in approximately half of cases.

Parents do not have an innate knowledge of how to be parent after separation and good advice on how to keep temperatures down is likely to benefit all, especially the children caught-up              .

2.4.                                                                                                                                                                                  Delays in Family Court

The delays in private law Children Act cases have been made worse by the 2014 Act, which effectively requires the Family Court to prioritise public law cases.

This has resulted in cases where a parent has been excluded from the child’s life from effectively being ‘put to the back of the queue’ and left unresolved for literally years: an approach which most ordinary right-thinking British people would regard as appalling and unjust.

Tens of thousands of children every year are suffering permanent emotional harm due to the failure to provide a fit-for-purpose private law family justice system. Many non-resident parents simply give up, or even take their own lives, because they cannot face going through the emotional pain and financial burden of spending years fighting in the courts to have a meaningful role in their child’s upbringing.

The harm to children from having important attachment figures excluded from their lives is also significant and with life-long consequences.

This is a public health catastrophe that will have long-term consequences and needs urgent attention.

2.4.1.                                                                                                                                                                          The latest Ministry of Justice data shows that, whilst the total number of cases eased compared to the same quarter last is down,11.8% in Private Law, looking at the whole year the reduction in applications was minor at -1.8%[7].

2.4.2.                                                                                                                                                                          The easing-off in numbers in cases has not resulted in an improvement in timeliness of cases. The latest data shows that private law cases now take, on average, 44.3 weeks, double what it took four years ago. The Covid-19 has clearly been a major factor, increasing times by 16 weeks, but in reality, the figures were getting worse since 2017 and cases now take 21 weeks longer than four years ago. For the system to be fit-for-purpose, it needs to be re-designed to promote out-of-court resolution and investigations of contested facts and serious allegations need to take place within a few weeks rather than months or years.

2.4.3.                                                                                                                                                                          The timeliness of public law (care) cases has followed a similar pattern and these now take on average 46.7 weeks, an increase of 13 weeks since the pandemic and 18 weeks longer than four years ago. The differential between Public and Private Law duration suggests that resources have been prioritised to focus on care cases. Whilst this may seem at first analysis to make sense, it does not address the harm caused when access to a parent has needlessly ceased, without interim arrangements in place and/or the children have been subjected to psychological abuse and the denigration of one parent against another. Neither does it assist when children continue to be exposed to domestic abuse by either the applicant or respondent parent.

Table: MoJ Family Court Statistics

Please note that MoJ data on length of proceedings does not recognise when litigants make fresh, return applications, calculated by Cafcass to be 30% of the total (see below). It means that the data reported in quarterly statistics shown in this table, significantly underestimates children’s experience.

2.4.4.                                                                                                                                                                          Furthermore, at the Children and Family Court Advisory and Support Service (Cafcass) open board meeting of 26th January 2022[8], it was reported that the Private Law cases that go beyond a first hearing now take 55 weeks and the ones involving the appointment of a Children’s Guardian, are now taking 92 weeks!

Delays of this kind are harmful to children. 92 weeks is an eternity in the life of a young child.  Being an average, there are many cases that last for a number of years. By the time court proceedings end, the damage is done.

2.4.5.                                                                                                                                                                          Almost three-quarters (72.2%) of children involved in Private Law cases last year were under 10 years old. Delays of two years to determine their family arrangements are not on a child-appropriate timescale.

2.4.6.                                                                                                                                                                          Since resources were not available to shorten the length of proceedings prior to the coronavirus pandemic, it seems a tall order to expect this to happen now. A re-engineering of the entire system of family justice seems to be more relevant.              

2.5.                                                                                                                                                                                  It our experience that when applicants for contact continue to return to court it is because Child Arrangement orders are not complied with and they seek the further support of the court in this. There are over 5,337 applications a year for enforcement of court orders in 2021[9]. A 2017 Cafcass study[10] showed that 30% of private law cases are returns to court after a final hearing, mostly in order to enforce or vary orders. Our experience of variation applications is that these are mostly related non-compliance with orders, attempts at making orders more specific to reduce conflict e.g. asking for pick-ups to be from a neutral place such as school, specific issues orders e.g. preventing a parent from relocating or leaving the jurisdiction, failures to get agreement for a child to attend special family events such as weddings, etc or children growing up and having different needs and themselves wishing to alter the time they spend with each parent.

2.5.1.                                                                                                                                                                          A significant reduction in the average length of proceedings – currently cases involving a Cafcass children’s guardian are on average taking 92 weeks.

3.             Have the reforms to the family justice system succeeded in making the system faster, simpler and less adversarial? How has the Act interacted with other reforms to the family justice system, for example the changes to legal aid?

3.1.                                                                                                                                                                                  The legal aid changes have resulted in many parents exploiting the system by making false allegations of DA to get legal aid. This problem will only grow while the FC allow this to continue. Future drafts of the Children Act should consider the use of perjury laws and/or repayment of legal aid following false allegations or providing both parents legal aid when DA allegations are made by one party. The current system does not even stop one party continuing to receive legal aid even once a Fact Finding hearing has decided that they were false, possibly malicious.

3.2.        We strongly recommend that where allegations of abuse must be investigated, it is essential that both parties have equal access to representation.

3.2.1.                                                                                                                                                                          There is a need for research to demonstrate the difference in outcomes in family court proceedings to parents and children when one parent is disadvantaged by a lack of representation – unable to afford legal support and unable to qualify for legal aid.

3.2.2.                                                                                                                                                                          FNF commissioned longitudinal academic research by University College London into the stress levels of fathers in litigation[11]. The results show that the mental wellbeing of participant fathers in family court proceedings was indicated to be only just above clinical depression levels on average. Its strongest negative interactions were related to problems with child access and family court issues. The data shows that on 44% of occasions fathers’ wellbeing indicators suggested they were experiencing levels of stress that were not only chronic (long-term) but possibly clinical. No-doubt all parties to such litigation find it stressful and this should be kept in mind when parents are expected to litigate cases for themselves.

It should be kept in mind that family courts make decisions on the balance of probability i.e. the thresholds for making decisions can be quite narrow, even 49% to 51%. A stressed, unsupported litigant can present as unreasonable, when in fact they simply are in no state to represent themselves and have no understanding of how family courts work.

3.2.3.                                                                                                                                                                          A Cafcass/Women’s Aid study[12] published in 2017 found that 62% of private law applications involved allegations of domestic abuse by one or both parties. In fact, it could be argued that almost every private law Child Arrangements Act application involves domestic abuse towards one or both parties in so far as it involves physical, sexual, financial or psychological abuse and/or denial of parenting time – children are now included in the Domestic Abuse Act 2021.

We think it is important to understand the dynamics of domestic abuse as highlighted in the points below so that DWP/CMS have a clearer picture of the complexity of domestic abuse and the risk of assumptions or making matters worse than they need be.

1.              What is not know is what proportion of allegations are found by family courts to be true, not true, mistaken, malicious or irrelevant.

2.              Also, unknown is what proportion of approximately 35,000 orders for contact are for direct versus indirect (letterbox/phone) contact – the Children and Family Act 2014 failed to make the distinction, that is vital to children and their future parental, grand-parental and other important attachment relationships. What is known about these is that they the courts have to be satisfied that these are safe and in a child’s best interest before making them.

1. Most recently 70 academics from 23 countries said that assuming one primary attachment for children (usually the mother) is wrong and old assumptions need to be re-evaluated. Children form and need multiple attachments[13].

3.               The recent Nuffield Family Justice Observatory found that of those in private law proceedings, women were 19.8% times more likely and men 26.9 times more likely than ‘other similar adults’ to have medical records of domestic abuse in the year prior to proceedings. However, these figures represent 4% of women in the cohort group and 0.25% of men[14]. Whist these figures are not comparing the same things as the Cafcass/Women’s Aid figure of 62% of allegations, they do raise an important question as to how the gap of some 57% of cases is made-up.

4.              We note that The Divorce, Dissolution and Separation Bill received Royal Assent on 25th June 2020. The conclusive research in support of this supported the premise that in order to speed up a divorce people were prepared to lie and exaggerate[15]. We suggest that the motivation for less than full honesty is far greater when it comes to disputes over children. Not only are children matters more emotive, but they also influence who stays in the family home, who receives child benefits, the level of Child Maintenance payments, who has the final say in children matters and whether and the extent to which the other parent remains involved with them and their children.

5.              One relatively small-scale Scottish research study concluded that as many as 70% of cases alleging abuse were found to be false or unfounded[16].

6.                There is also research[17] to suggest that approximately half of domestic abuse is mutual.

7.              The founder of Women’s Aid, Erin Pizzey, reported that more than half of women in the refuge she ran were in mutually abusive relationships and sometimes behaved worse than the men[18].

8.              Australian large scale study[19] of contested allegations of child sexual abuse found that almost two thirds were false/unfounded, significantly through a mistaken belief by the parent making the allegations.

Whether it was a deliberate attempt to mislead the court or genuinely felt by complainant, the effect on the alleged perpetrator will have been every bit as traumatic and in the 20% of cases where it was found to be deliberate it could be considered abusive.

4.             Have the reforms to the family justice system succeeded in making the system faster, simpler and less adversarial? How has the Act interacted with other reforms to the family justice system, for example the changes to legal aid?

4.1.        The Requirement for a MIAM

In principle it is a good thing for parents to attend a Mediation and Assessment Meeting (MIAM), to encourage parents to resolve disagreements without coming to court. However, the requirement to attend a MIAM has not achieved practical benefits – indeed, the number of private law cases coming into the Family Court has increased, not reduced. The reasons are these:

1.              Mediation only works if both parents are willing to negotiate. Often the parent who has been de facto excluded from the child’s day-to-day life is desperate to reach agreement with the parent with whom the child is living, but the latter parent is refusing to engage. In these cases, to require the ‘non-resident parent’ to attend a MIAM simply places an additional costs burden on that parent and delays that parent from starting court proceedings. So all that is being achieved is to cause additional delay and to create an unfair barrier to the excluded parent from being able to access the court to deal with a problem likely to require urgent intervention.
    

As costs are rarely awarded in Children Act proceedings, there is little incentive for the ‘resident parent’ to engage with mediation and seek to swiftly negotiate a compromise solution out of court. That is especially so where the ‘resident’ parent meets the financial eligibility threshold for legal aid and is willing to make domestic abuse allegations against the other parent in order to obtain legal aid (whilst the non-resident parent is likely to be ineligible in any event).

2.              The requirement to attend a MIAM can be avoided by ticking the box for ‘domestic abuse’. This encourages parents who are afraid of mediation (sometimes because of a lack of understanding that it is possible for the mediation to be conducted without the parents being in the same room as each other) to raise allegations of domestic abuse, which can then contribute to turning the case into one of high conflict. Many parents are very emotional after a separation and feel they cannot cope with negotiating with the other parent, even with a mediator present. It is counterproductive to drive those parents towards making domestic abuse allegations they might not otherwise have made.

3.               The emphasis on mediation prior to proceedings being issues is too binary: cases are either

(i)               resolved out of court through mediation, or

(ii)             a C100 is issued starting court proceedings,

and the court and Cafcass then resolve the case, usually involving extremely long delays that are harmful to the child by seriously damaging the relationship with the non-resident parent – and in the vast majority of cases with half of their grandparents, half siblings and wider family.

4.1.1.                                                                                                                                                                          Government continues to fail to recognise that parents need support to deal with child arrangements collaboratively, and that this can happen as part of the court process as well as outside of it.

There ought to be mechanisms by which a court identifies what the problems are at an early stage, and then provides professional support to guide parents resolve their disagreements out of court. Such guidance could be similar to ‘hybrid mediation’ where a neutral person guides the parties as to what the court would be likely to decide if the parents cannot agree, and also helps those parents access emotional support and other services.

Instead of such a model, the MIAM requirement serves as a ‘tick the box’ stage, after which parents are funnelled into an adversarial court process which massively increases the tension and distrust between the parents and makes subsequent collaboration very difficult or impossible. Our experience is that many parents denied access to their children spend many weeks or months trying to resolve things before seeking the assistance of a court. For these parents and their children the delay is already excessive, thus adding further to family tensions.

4.1.2.                                                                                                                                                                          The requirement for mediation before commencing court proceedings is of limited value when, as happens often, at least one parent is immovable. In these situations a request for mediation becomes just another hurdle to parents, the applicant often covering the costs whilst their ex fails to turn up.

4.1.3.                                                                                                                                                                          Mediation can and should have play a greater role in family dispute resolution. For this to happen more often outside of court proceedings, it must start with parental education. Post-separation education will benefit parents going into mediation as well as those entering litigation. Mediation can also be part of the court procedure, ideally with interim arrangements in place.

4.1.4.                                                                                                                                                                          Vitally, these processes must take place in parallel so that any hiatus in the child having an ongoing relationship is kept to an absolute minimum. For example, as per our suggested Early Intervention Programme[20], an application to court would trigger a process of education and possibly move it to mediation AFTER setting a court date. The hearing date can then be vacated if no longer needed.

4.1.5.                                                                                                                                                                          It would also assist if mediators could provide feedback to the court, at least on the level of collaborative working, should the process breakdown. Also, many parents feel vulnerable about having mediated agreements that cannot then be used evidentially in courts. The security of a document, such as a parenting plan, that states what the parties agreed would be helpful.

4.2.        The Presumption of Parental Involvement

Section 11 of the Act addresses the presumption that the child’s welfare will be furthered by parental involvement). This section has made no practical difference to the barriers facing ‘non-resident parents’ who have been excluded by the other parent from the child’s life.

4.2.1.                                                                                                                                                                          Prior to the 2014 Act, the courts already recognised the principal of parental involvement, which is in any event a requirement of international human rights law including Article 8 of the European Convention on Human Rights as interpreted by the European Court of Human Rights. Section 11 has arguably made things worse by implicitly suggesting that such parental involvement may be satisfied by ‘indirect contact’ (which often consists of little more than allowing the non-resident parent to send cards or gifts to the child). Such indirect contact cannot sensibly be said to protect the child’s and parents’ rights to ‘family life’ as guaranteed by Article 8.

4.2.2.                                                                                                                                                                          There ought to be a presumption that the child’s welfare will be furthered by both parents playing a full and active part in the child’s care and upbringing. The presumption is, after all, only a presumption: it can be displaced by evidence that such a relationship between the child and the parent would not further the child’s welfare. But, the starting point should be that children benefit from being parented by both parents, not just having some form of ‘contact’ with them.

4.2.3.                                                                                                                                                                          In addition, there needs to be a change of culture in the Family Court and by Cafcass so that it is recognised that prolonged interruption of a child’s relationship with a parent, including whilst court proceedings are ongoing, is likely to be detrimental to the child’s welfare and therefore should occur only where necessary for protecting the child’s welfare.

4.2.4.                                                                                                                                                                          A large scale study in Sweden by Malin Bergström[21] also demonstrated very substantial (27%) increases in the risk to mental health of children whose parents do not significantly shared care of them after separation. By contrast children in joint parental care after separation experienced only marginally increased mental health risks compared to nuclear families.

4.2.5.                                                                                                                                                                          Another important study by William Fabricius demonstrates how the more equal parenting time is after family separation, the greater is the emotional security of the children as they grow into adults[22].

4.2.6.                                                                                                                                                                          A further, particularly authoritative study was by Linda Nilsen[23] who carried out a review of 60 English speaking studies and concluded that children benefit from shared care, even in the presence of parental conflict.

4.3.        LASPO
Changes to legal aid under the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) have meant unprepared parents arriving at court resulting in delays while Judges explain processes and procedures and are expected to represent themselves while the legal aid supported parent gets the significantly less stressful option of relying on barrister and solicitor. This is especially difficult for parents for whom English is a second language or whose expectations of the family court have been developed in a different culture.

4.4.        Where domestic abuse allegations are made, the non-legal aided parent is at a significant disadvantage increasing the adversarial nature of the parents’ ongoing relationship. By offering such legal aid only to the party making allegations, normally the parent the child lives with day-to-day, puts increasing pressure on them to exaggerate or make false allegations for financial reasons and creating greater discord between parents in the process.

This cannot benefit the child in the long term. Since the standard of evidence is lower than criminal courts CAFCASS recommendations for parents to attend Domestic Abuse Perpetrator Programmes where parents are expected to accept all the allegations found in the FC to allow them access to the course. A refusal leaves the accused parent unable to have any physical contact with his/her children for the conceivable future.

4.5.        Freedom of Information access requests, provided to FNF, have shown that the grant of legal aid on the basis of domestic abuse went up from 3,493 cases a year in 2013/14 to 11,758 in 2021-22. The biggest growth has been in the grant of such legal aid through letters from organisation providing DV support services (nil prior to 2017-18 and now running at over 4,000 a year and a tripling of injunctive orders to over 3,000 a year (not necessarily proven as such injunctions are often obtained without evidence on precautionary basis).

4.6.        It is noteworthy in recent years Spain has provided leadership in Europe on joint parental care after separation with regional laws to create a much more robust presumption of joint post-separation care. The implementation of Equal Parenting Time laws between 2009 and 2011 in five regions has been transformative. It now applies in approximately 40% of all divorces in Spain. Catalonia has been at the forefront of this with over half of divorces resulting in joint care increasing every year for over a decade.

Because of the political structure in Spain resulting in some regions implementing laws independently, it has been easier to carry out comparative research. The emerging results in relation to Equal Parenting Time (EPT) are proving to be very encouraging. Quotations from some of this research[24] is included below.

1.              ‘...we find that the policy significantly decreased domestic violence, with IPV falling by almost 50%.’

2.              ‘...we find a negative and significant effect of the joint custody laws across all three types of abuse, with impacts that range from 50% in the case of physical abuse to 69% in the case of psychological abuse.’

3.               ‘...evidence of a significant reduction of the number of female homicides committed by the current intimate partners after the reform.’
4.              ‘[a] decrease [of] contentious and wife-initiated divorces and increase the employment of mothers relative to fathers.’

5.              ‘An analysis of drug use and family relationships, among 165,000 teenagers, further shows that EPT laws significantly decrease risky behavior by teenagers, especially boys...’

6.                ‘...a decrease in the incidence of incidence of intimate partner violence in the regions that passed EPT laws... consistent with idea that laws equalize the bargaining power...’

7.              ‘Our results indicate that equal parenting time laws [in Spain] act as a mechanism to increase the bonds between parents and children, positively impacting the emotional development of the latter.’

5.             Has the Act achieved its goal of improving provision for children and young people with SEND, in all settings including mainstream schools, special schools and further education colleges? If changes are needed, could they be achieved under the framework of the Children and Families Act 2014 or is new legislation required?

5.1.        Schools (with the exception of a few enlightened ones) still deny any parent involved in the family court access to the school information as a matter of course and give the final say so to the parent the child lives with at the time. This is often the case with doctors and hospitals too. The lack of access to objective information about children from bodies that should be neutral is another factor that results in increased frustration and conflict. Denial of information about children is often used as part of the post-separation weaponry. 

School that do not have clear, inclusive policies sometimes believe that this is preventing them from getting involved in family disputes. In our experience, such a lack of policies is more likely to involve the school in family disputes and needlessly sour relationships with excluded parents.

5.2.        New legislation should make it clearer that parents with Parental Responsibility should have equal access to information about their children, unless an order is in place preventing this.

6.              Is the system of shared parental leave and statutory shared parental pay functioning adequately? Is the system of flexible working functioning adequately? In light of the changes to working styles brought about by the COVID-19 pandemic, what changes, if any, are needed to provisions in the Act on flexible working?

6.1.        The current system of parental leave, where a mother can sacrifice part of her maternity leave to the father has failed to meet any objectives with take-up reported to be below 5%. This is not dissimilar to the experience of some Scandinavian countries before they began to take the issue of paternity leave and shared parenting seriously.

The approach is less than half-hearted and results in a perpetuation of the stereotype of ‘father providers’ and ‘mother carers’. The concept is no longer the norm as the structure of families has changed. Women and men have careers. Most families rely on two incomes. Dads are increasingly involved in childcare. The Covid-19 lockdown demonstrated dads’ willingness to participate in this as more of them became available to do so[25].

Currently over a third of children experience family separation before they reach 16 years of age. Cafcass have estimated that approximately 38%[26] of separations end up in family courts.

6.2.        The effect of such societal change is that both men and women feel themselves to be equal as citizens and as parents. The public believe that it is fairest for both to remain involved in parenting after separation. Research demonstrates that joint parenting is best for children[27].

6.3.        Yet, for all this change, the UK has the biggest gap between statutory maternity and paternity leave (and funding) in the world at 52 weeks compared to 2 weeks! Statutory paternity pay is just £156.66 per week for two weeks. For a couple on average income, this is a support gap of 96%. Not surprisingly, we continue to have a pay gap between men and women. The central issue for leave provision in many countries with respect to gender equality is men’s unequal access to leave[28].

6.4.        Scandinavian nations have led the way on equalising, non-transferable, parental leave. In 2017, Finland topped the international rankings for equality and became the first and only country where fathers spend more time caring for their children than mothers – just 8 minutes more a day, but the message is – give fathers independent, funded leave and a high proportion will use it. The effect of these changes has been, since the 1970s:

•                                                                                                                                                                                            a narrowing of the gender pay-gap
•                                                                                                                                                                                            Steady growth in pre and post-separation shared care (approximately 1% more a year since the 1970s)

6.5.        January 2021 Spain equalised funded non-transferable parental leave at 16 weeks[29]. The UK seems more determined than anywhere else in the developed world to cling onto a model of family life - mother carer; father provider - that does not reflect the life and attitudes of parents today.

6.6.        A recent US survey[30] found that the more parenting time equality for mums and dads the higher the mother’s income.

6.7.        It is leave Only one parent is identified as the recipient of child-related benefits and Child Maintenance (CM), irrespective of income or care time – one is considered a ‘single parent‘, the other a ‘single adult’. The system is outdated.

25th April 2022
www.fnf.org.uk

May 2022