Families Need Fathers – because both parents matter
 


About Families Need Fathers - because both parents matter

Families Need Fathers - because both parents matter (FNF) is a registered UK charity providing information and support on shared parenting issues arising from family breakdown, and support to divorced and separated parents, irrespective of gender or marital status. FNF is NOT a fathers' rights group - we support the best interests of children - namely mature and collaborative parenting by both parents - an objective that is inadequately promoted in the family court system and associated services.

 

FNF receive approximately 30,000 calls a year to our Helpline (significantly more during the coronavirus pandemic). Thousands more parents rely on our local branch network and online support - our website receives approximately 600,000 visits per year. Our primary concern is the maintenance of the child’s meaningful relationship with both parents. Founded in 1974, FNF helps tens of thousands of parents every year.

Executive Summary and Recommendations

  1. The impact of LASPO in private family law Children Act proceedings, has been:
     
    1. the near collapse of family mediation
      (in significant part due to growth in domestic abuse allegations and abuse of the system designed to protect the vulnerable)
    2. to widen the imbalance of access to justice between complainants and respondents to allegations of domestic abuse
    3. a substantial increase in the number of litigants in person and in the total number of cases as well.
    4. a degradation of justice for children in private law proceedings
    5. to substantially increase family conflict.
       
  2. The impact of Covid-19 on our clients has been:
    1. the emergence of substantial numbers of Covid-19 related cases related to access to children
    2. increased reliance on our services – our Helpline, receives approximately 30,000 calls a year has experienced a 40% increase since May 2020
    3. to damage more children as a result of further delay outcomes in family proceedings
    4. to increase family conflict due to delays in substantive hearings
    5. the grant of Non-Molestation Orders without even the applicant in attendance – a rubber-stamping exercise with long delays to return dates
       
  3. Restoration of pre-LASPO legal aid is not the answer
    It seems unlikely that there will be a restoration of legal aid in private family law to pre-LASPO days. Even if that happened, private family law cases were, on average, taking six months (or longer if return cases are taken into account). These are not child-appropriate timescales.
     
  4. The number of prescribed types of evidence of domestic abuse routes to qualification for legal aid has trebled since LASPO to 21(see Figure 4 below). Many of these rely on self-reporting and, for a large proportion of our service users, courts subsequently determine allegations to be unfounded or irrelevant. Letters from domestic abuse agencies, many of which work with associated law firms and have a financial interest in boosting case numbers and rely on self-declaration are not appropriate as a sole basis for the grant of legal aid.
     
  5. In our view, it is never appropriate to restrict legal aid eligibility to just one party.
     
  6. The threshold for evidencing domestic abuse for the purpose of obtaining legal aid should be raised to include actual evidence, not just a note from the GP or a domestic abuse agency confirming self-reported complaints. It is increasingly fuelling family conflict rather than reducing it. There is no evidence that it is improving safety. This urgently needs to be independently researched.
     
  7. Our service users and their children, many of whom have themselves experienced domestic abuse from their ex-partners, often experience contact denial and false allegations that then compound the problems they face due to delays in investigation. This must not be under-estimated. Measures designed to protect alleged victims must be designed to also protect alleged perpetrators, and their children as many typically prove to be innocent and the allegations unfounded.

    Further research needs to be carried out to establish the extent of this.
     
  8. Speedy findings of fact are part of the solution to this. In the interests of children, funding must be made available for those hearings. Interim measures such as use of child contact centres for supervised or supported contact need to bridge the gap pending hearings in all but the most serious cases to protect child-parent relationships. This too should be funded.
     
  9. Victims of abuse and alleged perpetrators need speedy resolutions to keep them safe and free from being victimised by the length of the process itself.
     
  10. Resources should be prioritised to support children.
    Given the difficulties of accessing professional legal support in family cases, we recommend a re-balancing of the system so that legal aid in private Children Act proceedings goes to the children rather than the parents. Children Act cases are there to determine their interests and not those of the parents.
     
  11. Where legal aid is granted in cases involving allegations of domestic abuse, it must be provided to both parties in private law proceedings and not just complainants. There must be ‘an equality of arms’. This is especially important in view of the number of cases in which allegations of abuse are unfounded or even malicious.
     
  12. Similarly, where allegations of domestic abuse are the basis for obtaining legal aid, once courts makes findings that the allegation(s) is unfounded or irrelevant to the family law proceedings or protection of parties, the legal aid to parents must be withdrawn for ongoing proceedings (other than if it is granted to the children as suggested above).
     

30% of court proceedings are returning cases, most of which are for enforcement of Child Arrangements Orders. Parents are reporting to us that previous grant of legal aid is then apparently being used to continue to support the parent who has seemingly broken the law and failed to comply with the orders of the court.
 

  1. Judicial continuity remains sadly lacking to the detriment of justice. It must be established in all but exceptional circumstances. Related statistics should be recorded.
     
  2. Where findings of fact are necessary, parties must be asked to give evidence within weeks not months or even years. Less than an hour of professional cross-examination usually establishes where and what the issues are.
     
  3. Normative Guidelines should be prepared for parents to discourage reliance on family courts and promote mediation and other out-of-court pathways, thus releasing resources for cases where such routes are not possible.
     
  4. Legal aid should be provided for all mediation, without a means test and at any stage in private law proceedings. It will still be cheaper to the taxpayer then litigation. It is indictment on the justice system that that mediation is free in relation to private financial disputes, but not for far more damaging children disputes.
     
  5. Mediation should be undertaken in most circumstances and the creation of a parenting plan/plans should be a requirement for progressing cases, possibly waiving the C100 application fee if an education/mediation plan is followed. A party refusing to participate, without a reasonable explanation, should be charged for the cost of the court application and any mediation costs incurred by the applicant.
     
  6. Cases involving allegations of abuse that might result in safeguarding measures must be fast-tracked to family courts to make findings on.
     
  7. Mediated agreements should be recognised by courts and made available to them in any subsequent proceeding.
     
  8. A failure to agree to mediation by either party should be reported to courts.
     
  9. An Early Intervention Pathway, including up-front parental education, should be developed so cases are resolved faster and with less reliance on courts.
     
  10. Greater care must be taken to ensure consistency in how people with disabilities are supported.

Further Details of our Submission

This inquiry asks:
 

  1. How LASPO has impacted access to justice and for views on the post-implementation review and the criminal legal aid review;
  2. The role of the Legal Aid Agency;
  3. Recruitment and retention problems among legal aid professionals;
  4. The impact of the court reform programme and the increasing use of technology on legal aid services and clients;
  5. The impact of Covid-19 on legal aid services and clients; and
  6. What the challenges are for legal aid over the next decade, what reforms are needed and what can be learnt from elsewhere.

 

Our focus in this submission is on private law in relation to points 1, and 6 and to a modest extent point 5.
 

  1. How LASPO has impacted access to justice and for views on the post-implementation review and the criminal legal aid review;

 

1.1.  The focus of legal aid in private law applications is essentially on cases involving allegations of domestic abuse. It has resulted a number of unintended consequences.

 

1.2.  Many, perhaps most, respondents to such allegations are placed in a position of having to demonstrate or ‘prove’ their innocence. Having done that, they feel unsupported by the lack of enforcement of Child Arrangement Orders. Others reported having to re-live the experience of being falsely accused when fresh allegations were made during or subsequent to proceedings.

 

1.3.  Many of our service users consider it all the more disturbing that false allegations are often used to obtain Non-Molestations Order that are, in-turn, used as a basis for securing legal aid in private family disputes. Meanwhile, such legal aid is not available to them in defending those allegations.

 

1.4.  Worse still, some service users report the ongoing legal aid support in such cases when

 

1.5.  These are matters that escalate conflict and increase the chances of multiple applications to court.

 

 

 

 

1.6.  There were 33,384[1] Non-Molestation Order applications in the 12 months to June 2020. Approximately half of these were granted in ex-parte hearings. The figures have been rising rapidly since LASPO made allegations of domestic abuse a pre-condition to securing legal aid in private law proceedings (as reported in our 2018 report[2] into this problem). Since then we have heard from members of the judiciary that much of what we identify tallies with their experience.
 

1.7.  Furthermore, the definition of domestic abuse has been broadened in recent years e.g. the inclusion of financial abuse in 2016. These definitions lack clarity as to proportionality of events e.g. being frightened, often mutually so in our experience, during a shouting match prior to separation, perhaps driven by the hurt of a discovered affair.

 

1.8.  The processes are also not robust for assessing such things. They will, for example, consider a handful of post-separation texts enquiring about arrangements to see children, in the face of unjustified contact denial, as abusive harassment. Too often, where there is no history of behaviour that would suggest a risk to parties, we see malicious complaints motivated by the possibility of frustrating child-parent relationships and a route to legal aid in private family law proceedings that do not and would never cross the threshold of public law proceedings.

 

1.9.  Indeed, many of our service users report that they were the real victims of domestic abuse, however, as the parent seeking to retain parenting relationships with their children are in fear of antagonising their ex-partner and hence being further obstructed.

 

1.10.                     In addition, there has been a strong growth of other prescribed evidence routes to obtaining legal aid that rely on self-declaration, without testing of evidence. The chart below shows how, in just two or three years ‘evidence’ using letters from domestic abuse agencies has gone from nil to approximately 4,000 a year.

Some letters from General Practitioners now state that they do not form evidence for court proceedings, just for the obtaining of legal aid! In effect, they become a rubber-stamping exercise – a prescription to deal with a patient without a diagnosis.

 

1.11.                     Clearly people who are subject to abuse need protection, but so do those who are victims of abuse of the system that is designed to protect others and that must be addressed e.g. with sanctions, however rare, for improper use, above all through speedy resolution.

 

1.12.                     We note that the rise of Non-Molestation Orders has been broadly mirrored with a two-thirds decline in mediation starts[3]. We are not surprised by this as mediators will not undertake mediation work where such allegations exist.

 

1.13.                     The combined effect of the points here has been dramatic – devastating to the individuals and children caught-up and destructive of out-of-court resolution routes.

 

1.14.                     The common view of the legal profession is that LASPO removed a valuable ‘gatekeeping’ process to guide parents into mediation. We partially accept this, but consider that this is only part of the reason. In our experience, the reasons for the decline in mediation are, in approximate order of impact:
 

 

1.15.                     The charts below demonstrate the post-LASPO impact on the growth of domestic abuse to access legal aid and the collapse of mediation.

 

 

 

Figure 1

 

                  

 

Following a post-LASPO dip, private law cases have been gradually increasing and have reached a historic high last year at 54,933.

 

Figure 2

                  

Mediation has experienced a collapse from a pre-LASPO high point of over 15,000 to barely over a third of that, despite being technically a pre-condition of C100 court applications. FNF service users report refusal to participate or ‘out of the blue’ allegations immediately after they apply to family court for child arrangements. In the vast majority of cases, allegations of domestic abuse make it impossible for mediation to take place.

 

Figure 3

       

 

Non-Molestation Orders have gone up by over 12,500 a year, a two-thirds increase since LASPO. Suggestions of this being down to increased awareness of domestic abuse fail to explain the huge regional differences (See Appendix C). FOI data suggests that a small number of highly regional law firms are responsible for a large proportion of the increase. One domestic abuse company at a conference last year boasted that their market share was “35% of UK injunctions”[4].

 

 

 

Figure 4

 

 

Since LASPO (Q2 of 2013) there has been a substantial increase in grants of legal aid in private law proceedings. That increase has been driven by Non-Molestation Orders, the most used form of prescribed evidence of domestic abuse to get civil legal aid. More recently paragraph 17 letters from domestic violence support organisations have taken over as the most used route, bypassing judicial oversight.

 

1.16.                     In 2017 Cafcass prepared a report identifying that 30% of applications to family courts  were repeat or returning cases.[5]
 

1.17.                     We carried out a brief survey of our service users who made more than one application to court. Initial results from 139 respondents, collected between 13th and 15th October 2020 were that 58% applied to enforce orders made at final hearings and 18% to vary them – many of these due to non-compliance with orders.
 

1.18.                     We are not surprised that more than half of respondents were seeking enforcement. MoJ Family Court Statistics[6] show that there were 8,482 Enforcement Applications in the 12 months to June 2020. We believe that these official figures may only represent half of those experiencing such difficulties as many applicants give up, worn down by lengthy, stressful and toothless proceedings.

 

1.19.                     Dozens of comments received in our survey demonstrated the frustration felt by applicants (see Appendix A). Many had spent their life savings and gone into debt to be able to go to court and continue to be parents only to find that the order was not complied with from the start. Orders must mean something if family justice is to have any credibility.
 

1.20.                     Parents are reporting to us that previous grant of legal aid is then being used to continue to support the parent who has seemingly broken the law and failed to comply with the orders of the court. In effect, complainants of domestic abuse then use state-funding to enable them to defend their non-compliance with orders, after findings of fact determined that allegations were unfounded or irrelevant to direct contact taking place.

In effect, legal aid used is being used to protect parents who break the law.
 

1.21.                     Respondents to the same 2020 survey on average reported number of judges up to the first final hearing was 4.2, ranging from one to 30!
 

1.22.                     On average respondents had 5.8 hearings prior to their first final hearing. 20 respondents had 10 or more hearings and one had 50!
 

1.23.                     On average 2.9 return applications were made by respondents.
 

1.24.                     Our experience, echoed by many lawyers, is that the longer a case takes to be heard, the greater the delays along the way, the greater the conflict, the more children get caught up in the adult dispute and the poorer the outcomes for them. Children who remain in a hostile environment towards a parent pick up on the hostility and seek to appease the hostile parent by rejecting a once loved parent. The longer such enmeshment is allowed to continue, the poorer the chance of the relationship being re-established without specialist support.
 

1.25.                     Delays in asking parties to give evidence in the witness box are also the enemy of applicants for a resumption of parenting time. Quite often, parties true colours only emerge when they must answer questions for themselves.
 

1.26.                     A particular difficulty with this is that cross-examination is a skilled task. Litigants in person cannot be expected to perform this and hardly any of our service users wish to carry out cross-examinations of ex-partners. When it happens, it is usually stressful for both parties and brings out emotions that again fuel conflict.
 

1.27.                     A judge sometimes asks questions on behalf of litigants in person. However, this is an unsatisfactory situation. Judges do not have the deeper understanding of litigants’ cases and cannot ask the same kinds of questions as a legal representative. Litigants in person are often unable to determine what questions will best address the pertinent issues.

 

1.28.                     The same survey, identified that on average there were 4.2 tribunals who heard their cases The highest was 30!
 

A further point to draw attention to is about the need for sensitivity in how legal aid is used to assist people with severe disabilities. For example, a case came to our attention where a significant disability back payment caused an applicant for civil legal aid to be refused for exceeding income thresholds. Historic errors that have put someone in financial hardship should not then result in legal aid claimants being disadvantaged.

Section 1 Recommendations

  1. Funding Tests for Mediation

1.1.  Funding should be available to both parties for mediation and not rely on means testing. Children are harmed when parents enter an adversarial contest. The current test that requires recipients to have less than £733[7] per month of disposable income, has no relationship to affordability and access to justice.

It is our understanding that this ‘disposable’ income takes no account of statutory childcare costs, statutory Child Maintenance, the cost of living, accommodation (including for a visiting child for ‘Non-Resident Parents’), etc. The notion that it is ‘disposable’ is therefore laughable.

The £8,000 savings equity limit is also problematic. A Non-Resident Parent (NRP) may have equity in a home he/she no longer lives in, but continues to pay for and which they cannot use take equity out of as the property becomes a ‘restrained asset’. The applicant can then be refused legal aid because the family home is treated as a 2nd home and the £100,000 housing equity limit does not apply however the LAA have the discretion to disregard the asset under section 43 of The Civil Legal Aid (Financial Resources and Payment of Services) Regulations 2013.

These limitations effectively disqualify everyone other than stay-at-home parents, those not working or working limited hours. Currently, for low-income parents, mediation becomes simply another barrier to justice.

It is disturbing that free mediation is available for financial disputes up to £10,000[8], but not children disputes.
 

1.2.  The ‘merit test’ also presents serious deficiencies of access to justices. If a parent passes the means and scope test they can still be refused legal aid on merits grounds. If one parent already receives legal aid on the basis of alleged abuse, the other parent is often refused on proportionality grounds i.e. that the Legal Aid Agency (LAA) does not want to give legal aid to both parties. Both may have experienced abuse or the one without legal aid may be found to be out to be the sole victim of abuse and false allegations.

 

1.3.  Another area of concern is where a party is refused legal aid by the LAA for the enforcement of orders that have not been complied with. Again, this undermines access to justice to low income parents and, above all, their children. We are aware of a couple of instances of a successful appeal to an independent adjudicator. However, this should not be necessary.
 

  1. Measures need to be taken to promote mediation and other out-of-court resolutions e.g. the requirement to have a parenting plan to obtain a divorce or to apply/respond to a court application.
     
  2. Mediated agreements should be recognised by courts and made available to them in any subsequent proceeding. Often parents feel re-assured for having something on the record that carries some weight.
     
  3. Mediators should be permitted to report to the family court their evidence of non-compliant behaviour such as failing to attend or to consider any reasonable arrangements.
     
  4. Where legal aid is granted in private law cases involving allegations of domestic abuse, it must be provided to both parties in private law proceedings involving domestic abuse allegations and not just complainants. There must be ‘an equality of arms’. Individual cases do not follow a standard ‘victim-perpetrator’ dichotomy. In granting legal aid to the complainant and not the alleged perpetrator justice is being distorted and biased, even before findings of contested facts are carried out. See Appendix B for examples of situations we commonly hear of.
     
  5. Similarly, where allegations of domestic abuse are the basis for obtaining legal aid, once courts makes findings that the allegation(s) is unfounded or irrelevant to the family law proceedings or protection of parties, the legal aid to parents must be withdrawn for ongoing proceedings (other than if it is granted to the children as suggested above).
     
  6. The threshold for evidencing domestic abuse for the purpose of obtaining legal aid should be raised to include actual evidence, not just a note from the GP. We have also been told by a domestic abuse support organisation worker of leading questions being asked of service users when completing the Domestic Abuse, Stalking and Honour Based Violence (DASH 2009) Risk Identification, Assessment and Management Model form with the sole purpose of securing legal aid in private family proceedings.
     
  7. Independent research should be carried out to gain a better understanding of the trends we identify above and the impact of different approaches to safeguarding. For example:
     

8.1.  Is there a sudden decline in the number of allegations made between those who qualify for legal aid on financial grounds and those whose incomes are just out-of-reach of those?
 

8.2.  What is the difference in the proportion of these that a court finds to be unfounded or irrelevant between the same two groups above?
 

8.3.  Research needs to be carried out into the effectiveness of protective measures put in place since LASPO. For example, are they actually reducing the number of serious incidence or perhaps fulling family conflict?
 

8.4.  Research into effectiveness of different approaches towards safeguarding in different jurisdictions e.g. are serious incidents more or less likely in countries where shared parenting after separation is strongly encouraged, such as in Sweden.
 

8.5.  Research into findings of family courts. A Cafcass study with Women’s Aid concluded that 62% of private law cases involved allegations of domestic abuse by one or both parties[9]. However, it did not consider what the findings were in each case. Another small sample study found that 35% of cases involved such allegations and 70% were found or judged to be false[10]. There is a need to have a far more in-depth understanding of this so as to prioritise resources.
 

  1. Specifically, whenever possible, the judge who hears applications for Non-Molestations Orders, used in evidence applications for legal aid, should be the same judge who deals with any Child Arrangement application. Judicial continuity affects (or rather a lack of it) the time it takes for cases to conclude it adds delays and stress to parties.
     
  2. Our experience, reflected in the responses to our recent survey, is that denial of child-parent relationships is often part of that coercive and controlling pattern, this being in the face of court orders already made under the paramountcy principle of being in the best interest of the child.

    Coercive behaviour is illegal, but in our experience, parents who threaten denial of contact in order to, for example coerce a partner to return into an abusive relationship or to pay more money than they have, are never prosecuted or identified as abuse of either the other parent or child.
     
  3. Legal aid should be granted to children rather than parents where there are contested facts. Family courts operate in their interest. Litigants in person are ill-equipped to carry out their own litigation in person and most cannot afford lawyers They are particularly ill-equipped to conduct cross-examinations and a judge is not well placed to do this for them. The children’s interest can easily be lost when one or both adult parties and the children are unrepresented.
     


  1. The impact of Covid-19 on legal aid services and clients
     

2.1.  The impact of Covid-19 on our clients has been:

2.2.  FNF have produced specific guidance documents[11] to support service users affected by Covid-19. Our main issues are:
 

 

Some of the points in this section go beyond legal aid per se. However, this is because broader changes are needed if legal aid is to be targeted at cases that really need it and effective at addressing children’s wellbeing.

 

3.1.  36% of children experience family separation before reaching 16 years of age. In 2019 there were 83,970 children were involved in private law family applications. The system is too slow, expensive (if parties are represented), stressful for most litigants in person, and more often than not fuels family conflict. Outcomes for children are often poor. Many people assume that they cannot access justice as they can’t afford legal representation. Others muddle through and are disappointed by the lack of support and outcomes. It is a now a public health crisis for both children and parents that demands urgent attention.
 

3.2.  The family justice system is not so much broken, as it was not working well before LASPO. Merely restoring legal aid funding will not significantly improve frequently poor outcomes for children. The system is in need of a redesign.
 

3.3.  Legal aid must be a lever for implementing a new vision for family justice. An Early Intervention Pathway must be at the heart of a redesigned process for family justice that takes the majority of cases out of court.

 

Early Intervention Pathway

 

3.4.  Cases that linger and have many judges tend to escalate conflict, spend longer in court, are more likely to return to court and absorb resources.
 

3.5.  The June 2020 issue of Family Law journal included an excellent article outlining key components of an Early Intervention (EI) Pathway that would reduce conflict, support the needs of children, put resources into cases most needing them and reduce family justice resource requirements[13]. We support this proposal and identify below key components intended to keep cases out of court:
 

    1. Provision of gateway guidance of normative child arrangements
    2. Parenting education and information (SPIPs) – PRIOR to MIAMs
    3. Conciliation sessions, if required, after education
    4. Parenting plans part of education – possibly a requirement
    5. All within parameters set by the court
    6. Urgent hearings, within a fortnight, in cases of alleged domestic abuse
    7. Where domestic abuse is found, cases to be promoted to higher courts or returned to EI pathway if unfounded or irrelevant
       

3.6.  We understand that some jurisdictions e.g. Norway expect a Parenting Plan setting out how children’s parenting will be arranged between them as a pre-condition to divorce. This feels like the right kind of priority.
 

3.7.  Currently Mediation Information & Assessment Meetings (MIAMs) often include financial matters and a 45 minute session can leave children as an afterthought. All such interventions must put the child’s needs first.
 

3.8.  Currently parenting education through Separated Parents Information Programmes (SPIPs) takes place far too late. They should be a requirement not only prior to going to court, but prior to mediation. Parents would benefit from guidance on what good parenting after separation looks like and its benefits. Such information is best discussed before mediation or court, before positions become entrenched.
 

3.9.  As already set out earlier in this report, mediation should be funded in all children cases and legal aid should be given in private proceedings to the child’s representatives over either parent. The family court is there to ensure justice to the child. If only one or neither parent is represented, as is now the case more often than not, the child is more likely to lose out.
 

3.10.                     Resources can be saved by not continuing funding of adult parties alleging abuse once it is established by the court that there are no safeguarding concerns.
 

3.11.                     Normative guidelines should be prepared for parents to discourage reliance on family courts and promote mediation and other out-of-court pathways, thus releasing resources for cases where such routes are not possible.
 

3.12.                     Such guidance should largely reflect the children’s experience prior to separation. For example, if both parents shared childcare and financial responsibilities equally and both have suitable accommodation then 50/50 care might be appropriate. If not, then alternate weekends and half of holidays might be a more suitable fit (for either parent). Children should not experience a fundamental degradation of importance of parents and wider family just because their parents no longer live under one roof.

The guidance offered and broad approach must consider that:

 

Strong grounds are needed to overturn the rebuttable presumption that, in general, children who have frequent and continuous contact with both parents, grow up emotionally stronger and better balanced than children who are denied a relationship with their other parent. That is, separation is itself harmful to a child’s development and is to be used proportionately and only if absolutely necessary.

 

3.13.                     Where there are allegations of abuse or neglect that give rise to safeguarding concerns, these should be progressed via emergency applications and heard within a couple of weeks. If the child(ren) are not considered to be at risk following this hearing, the Early Intervention Pathway outlined above would resume.
 

3.14.                     Where there are safeguarding concerns that cannot be assessed within a few weeks, consideration needs to be given to supported or supervised contact that will safeguard the at risk child(ren) and parents whilst also safeguarding the child-parent relationship and reducing conflict escalation.
 

3.15.                     The suggestion that parents are making repeat applications to court simply to harass their ex as part of a pattern of coercive and controlling behaviour are not borne out in feedback from our service users. The vast majority had orders for beneficial contact that were wholly or substantially not being complied with. They felt they had no other option but to make applications to enforce or vary the orders.

 

3.16.                     However, current delays add to conflict and give rise to complications that can be avoided. The family justice system often adds to harm children whom it intends to help.
 

3.17.                     It is often assumed that some parents are ‘high conflict’. That is sometimes the case. However, often it is just one parent who is the source of conflict and difficulties. In the more challenging cases it is common for one or more parents have mental health difficulties or personality disorders.
 

3.18.                     These more challenging cases require a public health response combined with strong case management and judicial oversight. They may also require expert support. Again, these cases deserve funding support as the problems will manifest themselves in a deterioration of children’s wellbeing that will affect them for the rest of their lives.
 

3.19.                     Poor mental health is often exacerbated by family separation, loss of a home, a child, etc. This can affect one or both parents, complicating the assessment and presentation of parents as well as the dynamics of their relationships. These cases generally require early identification of such difficulties and support plans to respond to them.

 

3.20.                     Many of the difficulties we see between parents have their roots in difficulties in the parents’ own childhoods. This was powerfully demonstrated recently in HHJ Wilblood QC’s play ‘Daisy through the looking glass’. Stephen Wildblood QC, is a family court judge in the West Country. The play has been recorded on Zoom and released on YouTube. It is a cautionary tale of how a family separation can go wrong with disastrous consequences for all. ‘This is awful’ may be an initial response as the play makes for uncomfortable viewing at times to separating parents and professionals alike. Unfortunately, the judiciary, Cafcass and we will be all too familiar with similar cases.
 

3.21.                     More precise orders would also be welcome and should include guidance on how future disagreements are to be resolved. Too often, emotions get in the way and one or both parents say “the order does not say this” rather than exercise reasonable flexibility or consider alternatives to a return to courts.
 

3.22.                     Judicial continuity is needed. Lack of judicial continuity results in harm through extra time needed. It also adds to the cost of represented parties and in-turn to parental conflict. It also adds to court costs.
 

3.23.                     Court-led case management and oversight is also needed so that, when things go wrong, the parents have less scope to blame one another for a case being restored to court.
 

3.24.                     An effective system of deterrence and enforcement of non-compliance with orders must also be considered. As already identified above, 30% of cases are returns. Our survey suggests that these are largely due to substantive non-compliance with orders. Whilst technically courts have the powers to enforce orders, in practice these are procedurally difficult and delays in the system make it more difficult for courts to consider options such as suspended changes of residency orders that can work very well, particularly when used early enough.
 

 

Respondents’ Views

We have sought to capture relevant issues and suggestions in this report. A selection of comments is included in Appendix A.

 

In particular, the clear view of respondents involved in making applications is that effective deterrence and enforcement measures would avoid most of these cases returning. Many respondents also expressed frustration at refusal by ex-partners to mediate.

 

Families Need Fathers – because both parents matter
www.fnf.org.uk

 

2nd November 2020

Appendix A – Selected quotations from October 2020 Return Cases Survey

 

Review hearing   Education / courses

 

My ex refused any mediation. She made (and then withdrew) serious false allegations to justify this.

 

Ex-wife wanted to move city and remove our child halfway through the school year. Ex-wife has never engaged informally or through mediation. Court is the only option for me.

 

Mediation is a complete waste of time when the other party fundamentally disagrees with the principles that a child has two parents, not a primary carer.

 

All cases where a child is rejecting contact with a parent, the court should immediately assign a expert witness in the field of attachment or a family systems therapy expert. a child rejecting contact is not a child arrangements issues but a clinical issue that needs to be address urgently 

 

Negotiation and mediation rejected.

 

An order that was much more specific would have left less room for disagreement and future cases.

 

Mandatory mediation for both parents. It cannot be right that a parent keeps refusing mediation.

 

Parent alienation/contact denial needs to be identified sooner. A Liason officer may help by staying in touch with parents during  proceedings to see how the emotions of the child are coping with changes, routines, lack of contact etc with a view to a more effective and purposeful final order. Court processes mostly create much/further conflict due to the imbalance and confusion they cause between parents. They spend time discussing problems rather than offering solutions, guidance and support for families moving forward.

 

Mediation was in the original court order, mum avoided/refused it.

 

A review hearing would have helped also all arrangements to be stated not “to be agreed” when one party chooses not to agree

 

My ex has refused all alternatives - family conferencing, mediation, collaborative law family therapy

 

I'd love to negotiate, mediate, but their mother stonewalls any of this... Reviews would be awesome

 

Mother refused mediation.  Needed to enforce as mother refused court ordered holiday contact

 

All allegations were found to be false against me - this should have automatically meant no more legal aid! Instead she was able to come back with a new firm of solicitors and cost every one time, money and further upset.

 

Enforcement penalties.  Somehow mediation needs to be made more enforceable.

 

Breach due to COVID-19 and did not see children for 7 months. Mother did not engage in mediation.

 

Mediation should be compulsory. This permits open discussion free from the adversarial Court process

 

The ability for mothers to falsely claim domestic violence to get free legal aid that is encouraged

 

Review hearing 6 weeks after original order would've flagged up

 

Clearer wording in orders, to prevent grey areas, and stringent enforcement

 

I was a victim of domestic violence at the hands of my ex..She refused mediation

 

Ex partner refused mediation - Strict consequences for breaches of CAO.  Judges need to not be scared to transfer residency where needed.

 

Tried mediation, mother wouldn't attend court said try mediation, mother would not attend. 

Appendix B - Examples of complexity relating to conflict and abuse

Examples of conflict from our front row FNF speak to tens of thousands of parents a year who come to us for help. We also receive feedback from many lawyers, McKenzie Friends and litigants of their experiences. So here is a cross-section of the kinds of scenarios that we see daily:

All these of incidents could have happened with parents’ roles reversed of course. All form part of the varied situations that family court judges have to deal with. In each, there will be two sides to the story with varying degrees of supporting evidence. For many the solutions will lie in education and support with judicial oversight if conflict is to be de-escalated and return cases avoided.

These common examples illustrate how the nature of private law Children Act disputes often do not lend themselves to a legal aid funding formula that gives financial support to complainants, but not defendants or the children.


Appendix C Regional trends in Non-Molestation Orders

 

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Regional variations in rates of Non-Molestation Orders are difficult to explain on the basis of likelihood of abuse taking place as are the rates of growth in their use post-LASPO.

 

The presence of highly active regional law firms and domestic abuse providers seems to provide a greater insight into the patterns seen here - the top two solicitors firms in 2019-20 were responsible for over 5,000 Non-Molestation Order applications. Neither featured at the time of LASPO.

 

Source: FOI requests by a FNF volunteer.


[1] Family Court Statistics Quarterly: April to June 2020 Q1/Q2 2020

[2] FNF Report on Non-Molestation Order Abuse (Oct 2018)

[3] Legal Aid Agency data 2020

[4] National Centre for Domestic Violence (NCDV) Presentation to the National Association of Child Contact Centres (NACCC) Conference – 30 October 2019

[5] Private law cases that return to court: a Cafcass study – November 2017

[6] Family Court Statistics Quarterly: April to June 2020 Q1/Q2 2020

[7] Legal Aid Agency - Civil legal aid: means testing

[8] HMCTS Small claims mediation service

[9] Allegations of domestic abuse in child contact casesCafcass and Women’s Aid - July 2017

[10] False allegations of child abuse in contested family law cases: The implications for psychological practice - Professor Tommy MacKay – University of Strathclyde September 2014

[11] Navigating child arrangements amid COVID-19 concerns – FNF 9th April 2020
    COVID-19: Universal Credit and Child Maintenance concerns – FNF 9th April 2020

[12] Family Court Statistics Quarterly: April to June 2020 Q1/Q2 2020

[13]Early Interventions pathway: parental separation and children – Dr Hamish Cameron et al; June 2020 Family Law