May 25 2000
Divorces may be delayed to settle child disputesBY FRANCES GIBB, LEGAL EDITOR
COUPLES who separate may be refused a divorce until they sort out proper arrangements for their children.
Ministers are concerned that ten years after the Children Act came into force, too many divorced couples are locked in disputes over contact with their children.
Jane Kennedy, junior minister at the Lord Chancellor's Department, said that one solution might be to make it easier for judges to refuse a divorce to such couples, but family lawyers said that could backfire and be used as a weapon by one spouse against the other.
Ms Kennedy also signalled a full review of the Children Act because of the delays in the hearing of children's cases. The Act made the interests of children paramount in any legal proceedings, but Ms Kennedy said yesterday that it was not working effectively.
She told a conference in Alicante, southern Spain: "This Act was hailed as a great achievement when it was passed, and marked a step forward by providing that in any court action concerning a child the court's paramount concern should be in the best interests of that child.
"It is now more than ten years since the Act was passed and we are now proposing to take a preliminary look at how well it is working in the courts."
Gillian Bishop, a partner at the Family Law Consortium, said that courts generally did not inquire into arrangements for contact with children. She questioned the effects of judges taking a tougher line and refusing a divorce before contact was sorted out.
"People in dispute over the children might not take too much notice about being refused the divorce itself. Alternatively, if a wife is being difficult because her husband has run off with another woman, and the court then refuses the divorce, that is probably exactly what she wants."
Before the Children Act, parents had to attend a special meeting at court to discuss arrangements for their children but the Act introduced joint parental responsibility, and the question of contact was not largely dealt with on paper.
Parents had to fill out a form detailing their arrangements for the children. "Courts will usually just accept what is on the piece of paper. They don't inquire further before granting the final decree," Ms Bishop said.
Even if there was a disputed issue outstanding, the courts would not hold up a final decree for it. "They take the view that this will be dealt with at a later court hearing." She said that contact over children could be used as a weapon of manipulation by one party against the other.
A new framework, the new Children and Family Court Advisory and Support Service, has been created to combine family court welfare services and ensure that courts know what a child's wishes are. Ms Kennedy said that other ways were being considered to ensure the child's voice was heard. "This includes whether it should be easier for judges to refuse a divorce where they are not satisfied with the arrangements that have been made for the children."
The new service has been criticised by fathers denied contact with their children by former wives. They say that court welfare officers will be not be trained for their task of making recommendations on contact.
The fathers also criticise the courts for failing to enforce contact orders. Ms Kennedy said that the issue of contact was particularly difficult when an application was met by allegations of domestic violence.
"No one wants to create a system in which one parent can automatically deny the other any contact with their children simply by making an unfounded allegation of abuse."
Copyright 2000, Times Newspapers Ltd.