Guardian/Observer

Observer campaign: families at war

OUR VERDICT: end court lottery

In the concluding part of our series,Dina Rabinovitch sifts through the post bag of readers' letters:and proposes ways of ending the misery of family breakdown.

Dina Rabinovitch
Sunday July 16, 2000
The Observer

'I HAD thought that I was unlucky in having my case heard in front of a judge who was rude, arrogant and opinionated,' wrote one parent, who had contested residence agreements concerning his child. 'It appears now that my experience is matched by that of many others.' All too many others, to judge by the weight of the correspondence provoked by The Observer's investigations into the inadequacies of the family law system, correspondence including the views of many frustrated professionals. The family courts hear 110,000 contact and residence applications a year in ordinary cases involving relationship breakdown. Anger at the lottery of outcomes is on the increase. Only yesterday a delegation from 'non-resident parents' groups marched on the home of Dame Elizabeth Butler-Sloss, president of the Family Division, demanding better treatment. At the moment, on the basis that each family is unique, each dispute is treated on an ad hoc basis without governing principles. So one parent may be awarded an hour a week with his/her children, while another is allotted 30 hours over two weeks. This is in not in anybody's interest.

The Government insists that from next April, the new Children and Family Court Advisory and Support Service (CAFCAs) will help reduce anomalies in family law (see the Minister's response, right). But what is needed, above all is a set of guidelines for the Family Courts. These would address how much time a child should spend with each parent after divorce, and in what sort of circumstances. Such guidelines should give both parents a reasonable expectation of continuing their relationship with their children.

If we had agreement on a set of guidelines then parents and children would know what sort of outcome to expect from going to court. At the moment, nobody can predict outcomes and ludicrous disputes drag on for years.

I would suggest that there is a standard arrangement that would work for both parents and children in most cases. It is fairer on children to let them keep one base for most of their time. It might be argued that this base should be with the mother. Even those who campaign: on behalf of fathers' rights might concede the point. 'Many male nonresident parents would accept that the mother should have residence or custody, provided that they have solid access,' says Oliver Cyriax of the lobby group Information on Probation Officers in Welfare Work.

However, the children need to spend enough time with the other parent so that their stays feel like a second home. This is accomplished by giving the children enough time in the second home, and making sure that the intervals between their stays are not too long.

So, a pattern of visitation based around, for example three-night weekends, half of all holidays and a fortunately midweek visit would come to be regarded as the norm. This would be variable according to circumstances, provided that the parent opposing this normal contact could show good reason why there should not be normal contact.

Another-simple change would be to phase out the terms 'residential parent' and 'contact/non-residential' parent through an adjustment to the existing framework. The Family paw Act 1996 could be amended to create a presumption Reasonable contact (legalese for three night weekends). If that proved too complicated, there could be a 'practice direction' to the courts from the Lord Chancellor's Department. The present Section 11 of the Family Lass Act states that the court will have to take into account 'the general principle that, in the absence of evidence to the contrary, the welfare of the child will best be served by his having regular contact with those who have parental responsibility for him'. If the word 'regular' was changed to the word 'reasonable' then the changes would be close to being in place. A practice direction would define what is reasonable in terms of time, and in light of circumstances. The children of divorce would then not be confused by the arrangements for other children; and most parents would have no reason to fight lengthy court battles for most would have an entirely predictable outcome.

The judge

'Although the word "resources" did not figure in the articles, it does in fact go a long way to explain the problem. It is a regular feature of the family court cases with a combined estimate of two, often 3 days appear in a day's time. Why? In the main because the necessary number judges and courtrooms are not being resourced/funded by central government. This is unacceptable. The pressure it places upon parents to compromise their differences must on occasions result in legitimate grievances not being aired, with consequent injustice - which must always and only mean that the welfare of the child is not served.' Circuit Judge

The solicitor

'Your articles on Family Law in Chaos offer an indictment of the failure of the adversarial system to resolve family disputes. Mediation is a more constructive way of coping with family breakdown and has been used in this country for 20 years, yet it is still often seen as only being appropriate in a minority of situations. This is partly because once parties go to solicitors the adversarial, litigious approach takes over, and the couple are pulled further apart. Frances Place, Lyons Davidson Family Mediation, Bristol Court welfare officer '[In our defence] we deal with people who often-display open antipathy and lack of trust towards each other, who use children to get at each other and who sometimes cannot even agree on how long they were together Given these dynamics it is not surprising that the Court Welfare Officer is perceived as biased, unfair, etc by one or other of the parties.' MJ Bentley, Senior Court Welfare Officer, Greater Manchester

The reformer

'The Lord Chancellor's opposition to elementary training for the key agency CAFCAs [is understandable]. Guidelines suggesting how to do the job right would categorise most previous Children Act decisions as hopelessly wrong.' Oliver Cyriax, Information on Probation Officers in Welfare Work, Hammersmith

The parent

'It is 18 months since I was involved in a contested residence hearing. It seems to me that the very way in which the system is operated militates against a decent outcome for children. There was no sense of gathering around a table to thrash out what was best for them solicitors and barristers were arrayed against each other in front of the judge, who appeared to swing alarmingly from one firmly held opinion to another.' A father, Sunderland

Family Contact Centre

'As the coordinator of a Family Contact Centre reading Dina Rabinovitch's articles sent many flashbacks of scenes in our centre flooding into my mind. 'I have seen fathers so overcome with emotion that they cannot hold back their tears when their children come through the door, and children rushing with such enthusiasm at their nonresident parent that they all fall over. Although courts often order contact at a centre such as ours - there are over 280 National Association of Child Contact Centres (NACCC) in Britain - the centres rely on donations and 400 volunteers.' Teresa Hartley,Surrey

The Minister

'The Observer has contributed to an ongoing debate about the way in which family courts operate. There are probably as many views on this topic as there are people involved in it. The Observer articles have touched upon the role of Court Welfare Officers. Currently within the Probation Service, they will soon become part of a new child-centred service, created by the Criminal Justice and Court Services Bill.'

'The new service, to be called the Children an,d Family Court Advisory & Support Service (CAFCAs), will look after the interests of children in family court cases. There are currently three separate groups of professionals advising courts on children m family cases; CAFCAs bring them together, combining skills. We want best practice, and no duplication. It will be a better service, organised nationally and delivered locally and open to inspection. The Government will account for what CAFCAs does.' Jane Kennedy MP, Parliamentary secretary at the Lord Chancellor's Department

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