The Advisory Board on Family Law First Annual Report 1997/9 CONTENTS Foreword by the Chairman 2 Chapter 1 The Family Law Act 1996 and the Advisory Board 3 on Family Law Chapter 2 Implementation of the Family Law Act 6 Part II 6 Part III 10 Part IV 11 Chapter 3 Supporting marriage and preventing marriage breakdown 13 Marriage support pilots 13 Research projects 14 Chapter 4 The Children Act 1989 and the Children Act Sub-Committee 16 Family Court Business Committees and Family Court Forums 17 References by the Children Act Advisory Committee 17 Paternity and parental responsibility 20 Annexes A: Members of the Advisory Board on Family Law 21 B: Members of the Children Act Sub-Committee 23 C: Major issues for 1998/99 24 FOREWORD BY THE CHAIRMAN This report covers the first year of the operation of the Advisory Board. In terms of the Family Law Act 1996, which is the prime focus of the Board, it has mainly been a year of development, with the introduction of the two Pilot Projects on information meetings and mediation, together with their supporting research, rather than one of implementation. This is fortunate, in that it has provided an opportunity for the Board to familiarise itself with its role and the issues, in advance of the more substantive questions that may arise. In the case of the Board's work in respect of the Children Act 1989, much of the effort has again been devoted to the development of the Board's role as the successor to the Children Act Advisory Committee. The focus of this Report is therefore rather on recording what has happened than on the views and advice of the Board. That said, there have been issues where we have provided advice to Ministers and the Department and these are recorded in the relevant Chapters. I would anticipate that the balance between these two elements will shift in subsequent reports. I am most grateful to the members of the Board for the time and enthusiasm that they have given to this work and for the way in which they have harnessed their very considerable experience. This was matched by the help and co-operation that we have received from the Lord Chancellor's Department and the agencies and academic institutions involved in the work. All this bodes well for the future. Sir Thomas Boyd-Carpenter CHAPTER 1 THE FAMILY LAW ACT 1996 AND THE ADVISORY BOARD ON FAMILY LAW The Act 1.1 The Family Law Act 1996 derives from recommendations from the Law Commission in its October 1990 report Family Law - the Ground for Divorce. The Government published a consultation paper based on the Law Commission report in 1993 and in April 1995 published a White Paper entitled Looking to the Future - Mediation and the Ground for Divorce. 1.2 The proposals in the Government's White Paper were largely reflected in the clauses of the Family Law Bill. This Bill was introduced on 16 November 1995 and received Royal Assent on 4 July 1996. 1.3 Part I of the Family Law Act sets out the general principles which underlie Parts II (divorce and separation) and III (legal aid for mediation in family matters). These principles are: (a) that the institution of marriage is to be supported; (b) that the parties to a marriage which may have broken down are to be encouraged to take all practicable steps, whether by marriage counselling or otherwise, to save the marriage; (c) that a marriage that has irretrievably broken down and is being brought to an end should be brought to an end: with minimum distress to the parties and to the children affected; with questions dealt with in a manner designed to promote as good a continuing relationship between the parties and any children affected as is possible in the circumstances; and without costs being unreasonably incurred in connection with the procedures to be followed in bringing the marriage to an end; and (d) that any risk to one of the parties to a marriage, and to any children, of violence from the other party should, so far as is reasonably practicable, be removed or diminished. The Advisory Board on Family Law 1.4 During the passage of the Family Law Bill, it became clear that implementation of the provisions relating to divorce and mediation would be a difficult and lengthy process. The Lord Chancellor announced his intention to establish a body which would provide him with independent advice on the implementation and operation of what is now the Family Law Act. 1.5 The intention was that the Advisory Board on Family Law would be able to take a broad, strategic view of all aspects of the new law, considering the application of the principles set out in Part I (above). The aim was also to promote a multi- disciplinary approach to the implementation of the Act and its subsequent operation. 1.6 The Board is a non-statutory, advisory non-departmental public body. It has no executive functions or management responsibilities for the implementation of the Act. 1.7 The chairman and members of the Board were selected by open competition (with the exception of Mr Justice Wall who was appointed by the Lord Chancellor after consultation with the President of the Family Division). A list of the members is provided at Annex A. Secretariat support is provided by the Lord Chancellor's Department. 1.8 The Advisory Board has met five times during the year. Terms of Reference 1.9 The Lord Chancellor has given the Advisory Board the following terms of reference: The Advisory Board on Family Law will advise the Lord Chancellor on issues arising from the implementation and operation of the Act and on the application of the principles in Part I. The Board will consider in particular issues arising from the mediation and information meeting pilots. The Board will consider developments in research into supporting marriage and preventing marriage breakdown. The Board will maintain an overview of the working of the policies embodied in the Children Act within the family court system. These terms of reference may be reviewed and amended as progress is made on implementation. The Board will operate for five years. The Children Act and the Children Act Sub-Committee 1.10 As can be seen from the terms of reference, the Advisory Board has a role in maintaining an overview of the policies embodied in the Children Act 1989 within the family court system. At the first meeting of the Advisory Board, it was agreed that a Children Act Sub-Committee would be set up to give detailed attention to this role; reports from the Sub-Committee are considered at the next meeting of the Advisory Board. The Sub-Committee met twice during the year. A list of the members of the Sub-Committee is provided at Annex B. 1.11 The Lord Chancellor has ministerial responsibility for private law on children (i.e. disputes between parents and other family members). Lead responsibility for public law (i.e. disputes between parents and the state) lies with the Department of Health. A representative from the Department of Health attends Board and Sub- Committee meetings to observe and comment on those Children Act issues which fall to the Secretary of State for Health. 1.12 The Children Act Sub-Committee has assumed some of the responsibilities of the Children Act Advisory Committee, which ceased operation in June 1997. However, it has a different remit, namely to maintain a broad strategic overview of the major policy issues, and not to become involved in more detailed operational issues. CHAPTER 2 IMPLEMENTATION OF THE FAMILY LAW ACT 2.1 The previous chapter outlined the principles of the Family Law Act and the remit of the Advisory Board to advise the Lord Chancellor on the application of these principles and on issues arising from the implementation and operation of the Act. This chapter looks in more detail at the considerable progress that has already been made on implementation of the Act and the work that is required in the coming year. Part II 2.2 Under the new law, which is contained in Part II of the Act, the following order of events will apply to a person wishing to divorce: attendance at an information meeting; a three-month waiting period; the filing of a statement of marital breakdown; a period of reflection and consideration (of at least nine months); and the making of a divorce or separation order by the court. 2.3 Part II also makes additional provision for the welfare of children in divorce proceedings (see paragraphs 2.12-2.14). Information Meetings 2.4 Under the Act the party making a statement of marital breakdown must (except in prescribed circumstances) have attended an information meeting not less than three months before filing the statement. 2.5 Where only one party makes a statement, the other party must also attend the meeting (except in prescribed circumstances) before making any application to the court in respect of any children of the family or prescribed financial or property matters or before contesting such child, finance or property applications. 2.6 An information meeting under the Act is described as a meeting organised for the purpose of providing information about: (a) marriage counselling and other marriage support services; (b) the importance to be attached to the welfare, wishes and feelings of the children; (c) how the parties may acquire a better understanding of the ways in which children can be helped to cope with the breakdown of a marriage; (d) the nature of the financial questions that may arise on divorce or separation, and services which are available to help the parties; (e) protection available against violence, and how to obtain support and assistance; (f) mediation; (g) the availability to each of the parties of independent legal advice and representation; (h) the principles of legal aid and where the parties can get advice without obtaining legal aid; and (i) the divorce and separation process. 2.7 The Advisory Board over the last year has spent a considerable amount of time considering the issues which have arisen from the information meeting pilot projects. These projects are designed to enable decisions to be made relating to the following matters: the categories of people who should be exempted from attendance at information meetings; the arrangements for organisation and delivery of information meetings throughout England and Wales, including the number and location of information meeting outlets and the frequency of meetings; and the likely form of regulations relating to: à the qualifications and appointment of information presenters; à the nature and content of information meetings; à the nature and content of written information packs to be given to those attending meetings; and à arrangements relating to an initial meeting with a marriage counsellor following the information meeting. 2.8 Three models of information meeting have been piloted during the year and two further models are being developed. Model A consists of a one-to-one information meeting lasting one hour covering all aspects of the information required by the Act. Model B splits the meeting into two parts with an introductory individual meeting lasting half an hour which introduces all the information, followed by a group information presentation lasting up to one hour. Model C also consists of two parts: a short individual information meeting lasting 15/20 minutes covering marriage support and domestic violence and, once attendees have filed for divorce, a group presentation lasting up to one and a quarter hours covering all other aspects of the Family Law Act. The South West pilot to be launched at the end of March, will test group presentations giving the full range of information required by the Act (Model D). In the summer, two further pilots will test the use of an interactive CD ROM as a medium for the delivery of information at meetings. The opportunity to meet with a marriage counsellor will be included in the pilots from the spring of 1998 (see paragraph 2.16 below). 2.9 The following table lists the pilot projects. Pilot Lead agency Launch date Completion date Model(s) Birmingham & Coventry Birmingham Relate June 1997 March 1998 A&B East Anglia Cambridge Family and Divorce Centre June 1997 March 1998 A&B Leicestershire & East Midlands Relate Leicestershire June 1997 March 1998 A&B South Wales Family Mediation Cardiff June 1997 March 1998 A&B South Yorkshire & NE Derbyshire South Yorkshire Family Mediation June 1997 March 1998 A&B North East Relate Northumberland & Tyneside October 1997 July 1998 A&B London NCH Action for Children January 1998 October 1998 C Greater Manchester Greater Manchester Probation Service January 1998 October 1998 C South West Wiltshire Probation Services April 1998 December 1998 D 2.10 The use of each of the models is being evaluated by a team of researchers led by Professor Janet Walker from the Centre for Family Studies at the University of Newcastle. The team comprises specialists in family law, domestic violence, mediation, divorce and children, econometricians and also geographers who are conducting spatial mapping exercises in order to inform decision making relating to the number of information meeting outlets which will be required and their location. 2.11 The research team has provided updates for the consideration of the Advisory Board on a regular basis and emerging issues have been discussed. In addition, individual Board members have visited information meeting pilot sites. They have been impressed by the energy and enthusiasm of everyone involved in the pilots, and have gained useful insights into the operation of the pilots that has informed their contribution to the work of the Advisory Board. Research into the operation of the existing provisions regarding the welfare of children 2.12 Part II of the Act strengthens the section of the Matrimonial Causes Act 1973 that allows the court in divorce proceedings to decide whether it should exercise its powers under the Children Act 1989. In deciding whether to use its powers, the court is required to treat the welfare of the child as paramount. 2.13 There has been no published research on the operation of this provision since the implementation of the Children Act or into whether it provides an adequate mechanism for dealing with the statement of arrangements for children put forward by a parent or parents at the time of divorce. 2.14 The Cardiff Centre for Family Research Studies and the Cardiff Law School, under the direction of Professor Mervyn Murch, commenced a study (Safeguarding children's welfare in non-contentious divorce) in May 1997. The aim of this study is to produce a picture of the current working of the Matrimonial Causes Act and provide valuable information so as to inform implementation of the Family Law Act. The Advisory Board has been informed of the progress of the Research Team on a regular basis and will consider the findings in the coming year. Future work on implementation of Part II 2.15 Although much progress has been made, there is a great deal of work still to be completed before implementation of Part II of the Act. After the Advisory Board considered this subject at its January meeting, the Chairman wrote to the Lord Chancellor to convey the advice of the Board that, on the evidence so far available, implementation should not be before October 1999 and that it would be desirable for an announcement to be made to this effect in the near future. The Lord Chancellor's reply confirmed that he would not be in a position to commence Part II until at least the end of 1999 or even early 2000. These timings were announced in both Houses in answer to a written Parliamentary Question on 2 April 1998. The answer also re- affirmed the Government's commitment to implementing Part II. 2.16 The major tasks, relating to information meetings, court procedures and training, to be completed before implementation of Part II are set out below. Information Meetings Testing of models. Research results will need to be available from all models of information meeting being tested before a final decision can be made on the model which is likely best to meet the principles of the Act. Marriage counselling provisions. The Act encourages and enables parties attending information meetings to have a meeting with a marriage counsellor. It also provides, for those who are eligible, state funding for ongoing marriage counselling during the period for reflection and consideration (after filing a statement of marital breakdown). The operation of these provisions, including the form of the meeting and eligibility criteria, needs to be piloted before implementation. Exemptions from attendance at information meetings. The Act enables regulations to be made which will provide for exemptions from attendance at information meetings, and alternative forms of information provision for such persons. The question of need for exemption is being looked at alongside the research into the use of information meetings. Procurement exercise. Before a national system of information meetings can be implemented, it will be necessary to carry out a major procurement exercise to identify an appropriate provider to cover the whole of England and Wales or a number of regional providers who can do so. Implementation of new information meeting system. When selected, the provider or providers will need to make all necessary arrangements for the delivery of meetings, preparation of a standard set of information materials (such as, leaflets, videos and CD ROMs), and identify a sufficient number of venues with appropriate facilities (in the light of the spatial mapping exercise conducted by the Centre for Urban and Regional Development Studies at the University of Newcastle). Court Procedures Preparation of the rules and regulations. When the new procedures have been agreed lawyers within the Lord Chancellor's Department will prepare draft court rules and Lord Chancellor's regulations. Consultation will need to take place on these rules with all relevant professions and organisations, before the Family Proceedings Rule Committee can consider and agree the drafts for approval by the Lord Chancellor. Computer support. Computer support will be essential for the smooth introduction and running of Part II of the Act. This will require the design of a new computer system by the Court Service. Training Training for the judiciary and court staff. Training of judiciary and court staff cannot effectively take place until the form of new rules and regulations has been agreed, new court forms designed and the new computer system in place. Part III 2.17 Part III of the Family Law Act gives the Legal Aid Board the power to pay for eligible people to attend mediation. It also requires those people seeking legal aid for family law matters, including representation in divorce proceedings, to attend a meeting with a mediator to assess their suitability for mediation. 2.18 Part III was brought into force on 25 March 1997 to allow the arrangements provided for in the Act to be piloted by the Legal Aid Board. The aim of the pilots is to ensure that there are sufficient quality assured services in place to meet the, as yet unknown, demand for mediation services. 2.19 33 suppliers in 12 selected areas across England and Wales are contracted to provide legally aided mediation services in Phase I of the mediation pilot which commenced in May 1997. The Phase I pilot areas offering services contracted to the Legal Aid Board are Birmingham, Bristol, Cambridge, Cardiff, Coventry, Durham, London (certain locations), Manchester, Middlesbrough, Newcastle upon Tyne, Northampton and Peterborough. 2.20 Applications are currently being considered by the Legal Aid Board for Phase II of the pilot which will increase the number of suppliers and the geographical areas in which mediation is available. 2.21 The section of the Act requiring legal aid applicants to attend mediation assessments is to be introduced on an area by area basis once the Legal Aid Board is satisfied that there is sufficient access to quality assured family mediation services. Following extensive local and national consultation, it was implemented within a one kilometre radius around Northampton, Kettering, Wellingborough and Bristol at the end of March 1998. 2.22 The Legal Aid Board and their research team, led by Professor Gwynn Davis of the University of Bristol, provided regular updates to the Advisory Board on the mediation pilots. Individual Board members also visited the pilot sites to identify any issues the Board needed to address. As with the information meeting pilots, visiting Board members have been impressed by the enthusiasm of those involved. Part IV 2.23 Part IV of the Family Law Act 1996 was implemented on 1 October 1997. It provides a single set of civil remedies to deal with domestic violence and to regulate occupation of the family home, through two specific types of order: the occupation order and the non-molestation order. 2.24 An occupation order decides who is allowed to occupy the home, and can direct another party to leave the home. A non-molestation order prevents the respondent from molesting the applicant or a relevant child. It can prohibit particular actions and behaviour or molestation in general. These orders are now available at all levels of court with jurisdiction in family matters. 2.25 A wide range of people are able to apply for orders under Part IV. Under the previous law, only current spouses and cohabitants could apply for non-molestation orders. Under the new Act, a number of different categories of "associated person" are able to apply for such an order, including current and former spouses, current and former cohabitants, those who have agreed to marry one another, and certain relatives. An associated person other than a spouse, former spouse, cohabitant, or former cohabitant may only apply for an occupation order on a property where they are already entitled to occupy it. 2.26 The police have additional powers under Part IV. In order to provide for better protection, the powers of arrest in relation to non-molestation and occupation orders have been strengthened. Where the court makes an occupation order or non- molestation order and it appears to the court that the respondent has used or threatened violence against the applicant or a relevant child, then the court must attach a power of arrest unless it is satisfied that the applicant or child will be adequately protected without it. 2.27 The Lord Chancellor's Department has published a range of publicity and guidance on Part IV. This includes a leaflet and poster addressed to victims of domestic violence, and booklets giving information on the new law for solicitors and barristers and for agencies and professionals involved in helping those suffering domestic violence. The Advisory Board on Family Law considered and advised on the contents of this material, and also took part in the consultation on the court rules and forms to be used in Part IV proceedings. CHAPTER 3 SUPPORTING MARRIAGE AND PREVENTING MARRIAGE BREAKDOWN 3.1 This chapter describes the research projects and pilots designed to support marriage and prevent marriage breakdown and the role of the Advisory Board in considering this research. Background 3.2 The White Paper Looking to the Future: Mediation and the Ground for Divorce recognised the difficulties caused by the adversarial system of divorce embodied in the current law, which often made it hard for couples to become reconciled. It acknowledged that difficulties within a marriage might be resolved if couples had more to do with each other in the pre-divorce period. Couples needed to face up to the realities of a life apart, both for themselves and their children. Marriages do not come to an end because of the filing of a divorce petition: petitions are often the response to a marital crisis rather than a sign of irretrievable breakdown. 3.3 As a result, the Family Law Act 1996 requires the courts and other persons exercising functions under the Act to have regard to the general principles that the institution of marriage is to be supported and that the parties to a marriage which may have broken down are to be encouraged to take all practicable steps, whether by marriage counselling or otherwise, to save the marriage. In support of this, the Act gives the Lord Chancellor powers to make grants in connection with research into the causes of marital breakdown, research into ways of preventing marital breakdown, and the provision of support by way of marriage support services. The Act requires the Lord Chancellor to take account of the fact that support services are most likely to be needed early on, to prevent marriage problems developing to the extent that the parties are at a stage where they are ready to dissolve the marriage. 3.4 The Lord Chancellor's Department currently contributes to the core funding of six national marriage support and research organisations (RELATE; One plus One; the Tavistock Marital Studies Institute; the Jewish Marriage Council; Marriage Care; and the Family Welfare Association). The money is given to the central bodies of the organisations to support the development of training and support to local services. In the smaller organisations the funding also helps provide some services directly. Marriage Support Pilots 3.5 In November 1996, The Lord Chancellor invited marriage support organisations to bid for funds for a pilot programme which would run for one year from 1 April 1997. The aims of the programme were to identify the types of service(s) which would support marriage most effectively, increase public awareness about marriage support services and improve access to existing services. 3.6 A total of 13 projects from 9 different marriage support organisations across England & Wales were selected, receiving a total of £0.5m. The choice was based on the need to achieve a representative balance of geographical spread, urban and rural locations, income levels and ethnic diversity. The projects were varied in their nature, including telephone helplines, ‘drop-in centres', counselling services, and marriage preparation. 3.7 The Advisory Board has seen copies of the interim report from each project and individual members provided advice to the Department on whether funding should be continued. The members' advice helped inform the decision of the Lord Chancellor's Department's Parliamentary Secretary as to which projects should receive further funding. 3.8 It was decided that four projects would receive funding for a further year: the Family Welfare Association's marriage support service for the Muslim community in Peterborough; the Tavistock Marital Studies Institute's service of short-term psychodynamic psychotherapy for couples referred by GPs; the Lighthouse Marriage Support Unit in Coventry; and the African Caribbean Marriage Support Service in Brixton. 3.9 In addition, One plus One's project (using health visitors to screen for relationship problems in the period following a birth) will be funded to its completion in May 1998. Relate's telephone counselling service (Relate-Line) will be funded for a further four months, and Marriage Care's telephone helpline for up to 6 months, to enable the scheme to be fully evaluated. 3.10 In the light of the experience of the pilot programme, the Lord Chancellor has decided to set up an external, independent review of the Lord Chancellor's Department's funding of marriage support and research services, to report before the end of 1998. The Board welcomes this review and looks forward to providing advice and assistance to it. Research Projects 3.11 The Advisory Board has commented on two marriage research projects which are being funded by the Lord Chancellor's Department. 3.12 The first is being undertaken by One plus One, a London based research charity. It involves the preparation of a series of review papers to assist the development of policy in support of marriage. These papers present evidence from the UK and abroad on the causes of marital breakdown and the effectiveness of policies and services intended to reduce its incidence. They encompass research findings, census and survey data on trends and patterns of behaviour, analytical accounts of professional experience and descriptive accounts of the effects of changes in legislation or other influences on the quality and stability of relationships. As well as informing policy, the work will also set the agenda for future research priorities. 3.13 The different review papers discuss socio-demographic characteristics, the effect of changes in peoples material circumstances on divorce rates, the effect of changes in peoples attitudes to marriage, theories of marriage distress, the effectiveness of marriage preparation, the impact of relationship counselling and a paper summarising the effect of all of these on policy formulation. The papers are to be presented to the Advisory Board on the conclusion of the project. 3.14 A second research project on marriage which has been commissioned by the Lord Chancellor's Department is being undertaken by Professor Jane Lewis of All Souls College, Oxford. This project examines the effect of individualism on commitment to marriage, whether family law has contributed to the rise of individualistic behaviour and what the role of the law should be. The Board discussed an interim report at their March meeting and the final report is due for completion in 1999. CHAPTER 4 THE CHILDREN ACT 1989 AND THE CHILDREN ACT SUB-COMMITTEE 4.1 The Board's remit in relation to the Children Act 1989, following the winding- up of the Children Act Advisory Committee, has been mentioned in Chapter 1 (paragraphs 1.9-1.11). This chapter sets out the issues which the Committee referred to the Advisory Board to consider or take forward, and the work of the Children Act Sub-Committee in dealing with these and other issues. The Children Act 1989 4.2 The underlying philosophy of the Children Act 1989, which came into force on 1 October 1991, implies that normally children are best cared for within the family. The Act encourages parents, even after separation or divorce, to maintain responsibility for their children and, wherever possible, to reach agreement about future arrangements for the children without recourse to legal proceedings. Where this is not possible, and the court is required to make decisions about a child's upbringing, the paramount consideration must be the welfare of the child. The Children Act Advisory Committee 4.3 The Children Act Advisory Committee was established in 1991 to monitor the operation of the Act, and to advise Ministers on the issues arising from its implementation. The Committee covered all aspects of the Children Act (including public as well as private law) and reported to the Secretary of State for Health, the Home Secretary, and the President of the Family Division, as well as the Lord Chancellor. The Committee ceased to operate in July 1997. The Children Act Sub-Committee 4.4 As part of its terms of reference, the Advisory Board on Family Law is required by the Lord Chancellor to maintain an overview of the working of the policies embodied in the Children Act which impact upon the family court system. At its inaugural meeting on 14 April 1997, the Board considered how it would handle its Children Act work, and it was agreed that a Sub-Committee would be set up. 4.5 Unlike the Children Act Advisory Committee, the Board's Sub-Committee is not involved in detailed operational issues and focuses on the major policy issues arising within its terms of reference. It acts as the Board's filter mechanism on Children Act matters, including substantial policy matters of national relevance raised in the minutes of the Family Court Business Committees. However, the Board may commission the Sub-Committee to undertake other specific tasks relating to the working of the policies embodied in the Children Act within the family court system. The Sub-Committee reports on its deliberations to the full Board. 4.6 The Sub-Committee is chaired by a Family Division Judge, Mr Justice Wall. A representative from the Department of Health, which has the lead responsibility for public law Children Act proceedings, attends meetings of the Advisory Board and Sub- Committee to observe and comment where appropriate. Family Court Business Committees and Family Court Fora 4.7 The established network of Family Court Business Committees and Family Court Fora handle operational aspects of the Children Act at local level. The committees copy their minutes to the Secretary of the Advisory Board, and matters of national policy significance are remitted to the Children Act Sub-Committee for appropriate action. Policy issues can be referred directly to the appropriate Government Department. 4.8 The Family Court Business Committees and Family Court Fora held their first National Convention on 20 March 1998 in Birmingham. At the Convention, the Advisory Board's Chairman provided an overview of the Board's work. The agenda also included sessions on case management, domestic violence and the allocation of proceedings. References by the Children Act Advisory Committee 4.9 A number of outstanding issues had been referred to the Advisory Board by the Children Act Advisory Committee. Those accepted by the Board as being within its remit were: the separate representation of children in family proceedings; the growing awareness of significant harm to children caused by domestic violence between adults in the household, and the relevance of such domestic violence to contact disputes; and the training and accreditation of all barristers and solicitors appearing in both public and private law cases for any party in family proceedings. Separate representation of children 4.10 The Family Law Act 1996 enables the Lord Chancellor to make regulations providing for the separate representation of children in proceedings under Part II of the Act and in certain other private law family proceedings (this is not restricted to legal representation) . The regulations may provide for representation to be available only in specified circumstances. 4.11 The passage of the Family Law Act was marked by the expression of serious concerns in both Houses of Parliament and across parties about the implications of divorce or separation for the children involved. This is reflected in section 1 of the Act, which includes the general principle that a marriage which has irretrievably broken down should be ended with minimum distress to the parties and the children affected, and with questions dealt with in a manner designed to promote as good a continuing relationship between the parties and any children affected as is possible in the circumstances. 4.12 The Act reflects a concern on the one hand that children's interests need adequately to be safeguarded in the mediation process. There was, on the other hand, also a fear that separate representation could drive a wedge between children and their parents, and make divorce proceedings more acrimonious rather than less. 4.13 Implementation of this section of the Act needs to be considered in the context of the present arrangements for representing children's views and wishes in family proceedings generally, as set out in the Children Act 1989. 4.14 Under the Children Act, a child may be a party to private law proceedings. In public law proceedings under the Act (i.e. local authority applications for care and supervision orders) the child is always a party. The court will generally appoint a trained social worker as a guardian ad litem, but may appoint a solicitor alone if satisfied that the child has sufficient understanding (the rules of court require the guardian to appoint a solicitor to act on behalf of the child). The Official Solicitor also has a role in representing children in certain proceedings in the High Court. 4.15 In private law proceedings (including divorce), where the child is not normally a party, the court may order the Family Court Welfare Service to produce a report covering the wishes and feelings of the child (a child making his own application for a private law Children Act order is entitled to separate legal representation). 4.16 The Children Act Sub-Committee has commenced a consultation exercise with a large number of relevant bodies to look at the issue of representation generally, including welfare as well as legal representation. Consultees have been asked for their opinions on the following questions: the subject of the representation of children in public law proceedings generally; how, in practice, the relationship between the welfare role of the guardian ad litem and the legal function of the solicitor works; whether there should be more flexibility in the requirement for a guardian ad litem to appoint a solicitor in every case; whether the role of the guardian ad litem should be extended into private law proceedings, and, if so, the means whereby this could be achieved without detriment to the public law functions of the guardian ad litem; whether the provisions in the Family Law Act should be implemented for children to have separate representation in private law proceedings, and if so under what circumstances; and any other aspects of the subject that are thought to be relevant. 4.17 The Sub-Committee will consider these issues in the light of the responses received and will feed its conclusions into the work of the Court Welfare Services Working Group. This Group is working up proposals for consultation on a new, integrated service combining the functions of the Family Court Welfare Service, the guardian ad litem service and the children functions of the Official Solicitor. 4.18 The Chairman of the Advisory Board has written to the Lord Chancellor's Department's Parliamentary Secretary, Geoffrey Hoon, to convey the Board's views and to offer its assistance in this work. In particular, the Board felt it was vital to ensure Family Court Welfare Officers have appropriate specialist training and was concerned how this might be achieved now that new entrants to the Probation Service are no longer required to have a qualification in social work. The Board also indicated that it would be happy to contribute towards consideration of the broader structural issues, such as the possible amalgamation of the services. Mr Hoon has replied to the Chairman stating that he considers the Board to be a key player in this process and proposing a meeting to discuss the review in more detail. Domestic violence and contact orders 4.19 A very important issue referred by the Children Act Advisory Committee was the problem of domestic violence involving or in the presence of children, and its relevance to contact disputes. 4.20 In individual cases where conflict does arise in connection with contact arrangements, the court is specifically required to consider any harm which the child has suffered or is at risk of suffering. The court's paramount consideration under the Children Act 1989 is the welfare of the child. The court can use its powers under the Act to impose conditions on contact where appropriate, and can order in detail when, where and how the contact should take place, including whether it should be supervised and in what way. If these arrangements are not properly complied with, it is open to the parties concerned to apply for them to be varied or discontinued. 4.21 Problems, however, may arise, if the Welfare Officer or the court is unaware of domestic violence in the case or a decision is made not to give weight to it when making contact orders. The Sub-Committee has commenced a consultation exercise on this subject. Consideration will be given to whether it is in the best interests of the child for the court to order contact with a parent who has a history of violence against the other parent or other children. If it is not, then consideration may need to be given to finding other ways of modifying the current practice of the courts. Training and accreditation of lawyers in Children Act cases 4.22 The Chairman of the Advisory Board has written to the Law Society and Bar Council to enquire what action has been taken to ensure there are suitable arrangements in place for the training and accreditation of barristers and solicitors in Children Act cases. This is a subject which the Sub-Committee is intending to take forward in consultation with the Law Society and Family Law Bar Association during 1998/99. Paternity and Parental Responsibility 4.23 The Children Act 1989 introduced the concept of ‘parental responsibility' which it defines as “all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property.” 4.24 Because of the important consequences which flow from parental responsibility, the Act does not bestow it automatically on all fathers. An unmarried father may acquire it either by making an agreement with the child's mother or by applying to the court for a parental responsibility order. The development of the law in this area reflects the growth in the number of births outside marriage and changing social attitudes to cohabitation and illegitimacy. Births outside marriage almost tripled between 1980 and 1991. 4.25 The Board discussed a paper on this subject at its June 1997 meeting and considered what should be included in the consultation paper which was issued by Lord Chancellor's Department on 6 March 1998. 4.26 The consultation paper covers two main issues. The first is the procedure for the determination of paternity. At present there are two separate procedures for obtaining a declaration from the court: one (simplified) for child support purposes and one for all others. Consideration needs to be given as to whether to introduce a single procedure for all purposes, and to those who should be entitled to apply for a declaration (the child, the mother, the alleged father, anyone else). The paper also includes proposals to implement existing legislation to provide for court-ordered testing of non-invasive bodily samples as well as blood; and for the tests to be carried out by accredited laboratories rather than individually approved testers. The second issue is whether parental responsibility should be extended automatically to all unmarried fathers or to a limited category such as those who, with the consent of the child's mother, sign the birth register. The Board is currently considering its response to the issues in the consultation paper. ANNEX A MEMBERS OF THE ADVISORY BOARD ON FAMILY LAW SIR THOMAS BOYD-CARPENTER (Chairman) spent his career in the army serving latterly as Deputy Chief of the Defence Staff responsible for strategic planning, resource allocation and personnel policy. Since his retirement he has been serving as Chairman of the Kensington, Chelsea and Westminster Health Authority and as Chairman of the Social Security Advisory Committee as well as working as a consultant with ‘People in Business'. NAOMI ANGELL is a partner with Goodman Ray Solicitors where she specialises in children's law and heads the adoption team. She recently stood down from the Law Society's Family Law Committee, and is a member of the Society of Labour Lawyers. DR CAROLE KAPLAN is a senior lecturer and consultant in child and adolescent psychiatry in the Department of Child Health, Newcastle University and City Health Trust. She is a Fellow of the Royal College of Psychiatrists. She is also a member of the Council on Tribunals. DR JANET LEWIS is Research Director of the Joseph Rowntree Foundation which funds research and development projects in the field of housing, social care and social policy. SUZAN MATTHEWS QC was called to the Bar in 1974 and has specialised in family work since 1979. She served as a member of the Gas Consumer Council until 1996 and is the Chair of the Valley Trust, a charity which aims to support adults and children in relationship breakdown. PROFESSOR PHYLLIDA PARSLOE is a senior research fellow and emeritus professor in the School for Policy Studies at Bristol University. She is a member of the Alcohol Research and Education Council, a non-executive director of Frenchay Health Care Trust, and a member of Horfield Prison Board of Visitors. PROFESSOR SIMON ROBERTS is Professor of Law at the London School of Economics and Political Science. His specialist field is the study of dispute processes with a particular focus on negotiation and mediation. JANE SIMPSON is a partner with Manches and Co Solicitors where she heads the Family Law Department. She is former Chair of the Solicitors Family Law Association and has been a member of the Board of the Family Mediators' Association. She is currently a member of the Lord Chancellor's Ancillary Relief Advisory Group and a non-executive director of the Tavistock Portman NHS Trust. DAVID SKIDMORE is Assistant Chief Probation Officer in the West Midlands, responsible for the Family Court Welfare Service. He is a member of both the Coventry and Birmingham Guardian ad Litem Panel Committees and of the Family Court Business Committees in Coventry, Birmingham and Wolverhampton. THE HONOURABLE MR JUSTICE WALL was appointed to the Family Division of the High Court in 1993. He is joint editor of Rayden and Jackson on Divorce. COLIN WEBB, a former Deputy Editor of The Times, recently took early retirement from his position as general manager of the Press Association in order to work in family mediation. He has trained with the Family Mediators' Association and National Family mediation and works as a mediator at the Eye-to-Eye centre in Camberwell, specialising in children's issues. ANTHONY WELLS is the former Director of the National Council for Family Proceedings. Prior to that he worked as the regional staff development officer for the Probation Service in the South West Region with a particular interest in divorce court welfare. ANNEX B MEMBERS OF THE CHILDREN ACT SUB-COMMITTEE OF THE ADVISORY BOARD ON FAMILY LAW THE HONOURABLE MR JUSTICE WALL (Chairman) NAOMI ANGELL SIR THOMAS BOYD-CARPENTER JANE SIMPSON DAVID SKIDMORE ANTHONY WELLS ANNEX C MAJOR ISSUES FOR 1998/99 The table below summarises the major issues which will be addressed by the Advisory Board during the course of 1998/99. Issue Paragraph Information meeting pilot models Consideration of emerging issues and advice on the model which best meets the principles of the Family Law Act 1996. 2.8-2.11 Provisions regarding the welfare of children Consideration of the findings of the Cardiff research into the operation of existing provisions. 2.14 Marriage counselling provisions Consideration and advice on the piloting and operation of section 8(6)(b),(11) and (12) and of section 23 (Family Law Act 1996). 2.16 Mediation pilots Consideration of issues emerging from the research and advice on implementation roll-out. 2.18-2.22 Funding of marriage support and research services Providing advice for the independent, external review of the Lord Chancellor's Department's funding. 3.10 Marriage research projects Consideration of the findings of the research conducted by One plus One and Professor Lewis. 3.11-3.14 Separate representation of children Consideration of the responses from the Sub-Committee's consultation exercise and providing advice for the Court Welfare Services Working Group. 4.16-4.18 Domestic violence and contact orders Consideration of whether current practice in courts should be modified in the light of the findings of the consultation exercise. 4.21 Training and accreditation of lawyers in Children Act cases Discussions with the Law Society and the Family Law Bar Association on how to ensure that suitable arrangements are in place. 4.22 Law Commission 192 (1990). Family Law Act 1996, s. 8. s. 8(9). ibid. s. 11. Matrimonial Causes Act 1973, s. 41. Family Law Act 1996, s. 8(6)(b). s. 23. Family Law Act 1996, s. 28. Pt III. Family Law Act 1996, s. 1. s. 22. Family Law Act 1996, s. 64. Children Act 1989, s. 7 (welfare reports) & s. 41 (appointment of guardian ad litem). Children Act 1989, s. 10(1)(2) & (5). Children Act Advisory Committee, Handbook of Best Practice in Children Act Cases, pp 57-60. Children Act 1989, s. 3(1). Colin Webb resigned from the Board in October 1997 due to a conflict of interest. Reference to paragraph number in report. 5 19