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.
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.
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.
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.
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.
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) (endnote 1) . 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 (endnote 2).
4.14. Under the Children Act, a child may be a party to private law proceedings (endnote 3). 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 (endnote 4).
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.
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.” (endnote 5)
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.