Dear Lord Chancellor,
Making Contact Work
The Children Act Sub-Committee (CASC) of your Advisory Board on Family Law, takes great pleasure in presenting to you on behalf of the Advisory Board its final report Making Contact Work.
You will see that it follows the format of our previous report to you on contact in the context of domestic violence entitled Contact between children and violent parents, the main recommendations of which we were pleased to see the Government has accepted and is in the process of implementing.
The current consultation was both extensive and detailed and, like its predecessor, resulted in responses of extremely high quality and remarkable unanimity from all the different disciplines working within the Family Justice System as well as from a number of those directly affected by it. We commend our recommendations to you.
There is one particular aspect of our recommendations to which we would draw your attention. You will see that we retain our aspirations for the Children and Family Court Advisory and Support Service (CAFCASS), and our strong belief that a properly functioning Advisory and Support Service for Children and Families is essential to the efficient operation of the Family Justice System. This implies, in our view, a significant increase in the resources allocated to it.
As we make clear in the Report, however, we are not making the point in the belief that by throwing money at CAFCASS all the problems of the Family Justice System will be resolved. First and foremost, we see the expanded functions of CAFCASS as being of critical importance to the overall recommendations we are making to you. Secondly, however, we have little doubt that a properly functioning expanded CAFCASS will result in substantial savings in other areas of the system – fewer contested court proceedings, with consequential substantial savings in both time and money spent in court, without counting the more intangible emotional benefits to children and families brought about by the amicable resolution of contact disputes.
We quite understand the difficulties encountered by any Department in justifying additional expenditure; but in this case we believe that the potential benefits, financial as well as social, make a compelling case.
This is the last piece of work that CASC will be undertaking prior to the dissolution of the Board. We have been extremely fortunate, we feel, to have had the opportunity and the facilities to address issues of principle arising from the continued operation of the Children Act.
We have, however, been no substitute for the proper inter-disciplinary body which the Family Justice System both needs and deserves to fulfil and expand upon the functions of the Children Act Advisory Committee (CAAC) whose abolition in 1996 is now we think universally recognised to have been a serious mistake.
We were very glad to learn that the long-awaited consultation paper on future interdisciplinary arrangements is about to be published. While there may be points of detail on which we will comment, we are delighted that the underlying need for such arrangements has been accepted. We will be happy, as you request, to provide any advice you may require in the period before the new structure is in place.
Yours sincerely
Nicholas Wall,
Thomas Boyd-Carpenter,
Naomi Angell,
Carole Kaplan,
David Skidmore,
Jane Simpson,
Tony Wells.
The Consultation
The Consultation Paper Making Contact Work: a Consultation Paper from the Children Act Sub-Committee of the Lord Chancellor's Advisory Board on Family Law (CASC) on the facilitation and enforcement of contact was published in March 2001, with a closing date for responses of 22 June 2001. A total of 240 responses were received, and a list of respondents, broken down into their different categories is attached as Appendix 1. It will be seen that, as with the responses to our previous consultation on Contact between Children and Violent Parents,all the different areas of the family justice system are represented. The only material difference is that in the present consultation, a larger number of individual parents gave their perceptions of how the system worked and how it had treated them.
We would like to apologise for the delay in the preparation of this report. We had hoped to have it in the public domain by the Autumn of 2001. The volume of the responses received, however, and the complexity of the issues raised, have meant that the report has been longer in gestation than we would have wished.
The Structure of this report
In the consultation paper, we posed 53 questions. It would, we think, be indigestible to try to contain the responses to all the questions within one chapter. We have, accordingly, abandoned the numbering of the questions we used in the consultation paper, and have divided the responses into separate chapters each dealing with a specific aspect of the problem. We hope that this makes for easier reading and identification of particular issues.
Following this Preface, therefore, Chapter 1 sets out the major themes emerging from the Consultation. Chapters 2 to 15 contain summaries and analyses of the responses received to each question. We have quoted from as many responses as we felt was possible. The individuals from whom we have quoted are identified in the text and the names of the bodies or institutions whose views we have recorded are highlighted for easier identification. We are very conscious that in this exercise we cannot do justice to all the responses received. Our quotations are necessarily selective, and, in places, our summaries of the responses somewhat broad. We are sorry about this. We have, however, tried faithfully to reflect the overall balance and content of the responses received to each question.
Chapter 16 sets out our recommendations. Whilst we have retained the order in which these emerge from the text, we have also divided them into four broad categories, and allocated a category to each: (1) those capable of immediate implementation; (2) those which require the allocation of additional resources; (3) those which require legislation; and (4) those which require further study. We have in each case identified the agency to which the recommendation is addressed.
There are 5 appendices. Appendix 1 lists the respondents to the consultation who did not seek to keep their responses confidential. Appendix 2 is a summary of the recent Family Advice and Information Networks Consultation (FAINS) instigated by the Legal Services Commission. Appendix 3 deals with the important question of Shared Parenting and Shared Residence raised by Families need Fathers, the Equal Parenting Council and the Association for Shared Parenting in particular. Appendix 4 deals with a point raised by the Women's Federation of England on the case of A v N (Committal: Refusal of Contact) [1997] 1 FLR 533, which does not otherwise fit easily into the text. Appendix 5 identifies the members of CASC.
It had been our intention to set out in an Appendix a summary of the response from the Judiciary in New Zealand, and more detail of the position in Australia, both of which we found extremely helpful and informative. In the event, space has not allowed this. This material is, however, available on the Lord Chancellor's Department website, (www.lcd.gov.uk) as are Section 5 and Appendix A to the Consultation Paper, which deal with the approach to enforcement in other countries.
Shared residence orders: shared or equal parenting: the responses by Families Need Fathers, the Equal Parenting Council, and the Association for Shared Parenting
Families Need Fathers, with others, led a fundamental assault on the underlying philosophy which gives one parent "residence" and the other "contact", when the objective should be to achieve the full involvement of both parents in the care and upbringing of their children post separation. The remedy proposed was the introduction and expectation of "shared care", a presumption of shared parenting irrespective of the ability or willingness of the parents to work with each other. Shared care, it was stressed, did not mean an equal division of children's time between their parents: the time actually spent was a matter for negotiation and discussion. What was important was that the court order should be a recognition that both parents had important parts to play in their children's lives.
The point was well argued, and is plainly one of importance. We felt, however, that the radical reform being proposed by Families need Fathers and the two other groups went beyond the scope of this consultation. We are advising on the question of contact in the framework of the way in which the current legislation has been interpreted by the courts over the past 10 years. A move to joint residence orders / shared parenting as the norm would, we think, require substantial investigation and validation. We have not, accordingly, dealt with the issue in the text or in any of our recommendations. We have, however, set out the argument in Appendix 3, where we canvass the possibility of the Government setting up a pilot scheme if it thinks the concept of shared residence / parenting worth considering.
Domestic Violence
We were both surprised and disappointed that all the women's groups took us to task for our apparent failure to mention domestic violence in the body of the Consultation Paper. Women's Aid Federation of England (WAFE) was representative. Under the heading Key Points, this was said: -
Women's Aid Federation of England is deeply concerned that this consultation paper considers how contact can be facilitated and enforced without ever mentioning the fear of abuse, which is one of the most common reasons for not complying with a contact order. We believe it is dangerous to enforce contact in cases of domestic violence or child abuse, and we regard the consultation paper as seriously flawed because it fails to address this issue.
In our view, it is inappropriate to address the issue before a wide range of preventive measures have been taken to ensure that contact arrangements are safe.
With great respect to WAFE this represents a misunderstanding of the nature and purpose of the consultation paper. If the current consultation stood alone, the criticism would be well founded. But of course it does not. Our previous consultation was devoted exclusively to contact between children and violent parents. Our Report to the Lord Chancellor on the Question of Contact in Cases where there is Domestic Violence was published in the Spring of 2000, and was cited with approval in the important decision of the Court of Appeal, Re L, V, M and H (Contact: domestic Violence) [2000] 2 FLR 334. The Guidelines for Good Practice, amongst other recommendations contained in the report were designed to assist courts in dealing with cases involving domestic violence. The Guidelines were accepted by the Government earlier this year.
We have not forgotten or abandoned our previous conclusions and recommendations on domestic violence. Self-evidently, they continue to apply. So, where domestic violence is involved, cases will need to be dealt with according to our previous recommendations and Guidelines.
The focus of the present consultation is on cases where domestic violence is not an issue. However, where domestic violence is relevant to the present consultation, we deal with it. For example, information designed to be given to separating couples (Chapter 3) will self-evidently need to address the question of domestic violence.
Other issues
There are several issues we have not addressed. The first is that of contact to children in care. We did not discuss this as it is subject to its own statutory code, and the issues is raises are not, in our view, relevant to the issues in private law applications between parents.
Secondly, we did not deal with contact by grandparents, although we had a helpful response from the Grandparents' Federation. This is a very wide subject, which would warrant a consultation exercise of its own. However, we do support a more active examination of the potentially constructive role to be played by extended families in meeting the needs of children in contact disputes. This is a matter to which we return in Chapter 10.
Thirdly, we have not dealt with international cases. This is both because of their relatively small number and because they raise very difficult legal issues, consideration of which, we felt, would detract from the main thrust of the report. Fourthly, we have not addressed the question of contact between siblings. This, again, is a very important subject. However, it is governed by reasonably well established legal principles (separated siblings should normally see as much of each other as possible) and was only raised as an issue by a small number of respondents. Nonetheless, it is a subject which will need to be addressed by CAFCASS where it arises.
Finally, we would like to express our thanks to the Secretariat, and in particular to Philip Dear, for his uncomplaining efficiency, and to Jacqui Brown, who prepared section 5 in the Consultation Paper, and who has since moved on.
1.1 The reader will find our specific recommendations set out in Chapter 16. We thought it would be helpful, however, before going into the detail of the questions we asked, to identify the main themes which emerged from the Consultation, and our response to them.
1.2 Unsurprisingly, the Consultation has confirmed our perception of disputes over contact as a highly emotive, difficult and sensitive subject to which there is no one, straightforward answer. The following themes, however, emerged most clearly from the Consultation: -
a general dissatisfaction with the legal process as a mechanism for resolving and enforcing contact disputes;
the need at an early stage to provide information for separating parents and their children about the likely effects of the separation, the difficulties they are likely to encounter, and the means whereby those difficulties can be addressed;
the need to address the problem by a wide range of different mechanisms which are not based on court proceedings; and
the need to ensure that those alternative mechanisms to court proceedings are in place and are accessible to those who need them.
1.3 We regard the provision of information for separating couples and their children as being of critical importance. What follows is not an exhaustive list, but within the broad areas of information identified in paragraph 1.2(2) are:
the importance to children of maintaining contact wherever possible with the parent with whom they are not living;
the very substantial difficulties involved in successful post separation parenting for both parents;
the serious harm caused to children by continuing acrimony between their parents; and
the services which are available to assist in the resolution of difficulties over contact.
1.4 As was stressed in a number of the responses to the consultation, it is vital that this information is available to both parents, and that wherever possible, parents should be encouraged and helped to agree contact arrangements for their children.
1.5 The final bullet point in paragraph 1.3 leads to the consideration of the next stage, which is the means of access by parents to those facilities which can assist them reach agreement over contact. These include mediation, counselling, help lines, advice groups, various charities, and, of course, legal advice.
1.6 Research shows that a solicitor is the first port of call for something in the order of 80% of divorcing couples. It is clear to us that the legal profession, and specialist solicitors in particular, have come a long way since the passing of the Children Act. Reference is made in the report to the code of conduct of the Solicitors Family Law Association and the protocol issued by the Law Society. These are, in our view, very important steps forward towards ensuring that the alternatives to litigation are fully explored, and making disputes over children less adversarial.
1.7 We are, however, quite satisfied that much more needs to be done in the provision of facilities, which separating or separated parents can approach for advice over contact. Dealing with couples or individuals in the immediate aftermath of what is often a traumatic separation requires special skills, particularly if part of the process involves the negotiation of contact.
1.8 There will, of course, always be a role for the court to play in making contact work. The court remains the one institution which has both the authority to define and the power to impose a solution which is in the interests of the child. At one end of the scale there will always be the difficult, intractable cases which, for example, involve allegations of serious physical or sexual abuse, or where one of the parents may be mentally ill or suffering from a personality disorder. At the other end, there will be the relatively straightforward cases which prove to be incapable of being negotiated or mediated and which require an imposed decision from a court such as the family proceedings court.
1.9. We have, however, come to the conclusion, that wherever possible, an application to the court for an order should not be the first response but, if anything, should the remedy of last resort. To this, however, we would add the proviso that there is always a risk that, in a case which needs an application to the court, fruitless negotiation / mediation may in fact delay the resolution of the dispute. Equally, an application to the court should not be seen as bringing to an end to the process of conciliation: - an issue we develop in Chapter 10.
1.10. The Consultation demonstrated clearly that the majority of respondents, and not just the disappointed or disaffected litigants, regarded the court process as slow, unpredictable and adversarial, with the consequence that the disputants became, if anything, more entrenched in their respective positions at the end of the proceedings than they were at the outset. Court proceedings are also, of course, expensive.
1.11 This general response to the nature of court proceedings is disappointing, but not, we think, surprising. However, as the court will, inevitably, remain a major feature in determining contact, it is very important that its procedures are improved, and that steps are taken to reduce the adversarial nature of the proceedings.
1.12 Apart from accreditation for the lawyers conducting such disputes, tighter court control of time-tabling, and the development of a culture of judicial continuity, two further important steps, in our view would be; (1) to make universal the practice in some courts of having a CAFCASS officer present at the first appointment to attempt in court conciliation; and (2) to use the provisions of the new Family Proceedings Rules to involve CAFCASS reporting officers much more with the children about whom they are reporting, so that Officers would be able to spend more time with the children, and, in appropriate cases, to continue to maintain contact with them after the hearing for which the report has been prepared.
Enforcement
1.13 Once again, the overwhelming weight of the responses to the consultation was that enforcement of contact orders by proceedings for committal leading to fines and imprisonment is not only a crude way of enforcing contact orders: it is also ineffective. Whatever the intellectual force of the argument that it is in a child's interest to enforce a contact order because the order for contact was made on the basis that it was in the child's interest to have contact, the simple fact remains that it is very difficult to see how it can ever be to the benefit of children for their primary carer to be sent to prison.
1.14 As a consequence of the responses to the consultation, we have come to the clear conclusion that the Government should legislate to provide the courts with a range of remedies in intransigent contact cases where the courts order is not being obeyed. We detail these proposals in chapter 14. Some are designed to be therapeutic: others will have sanctions attached.
1.15 However much we may wish to ensure that provisions for the enforcement of contact orders should flexible, and designed to address the specific problem, we also agree with the majority view of the respondents to the consultation that for as long as the process is a court process providing orders which are to be obeyed, the power of the court to punish disobedience has to be maintained. However, under our proposals, the use of fines or imprisonment will genuinely be the last resort only when education, therapy and persuasion have failed.
1.16 The power to send one or both parents on courses designed to address intransigence over contact; or the power to refer one or both parents to a particular resource implies, of course, that the resource exists and will be available. We believe such courses should be tailored to the issues which the order is seeking to address. In so far as such programmes currently exist they will need to be funded: in so far as they do not exist they will need to be developed in line with the proposed legislation. We are, however, in no doubt at all that the need to broaden the court's powers of enforcement of contact orders is an important and a pressing reform.
CAFCASS
1.17 The tribulations of CAFCASS have, alas, been only too public. In the report we are critical of Government, as we have been before, for the manner in which CAFCASS was set up, and the wholly inadequate time provided from the passing of the Act to the date of implementation.
1.18 We prefer now to look forward. In the Report we see a number of functions which are tailor made for CAFCASS if it is to fulfil all the elements in its title. We have no doubt that CAFCASS has a crucial role to play. But – and although we have said this many time it needs saying again and again – CAFCASS must be properly funded. The idea that the amalgamation of the Court Welfare Service, the Guardian ad Litem Service and the children's arm of the Official Solicitor's Department is cost neutral when many additional and necessary functions have been given to CAFCASS is, in our view, untenable. CAFCASS is there to provide a vitally necessary service to children and families. If the Government is serious about providing an effective children and families court advisory and support service, CAFCASS must be properly structured and funded.
1.19 In saying this we are not, of course, merely repeating a mantra, or arguing that if you throw enough money at CAFCASS the problem will be solved. We firmly believe that a properly functioning CAFCASS is not only necessary for the proper running of an effective family justice system: we believe that an expanded role for CAFCASS is likely to produce valuable savings elsewhere in the system, notably in a reduced number of contested court proceedings, with consequential substantial savings in both time and money spent in court, without counting the more intangible emotional benefits to children and families brought about by the amicable resolution of contact disputes.
1.20 We set out in the report some of the functions which we think CAFCASS should be undertaking. Amongst the most important are as an information provider, and as a means of ensuring that, where appropriate, children are represented in proceedings. We also see CAFCASS as having an important role as an in court conciliator and in education programmes and parenting classes in cases where the court seeks to use these resources as a means of enforcing its orders.
Contact Centres
1.21 Funding is, once again, an issue when it comes to Contact Centres. We describe them in the report (paragraph 8.35) as a resource which must be cherished. Some of them, deeply proud of their independence and volunteer status, refuse government money. But since they are a vital resource, and since the service they provide is expanding, funding has become an important issue. Once again, the obvious source of funds is the Government, through CAFCASS.
1.22 We welcome the diversification of some Contact Centres into providing facilities for supervised contact, with the potential for using their premises for therapeutic sessions with parents. We also think there is a need for more specialist centres such as Coram Family and the Accord Centre in Brent.
Research
1.23 A wealth of ideas emerged, as chapter 15 shows. Ideas came from every quarter. This, in our view, shows the interest and enthusiasm of those who work in the family justice system, which has survived the numerous vicissitudes of the last few years.
Our Analysis of the Responses to the Specific Questions Posed in the Consultation Paper
THE QUESTION WE ASKED
2.1 Do you agree that the principles set out by Dr. Sturge and Dr. Glaser and summarised in Section 2, Part 1 represent a generally accepted professional view? If not, what is your basis for disagreement?
Responses
2.2 Of the 240 respondents, 167 answered this question. Of the 167, 148 said "yes"; 19 said "no". Whilst some respondents pointed out that the question was phrased in such a way that a "yes" answer did not necessarily imply agreement with the principles set out by Dr. Sturge and Dr. Glaser, the overwhelming majority of those who answered "yes" made it quite clear that they agreed with the two doctors' analysis.
2.3 Disagreement with and qualification of the doctors' views came largely from men and men's organisations. Of those who disagreed, the majority did so on two bases. The first was that the doctors were wrong not to recognise the existence of parental alienation syndrome; the second was that the description of the "centrality of the child as all-important" was discriminatory and placed too great an emphasis on the interests of the parent with residence. Mr. Tony Coe, on behalf of the Equal Parenting Council, wrote: -
The idea that a parent should have to prove the purpose of contact is plainly flawed ... The purpose of contact is self-evident. It provides the child with parenting time. Should the custodial parent also prove that their parenting time has purpose?
2.4 District Judge Mitchell was also concerned, in the light of Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, that the Sturge / Glaser approach "carries the risk of a parent or child having to justify contact, whereas it is the cessation of contact which needs to be justified".
2.5 Families Need Fathers did not take issue with Dr Sturge and Dr. Glaser over the issue of parental alienation syndrome. Whilst fully endorsing the need to address the issue of domestic violence and to ensure that genuine victims are protected, their concern was that policies and practices necessary to deal with what they described as "a minority of exceptional cases" should not prejudice attitudes and practices towards the vast majority of non violent families in which it was inappropriate to consider whether contact was beneficial for the child. They pointed to the importance of the involvement of fathers for children at all stages of their development, and commented that it was difficult to understand how some attitudes and practices prevailing within the family justice system could justify being so at odds with such trends.
2.6 From a different perspective, a number of women and women's groups made the point that the Sturge / Glaser principles had to be seen in the overall context of their report, which included how contact should be approached where domestic violence was alleged or had occurred.
2.7 This is not the place to debate whether or not parental alienation syndrome exists. Dr. Sturge and Dr. Glaser provide in their report a description of the range of circumstances with which the family justice system has to deal - that is from an entirely justified hostility to contact based on a well founded fear of harm to or abduction of children on the one hand; to what they describe as "wholly biased hostility which is not based on real events or experience" on the other. For the purposes of this report and, we suspect, for those faced with these cases, what matters is not the label which is attached to the phenomenon, but the principled approach which is required to address it.
2.8 A number of respondents welcomed the fact that the Court of Appeal had sought out evidence and advice from another discipline in order to inform its approach to contact. We share that view. We regard is as imperative that there should be an ongoing mutual interchange of information and expertise between the various disciplines operating within the family justice system, and we are heartened that a very substantial majority of the respondents to the consultation agreed with the views of Dr. Sturge and Dr. Glaser.
2.9 Whilst we note the caution expressed by some respondents, and note in particular the comments made by Families Need Fathers, we do not see anything in Dr. Sturge and Dr. Glaser's "child centrality" argument or the proposition that "contact can only be an issue where it has the potential for benefiting the child in some way" which is in any way inconsistent with either section 1 of the Children Act (the principle of the paramountcy of the child's welfare) or section 11(4)(c) of the Family Law Act 1996 which, although it is to be repealed, was accepted as appropriate by the overwhelming majority of the respondents to our previous consultation Contact between Children and Violent Parents.
Recommendation
2.10 We recommend that the Lord Chancellor's Department either prepares or commissions a leaflet setting out the approach of the courts to issues of contact. This should summarise the Sturge / Glaser report. It should also contain references to the decision of the Court of Appeal in Re L, V, M and H (Contact: domestic violence) and the approach of the court to cases where domestic violence is an issue. It should be designed to be made available to couples with children who have separated or who are contemplating separation. It should be distributed in the manner described in Chapter 3.
THE QUESTIONS WE ASKED
3.1 Do you think that information about the likely effects of separation on their children, and the positive benefits of maintaining contact with the non-residential parent should be made available to separating parents together with information about how parents can gain access to the services which will help address them?
3.2 If your answer to the question at 3.1 is "yes":
What mechanisms would you propose to make such information readily available?
What information would you like to see made available?
3.3 Do you think more should be done to help all separated parents to understand the potential benefits to their children of contact with the non-resident parent, and to facilitate the maintenance of a continuing relationship with that parent? If so, what would be the single most helpful action that could be taken?
3.4 For ease of reference, we will repeat each of the questions before dealing with the responses to each.
Question 3.1
Do you think that information about the likely effects of separation on their children, and the positive benefits of maintaining contact with the non-residential parent should be made available to separating parents together with information about how parents can gain access to the services which will help address them?
3.5 Of the 173 responses to this question, 172 answered "yes" and only one respondent answered "no". The one negative response was from the Domestic Violence Intervention Project (DVIP) and resulted, we think, from the misunderstanding about the place of domestic violence in the facilitation of contact to which we referred in paragraphs 10 to 13 of the Preface. Thus DVIP asserted: -
It is inappropriate and potentially dangerous to give the message to a resident parent who has experienced domestic violence from the non-resident parent, that it is beneficial to maintain contact. This is not true. In many cases maintaining contact is highly dangerous, and in some cases has led to the death of either or both the mother and child(ren).
Where cases have been screened for domestic violence ... and there are found to be no safety concerns, then such material and messages may be appropriate and useful.
3.6 As the report of Dr. Sturge and Dr. Glaser makes clear, and as the Guidelines attached to our previous report emphasise, the greatest care needs to be taken in cases involving domestic violence that the residential parent and the child are safe, and that there is benefit for the child in contact taking place. Any literature dealing with the facilitation of contact must make this point.
3.7 There was, accordingly, effective unanimity on the need to provide information on the likely effects of separation on children and the positive benefits of maintaining contact with the non-resident parent. We should, we think, make it clear that the information we have in mind is aimed at both parents. We say this because Families Need Fathers argued that 'the terminology used automatically bestowed unequal parenting status upon parents and assumed that the 'benefits' of continuing relationships have to be proven in one parent only'. This was not our intention, nor is it, we think, the effect of the question.
3.8 Professor Jan Walker, giving the response of the Newcastle Centre for Family Studies, with her extensive experience in this field, wrote: -
There is abundant research evidence that most parents are unprepared for the magnitude of the transitions and upheavals, emotional, social and economic, which they experience during separation and divorce. The findings from the information meeting pilots demonstrate very clearly that the information about the impact of divorce on children and the importance of children being able to maintain a positive relationship with both parents struck a chord with the vast majority of parents.
3.9 We think this is an extremely important point. As we make clear in Chapter 1, and in our recommendations, we regard the provision of information to separating and separated parents as a crucial element in the process of making contact work. Whilst it is in no sense a panacea, we are strongly of the view that if parents have ready access to high quality information about the effects of their separation on themselves and on their children; about the difficulties involved in post separation parenting; and about the effect of continuing parental hostility on their children, then their views on contact will be much better informed. An understanding of the traumatic process through which both adults and children are going is likely to help make contact easier for both adults and for children.
3.10 Two other points need, we think, to be made at this stage. The first is that separating parents need access to this information at the earliest possible stage in the breakdown of their relationship – preferably before they have parted. The second is that two kinds of information are, we think, required. The first is the general need to promote understanding of the importance of the involvement of both parents in the upbringing of children; the second needs to focus more specifically on the issue of contact and the difficulties likely to be encountered. The first is an ongoing process, in which we see the National Family and Parenting Institute having an important role. The second is more specifically linked to the court or divorce process, an area where we think the Family Advice and Information Networks (see Appendix 2) have a valuable contribution to make. However, the second area of information we have identified is not a substitute for the first.
QUESTION 3.2
If your answer to question 3.1 is "yes":
What mechanisms would you propose to make such information readily available?
3.11 A question such as question 3.1 might be subject to legitimate criticism had it been asked in isolation, on the basis that it would be difficult to say "no" to it. However, the validity of the unanimous response to question 3.1 is, we think, established by the wealth and diversity of the contents of the answers to question 3.2
3.12 Professor Walker advised us that parents responded particularly well to videos which included children talking about their needs and their feelings, and that leaflets were well received as was verbal information. The research suggested that the greater the variety of mechanisms for providing information the better. She also stressed the need for the same information being provided to both parents.
3.13 The charity NCH encapsulated the answers given by many respondents when it argued that if the benefits were to be maximised, information had to be made available generally and should not be confined to the procedural arena. It suggested information could be available in Post Offices, Libraries, Citizens Advice Bureaux, Health Centres and Child Guidance Clinics. Information packs should also be available in all solicitors' offices, supported by effective referral mechanisms to enable people to access mediation, counselling and other support services where they can receive tailor made information, if they want it. NCH also argued that the dissemination of information should also be supported by the inclusion in teacher training of this subject area, so that teachers are better able to support children experiencing family breakdown.
3.14 In addition to the mechanisms identified by NCH, the Law Society, in its response suggested information should be available on the internet, through Relate and other counselling or mediation services, through solicitors and through the court. There was also the medium of public service broadcasts. The Law Society stated that solicitors were often the first port of call for separating couples, and pointed out that its Protocol for family lawyers encouraged the provision of information, and suggested that provision of information to solicitors for onward transmission would be one significant way of disseminating information.
3.15 Other mechanisms suggested included CAFCASS, family planning clinics, youth services, help-lines, nurseries, schools, community centres, banks, and educational media campaigns.
3.16 In its response, CAFCASS emphasised that the material needed to be consistent across the jurisdiction, that it should be creative, using new technology, and should not be dependent on the reader's language, reading and writing skills. It needed to be developed nationally in close consultation with parents' groups, children's organisations and universities with Family Study Units. Professionals using it should be trained in how to best to use it, and people needed to see it at an early stage. Mechanisms for its dissemination included (ideally) divorce survival courses (i.e. a therapeutic, supportive approach to family breakdown); in addition there needed to be easy access to one to one meetings with an experienced practitioner / mediator. Information should be available from the court as well as from the other sources already identified.
3.17 In its response, the Legal Services Commission saw no reason why CAFCASS should not also routinely provide the sort of information to separating parents identified in Section 3 of the Consultation Paper. The Commission also pointed out that it had powers itself under section 4 of the Access to Justice Act 1999 to fund the provision of general information about the law and the legal system. There was obviously scope, it added, for the Commission to be involved in future planning and distribution of information aimed to minimise acrimonious contact disputes and promote mediation and the negotiation of workable and civilised arrangements. The Commission also gave details of the implementation of the Family Advice and Information Networks (FAINS) which we have set out in more detail in Appendix 2
3.18 The Family Welfare Association suggested the use of video material as well as the written word, given the low literacy levels of some parents. Videos had the advantage that they could be dubbed into different languages.
3.19 NAGALRO pointed out that decisions needed to be made now about who would take responsibility for providing the information. It suggested as a regional resource an extended telephone consultation with a childcare consultant at an appointed time, and a free-phone number for children.
QUESTION 3.2 (b)
What information would you like to see made available?
3.20 Professor Walker again set the tone here when she argued that in addition to the information about children provided in the pilots, there needed to be a very realistic picture given of the difficulties many parents face when making contact arrangements work. It is not helpful, she said, to make post divorce / separation parenting sound easy when in reality it is fiendishly difficult for both non-resident and resident parents. It would be helpful if parents could be given examples of the types of difficulty they might encounter; about the transitions (e.g. a new partner) which can destabilise and threaten contact arrangements; and it should be pointed out, she said, that making contact work requires parents to make some personal sacrifices for their children's well-being and best interests.
3.21 Professor Walker also pointed out that in the Information Meeting pilots, parents said that they needed help in knowing how to talk to and consult with their children, what to say, and when to say it. Parents, particularly fathers, would welcome advice about how to be "good" parents post-divorce. They also need to realise that contact involves a process of negotiation and re-negotiation between the parents demanding patience, tolerance and, critically, a belief and commitment that contact is of positive value to their children.
3.22 Dr. Liz Trinder from the University of East Anglia School of Social Work made the valuable point that it was critical that information went beyond exhortation about "doing the right thing" for the children or simply referring parents to services. Echoing Professor Walker's statement about the difficulty of post separation parenting, she argued that it was vital that parents and children be given information about practical strategies from real people, which they can adopt themselves, to help to prevent, overcome or at least manage difficult issues. Her research had already identified a range of coping strategies for parents which she was happy to make available to those responsible for developing information packs.
3.23 Dr. Trinder identified the information which she would like to see available: -
The impact of divorce on children and adults. Non-alarmist information about the impact of divorce – what to expect and how to minimise the impact.
Straightforward basic principles about the benefits for children (and adults) of good contact: putting children first, joint parental responsibility, shielding children from conflict, informing and consulting children about arrangements.
Ideas about how to manage contact, including quotations from parents and children in easy and difficult contact situations, strategies for getting through and things to avoid. Ideas about explaining divorce to children and consulting them about arrangements. Recognition that all contact arrangements will be problematic for some at some point. What to do when contact is risky or harmful.
Information about where to get help, advice and support.
3.24 Dr. Trinder's view was that written material for all divorcing / separating families should be developed by a respected national organisation independent from the courts. She thought the National Family and Parenting Institute (NFPI) was the most obvious and appropriate mechanism: that literature could be available from the NFPI's web-site and distributed to the outlets already identified. Dr. Trinder also favoured use of the mass media as a source of information for many families.
3.25 Dr. Trinder's view about the need for a national body whose function was to prepare and distribute relevant information was echoed by Child Concern, the Manchester charity. The same point was made by NAGALRO, whose suggestion of a regional resource providing an extended telephone consultation with a childcare consultant we have already noted.
3.26 The Family Welfare Association made the important point that information must be clear, and not patronising. They emphasised the value of video material.
3.27 Detective Inspector Joyce Green, Domestic Violence Co-ordinator for the Preston Constabulary, whilst supporting the dissemination of information, made the point also made by a number of women's groups that where there was domestic abuse, help must be sought to determine the risks / benefits of contact.
3.28 NCH was pleased with the information leaflets produced by the Lord Chancellor's Department. They stressed that parents needed information about the impact of conflict on their children and strategies for resolving it. The emphasis should be on the needs of the child and on the importance of continued positive parenting by both parties. Information packs needed to be supported by effective referral mechanisms to enable people to access mediation, counselling and other support services where they can receive tailor made information if they want it.
3.29 It is plainly impossible for us to identify all the individual responses to these two questions. We hope we have given a flavour of their quality. We were very impressed by both the volume and the content of the ideas generated. There was general agreement that parents need information about the impact of conflict on themselves and on their children and strategies for resolving that conflict. It was important to stress the needs of the child and the importance of continued positive parenting by both parties. Information should identify the means of access to different services. There needed to be co-ordination and consistency of information.
Discussion
3.30 Two principal issues appear to emerge from the answers to these two questions. The first is: if consistent, co-ordinated information is to be made available across the country, who should be responsible for producing it? Secondly, how is the usefulness and effectiveness of this information to be tested?
3.31 As to the first, any institution undertaking such a task would have to have a national as opposed to regional or local base. If the task is to be undertaken by government, the obvious choice is the Lord Chancellor's Department. The alternative is for the Department to commission the work from a body such as the National Family and Parenting Institute working in co-ordination with other national charities and interested bodies such as CAFCASS and those University departments which have conducted research into the subject.
3.32 In its response to our consultation, the NFPI stated that it was set up to provide a strong national strategic focus on family and parenting matters, to disseminate research and policy knowledge and information, and to bring together organisations working in the field of family support. It had just completed a mapping and strategic analysis of family support services across England and Wales.
3.33 The provision of appropriate and effective information is a substantial task and one requiring continuous evaluation and review. There will be value in the provision of such information being supported by clear leadership either from the Lord Chancellor's department or from a body such as the NFPI . Testing its effectiveness will require the participation of all involved in the family justice system, and this suggests a role for any future inter-agency body that will replace the Children Act Sub-Committee.
QUESTION 3.3
Do you think more should be done to help all separated parents to understand the potential benefits to their children of contact with the non-resident parent, and to facilitate the maintenance of a continuing relationship with that parent? If so, what would be the single most helpful action that could be taken?
3.34 Of the 160 respondents who answered this question, 153 said "yes" and 7 said "no". Those who said "no" mostly did so for the reason we have already identified namely (as argued in the NSPCC answer) that "it was not always helpful or safe for children to inform all parents of the potential benefits of contact when figures and research demonstrate the danger to children of contact in cases of domestic violence". As we have already explained, this response demonstrates, we think, a misapprehension of the thinking behind the question. We therefore proceed on the basis that there was effective unanimity on this question also.
3.35 A variety of single most helpful actions were proposed. Many followed the ideas for information and access to services already discussed. Dr. Sturge, in her response to the consultation paper proposed a well-publicised national freephone number for parents to telephone for information. Judge Mark Hedley said the most helpful action would be the recognition that this is everyone's problem and not just those caught up in separation: it should be dealt with as a public information issue like road safety or smoking, and full use should be made of the media to alert everybody to the issues involved and the consequences that it may have for the next generation. This approach was echoed by Dr. Trinder and Professor Walker (a public education / information campaign) and several other respondents who said the most important issue was to raise the profile of the subject.
3.36 The Oxfordshire CAFCASS team proposed a leaflet to be given or sent to both parents at registration following the birth of their child detailing the implications of parental responsibility. Dr. Judith Trowell on behalf of the Tavistock and Portman NHS Trust also took up the theme of early information: she suggested discussion of parental responsibility at ante-natal classes and information to be included in primary and secondary school education.
3.37 The Justices Clerks' Society's choice was for a local co-ordinator to draw together facilities, information and services to provide a "one stop shop" family centre, which could be used for referrals to other services and would be a specialist centre, publicly funded.
3.38 In this context the President of the Family Division raised the question of the section 41 Certificate required as part of the divorce process. The section requires the court to consider whether it should exercise any of its powers under the Children Act 1989 in relation to any children of the family in the light of the arrangements which have been made for them or which are proposed to be made. The court under the section has the power to postpone making the decree nisi absolute in defined circumstances.
3.39 Section 41 has been criticised as lacking "teeth" and has recently been the subject of a report by a working group under HH Judge Allweis, the Designated Family Judge for Greater Manchester, which is being considered by the Lord Chancellor. An amended section 41 procedure could certainly enable additional information to be made available to divorcing couples, although section 41 is, of course, part of the divorce process, and therefore kicks in at quite a late stage. In his response to the Consultation, Judge Allweis stated that in his view the single most helpful action which could be taken was to involve a CAFCASS Officer on a revised section 41 procedure and at first directions hearings for applications for contact made under section 8 of the Children Act.
3.40 Finally on this point, Philip Hoddell, Head of the Family Department at Birkett Long, solicitors, suggested that the single most helpful action would be to replace the "Certificate of Reconciliation" (which a solicitor is required to file when divorce proceeding are commenced and which states that the question has been discussed with the client) by a tighter, more comprehensive certificate which would require (inter alia) certification that relevant information had been given to the client.
3.41 Mr. Stan Hayward proposed as the single most helpful action the automatic grant of shared custody to parents on separation. This is a substantial issue, which we have addressed in Appendix 3
Recommendations
3.42 Our recommendations in relation to questions 3.1 and 3.2 are that the Lord Chancellor's Department enters into immediate discussions with NFPI and other interested parties in a co-ordinated approach aimed at providing comprehensive information of the kind identified by this consultation on a national basis. That information should be available at the widest possible number of outlets possible, including on video and the internet. It also seems to us that the Pilots being undertaken by the Legal Services Commission for the FAINS project (see Appendix 2) provide an excellent opportunity for the usefulness and effectiveness of the information of the type we have been discussing to be tested. We therefore hope that all the information and service providers who have responded to our consultation will contribute to and, where possible, participate in the Legal Service Commission Pilots.
3.43 As to question 3.3, we urge the Lord Chancellor's Department to examine the ideas put forward in the Consultation, with particular reference to tightening the procedure under section 41 of the Matrimonial Causes Act and requiring information to be made available to divorcing couples with children.
THE QUESTIONS WE ASKED:
4.1 Do you agree that children should have access to age-appropriate information? Should they also be given advice about their rights and about how they can make their voices heard in any dispute between their parents?
4.2 If you answered "yes" to either of the questions in 4.1;
What mechanisms would you propose to make such information readily available?
What information would you like to see made available?
RESPONSES
4.3 Of the 168 respondents who replied to this question, 161 answered "yes" and 7 answered "no", although the Law Reform Committee of the General Council of the Bar qualified its negative response by referring to the balance to be struck between children becoming too involved in the separation / court process on the one hand and enabling them, on the other, to be sufficiently informed and to have a voice where appropriate so that their views could be heard.
4.4 A firm of solicitors, Young & Co., whilst agreeing in principle that children should have access to age appropriate information, stated that the information would have to be very carefully scrutinised, as it would be a grave disservice to children if information was given to them with a view to passing on to them adult responsibilities. Whilst we see the force of this point, it was patently clear from the overwhelming majority of the replies that one of the clear messages to be given to children through information was that the separation of their parents is not their responsibility. We will return to this point when we come to consider the question of children participating in proceedings (Chapter 12).
4.5 Professor Walker summed up the majority response well when she wrote in answer to the two parts of the question: -
There needs to be a variety of mechanisms: information in libraries, schools, on the Internet, visual, verbal, etc.
All the information given for children in the pilots in the revised leaflets. Additionally, children themselves need to know that contact arrangements can be difficult for parents and for children, and they should be encouraged to talk to parents about their own perspectives on contact. Children need telephone numbers and web site addresses of help and information lines.
4.6 We feel there is little we can add to this answer except to suggest that one obvious provider of information to children is CAFCASS, which could provide such information on its website, and which could also offer a telephone help line as well as seeing children who were or who were likely to become the subject of proceedings.
Recommendations
4.7 The Lord Chancellor's Department should conduct a survey of the information and advice currently available to children whose parents are having relationship difficulties or who have separated in order to ascertain its scope and quality.
4.8 As with our recommendations under questions 3.1 and 3.2, and subject to the nature and quality of the information currently available, the Department should enter into immediate discussions with the National Family and Parenting Institute and other interested parties in a co-ordinated approach aimed at providing age-appropriate information for children on the effects of parental separation and on contact.
4.9 The Department should take specific steps to ensure that access to all age appropriate information is available to children through CAFCASS.
THE QUESTIONS WE ASKED
5.1 Do you think that the NFPI has a role to play in:
the provision of information relating to separation and contact;
the facilitation of contact arrangements through the provision of information and advice?
5.2 If your answer to either part of question 7 is "yes" what do you think that role should be?
5.3 It was unfortunate, we think, that many of the respondents to the Consultation paper had either not heard of the NFPI or had only a vague idea of its remit. Thus of the 150 respondents who answered the question, 42 fell into that category. However, there were only 4 respondents answering the question who did not think the NFPI had a role.
5.4 Those who responded positively to this question were in no doubt that the NFPI had a role in the provision of information. The Children's Society thought the NFPI has a "key role" to play in ensuring that the information provided is accurate, of good quality, accessible and widely disseminated. This could, they thought, be linked with their web-site. Dr. Trinder thought it should be the lead organisation. Coram Family saw the NFPI role as "consulting (across governmental departments and professional/agency groups) co-ordinating (across departments/agencies) and then organising and monitoring the rolling-out of agreed "information" strategies and parenting programmes". The Family Welfare Association thought the NFPI had a number of roles, and concluded: -
The best use of the NFPI would be its ability to speak on the need for thought in divorce and separation by means of mass produced booklets widely distributed and for influencing the PCHE curriculum in school. NFPI could then ensure that children were given opportunities to access school resources whilst going through the divorcing process of their parents.
5.5 In its detailed response to the consultation, the NFPI itself stated its concern to see in place services which ensure the safety of parents and children from family violence, support family relationships and reduce family conflict. It gave as its overriding interest ensuring that children and young people take part in the decision making process. It identified areas of information and what it called "Gateways to information and support".
Conclusion
5.6 As we make clear in the recommendation contained in paragraph 3.42, we have no doubt that the NFPI has a significant role to play in the facilitation of contact arrangements through the provision of information, and that its resources and expertise should be harnessed by Government.
THE QUESTIONS WE ASKED
6.1 What role, if any, do you think CAFCASS should play in the provision of the information to be made available relating to contact?
6.2 What facilities do you think CAFCASS should provide to facilitate contact arrangements between separated parents and their children?
RESPONSES
6.3 Before specifically addressing the responses to question 6.1, we need to place our assessment of them in context. In the Annual Report for the Advisory Board on Family Law for 2000/2001, CASC referred back to the aspirations it held for CAFCASS and which it had expressed in the Annual Report for 1999/20. We referred to the need for a clear vision for the future service; that it needed to be more than an administrative "tidying-up" of existing services; that its objective must be to improve the services to families and children involved in relationship breakdown and family proceedings; that it offered the opportunity, for the first time, to create a coherent and integrated service for such families and children. We went on: -
We see CAFCASS ... as the opportunity to provide children and their parents with a service offering information and advice; as facilitating access to a range of other relevant services, including Contact Centres, mediation, programmes for victims and perpetrators of domestic violence and abuse, as well as other child and family based services available locally;
6.4 It has been a feature of all our reports and comments on CAFCASS that it is essential for CAFCASS to be properly funded, and we note that the same theme emerged very clearly from the consultation, not least from CAFCASS itself. The majority of our respondents saw CAFCASS as having a "pivotal" role in the facilitation of contact (a phrase which occurred more than once). The need for CAFCASS to be provided with sufficient resources was a recurrent theme, and one which we, of course, endorse.
6.5 We have throughout been kept informed of the difficulties encountered by CAFCASS both in the period leading up to 1 April 2001 and thereafter. We were critical of the wholly inadequate time scale allowed by the Government for CAFCASS to be up and running. Since 1 April 2001 the guardians' successful application for judicial review of the decision not to offer them self-employed contracts is only one problem amongst others which have beset CAFCASS , taking up much time, effort and money, and inevitably distracting minds from the provision of services.
6.6 We strongly support the ideas behind CAFCASS and we have no wish to be negative in this report. To the contrary, we continue to wish CAFCASS well. We address the matter in this way, however, because this is the last opportunity CASC will have to discuss the role of CAFCASS . We wish to re-iterate, fortified as we now are by the responses to this consultation, that as it works through its initial difficulties, CAFCASS must maintain its aspirations, and in due course become a fully coherent and integrated service for families and children in the context of relationship breakdown.
6.7 For this to happen, however, the Government must provide proper funding and support. The amalgamation of the Court Welfare Service, the Guardian panels and the Children Act role of the Official Solicitor into one body, is only one part of CAFCASS ' role. Its advisory and support services are equally important. We see the participation of CAFCASS in the initiatives we are recommending in this report as crucial to their success. This role is an expanding one, but it cannot succeed if CAFCASS is not properly funded. We cannot state this conclusion too often or too strongly.
6.8 We were pleased to see in the response from CAFCASS (that response being itself a result of widespread consultation within CAFCASS ) that the thrust of the Consultation Paper was welcomed. We were also pleased to see the clear statement in answer to questions 6.1 and 6.2 that: -
The formation of CAFCASS provides the opportunity for a wider range of resources and innovative practice to promote a more proactive role in relation to contact generally. Whilst the Service will remain in the position of reporting where disputes have not previously been resolved, its role from the provision of information right through to the Court process will ensure a consistent message and the greater possibility of affecting some change.
Whilst we do not believe it is vital that CAFCASS should provide the full range of services themselves, they need to have an overview and a co-ordinating role in ensuring the full range of services, be they information giving, be they support or indeed the promotion of Contact Centres or supervised contact
6.9 It is, accordingly, very helpful to see that CAFCASS sees itself as having a role in the provision of information. The Solicitors Family Law Association envisaged children making direct approaches to CAFCASS for advice and information about suitable services. Appropriate advice could also be on the CAFCASS web-site. CAFCASS should be a source of documents, leaflets and other material providing information. This appeared very much to be the general view, and it is one with which we strongly agree. Professor Walker summed it up aptly when she wrote: -
CAFCASS officials will inevitably be working with families experiencing contact difficulties and need to have a raft of information at their disposal. Given the rationale for the new CAFCASS, advice and support are key elements in the work. Information provision should be a crucial role.
RESPONSES TO QUESTION 6.2
What facilities do you think CAFCASS should provide to facilitate contact arrangements between separated parents and their children?
6.10 Apart from their traditional roles as in-court conciliators; as investigators, court reporters and guardians (which we will discuss later in the context of the court process) the facilities which respondents thought officers of CAFCASS should provide included supervised contact facilities, parent education, family group conferences and general advice and assistance. Judge Peter de Mille was among many who thought that CAFCASS should be the primary funder and provider of Contact Centres. This is an issue to which we will return in Chapter 8. Others saw CAFCASS taking over the implementation of a reformed Family Assistance Order (an issue we will discuss in Chapter 11). A suggestion made by Professor Smart and others from the University of Leeds was that the CAFCASS officer advising in a particular case might remain in contact with the particular child over a much longer period of time, rather than simply report to the court once and move on.
6.11 We are attracted by the concept of CAFCASS officers spending more time with the children who are the subject of their reports to the court, and of that involvement continuing in appropriate cases beyond the one court report and appearance. In our view, however, there would in each case need to be careful consideration of the circumstances in which longer-term involvement is appropriate, and an awareness of the risk that some children would find longer-term involvement with the CAFCASS officer oppressive. For these reasons we would want to see the work of the CAFCASS officer being focused on the particular needs of the individual child and carried out under the direction of the court within a specified time-scale.
Recommendations
6.12 The Government should recognise the importance of CAFCASS and the expanding role which it has to play in the Family Justice System. It should ensure that CAFCASS is properly funded to undertake both the role of reporting to the court in children's cases and the important functions it has to perform in its advisory and support service. These include the provision of information to parents and children involved in relationship breakdown
THE QUESTIONS WE ASKED
7.1 Should mediation be considered as the primary mechanism for the resolution of contact disputes in all cases apart from those where domestic violence is an issue?
7.2
What steps should be taken to make mediation processes more widely known to separating couples with children?
What steps should be taken to encourage separating couples made use of mediation?
How can legal and mediation services be best made to work together to facilitate successful contact arrangements?
7.3 Should the courts be given a broader power to refer parties to mediation? For example, should the court be given a power to compel the parties to attend a meeting with a mediator similar to that contained in section 13 of the Family Law Act 1996?
7.4. Do you favour the involvement of children in the mediation process? If so, how should they be involved?
THE RESPONSES TO THE QUESTIONS
QUESTION 7.1
Should mediation be considered as the primary mechanism for the resolution of contact disputes in all cases apart from those where domestic violence is an issue?
7.5 Opinion was divided on this question. Of the 156 respondents who answered the question 96 said "yes" and 60 said "no", although mediation was used by a number of those who answered "yes" in a very broad sense as meaning agreement/negotiation/conciliation as opposed to litigation. Equally, however, most of the minority were in favour of mediation, in its strict sense, being one of the available mechanisms, albeit not the primary.
7.6 In coming to our conclusion on this issue, we are influenced by a number of factors. The first is the research into mediation carried out by Professor Gwynn Davis; the second is the results of the Information Meetings research carried out by Professor Walker, and the third is the response to the consultation put in by the Legal Services Commission. The research demonstrated that mediation was not likely to be the primary mechanism for resolving contact disputes in all cases, although it needed to be seen as one of the options available. The Legal Services Commission believes that it is unrealistic to expect mediation to become the primary mechanism for the resolution of contact disputes – at least for the foreseeable future. The Commission accepts that mediation may be the right route for some people at an appropriate time, but a major difficulty is that the voluntary engagement of both parties in the process is fundamental to the principles of family mediation. Mediation simply cannot occur if only one party is willing to mediate.
7.7 In his response, Judge Richard Jenkins, the designated family judge at Lincoln, and chair of his local family mediation service, pointed out that referrals continued at a low level. In his experience, a broad approach to mediation including work by skilled and compassionate welfare officers had been more frequently successful than the efforts of the mediation service.
7.8 We accept the position stated by the Legal Services Commission and demonstrated by the research by Professors Walker and Davis. This is not to dismiss mediation as a means of resolving contact disputes: it is simply to see it as one of the mechanisms for doing so.
QUESTION 7.2
What steps should be taken to make mediation processes more widely known to separating couples with children?
What steps should be taken to encourage separating couples to make use
of mediation?
How can legal and mediation services be best made to work together to facilitate successful contact arrangements?
7.9 The general answer to the first of these questions was that couples should be given information about mediation, and that there should be widespread distribution of information about the agencies which are available to assist, both on a local and a national level. The places where the information should be available were similar to those given in the answers in Chapter 3. There was some support for making mediation compulsory for couples engaged in contact disputes and clear support for widespread efforts to publicise the potential benefits of mediation.
7.10 A number of respondents considered that the NFPI should be involved with the development of information material and in the support of existing agencies. It also seems to us that these questions can be addressed in the FAINS project to be put in place by the Legal Services Commission (see Appendix 2).
7.11 As to the third part of the question, there was a general recognition that an increasing number of solicitors were advising their clients about the value of mediation, and we noted that in section 3 of the Law Society's Family Law Protocol, which deals with private law applications relating to children, the issue of mediation is dealt with in the following way: -
Solicitors should recognise that alternative methods of dispute resolution such as mediation can be particularly helpful in dealing with disputes over contact and residence, especially where there are no welfare issues and the matter in dispute is the length of contact.
It is recognised that the availability of mediation and alternative dispute resolution varies significantly over the country. Where out of court mediation is readily available solicitors should give consideration to referring clients to such mediation before commencing the issue of an application to the court. It is recognised that in other areas of the country, mediation is only available once proceedings are issued, and that in those circumstances, it may be necessary to issue proceedings early on.
7.12 As solicitors are the first port of call for the majority of separating parents, they have an important role in the provision of information about mediation and in directing clients towards it. We welcome the terms of the Protocol and as many respondents suggested, information about mediation should be available in solicitors' offices.
QUESTION 7.3
Should the courts be given a broader power to refer parties to mediation? For example, should the court be given a power to compel the parties to attend a meeting with a mediator similar to that contained in section 13 of the Family Law Act 1996?
7.13 The responses to these two questions were more evenly divided, perhaps illustrating their difficulty. Of the 141 who responded, 76 answered "yes" and 65 answered "no". Those who answered "no" pointed to the fact that compulsory mediation was a contradiction in terms, and would also result in delay, already a matter of substantial complaint in family proceedings. Those who answered "yes" saw it as a further opportunity to resolve disputes by agreement rather than through litigation.
7.14 We find the arguments on this point finely balanced. However, our view is that the courts should have the power to refer parties to mediation, and that its use and effect should be carefully monitored. As the President of the Family Division pointed out in her response, to refer is not to compel, and it is to be hoped that judges referring individual cases will be sensitive to the range of options available for resolving the dispute (including, of course going on with the litigation) and will only refer cases which are suitable and where mediation stands some prospect of success.
QUESTION 7.4
Do you favour the involvement of children in the mediation process? If so, how should they be involved?
7.15 This was another question on which opinions were divided. Of the 129 who responded, however, 89 answered "yes" and 40 answered "no".
7.16 Dr. Sturge, in her response, was cautious. She said that if there were more inter-agency collaboration in mediation work, she would like to see more involvement of children. Professor Walker said there was very little evidence that children were involved in mediation, and that it may be highly appropriate in certain circumstances as a therapeutic and effective intervention. The President of the Family Division also favoured involvement in suitable cases, for example with older children. The Children's Society pointed to the great skills required to work with children in this context, and the Legal Services Commission said it had worked extensively with the UK College of Family Mediators in regard to the involvement of children and young people in the mediation process and has funded a project to create national policy guidelines on such involvement which has now been published by the College.
7.17 We are of the opinion that the involvement of children in the mediation process needs further careful research and review, and we are therefore re-assured by the existence of the guidelines referred to in the previous paragraphs.
THE QUESTIONS WE ASKED
8.1 How do you see the future role of Contact Centres in facilitating contact?
8.2 How do you see the relationship between CAFCASS and local Contact Centres developing?
8.3 What are your views on the funding and management of Contact Centres?
8.4 What additional facilities would you like Contact Centres to provide?
THE RESPONSES
8.1 How do you see the future role of Contact Centres in facilitating contact?
8.5 The role of Contact Centres in the Family Justice System is one of the most important developments of the last ten years, and with the coming into being of CAFCASS, the debate about the purpose and funding of Contact Centres takes on a new dimension.
8.6 It is, we think, important to remember both what Contact Centres are, and what they are not. They are intended, as their primary function, to provide a temporary venue for supported contact in cases where the child's parents are unable to provide an alternative. They are not intended as places where contact will take place over lengthy periods of time. The object is that the family will move on and make other, more natural arrangements.
8.7 Such a useful facility has, however, been seized upon by courts, lawyers and some family court welfare services to accommodate their difficult contact cases. In addition, the obvious value of the service has led to the suggestion that some premises could be used for professionally supervised contact.
8.8 Funding has always been an issue. The original centres were voluntary and funded by the owners of the premises used (often a church) and money raised locally. Some still function in this way. It is, however, clear that with the growth of Contact Centres and the diverse uses to which it is intended some of them will be put, the question of funding by the State of this very valuable resource needs to be addressed.
8.9 We were extremely fortunate to have a full response to the Consultation Paper from Eunice Halliday, the Chief Executive of the National Association of Child Contact Centres (NACCC). We also had valuable responses from the Coram Family and the Accord Centre, both of which provide specialist facilities to which we will refer later.
8.10 Eunice Halliday answered question 8.1 in this way:
It is the current and future role of Child Contact Centres to put children first in contact disputes by catering for their need to have friction-free quality time with both parents following parental separation. They provide an option for the Court in determining contact applications. There should be a continuum of contact services provided by statutory and non-statutory bodies. Supported Child Contact Centres are a significant part of those services and will continue to be predominantly resourced by trained volunteers in a relaxed child-friendly environment.
Child Contact Centres potentially have a role in indirect contact, assessment of contact, accompanying parents on outside contact, providing or referring parents to related services such as mediation, parenting skills sessions and behaviour management courses. However every development by Child Contact Centres has to be consistent with the centres' primary role of providing an impartial "space" for children to play with a parent with whom they do not live and many centres will therefore be restricted in the developments they have the capacity to undertake.
8.11 There is no doubt of the considerable pressure to expand the uses to which contact centres are put. The Family Welfare Association, for example, answered this question by stating: -
The role of Contact Centres could be expanded to take in the information-giving role that parents need and to offer familiarisation before contact begins. FWA would like to undertake more therapeutic contact work. By employing a therapist able to work with couples and families we would like to offer a post-order contact service that seeks to improve the parental relationship to a point where, at worst, some limited co-parenting takes places and, at best, supervised contact is no longer required. We have a huge number of families who, with some additional input, could perhaps be moved on from supervised to supportive contact and some from supported contact to unregulated contact with the option of a quarterly review.
The demand for supervised contact is huge, last week alone 25 new referrals were made to our Peterborough Centre. Some families coming from South Yorkshire, one from Devon and several from Lincolnshire. FWA believes that more Contact Centres are needed and the CAFCASS has a vital role in developing (them).
8.12 At the other end of the spectrum, and currently a very rare resource, are the specialist centres such as Coram Family and the Accord Centre . Both responded to the Consultation. Coram Family saw the future role of Contact Centres and contact services as pivotal to the facilitation of contact in disputed cases. The courts needed to have access to cost effective "therapeutic" services in the broadest sense of the word in order to move disputes from court based conflicts to child-focused contact. Three developments were necessary: -
(Primary) Developing consistent and coherent NACCC Quality Assurance standards that, amongst other things, clearly define benchmarks for best practice, information on what particular centres/services are able to provide and the wide dissemination of information about local resources to courts, solicitors, family mediators, domestic violence projects, etc.
(Secondary) Localised provision of a NACCC regulated network of quality assured supported Contact Centres accredited by NACCC as "quality assured" and, in particular, local Contact Centres to have close working links with local family mediation services so that access to mediation and a mediatory approach to contact work in such centres is available to families and volunteers. A thrust towards multi-disciplinary work in supported Contact Centres is, we feel, essential...
(Tertiary) The development of a regional network of professionally staffed supervised contact services in all Family Proceedings Care Centres working to establish best practice and quality assurance standards and able to provide first, child protection and second the sort of "therapeutic" intervention referred to by the Court of Appeal in Re L, V, M and H (Contact: domestic violence)...
8.13 Attached to the response from the Accord Centre was a letter from a local firm of solicitors praising the work of the centre, and in particular its assessment and supervised contact services. They comment how even parents entrenched in longstanding and vicious court contact disputes have been enabled to move on by being referred to the Centre. They end with this plea: -
This is a vital area of work, and if the Government is serious about its commitment to children and the family, it must underwrite a centre like the Accord, to ensure that it survives to provide its important service.
8.14 The answer given by CAFCASS to this question was that it saw Contact Centres having a limited role in private law cases. They were not a panacea. CAFCASS added: "Perhaps specialist supervised Contact Centres could, if developed nationally, offer more contact opportunities within high risk public law cases".
8.15 We accept the tri-partite analysis of Contact Centres offered by Coram Family . There is plainly a need for the "supported" Centre, and no doubt many of these will continue to be run by volunteers. We see an increasing need, however, for specialist facilities designed both to provide the facility for supervised contact and also to provide a service to the courts to remove difficult cases from the court arena, so that they can be dealt with "therapeutically". We are in no doubt that we need more specialist centres like Coram Family and the Accord, and we find the response by CAFCASS to this part of the consultation disappointing. We will look at how such specialist centres are to be funded under question 8.3.
8.16 Before leaving this question we should record that a number of responses from individual men and men's groups were critical of Contact Centres and doubted their value. Families Need Fathers, whose response to the consultation overall was detailed, clear and for the most part extremely helpful, acknowledged that the idea behind supported Contact Centres was well-intentioned and that many of the volunteers were largely supportive of fathers. However, they expressed the view that a more affirmative approach to the facilitation of children's relationships with their wider family would to a large degree negate the need for such an artificial compromise. It would be far better to prevent the gap from developing in the first instance. They added:
There is a widespread feeling, including amongst those who work in Contact Centres, that they are a "cop-out" order, designed to appease a recalcitrant mother.
Until the need to protect children's relationships, rather than focus on one parent's objections, becomes policy, it seems likely (especially given major extra funding received) that these centres will continue to be a fact of post family breakdown life for the foreseeable future.
8.17 Whilst we acknowledge that contact in a contact centre is, inevitably, artificial, we have to record our disagreement with Families Need Fathers on the usefulness of such centres. The policy both of the courts and of Contact Centres is to try to protect and enhance the relationships which children have with both their parents: the debate is how successfully to implement that policy. Contact in a contact centre, where there is no viable alternative, is a small but valuable step in putting the policy into effect.
QUESTION 8.2
How do you see the relationship between CAFCASS and local Contact Centres developing?
8.18 We think it important that we should set out the responses from both the NACCC and CAFCASS in full. NACCC 's response was in the following terms: -
All Contact Centres should have a designated liaison officer who will develop a more proactive role in risk assessment by (1) ensuring that the centre is able to cope with and meet the needs of families being referred to it; and (2) assisting the centre to operate within NACCC's National Standards regarding the organisation, management and running of Child Contact Centres.
NACCC is developing a system of clustering centres to maximise efficiency and quality and as part of this process partnerships are being developed with other agencies in these areas and CAFCASS are / will be an important part of these partnerships
CAFCASS should assist centres to ensure they receive appropriate referrals. Ideally all self-referrals in future should have some contact with a CAFCASS officer before using a centre. It is felt that CAFCASS should have some responsibility for assisting those people who have not commenced proceedings
Funding which had commenced under the partnership arrangements with the Probation Service should be increased geographically and in amount, take into account the financial needs of the individual centres, be paid in advance i.e in April each year and be unrestricted. Funding should not restrict a centre so that it can only help families referred by CAFCASS
CAFCASS should continue to offer police checking of contact centre workers and fund interpreters' costs where necessary.
CAFCASS officers should provide supervised contact before referring a family to a supported Child contact Centre where there is a significant degree of parental conflict or a child or one of the children is resisting contact.
Project managers / co-ordinators should be able to refer a family to a CAFCASS officer for assistance where contact has broken down irrespective of the source of referral and may also refer children.
All CAFCASS officers should receive training about Child Contact Centres from NACCC
8.19 The response added that although it is not appropriate at present for all referrals to come through CAFCASS , it is the most appropriate gatekeeper as CAFCASS officers are usually in a better position to assess risk than solicitors, doctors or other referrers. NACCC added that it is working with the Law Society and the Solicitors Family Law Association to address these problems but acknowledged that some centres would prefer all referrals to come from CAFCASS . There had been a steady decrease in the proportion of referrals coming from the Family Court Welfare Service over the last few years and this should be addressed. CAFCASS should continue to offer Contact Centres the services it does now, including, as set out above, the provision of supervised contact before referring the family to a supported contact centre.
8.20 CAFCASS saw its relationship with Contact Centres developing in terms of "liaison on behalf of the court"; support given to centre staff; the provision of training and evaluation of competence and safety issues (for example, within partnership arrangements).
8.21 There was general agreement amongst Respondents that the work of CAFCASS and Contact Centres should be integrated as part of a comprehensive court service rather than representing a disparate approach to contact problems. However, Contact Centres needed to remain autonomous to protect their independence and their unique position in facilitating contact. Mr. Justice Bodey said that CAFCASS should make it its business to ensure that there are sufficient Contact Centres nation-wide to meet likely demand. Where there were gaps it should agitate for resources, otherwise it was hardly a support service. Judge Richard Jenkins echoed the same theme: he said we needed a situation in which a contact centre becomes regarded as an essential community resource. Only then, he said, could they develop into a "one stop shop for children".
QUESTION 8.3
What are your views on the funding and management of Contact Centres?
8.22 This, or course, is the critical issue. NACCC addressed the funding issue by saying that Child Contact Centres have developed in ways appropriate to the communities they serve and should be free to reflect some differences in their funding and management structure. However, NACCC is frequently told by its member centres that families seem to be more "difficult" and seem to present with more complex problems. This, combined with an increase in numbers and paperwork has led to more centres paying at least one member of staff and therefore increasing the cost of the service, although it is still one of the most cost effective services and in many towns and cities uses the highest number of volunteers per organisation in hands on work.
8.23 NACCC emphasised that funding is a major issue. Its view was that the core costs of salaries, management and supervision, rents, telephone bills, insurance, postage and stationary should be funded by the statutory services – predominantly CAFCASS, where the centre so desires, leaving the centre to raise money for toys and equipment. It added that the NACCC national standards for its member centres will have the effect of increasing management input into the running of Child Contact Centres.
8.24 The CAFCASS response to this question was to point out that Contact Centres currently attract funds from a variety of sources, both statutory and voluntary. CAFCASS had inherited funding arrangements from the Probation Service. The current funding arrangements were both unsatisfactory and piecemeal. If the government is serious about developing a range of Contact Centres as an integral part of their strategy, then specific ongoing revenue funding is necessary. If these funds were not to be diverted to other areas of service by the recipient statutory authority then the funds would have to be hypothecated. Alternatively, as experience suggests these services are better provided by the voluntary sector, specific grants could be provided on an ongoing basis against bids to provide these services. CAFCASS did not consider it appropriate for it to run contact services as a core function, nor was it funded to provide this service.
8.25 Coram Family 's view was that the funding of child contact, whether what it described as "supported Centre contact or supervised Service contact" should be a statutory responsibility of "joined-up" government departments – the Lord Chancellor's Department, the Department of Health and the Children and Young Persons Unit principally.
8.26 The Accord Centre also perceived the funding of Contact Centres as a function of government. It pointed out that other in countries, like Australia, governments fund Contact Centres. It acknowledged, however, that this would require a national strategy for different types of centres across England; clear unambiguous standards to be applied to each centre; clear and unambiguous literature about the services on offer; flexibility on the part of the Centres to meet the changing needs of the family and a proper networking in regions / areas to co-ordinate co-working and ease of referral.
8.27 The overwhelming response to the consultation demonstrated that the volunteer, impartial, absence of officialdom atmosphere of the service provided by many supported Contact Centres was greatly valued. At the same time, it was also generally felt that Contact Centres needed to be more than voluntary agencies with little co-ordination, particularly if a wider range of services was to be offered. In this context greater professionalism was required, and with it, adequate funding. If, for example, Contact Centres are to provide professional staffed facilities that can provide supervised contact and other services such as family conferencing, education and information facilities, then, plainly, the necessary funding will have to be provided by Government.
8.28 We understand CAFCASS ' view that it does not want to run Contact Centres. We are equally clearly of the view, however, that it should fund them where necessary, and be given the resources by government to do so. The nature and level of the funding would plainly have to vary from area to area and in relation to the facilities provided in each area. If, for example, a contact centre provides a facility for supervised contact and if that facility is required on behalf of a child who is the subject of private law proceedings, it seems to us that CAFCASS should be able to purchase that facility on behalf of the child in order to give effect to an order of the court. Equally, if a centre, like Coram Family offers a therapeutic package for a family which is the subject of private law proceedings, any court referral should be funded by CAFCASS.
QUESTION 8.4
What additional facilities would you like Contact Centres to provide?
8.29 As the answers t