Chapter 3
Marriage Support, The Children Act and Other Family Issues |
3.1 In addition to its main task of advising the Lord Chancellor’s Department on the implementation of the Family Law Act 1996, the Board has, in the course of the year, responded to a range of Government reviews and consultation exercises on family policy issues. Through the Children Act Sub-Committee, the Board has also continued its work on a range of issues related to children, including those that were referred to the Board by the Children Act Advisory Committee. The Board’s work in all these areas is described in this chapter.
Paternity and parental responsibility
3.2 It was recorded
in
last year’s report that the Board had discussed a paper on paternity
and parental responsibility in June 1997, and considered what should be included
in a consultation paper on these subjects which was subsequently published by
the Department on 6 March 1998. This paper was entitled
1.
Court Procedures for the Determination of Paternity, 2. The Law on Parental
Responsibility for Unmarried Fathers.
3.3 In its response to the consultation paper, the Board agreed with the proposal that there should be a single, simple procedure for obtaining a declaration of paternity from the court, which would be valid for all purposes. In view of the likely increase in interest in establishing paternity, because of developments in genetics, the Board considered it particularly important to establish a procedure that would continue to meet people’s needs for the foreseeable future.
3.4 The second part of the consultation paper canvassed proposals to make it easier for unmarried fathers to acquire parental responsibility for their children. The Board agreed that it was desirable to encourage more unmarried fathers to acquire parental responsibility, but did not consider that it should be conferred on them automatically. The signing of the birth register by both parents, which effectively constitutes a formal commitment to family life, would be an appropriate way for an unmarried father to acquire parental responsibility by consent.
3.5 The Board’s response to the consultation paper is set out in full at
Annex C.
The Court Welfare Services Review
3.6 On 16 February 1998 the Home Secretary announced that the provision of welfare services to the courts was under review, as part of the Government-wide comprehensive spending review, by the Home Office, the Lord Chancellor’s Department, the Department of Health and the Welsh Office. On behalf of all the Ministers concerned, he expressed the preliminary view that a new, integrated service, subsuming the present work of the Family Court Welfare Service, the Guardian ad Litem and Reporting Officer Service and the Children Act work of the Official Solicitor’s Department, could provide an improved service to the courts, better safeguard the interests of children, reduce wasteful overlaps and so increase efficiency.
3.7 A consultation paper entitled
Support Services in Family Proceedings – Future Organisation of Court Welfare Services was published jointly by the four Departments involved in the review in July 1998. The paper canvassed views on a range of issues including the functions and structure of a unified court welfare service, and its accountability to central Government.
3.8 The Advisory Board believes it to be of the utmost importance that high quality welfare services are available to the courts in divorce and related proceedings, and accordingly welcomes the opportunity provided by this review to re-examine the way in which these services are provided. In response to the consultation paper the Board supported the establishment of a unified national service, provided that adequate resources were provided to ensure a high standard of service. The Board did not express a view as to which Minister should take responsibility for the new service, but emphasised that there should be an inter-Departmental approach to reflect the various interests in court welfare services.
3.9 The Board’s full response is at
Annex D.
Separate Representation of Children
3.10 The Children Act Sub-Committee completed its consultation exercise on the representation of children in public and private law Children Act proceedings, which was described in the Board’s annual report for 1998/99.
3.11 The majority of respondents agreed that the present system of ‘tandem’ representation in public law cases, by a guardian ad litem and a solicitor, should be retained. In general terms, the welfare role of the guardian ad litem and the legal function of the solicitor complemented each other and worked well in practice. Exclusive use of the Children Panel by guardians ad litem was to be encouraged.
3.12 In private law, the general view was that a report from a competent welfare officer was a sufficient means of enabling the voice of the child to be heard in the majority of circumstances, and that the need for the role of guardian ad litem was limited to an exceptional range of cases which were adequately covered by the Official Solicitor in the High Court (but less so, because of his stretched resources, in the county court).
3.13 After considering the responses, the Sub-Committee concluded that the obligation of the guardian ad litem to appoint a solicitor in every public law case should be retained, but that the question of continuing legal representation for the child should be kept under review throughout the case, and that the court should have the power to dispense with legal representation for the child if it was satisfied that the interests of the child no longer required legal representation or if the child did not need legal representation for any particular purpose.
3.14 The Sub-Committee agreed that the present arrangements in private law cases were broadly satisfactory, and that implementation of section 64 of the Family Law Act 1996 would not necessarily produce any substantial improvement.
3.15 The Sub-Committee’s conclusions on the separate representation of children were incorporated into the Board’s response to the consultation paper on the future of court welfare services and is reproduced as part of
Annex D. In addition, the Chairman of the Board wrote to the Lord Chancellor to convey the Board’s advice on this important issue.
Supporting Families
3.16 The Government’s consultation document
Supporting Families was published in November 1998, under the aegis of the Home Secretary as chairman of the inter-Departmental Ministerial Working Group on the Family.
3.17 The paper invited views on a range of Government initiatives and proposals to strengthen the family, including better services and support for parents, improved financial support, and family friendly employment policies. One of its key proposals was the establishment, as an independent charity, of a National Family and Parenting Institute. The chapter on ‘Strengthening marriage’ included proposals to improve the scheme of information meetings under the Family Law Act 1996, to focus more clearly on saving marriages and to ensure that information about the implications of divorce (including arrangements for children) was available at the stage when people most needed it.
3.18 The Board was encouraged by this Government-wide approach to family policy, and hopes that the various Departments involved will continue to work together to deliver the improved levels of support envisaged in the consultation document.
3.19 In its response to the consultation document (which is set out in full at
Annex E), the Board supported the proposed changes to the information meeting provisions, but suggested that the Government’s support for marriage focused too narrowly on the needs of children. In the Board’s view, it should be recognised that there are positive socio-economic benefits in marriage, in addition to its value in providing stability for children.
3.20 The Board also supported the proposal for a National Family and Parenting Institute, provided its role was clearly distinguished from that of other family support agencies.
Review of marriage support funding
3.21 In November 1998 the Lord Chancellor announced that he had appointed Sir Graham Hart, a former Permanent Secretary at the Department of Health, to conduct an independent review of the Department’s funding for marriage support and research services. The purpose of the review was to help the Department develop a more strategic approach to marriage support funding, and to establish clear criteria for the allocation of resources.
3.22 The Board met Sir Graham on 25 January 1999, and confirmed its view that the Department should continue to fund marriage support services. Individual members have submitted their comments on specific questions put by Sir Graham. The Board looks forward to seeing and commenting on his report, which he has now submitted to the Lord Chancellor. In the meantime, the Board welcomes the Lord Chancellor’s indication in his press notice of 8 April 1999 that he intends to respond positively to the report, a key conclusion of which is that state funding of national support agencies is highly appropriate and worthwhile.
Accreditation of lawyers in family proceedings
3.23 It was mentioned in last year’s annual report that one of the issues referred to the Board by the Children Act Advisory Committee was the training and accreditation of lawyers in Children Act cases. The Chairman of the Board had written to the Law Society and the Bar Council to enquire what arrangements were in place, and the Board intended to take this forward in 1998/99.
3.24 After discussions with the Law Society and the Family Law Bar Association, the Board is satisfied that membership of the Society’s Children Panel requires an appropriate level of qualifications and experience for solicitors acting in public law cases. Membership of the Panel is not, however, compulsory, and does not yet extend to other parties to the proceedings. The Board understands that this is under consideration by the Law Society and recommends that the Children Panel should be so extended as parents and other parties do not otherwise have access to the best quality representation. In addition, the Board remains extremely concerned that the Bar has not yet introduced an equivalent accreditation scheme for counsel acting in Children Act proceedings, although it notes that the Family Law Bar Association has now put forward an overall scheme for accreditation for which it is seeking Bar Council approval.
3.25 In the course of the year the Law Society announced a proposal for the development of a Family Law Panel along similar lines to its Children Panel. The Board noted that the SFLA has also, more recently, established its own Family Law Panel. In discussion with the Law Society about its proposal, the Board expressed some concern about the adequacy of the criteria required for solicitors to become accredited members of the Panel, especially the number of hours experience required to obtain accreditation. The Board also commented on the Law Society’s draft leaflet introducing the Panel. There were concerns that the leaflet did not differentiate sufficiently between accredited members of the Family Law Panel and other solicitors and the Sub-Committee considered that this could be remedied by including more details of the requirements for accreditation. The general emphasis on the need to adopt a conciliatory approach to proceedings indicated the leaflet was welcomed.
Standard Fees for lawyers in family proceedings
3.26 Various representations were made to the Board about proposals by the Lord Chancellor’s Department to introduce standard fees in family proceedings. There was particular concern that this basis of remuneration would be unsuitable for public law Children Act cases, in view of their exceptional complexity.
3.27 Following a discussion between the Children Act Sub-Committee and representatives of the professional bodies concerned, the Chairman of the Board wrote to the Lord Chancellor expressing the Board’s concerns. The Board acknowledged the Government’s need to control and regulate the legal aid budget, and had no wish to interfere in negotiations between the legal profession and the Lord Chancellor’s Department. The Board’s concern was that any changes to the renumeration system should not reduce the quality of legal representation in public law Children Act proceedings, nor undermine continuity of representation. The Board also considers it important that the development of a system of standard fees as a means of controlling legal aid expenditure should not be seen in isolation from the other costs arising in care cases. The effect of any new arrangements should be carefully monitored.
Domestic Violence and Contact with Children
3.28 The Children Act Sub-Committee is continuing its work on domestic violence and its relevance to contact disputes, which is another of the issues referred to the Board by the Children Act Advisory Committee.
3.29 The sub-committee has now completed its initial consultation exercise on this topic, and is working towards the production of good practice guidelines for the courts. In the meantime, the High Court’s judgment in re M (Minors) (Contact: Violent Parent) reported in The Times on 24 November 1998, has given a helpful lead in indicating the kind of circumstances in which continuing direct contact with a non resident parent may not be in the best interest of the child. In that case it was held that, although the presumption was that contact with both parents was almost always in the child’s best interests, in cases where domestic violence had been found, that violence could provide a cogent reason for refusing contact and weight needed to be given to the need for the father to change his behaviour and to demonstrate that he was a fit person to have contact before a contact order was made.
Research into the Operation of Existing Provisions for the Welfare of Children
3.30 Part II of the 1996 Act strengthens Section 41 of the Matrimonial Causes Act 1973 in that it allows the court in divorce proceedings to decide whether it should exercise its powers under the Children Act 1989. In deciding whether to use its powers, the court is required to treat the welfare of the child as paramount. The Cardiff Centre for Family Research Studies and the Cardiff Law School, under the direction of Professor Mervyn Murch, undertook a study (Safeguarding Children’s Welfare In Non-contentious Divorce) with a view to showing whether the Children Act provides an adequate mechanism for dealing with the statement of arrangements for children put forward by a parent or parents at the time of divorce. The Advisory Board is now considering the outcome of this research.
3.31 At
Annex F we set out a list of the other major issues the Board expects to consider during 1999/2000.
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