Memorandum by Jewish Unity for Multiple
Parenting
INTRODUCTION
First, we would like to thank those seeking
input on this draft Bill for the opportunity to provide written
comments.
JUMP (Jewish Unity for Multiple Parenting) is
a support and lobby group within the Jewish Community campaigning
to secure better relationships following separation and divorce
for children, their parents and extended family as well as providing
support to those encountering similar problems. We find many parents
struggling to maintain a positive relationship with their children
after divorce, particularly non-resident parents. Often, they
are fathers, but the problems affect a growing number of mothers
as well as grandparents and extended family members.
We are lobbying with other national parent groups
for a legal presumption of parenting time for both parents at
the outset of a contested child residency case so that it explicitly
acknowledges the vital and equal role of both parents continuing
in their children's lives after separation/divorce. We realise
the significant impact that the legal profession and the Courts
often have as to how the painful divorce process impacts on the
children and their relationships with both parents and their respective
families. We also recognise that safe contact for children is
paramount and needs to be ensured from the start. In addition,
a legal presumption of parenting time is a distinct issue from
the time each parent practically spends with their children which
will be influenced by a number of factors. However, to ensure
each parent is able to maintain a loving, nurturing and continuing
relationship with their children they should be able to spend
a minimum of 30 per cent of their time with their children following
separation/divorce.
JUMP has provided written evidence to the DfES
on their July 2004 Green Paper on Parental Separation: Children's
Need and Parents' Responsibilities and forwarded these also to
the Constitutional Affairs Committee who have conducted an inquiry
into the family justice system and the operation of family Courts.
We feel this evidence is also relevant to raise in relation to
this draft Bill (see Appendix 1). Through our ongoing initiative
with the Chief Rabbi's Office, JUMP also requested that the Chief
Rabbi submit written evidence to the Constitutional Affairs Committee
in January 2005 (see Appendix 2). In this evidence the Chief Rabbi
stated that ". . . it is the firm view of the
Office of the Chief Rabbi and the Chief Rabbi himself that both
parents of the child, have a right to be involved in the child's
upbringing (unless proven otherwise) and can make a contribution
to their religious, educational, emotional, social and material
welfare."
In addition, JUMP has provided comments to the
Law Society in February 2005 on their 2nd Draft Family Law Protocol.
GENERAL COMMENTS
We welcome proposals for new and more flexible
judicial powers to ensure Contact Orders are adhered to, however
we do not feel these new proposals are extensive or powerful enough,
and remain to be convinced that they will achieve their aims of
maintaining contact for children with their non-resident parent.
We also welcome new mechanisms to deal with
contact disputes such as in-Court conciliation, improved Court
case management and alternative dispute resolution projects. However
our concern again is that we are not convinced the following issues
have been addressed to ensure enforcement, viability and practical
implementation of these measures. The issues that we are particularly
concerned about are as follows:
Funding
The draft Bill suggests that there is sufficient
funding currently available to address the draft Bill proposals
because the Green Paper claims the number of contact disputes
will significantly diminish as a result of these new proposed
measures. A recalcitrant parent is not going to adhere to a Contact
Order unless it is clear to them from the outset that both parents
have an equal legal presumption of parenting rights.
As raised by a representative from the Law Society
at the Constitutional Affairs Committee oral evidence session
on 7 December 2004, the first one-day hearing date available in
the High Court was found to be in July 2005, namely there was
a delay of over six months. This is therefore a reflection of
the limited number of High Court judges available to hear cases
in relation to the increasing number of contact disputes coming
to the High Court. As the High Court is the arena to which most
difficult and protracted cases are referred, unless this situation
is rapidly addressed through significant additional funding of
judicial positions and support mechanisms, the proposed improvement
of Court case management will just not be achievable.
Changes to the recent C1 and C1A Court application
forms early this year demand increased information required to
bring a case to Court, and additionally request information relating
to domestic violence, violence or harm. We believe that there
will be a disproportionate increase in the number of cases involving
alleged domestic violence. This will take significantly more Court
time in evaluating whether a genuine case of domestic violence
exists and will significantly impact on, and delay, the continuing
evaluation and implementation of contact arrangements for children
with their non-resident parent, which assuming contact is safe,
will seriously and negatively impact on their ongoing relationship.
In addition, if the full gamut of domestic violence
allegations is to be taken seriously, consideration must also
be taken of cases where implacable hostility is cited whereby
the resident parent damagingly influences the children against
the non-resident parent that can result in the breakdown of their
relationship.
No mention is made of what action a Court might
take should the allegations be proven to be unfounded.
Timely Implementation of the draft Bill proposals
There is a genuine concern that with the impending
General Election there will be a significant delay in implementing
these proposals. There is overwhelming evidence provided to date
from a broad spectrum of interested parties that the current family
law system in this country is not working. Reform and effective
change to protect the children's best interests in maintaining
a relationship with both of their parents following relationship
breakdown must therefore be implemented as a matter of urgency
and not influenced by any political agenda.
Integrated Court-related process
In all the recent consultation documents there
has not once been a proposal about the overall integrated Court-related
process and how each group (ie; judiciary, social services, mediation
services, children and family experts etc) will input into this
process. If changes to the current family law system in this country
are to be effective, every Agency and individual involved in the
process needs to understand from the outset how the process should
work. At present it is a very "hit and miss" process
and no one person or Agency is held accountable for any significant
delays in having a case heard in Court. This is clearly unacceptable,
and needs to be addressed.
Experiences of how systems work well in other
jurisdictions should be taken into consideration, seriously reviewed,
particularly where a critically evaluated level of success has
been achieved, and then included in any recommendation for change
in this country. The following process has an established success
rating and should be seriously considered here:
Proposed Court Integrated Process
Step 1—On issue of proceedings about children,
a Court hearing is booked six weeks in advance. A Parenting Co-ordinator
is appointed.
Step 2—Mandatory "parenting education"
class is attended by both parents.
Step 3—Mandatory "Alternative Dispute
Resolution" session is undertaken to guide parents to an
agreed "Parenting Plan".
Step 4—Court Hearing where the agree "Parenting
Plan" is scrutinised and endorsed, or if no agreement, the
Court Orders its own "Parenting Plan".
Step 5—Follow up care. The Parenting Co-ordinator
remains available to help address any ongoing problems with attempts
to resolve these outside of Court.
DETAILED COMMENTS
It is not possible or practical to comment on
each specific point. However the following statements have been
raised specifically as they cause particular concerns.
PART 1—CONTACT
WITH CHILDREN
11C Sections 11A (Contact activity direction
) and 11B (Contact activity condition): further provision
(7) Information about the likely effect
of the direction (or the condition) may, in particular, include
information as to:
(a) any conflict with the person's religious
beliefs;
It is important to recognise and respect differing
religious beliefs either between religions or within a religion,
and ensure that the beliefs embraced within the family while it
was intact are upheld. However, the use of religion or alleged
religious differences between the parents to thwart contact with
the children should be addressed and minimised as much as possible.
11G ENFORCEMENT
ORDERS
(3) If the court is satisfied that a party
to the proceedings has without reasonable excuse failed to comply
with the contact order, it may make an order (an "enforcement
order") imposing on the person—
(a) an unpaid work requirement, or
(b) a curfew requirement.
(4) [If the court makes an enforcement order
imposing a curfew requirement on a party to the proceedings, it
may include in the order provision imposing a compliance monitoring
requirement on him.]
Whilst new sanctions available to the Court
are to be welcomed, the imposition of a curfew on the parent failing
to comply with a contact order is highly unlikely to achieve this
aim. The issues of enforcing it and policing adherence to it are
completely impractical and are not a strong enough deterrent.
In addition, such policing will incur additional financial and
resource costs that have not been considered.
In addition, the gender wording relating to
"him" in this point and many other points throughout
the draft Bill need to be addressed to ensure gender neutrality.
In this regard, JUMP infers the generic term
"children" to mean one or more child, and the term "he/him/his"
is a gender-neutral description that includes "she/her/hers".
The use of the word "their" instead of "he/him/his"
may address this problem.
4 COMPENSATION
FOR FINANCIAL
LOSS
(4) If the court is satisfied that the ground
is established, it may order the person in breach to pay the applicant
compensation in respect of his financial loss.
This sanction only has a very limited chance
of success in the very small number of cases where finances are
not an issue to either parent. Again, even if this sanction were
imposed on the recalcitrant parent breaching a Court Order, how
is it to be enforced, particularly where the sanctioned parent
states that they do not have the means to pay?
PART 3—MISCELLANEOUS
AND FINAL
PUBLIC SECTOR
FINANCIAL COST
45. For illustrative purposes, we assume
that measures on contact orders will reduce enforcement applications
by a maximum of up to 80 per cent, reducing the annual caseload
for enforcement applications from around 7,000 per year to around
1,400.
This assumption is made without any credible
supporting data such as a Regulatory Impact Assessment, bearing
in mind the number of contact orders has steadily increased over
the last five years. The proposals made in this draft Bill are
simply not radical enough to achieve this. In addition, the points
made previously about the perceived increase in Contact Order
disputes fuelled by domestic violence allegations will certainly
not reduce the number of applications and subsequent caseload
for enforcement applications.
EFFECTS OF
THE BILL
ON PUBLIC
SERVICE MANPOWER
54. We do not anticipate that the provisions
in the Bill will have a significant effect on public service manpower.
58. It is estimated that the maximum reduction
in overall caseload would be around 60 per cent, which would represent
a maximum overall saving of up to £76.8 million per year.
Based on previous comments made in the General
Comments section we are not compelled to believe these arguments
and, if anything, more funding has to be made available to address
the significant shortfall of judges available to meet required
Court hearing needs so that cases come to Court within a maximum
of six weeks and not six months which is the current trend in
the High Court.
COMMENCEMENT DATES
60. The commencement clause provides for
the clauses to be commenced by order of the Secretary of State,
after consultation with the National Assembly for Wales.
There is no indication how quickly this will
happen and there are real concerns that the forthcoming General
Election will railroad a rapid implementation of proposed poorly
conceived improvements to the family law system which is desperately
needed; alternatively the Bill will be consigned to the back-burner
until the next Session of Parliament.
FACILITATION OF
CONTACT AND
ENFORCEMENT OF
CONTACT ORDERS:
BACKGROUND
4. The legal and court process can be slow
and adversarial which can contribute to a deterioration of the
situation between separating couples. It can also result in the
voices of the children involved being overlooked.
5. Court decisions based on past circumstances
may not always provide workable long-term solutions. The resolution
of family issues is not a one-off event; it is an on-going process
that parents need to work at over the long term. As circumstances
change, orders may need to be varied. Other cases that return
to court may be due to non-compliance with the court order. At
present, a number of cases keep returning to court and the courts
may find it hard to resolve them.
These are the precise reasons why a rapid and
fundamental overhaul of the family law system needs to be implemented
in the UK. Changes have to be made based on input and recommendations
from other judicial systems that have been successful in addressing
these challenging problems. "Tinkering at the edges",
which this current draft Bill attempts to do, simply will not
put in place an effective family law system geared to meet the
demands and challenges faced by parents and more importantly by
children in the 21st century.
COSTS AND
BENEFITS
24. The package of measures proposed in
the Green Paper should ensure that fewer cases brought to court
are repeat applications as other interventions will be more readily
available.
Based on previous comments made in the General
Comments section and also in Appendix 1, we are not compelled
to believe these arguments.
CAFCASS
38. CAFCASS will take on the role of:
— advising courts on what provision
is available in the local area, before a court directs a person;
— to undertake a contact activity,
or makes an order on condition that they do so, or makes an enforcement
order;
— monitor, and report to the court
on, compliance with a contact activity;
— monitor, facilitate and report to
the court on, compliance with a contact order; and
— monitor, and report to the court
on, compliance with an enforcement order.
39. This role has been discussed with CAFCASS,
and it is anticipated that no additional resources would be needed,
as most CAFCASS officers would be aware of information relating
to programmes in an area through the course of their normal work,
and would not require additional research to advise the court.
Recent evidence presented to the Constitutional
Affairs Committee has clearly demonstrated that CAFCASS is completely
ill-equipped to deal with these proposed reforms. There are no
consistent quality standards applied to CAFCASS officers as to
how they work within the family law arena, and until these are
put in place as a fundamental first step, then these other proposed
roles and responsibilities for this government organisation simply
cannot be met.
ENFORCEMENT AND
SANCTIONS
58. At present, courts can enforce contact
orders under the law of contempt, through fines and the power
to commit to prison those who have disregarded orders (or equivalent
statutory powers in the Magistrates' Court). However, the provisions
in the draft Bill provide a more flexible range of facilitative
and enforcement methods. These will give courts the power to refer
parents to a variety of new measures to facilitate the making
of contact arrangements and to improve compliance with contact
orders.
As previously stated, these new sanctions are
a minimal change to those already in place and are simply not
far-reaching enough to ensure compliance of Contact Orders. Mandatory
parent education needs to be established as the norm from the
outset and parents need to be informed what the Court expects
of them from the start in agreeing parenting time arrangements.
Parents also need to be informed that breaching agreed Contact
Orders will not be tolerated. These firm measures should reduce
the number of times cases return to Court on the issue of non-compliance
with Court Contact Orders.
The Government has previously stated that the
10 per cent of most difficult cases reach the Court arena; therefore
strict measures must be adopted from the outset to achieve a significant
improvement in the family law system and potentially achieve the
cost savings so desired. In addition, the question has to be asked
as to whether the best welfare of the child or cost-savings to
Government is uppermost?
MONITORING AND
REVIEW
59. Once proposals have been in place for
three years, we intend to monitor the use of the new powers and
compare the number of applications made currently to those under
the new powers. One way we would measure success is by a reduction
in the number of court orders and repeat applications.
The proposed review method and assessment of
success endpoints is not frequent or detailed enough bearing in
mind the importance of ensuring an improving family law system
in this country as quickly as possible. The system should be made
open and transparent and a clear framework established that is
communicated to everyone involved in the process.
Annual interim evaluations should be made and
significant shortfalls addressed on an ongoing basis with proposed
recommendations made to address these. In addition, a final full
3-year review should be undertaken. For such a review to be effective,
the statistics need to be presented timeously. This infers that
statistics need to be collected and analysed on an on-going basis
to reduce the delays between the end of a reporting period and
publishing statistics where the delay is currently typically a
year. This is not acceptable, and a time limit of six months should
be mandated.
Clear assessment criteria should be defined
which should include:
— Number of new applications under
the new powers vs previous powers
— Number of cases returning to Court
on a repeat application as a result of breached Court Contact
Orders under the new powers vs previous powers
— Number of cases where domestic violence
is cited using the new C1 and C1A forms vs the previous C1 form
— Number of cases where domestic violence
is proven using the new C1 and C1A forms vs the previous C1 form
— Number of cases where contact has
been withheld resulting from allegations of domestic violence
later shown to be false using the new C1 and C1A forms vs the
previous C1 form
— The time taken to reach a decision
about domestic violence allegations, resolution of contact arrangements,
and the time one parent has been prevented from seeing their children
as a result
— The true incidence of contact related
domestic violence problems based on contact orders made from Court
applications
— The time taken for cases to reach
Court following submission of an application (NB: There should
be a maximum defined waiting period for an initial Court
hearing of six weeks as the standard to be achieved)
— Assessment of judicial continuity
in cases and the impact of this on outcome and the need to return
to Court
— The types of residency arrangements
and contact arrangements agreed and their level of success in
minimising repeat applications
3 March 2005
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