Justice Committee - Pre-legislative scrutiny of the Children and Families BillWritten evidence from Professor Patrick Parkinson, University of Sydney (CFB 12)

I have been asked by the Secretariat of the Justice Committee to make a submission in relation to the Committee’s pre-legislative scrutiny of the Children and Families Bill, given the contribution I made earlier this year to discussion of these issues in England and Wales. I hope I can be of some assistance to the Committee.

I am aware that in its 2011 report the Committee took a strong position against amendment of the Children Act in relation to parenting after separation. It considered some evidence from Australian experts in reaching that view. I am aware also that you have reiterated the case against change in a recent letter to the Prime Minister, David Cameron.

It is not my intention to side with one point of view or another in the various debates. These are matters for the British government, Parliament and people. I hope nonetheless than I can offer some perspective—and perhaps some fresh ideas—from my international experience in this field.

Overview

I would like to offer five general observations on the issues which the Committee, and eventually the Parliament, is considering concerning the law on parenting after separation.

1.None of the options proposed by the Government will create any greater legislative support for shared parenting than does the existing law, so the anxiety about these options is, in my view, largely misplaced.

2.Nothing proposed either in the Interim Report of the Norgrove Committee, or by the Government in its 2012 Consultation Paper, has anything to do with “shared care” as understood around the world.

3.It is best now to move on from the debates about the Australian experience: it appears to be accepted now that the Norgrove Committee’s relatively brief comments on the Australian legislation made a series of claims that had no little or no factual foundation. I considered it was my duty to point out those errors in a paper I delivered in London in May 2012 (Parkinson, 2012) but there is no need to go over these issues further. The Government is not proposing anything remotely similar to the Australian legislation, and in any event the Norgrove Committee only proposed, in its Interim Report, to replicate one small, and relatively trouble-free, aspect of it.

4.Legislation that emphasizes the importance of both parents in children’s lives other than in cases of violence, abuse or high conflict is commonplace around the world and operates without any difficulty. I do not know anywhere that such formulations have been misunderstood as giving rise to some kind of presumption of equal time, but jurisdictions where this has been a concern have dealt with it by making an explicit statement that no particular time-sharing arrangement is to be preferred.

5.The Government and Parliament ought to consider whether legislation could give more guidance to the vast majority of people who seek to resolve their parenting disputes without, ultimately, requiring a judge to decide the matter for them.

My Background

Something needs to be said briefly about my own background and qualifications. I am originally from England and began my career teaching at the University of Wales, Cardiff. I left the UK in 1986 to move to the University of Sydney where I am now a professor. I am the President of the International Society of Family Law. This Society has members in more than 60 countries. I am also a practising lawyer. I act as Special Counsel at Watts McCray Lawyers, a specialist firm of family lawyers located in Sydney and Canberra, and am a Consultant to the International Family Law Group LLP in London.

I served from 2004–2007 as Chairperson of the Family Law Council, an advisory body to the federal Attorney- General, and also chaired a review of the Child Support Scheme in 2004–05 which led to the enactment of major changes to the Child Support Scheme. I also had a major role in the development of Australia’s Family Relationship Centres (FRCs), proposing the concept in a paper for the former Prime Minister, John Howard, in 2004.

My books include Australian Family Law in Context (5th ed, 2012), Family Law and the Indissolubility of Parenthood (2011), The Voice of a Child in Family Law Disputes (with Judy Cashmore, 2008), and Child Sexual Abuse and the Churches (2nd ed, 2003).

Observations on the Debates Concerning Reforms to the Children Act

1. The Government is not proposing any changes to the law that remotely encourage equal time arrangements

Neither the Government, nor indeed, the Norgrove Committee, have put forward any proposals that even mention shared care (equal or near equal time between parents) as an option that a court needs to consider. The proposal in the Norgrove Committee’s Interim Report merely reflected the existing position in the English case law. McFarlane LJ, who was a member of the Norgrove Committee, said in Re H (A Child) [2012] EWCA Civ 281 said at para 18: “It is of course a given, and a starting point for these courts, that children will normally benefit from having a full and meaningful relationship with both of their parents as they grow up.” Stephen Cobb QC said something very similar in evidence to your Committee.

The proposals in the June 2012 Consultation Paper were very modest indeed. None of them require more than minor amendment to the Children Act. Some options are perhaps preferable to others for various reasons. I myself am not keen on legislative presumptions in this area, although they are less problematic if they are only operative when a judge is determining the case on a final basis. They do not (and of course must not) conflict with the paramountcy of the child’s best interests in decision-making. Nonetheless, I would counsel against the creation of a presumption. Statements of principle are in my view more appropriate. Be that as it may, I would be surprised if the courts interpreted any of the options proposed as requiring a substantially different starting point from the existing case law. In my view, the proposals made by the Centre for Social Justice would represent more substantial and positive reform.

2. The debate in England and Wales confuses the term “shared parenting” with shared care

In the Consultation Paper, the term “shared parenting” is used merely to describe the continuing involvement of both parents in children’s lives after separation. In this usage, it may mean nothing more than joint parental responsibility (a fundamental feature of the Children Act 1989 from its inception) and some regular contact. However, in the debates occurring in England and Wales, “shared parenting” sometimes seems to be used very loosely as being synonymous with shared care. The consequence is that even when two people on opposite sides of this debate use the same language, they seem to mean quite different things by it.

Around the world, the term “shared care” generally means that the children spend equal time or near equal time with each parent. A minimum definition of shared care in the international literature is 30% of nights with each parent (Fehlberg et al, 2011; Melli & Brown, 2008). The definition which was adopted in Australia as a result of the review of the Child Support Scheme that I chaired is 35% of nights with each parent. When Dr Kaspiew and Dr McIntosh gave evidence to the Justice Committee in 2011, they were talking about the difficulties involved in court-ordered shared care.

The odd thing is that people seem to be opposed to any explicit recognition of the importance of what the Government calls “shared parenting” because they have issues with court-ordered shared care. The fear which has been expressed is that any language even mentioning the involvement of both parents will encourage shared care between parents who are not able to cooperate in jointly parenting their children, and will involve a shift away from the principle that the best interests of the child should be the paramount consideration. With the greatest of respect, there is simply no evidential foundation for this.

There is a massive difference between legislation that indicates a preferred arrangement for the sharing of children’s time between parents, and legislation that merely emphasises the importance of both parents remaining involved in children’s lives after separation in the absence of issues of abuse and violence. Examples of legislation that encourage shared care are France and Belgium.

In France, legislation on parental authority was passed in 2002. This legislation was intended to promote alternating residence—that is equal time—arrangements. Mme Ségolène Royal, then the Minister for Family Affairs, indicated in the legislative debates that the reform’s purpose was to encourage the parents to reach agreement on the principle of alternating residence. However, in the Senate, concerns were expressed about the imposition of an alternating residence arrangement on parents without their agreement. In the result, a compromise position was adopted. Article 373–2-9 of the Civil Code now provides, as a result of the 2002 amendments, that the residence of a child may be fixed alternately at the domicile of each of the parents or at the domicile of one of them. The listing of alternating residence first, before sole residence, was intended to indicate encouragement of this option.

In Belgium, the law was amended in 2006 to provide encouragement for alternating residence—indeed that emphasis was expressed in the title of the legislation (“Loi tendant à privilégier l’hébergement égalitaire de l’enfant dont les parents sont séparés et réglementant l’exécution forcée en matière d’hébergement d’enfant”). The law of 18 July 2006 provides that when parents are in dispute about residency, the court is required to examine “as a matter of priority”, the possibility of ordering equal residency if one of the parents requests it to do so. The proviso is that if the court considers that equal residency is not the most appropriate arrangement, it may decide to order unequal residency. This is not the same as saying that there is a presumption in favour of equal time. An equal time arrangement is not presumed to be in the best interests of the child; nonetheless, according to Belgian law, it is the first option that ought to be considered when parents cannot agree on the arrangements.

The Australian legislation did not go as the Belgian law. However, it requires judges at least to consider equal time if they consider shared parental responsibility is in the best interests of the child. If the judge considers that equal time is not appropriate, then he or she must consider at least “substantial and significant” time—that is, time with the non-resident parent other than just at weekends and in the school holidays. The effect of a regular midweek overnight stay, together with weekend time from Friday afternoon to Monday morning, and sharing of school holidays is very often to take the amount of time spent with a non-resident parent over 35% of nights per year.

There are examples in the United States also, of jurisdictions that require active consideration of arrangements which involve children spending time with both parents, but without being as prescriptive as, for example, the law in Belgium. An example is the law in Iowa which states as a legislative principle:

“The court, insofar as is reasonable and in the best interest of the child, shall order the custody award, including liberal visitation rights where appropriate, which will assure the child the opportunity for the maximum continuing physical and emotional contact with both parents after the parents have separated or dissolved the marriage, and which will encourage parents to share the rights and responsibilities of raising the child unless direct physical harm or significant emotional harm to the child, other children, or a parent is likely to result from such contact with one parent.”

Another example is Florida. In Florida, the law states the public policy of the State as being “to encourage parents to share the rights and responsibilities, and joys, of childrearing” despite parental separation. Amendments to the law in 2008 provide that the court must approve a parenting plan which includes provisions about “how the parents will share and be responsible for the daily tasks associated with the upbringing of the child” and “the time-sharing schedule arrangements that specify the time that the minor child will spend with each parent”. While the statute uses the language of “time-sharing”, it also provides that there “is no presumption for or against...any specific time-sharing schedule when creating or modifying the parenting plan of the child” and in cases of violence or abuse, the court may make an order for sole parental responsibility.

These are examples of legislation that encourage consideration of shared care, or at least encourage arrangements involving significant sharing of children’s time between the parents. It will be seen by way of contrast, that the four options under consideration by the Government do nothing of the sort, for none of them suggest that any particular level of time-sharing between the parents is either a preferred option or is even specifically to be considered.

3. It is best now to move on from the debates about the Australian experience

The Norgrove Committee’s discussion of the position in Australia as a result of the 2006 reforms was very unfortunate. When I was asked to give a paper on the Norgrove Committee’s work in London, I had to read the report very carefully. Greatly surprised by the various claims that were made, I checked the footnotes and went back to the sources cited, both in the main body of the report and in Annex G (on which, it appears, the Committee may have placed some reliance). I also checked my concerns with other academics before making any public comment. However, finding no foundation for most of the claims made, it was my duty, in these circumstances, to point out these errors and to correct the record even if that involved causing some anger and embarrassment.

In doing so, I did not wish to detract from the excellent work that the Committee did overall. The law of parenting after separation is a difficult, sensitive and contested area of public policy, and there is no shortage of advocates for different policy positions. Sometimes even well-respected researchers and commentators with strong opinions get carried away with their advocacy and put forward propositions that cannot be substantiated by the evidence that they cite. Sometimes, in the rush to meet deadlines, civil servants may not adequately check their facts when finalising reports as fully as they would have done if time had allowed.

The main points I made in my paper in London (Parkinson, 2012) were as follows:

(a)The 2006 legislation had not increased litigation, as claimed. In fact there has been a reduction of 32% in filings, due to the systemic reforms that were introduced, notably mandatory mediation and the FRCs. The 2006 reforms did not even increase litigation rates in the 12 months before those systemic reforms came in.

(b)There is absolutely no evidence that the requirement for courts to consider a meaningful relationship with both parents had, on its own, “contributed to damage to children because the term “meaningful” has come to be measured in terms of the quantity of time spent with each parent”, as the Norgrove Committee claimed (Family Justice Review, Final Report, 2011, at p.140). The problems with the legislation that have been identified in Australia could only be attributed to the legislative provisions as a whole. The most problematic aspect was the requirement for courts to consider equal time (s.65DAA), leading to much misunderstanding in the community that there was a starting point of equal time. The claim that the “meaningful relationship” provision in isolation from the rest of the legislation was responsible for creating expectations about the amount of time to which non-resident parents are “entitled”, has no foundation.

(c)There are troubling findings in the AIFS report about the number of families sharing care where there are safety concerns. The majority of those with such concerns who had a shared care arrangement were fathers. Around one in four fathers and one in ten mothers with shared care-time arrangements indicated that they held safety concerns for themselves or the children as a result of ongoing contact with the other parent (Kaspiew et al, 2009, p.233); but contrary to the extraordinary and unreferenced claim in the Norgrove Report that one quarter of all the judicially determined shared care cases involved parents with safety concerns, it is likely that almost none of these arrangements were made by courts (extrapolating from the data published in the AIFS Report).

(d)There is absolutely no evidence that the courts have been jeopardising the safety of children because of their focus on the importance of a meaningful relationship with both parents. The one case which is cited in support of that proposition in Annex G does not support it at all. Nor does the Chisholm Report, which is also cited in that submission.

(e)Although there has been a substantial increase in orders for shared care in judicially determined cases, the percentage of all children’s cases in which there was an order for shared care was under 13%. The 33% figure quoted by the AIFS needs to be taken in context. As I explained, it is from a sub-sample of cases picked out for analysis based upon a particular criterion. The cases where there was shared care ordered amounted to only about 32 cases out of 253 in total. Since judges retain a wide discretion to make whatever decision they think is in the best interests of the child, and most family law judges have very long experience as specialists in the field, it must be assumed that they had good reason to award shared care in these cases, based upon the paramountcy of the child’s best interests.

Although my paper in May initially encountered a rather hostile response from some academics, no-one has since contradicted any of these propositions. Belinda Fehlberg, a very fine scholar who holds a Chair at the University of Melbourne, wrote an article in June 2012 entitled “Legislating for shared parenting: how the Family Justice Review got it right”. However, her support for the Family Justice Review’s final report was only in general terms. She did not challenge these propositions in my paper. Assoc. Prof. Helen Rhoades, perhaps with the benefit of my comments, and that of the Chief Justice of the Family Court of Australia, delivered in London the day before my own, published an article in the July issue of the Child and Family Law Quarterly which did not seek to repeat the factual claims about the impact of the “meaningful relationship provision” that she had made in her submission to the Norgrove Committee. She continued to express the view that it had caused some difficulties of interpretation, and of course she is entitled to that view.

Given this apparent acceptance of the problems I identified, in my opinion it is time now to draw a line under the issues in the Norgrove Report and to move on.

None of this is to say that the Australian family law system is without problems, any more than the English system is. The AIFS Report indicated overall that the 2006 reforms, taken as a whole, are working well, but the Norgrove Committee was right to recommend avoiding any legislative presumption that children should spend equal or near equal time with both parents. It was the requirement on courts to consider the option of equal time that led some parents in Australia to think there was a presumption or starting point of equal time. I recommended against this requirement to consider equal time before the 2006 Family Law Amendment (Shared Parental Responsibility) Bill was enacted.

The Family Law Act in Australia is also very complex, and the simplicity of the Children Act 1989 is much to be preferred. Like the English courts, Australian courts do not necessarily deal well with issues of violence and abuse. The Australian Parliament in 2011 sought to make some amendments to the legislation to improve that response, while leaving the substance of the 2006 reforms intact. However, it is very doubtful that the problems in our system are legislative in origin and so there is no real reason to believe that the solutions will be. The biggest problems in dealing with issues of violence and abuse are a lack of independent investigation and assessment early in the process, delays in the court system, the massive expense of going to trial, and problems of proof. No doubt those problems are familiar to English lawyers. Changing the legislation will not address any of these issues. No doubt the Australian Government felt unable to commit any additional resources to the family law system to bring about substantial improvements in the protection of women and children, and changing the legislation in the hope that this will make a difference was the most it could do within current resource constraints.

The point to reiterate (see (2) above) is that neither the Norgrove Committee nor the Government has proposed anything remotely similar to the Australian legislation. The Norgrove Committee only proposed, in its Interim Report, to replicate one small, and relatively trouble-free, aspect of it—the two primary considerations for determining what is in the best interests of the child. The Australian experience is irrelevant to an assessment of the likely effect of any of the four options now proposed by the Government, for none of them bear any resemblance to the law in Australia.

4. Legislation that emphasizes the importance of both parents in children’s lives other than in cases of violence, abuse or high conflict is commonplace around the world

If comparative analysis is seen to be desirable, then it would be better to examine the jurisdictions all over the world that have enacted legislative principles or presumptions of the kind under consideration by the British Government. Many such provisions have been in existence—without problems—since the 1980s. Numerous US jurisdictions, for example, have long had legislative statements encouraging “frequent and continuing contact with both parents”, or words to that effect: see eg California Family Code §3020. Typically, also, such legislative encouragement for joint parenting after separation does not apply in cases of proven violence or abuse.

One strategy for encouraging the involvement of both parents after separation is to give content to the notion of the “best interests of the child” by legislative findings or directions, or the statement of principles. An example is the legislation in Colorado. The legislature’s declaration provides:

“The general assembly finds and declares that it is in the best interest of all parties to encourage frequent and continuing contact between each parent and the minor children of the marriage after the parents have separated or dissolved their marriage. In order to effectuate this goal, the general assembly urges parents to share the rights and responsibilities of child-rearing and to encourage the love, affection, and contact between the children and the parents.”

Colorado utilizes the generic language of “parenting time” to refer to the time the child spends living with each parent.

Canada is another example. For many years, Canada’s Divorce Act has contained a provision that in making orders for custody and access, “the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child” (Divorce Act 1985 s.16(10)).

I do not know anywhere in the world that such formulations have been popularly misunderstood as giving rise to some kind of presumption of equal time. However, in a few jurisdictions, where there has been a concern about misunderstanding of the law, the legislature has enacted a clarifying statement to the effect that there is no presumption in favour of, or against equal time. Florida’s provision is quoted on page 5 above. Another example is the California Family Code (§ 3040(b)).

Looking at these examples from other jurisdictions, it is very difficult to understand the anxiety that has been generated within the English legal profession and some advocacy groups by the very minor and modest proposals being advanced first by the Norgrove Committee in its Interim Report and then by the British Government.

I am aware of course that the Children Act 1989 is much loved within the legal profession and was much admired elsewhere in its time. Indeed, it provided the basic architecture for some reforms made to Australian law in 1995. There may be a case for making no change at all to the law. However, in my view, members of Parliament need to listen to their constituents as well as the judges, lawyers and academic specialists. Perceptions about the fairness of the law are important.

5. The Government and Parliament ought to consider whether legislation could give more guidance

As I indicated in the paper I gave in May, most family law statutes in common law jurisdictions are drafted by giving guidance to judges about how to decide cases. The assumption is that the vast majority of the population who do not need (or more realistically, cannot afford) a judicial determination will be influenced by what lawyers tell them the judge is likely to do in their situation. All this of course, assumes that people have access to affordable and sufficiently expert legal advice and that it is the advice of a lawyer, rather than a child psychologist or relationship counsellor, that they really need.

However, it may be time now to move away from a court-centric approach to family justice in favour of a community-centric approach to family relationships. That is, the courts that decide so very few cases (and moreover, atypical cases) at such great expense, should no longer be placed at the centre of the universe of family justice. That has many implications, but one is for the drafting of legislation. The Australian law was drafted to speak beyond the courts, and through voices other than judges and lawyers. In my view, that is the way of the future, even if the Family Law Act in Australia is not a good example of coherent messaging.

I respectfully suggest that the research evidence is that there is a need for more guidance and assistance with dispute resolution about parenting arrangements in England and Wales. One of the other inaccuracies that I identified in the Norgrove Report was the much repeated claim that 90% of people resolve parenting arrangements for themselves without litigation. The Report cited one study to the effect that “only 10% of separating couples go to court to settle their disputes about contact” and concluded therefore that “most separating couples” make their own arrangements (Family Justice Review, Final Report, 2011, p.133). However, the study the Committee cited does not actually support that 10% figure and nor does it indicate that the remainder, or even “most” couples, make their own arrangements. The Office of National Statistics study did indeed find that in 2007, only 8% of the sample of resident parents (weighted to population) had court-ordered arrangements; but the corresponding figure for non-resident parents was 17%. A further group of 7% of resident parents and 8% of non-resident parents reported that arrangements had been made with the assistance of mediators or lawyers. What about the remainder? Surprisingly, an additional 43% of resident parents and 20% of non-resident parents reported that there was no agreement at all (Lader, 2008, Table 2.9 p.23). This suggests a significant level of unmet need for assistance in relation to post-separation parenting arrangements.

I suggested in my London paper, that the Government might consider enacting a set of principles in legislation to guide the consensual settlement of disputes. The proposal I made is as follows:

Counsellors, mediators, lawyers and other professionals should have regard to the following principles in assisting parents to develop parenting agreements when they do not live together:

(1)Children have a right to maintain relationships with parents and other family members who are important to them, unless this is detrimental to their wellbeing.

(2)Children have a right to protection from harm.

(3)Children who have formed a close relationship with both parents prior to the parents’ separation will ordinarily benefit from having the substantial involvement of both parents in their lives, except when restrictions on contact are needed to protect them from abuse, violence or continuing high conflict.

(4)Parenting arrangements for children ought to be appropriate to their age and stage of development.

(5)Parenting arrangements for children should not expose a parent or other family member to an unacceptable risk of family violence.

(6)Arrangements for substantially shared care should not be made unless they are reasonably practicable and likely to benefit the child, taking account of the distance between the parents’ homes, the level of conflict between the parents, the ability of the parents to communicate and to cooperate, and the age and developmental needs of the child.

This would leave the welfare checklist used by judges to decide cases unchanged, although judges should also be directed to have regard to these principles in deciding whether to make orders under s.8 or 13 of the Children Act.

Judges ought to be comfortable with this. The welfare checklist and the paramountcy principle would remain unchanged.

The messages being given through these principles are more detailed and nuanced than in the Government’s current options. The principles could be stated in handouts used by mediators, flashed up on Powerpoints in community education meetings, and expounded by psychologists in booklets or DVDs.

Arrangements for parenting after separation are not, in essence, legal issues. They may become so, but what people really need is relational advice, not legal advice about what judges might do in the very small number of (atypical) cases that come before them. My respectful suggestion would be to consider changes to the law that will make a real difference to the community in guiding the consensual resolution of parenting disputes.

September 2012

References

Family Justice Review, Final Report (2011). Family Justice Review, Final Report. London: Ministry of Justice.

Fehlberg, B, Smyth, B, Maclean M, & Roberts, C (2011). Legislating for shared time parenting after separation: a research review. International Journal of Law, Policy and the Family, 25, 318–337.

Kaspiew, R, Gray, M, Weston, R, Moloney, L, Hand, K, Qu L et al, (2009). Evaluation of the 2006 Family Law Reforms. Melbourne: Australian Institute of Family Studies.

Lader, D (2008). Non-resident parental contact 2007–08. London: Office of National Statistics.

Melli, M & Brown P (2008). Exploring a new family form—the shared time family. International Journal of Law and the Family 22, 231–269.

Parkinson, P (2012). Meaningful reform to the Children Act 1989: Learning from the Australian experience. Sydney Law School Research Paper No. 12/41: http://ssrn.com/abstract=2083974.

Prepared 19th December 2012