FNF & CAFCASS Draft Shared Care Docs Criticised

Thanks to Family Law Week for notice of this article on Community Care regarding the role Families Need Fathers is playing in drafting CAFCASS Guidance.

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It’s concerning in the first instance that the drafts should have been apparently subject to criticism from respected academics, although it’s unclear from the article what the detail of those concerns were. It appears from the article that the academics were not consulted prior to publication, although this is not entirely clear. We are told however that the issues raised are now being addressed with the document being redrafted in a form more closely underpinned by a research base. That seems sensible, but it does leave one a little anxious as to the quality of the work being undertaken on behalf of CAFCASS if, as appears to be the case, research was not properly understood and incorporated from the start. FNF appear to have thought that this material was of sufficiently high quality to warrant publication, and CAFCASS either tacitly agreed or failed to keep an eye on what FNF were doing on their behalf. 

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It is concerning when a statutory body with one particular set of aims and objectives appears to be allowing a campaigning organisation with a very particular agenda to draft its own practice documents. I find that odd. It is no criticism of FNF, but I’m just not sure that a campaigning body should be tasked with responsibility for work of this kind. FNF along with other organisations, experts and stakeholders could legitimately have an input into these documents, perhaps by way of a working group or committee, but that is quite different from one organisation being able to drive the content of the material that CAFCASS bases its practice upon.

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The guidance is still posted on the FNF website here (no reference to it on the CAFCASS website at all). It reads very much to me as a document designed to persuade CAFCASS Officers who (the authors appear to assume) is likely to be predisposed not to take fathers seriously, as to the benefits of shared parenting and shared residence. It reads more as a campaigning tool than an impartial guidance document and talks throughout very specifically about Fathers being involved in shared care as if the intended reader (the CAFCASS Officer) will start from the proposition that a Mother will always be involved in day to day care in any event. It says more about the mindset and policy of FNF than it does about the mindset and policy of CAFCASS.

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Bizarrely, the document wholly fails to set out the statute and case law pertaining in this jurisdiction (which is increasingly pro-shared care / shared residence) but does annexe statute relating to Australia, which is an interesting distraction. Again, I can only guess that this is because it is felt by the authors that the English law is unhelpful to the argument for shared care (which is not so) and that CAFCASS officers might perhaps be usefully enlisted to persuade the (apparently) reluctant English & Welsh judiciary of the error of their ways. In my experience Judges are often far more well disposed to shared residence orders than some CAFCASS officers, and are certainly (in the most part) up to speed with the law in this area. 

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I do think that guidance for CAFCASS officers is needed: knowledge of the current best practice and higher court authority on shared care is very patchy. CAFCASS officers too often rule out or fail to consider shared care on the basis that the parents don’t get on very well, which is plainly outdated and contrary to authority. Not all Officers labour under such outdated knowledge, but it does happen too often. Clearly CAFCASS officers are busy and anything that helps them keep their knowledge of current guidance up to date is to be welcomed, but it must be a balanced and sound overview: what I’ve seen so far is neither.

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I don’t know if my concerns match with those raised by Joan Hunt and Liz Trinder, but I would like to think that a project funded by the EHRC would be of a higher standard prior to publication, even in so called ‘draft’ form (EHRC website says that FNF have been awarded c£34k to ‘bring awareness and find solutions of how gender discrimination and / or a breach of human rights creates barriers to shared parenting’). Whilst the funding of FNF to undertake work for the EHRC is to be commended, I’m afraid that at the moment this specific document reflects both poorly on CAFCASS’ control of it’s own policy, and upon the professionalism of FNF. FNF are an organisation with a legitimate interest in this area, and a legitimate desire to have real input in documents of this type, but CAFCASS need to take responsibility for their own policy and for the professional development of their officers.

3 thoughts on “FNF & CAFCASS Draft Shared Care Docs Criticised

  1. What a well considered article.

    I have e-mailed Joan Hunt to see whether it is possible to see a copy of her letter.

    Kingsley Miller

  2. Pink Tape,

    I wholeheartedly agree with the sentiment that UK Law family law should be based on sound research which reflects the welfare of children.

    It maybe helpful for others on the forum to read correspondence between myself and the Secretary of the Family Justice Council.

    Kingsley Miller

    xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

    Family Justice Council E201
    East Block
    Royal Courts of Justice Strand
    London
    WC2A 2LL
    3 June 2009

    Dear Mr Miller,

    Research on child contact

    The Chair of the Family Justice Council, Sir Mark Potter, has asked me to respond to your letter of 4th April. Before addressing the points you raise, I must apologise for the length of time that it has taken for you to receive a reply. This was due to an administrative error for which I take full responsibility.

    You express concern at a research paper by Joan Hunt and Ceridwen Roberts which appears on the FJC website under the heading ‘Key research in family justice’. You quote three sentences from the paper relating to the benefits to the child of contact with non-resident parents and suggest that the authors are seeking to question these benefits. Taken on their own, I agree that the sentences quoted may appear a little stark and surprising. However, I must suggest to you that you have been selective in your quotation from the paper. Later in the same section of the paper from which you quote, the authors continue:

    “Examination of the whole body of international research tends to show that it is the nature and quality of parenting by the contact parent that is crucial, not contact in itself. This does not mean that the policy of promoting contact is mistaken. Most children want to remain in touch. Contact has potential value in terms of developing the child’s sense of identity, preserving links with the wider family, and providing an additional source of support for children and even protection from abuse. In ordinary circumstances a parent with an established relationship with the child should not have to prove that contact is in the child’s interests.”

    In my view, these remarks do not suggest an ‘anti-contact’ agenda on the part of the authors. In any event, it is not really for me to defend Joan Hunt and Ceridwen Jones. I am sure that they are better able to do this themselves and it may be more appropriate for you to address your criticisms of their work to them. I can, however assure you that there is no ‘anti-contact’ agenda on the part of the Family Justice Council. I should also make it clear that the Council has not, as such, ‘endorsed’ the research paper to which you refer. Joan Hunt and Ceridwen Jones are well established researchers in the family justice area and their work, as well as that of a number of other academics, does appear on the FJC website. Part of the Council’s remit is to promote research into the family justice system. I do accept, however, that the heading under which this paper appears, ‘Key research in family justice’, may be taken as implying some particular approval on the part of the Council. The Council’s website is currently being revised and the section on research is in need of updating. A number of new papers are due to be added and the headings under which they appear will be reviewed.

    You ask about judicial attitudes to contact. These are set out in the very considerable case law interpreting the relevant provisions of the Children Act 1989. Given your experience in this area, I doubt that you need me to go through this. You may not, however, have yet come across the enclosed document. This document is now being sent out to all parents involved in private law proceedings on behalf of the family judges and magistrates serving in the Midland Region. I know that the President and the Council are strongly supportive of this document and that it sets out judicial attitudes to contact applications succinctly. I hope you find it of interest.

    Please do not hesitate to contact me if you require any clarification.

    Alexander Clark

    Secretary to the Family Justice Council

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    FAO: Chair of the Family Justice Council The Rt. Hon. Sir Mark Potter

    Family Justice Council
    E201 East Block
    Royal Courts of Justice
    Strand
    London
    WC2A 2LL

    4thApril 2009

    Dear Sir Mark,

    I am writing to you as the Chair of the Family Justice Council FJC with a concern regarding the role of that organization. As you are aware the FJC has a comparatively short history and was brought into place to encourage an inter-disciplinary approach to family proceedings in the UK, based on best practice. According to the UK government’s own description,

    “The Council promotes an inter-disciplinary approach to the needs of family justice, bringing together experts from the worlds of the law, health and social care to support and advise government and the family courts.”

    As such a report singled out by the FJC as, ‘Key research in family justice’, is, ‘Child contact with non-resident parents’, by J. Hunt and C Roberts, (2004). This study contains the following statement,

    “It is often claimed that research shows that contact is good for children. In fact the evidence is contradictory. This is neatly shown by two recent UK studies, one (Dunn, 2003) reporting ‘unequivocal’ findings that more contact was associated with fewer adjustment problems in children, the other (Smith et al, 2001) finding no effect.”

    I am the author of ‘even Toddlers Need Fathers’ which Professor Sir Michael Rutter described as an, ‘interesting and informative guide’ and I was surprised by this assertion. I was so surprised that I contacted the source cited as the authority ‘neatly’ showing that contact between children and their parents is not good in principle and received the following reply from, Professor Smith,

    26 March 2007
    Dear Mr Miller

    Thank you for your enquiry. The reference you cite appears to be to our (unpublished) report to the funders of the research, the Department of Health.

    A brief description of the findings in relation to children’s contact with non-resident parents is, however, published in: Smith, M. (2003) ‘New Stepfamilies — a descriptive study of a largely unseen group.’ Child and Family Law Quarterly, 15 (2), 185-198.

    We did indeed find that there was no relationship between variables relating to (structural aspects of) contact with the non-resident parent and child well-being (and others have had similar findings). To quote the paper, ‘There was no statistically significant association between whether the child had contact with the non-resident parent or not (regular contact, irregular contact, or no contact in the last year), nor, for those children who had seen their non-resident parent in the past year, was there any relationship with the frequency of contact. Similarly, there was no association between children’s accounts of their well-being and whether they regularly stayed with the non-resident parent, or not.’

    But this only tells part of the story. The papers goes on to say,

    ‘There was, however, some evidence that the nature of the relationship with the non-resident parent was important. Children who viewed their relationship with their non-resident father as the same as before (and him as just like a father), had significantly lower symptom scores (indicating greater well-being), than children who felt that their relationship with their non-resident parent had changed in some way. Similarly, children who reported that they enjoyed contact with their non-resident father also had higher levels of well-being (demonstrated by lower symptom scores) than those who had mixed feelings about contact, or did not enjoy it’.

    So I interpret this as indicating that it is the quality of the relationship that is important, rather than the structural aspects of contact.

    I hope this answers your question.

    I have also attached a copy of another paper based on the same study, which discusses aspects of the quality of relationships with non-resident fathers, but does not relate these to child well being.

    Best wishes

    Marjorie Smith (Professor)

    It is a fundamental principle of family law in the UK that contact between children and their parents should be encouraged. Far from supporting the claim made in the document cited by the FJC, Professor Smith is seeking to distance herself from the idea that ‘contact’ between parents and their parents is not beneficial in principle.

    Further, because the FJC has highlighted the research it has given their assertion an unjustified authority. For example, the Women’s Aid charity have published the following document, “FAMILY JUSTICE COUNCIL, Report to the President of the Family Division on the approach to be adopted by the Court when asked to make a contact order by consent, where domestic violence has been an issue in the case.” This document contains the following paragraph,

    “2. In addition, the assumption that contact is in the child’s interests has raised the bar for dismissing contact applications to a very high level. This appears to operate as a filtering in process, with cases involving allegations of domestic violence too often being dealt with in the usual way, without a finding of fact hearing, on the basis that no facts will be found that justify refusing contact. In making these judgments the courts should recognize that there is no empirical evidence for the positive benefits of contact per se – it is the quality of relationships which contact supports that matter for children.* Put another way, contact with a loving and supportive parent is in the best interests of children, contact with violent and unstable parents may not be (Pages 4 and 5).”

    At the foot of the page to justify the statement that there is,

    “No evidence for the benefits of contact per se – it is the quality of relationships which contact supports that matter for children”, they have used the reference, ‘J. Hunt and C Roberts, Child contact with non-resident parents, Family policy briefing paper no 3 Oxford University Department of Social policy and Social work (2004)’. ”

    This citation shows how work cited by the FJC is being used to undermine the principle of contact between children and their parents.

    Off the back of this assertion in the original paper Hunt and Roberts also criticize the concept of ‘Shared Parenting’. But once again the body of academic research is in favour of this principle.

    More recently Hunt has co-authored a new nationwide study from Gingerbread and the University of Oxford which according to newspaper reports,

    “Challenges the perception that single parents commonly obstruct contact between children and their other parent.”

    With respect, even you must realize this is stretching the imagination a little too far and one conclusion must be that Hunt’s research is following her own personal agenda.

    I am also aware that the UK government has received some criticism for only using academic research which it finds politically useful. As I am sure you will agree this is unacceptable, especially when the welfare of children is concerned. Therefore I would ask you to withdraw your endorsement for the work of Hunt and Roberts and no longer use, ‘Child contact with non-resident parents’ as ‘Key research in family proceedings’.

    I have received some encouragement for this concern from those on the social network Facebook and in a petition on the Downing Street website and I should be grateful if you would reaffirm that you support the concept of ‘contact’ between children and their parents, in principle, and give some indication regarding your own view of ‘shared parenting’, post separation, as an ideal?

    Yours Sincerely,

    Kingsley Miller
    ‘even Toddlers Need Fathers’

  3. Dear Kingsley

    I attach a copy of the letter we sent to the DCSF and others as an initial response to the FNF guidelines. A fuller version will appear in September Family Law. This takes into account developments since our letter was sent.

    I would like to point out that our criticisms of the guidance, particularly the Cafcass guidance, do not stem from any desire to minimise the role of fathers, or non-resident mothers for that matter, in their children’s lives after parental separation. But the guidance, as FNF has now recognised, is flawed and needs to be substantially revised.

    The article in Community Care, which has brought the issues into the public domain is not an accurate presentation of the facts. We have written a letter setting out the discrepancies, which we hope they will feel able to publish in full.

    Joan Hunt

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    The new Guidelines on Shared Parenting produced by FNF: an initial response by Joan Hunt (University of Oxford) and Liz Trinder (Newcastle University)

    Families Need Fathers has recently produced three sets of guidelines on Shared Parenting for Cafcass, Surestart and Schools and Teachers. This work was funded by the Equality and Human Rights Commission. The precise status of the guidelines is unclear but all three appear to have been accepted by Cafcass and DCSF. The background and the guidelines are available on the FNF website at http://www.fnf.org.uk/publications-and-policy/shared-parenting-shared-benefits

    As academics with considerable experience of researching post-separation contact, particularly in high conflict, litigating families, we have grave concerns about the guidelines, particularly those for Cafcass, concerns which we understand to be shared by other academics as well as practitioners.

    In brief, our main concerns are threefold:

    1. Current Law. Any official guidance must reflect the current law fully and accurately. These new guidelines state that although shared parenting does not mean that the child’s time is necessarily divided equally between the parents ‘that is an option which should always be considered as a starting point (by Cafcass officer as well as the parents themselves) unless there is good reason to advise otherwise’. This would have the effect of introducing a presumption of a 50/50 division of the child’s time. The law, however, currently states that it is the welfare principle (and the welfare checklist including the child’s wishes and feelings) that must determine the decisions of the courts and therefore the recommendations that Cafcass officers make to the courts. It does not include any presumption of shared parenting or a 50/50 presumptive starting point. This is not a lacuna: during the passage of the 2006 Children and Adoption Act Parliament consistently rejected proposals that there should even be a statutory presumption of contact or ‘reasonable contact’ let alone the more radical approach of a 50/50 presumption. If there is to be any change it has to be achieved openly, through the parliamentary process, not through Cafcass guidance.

    2. Research Evidence. All three sets of guidelines make extensive reference to research to support or justify the case for shared parenting. However the account of the evidence base in the guidelines is incomplete, inaccurate and deeply misleading. There are, in fact, no robust research studies that find that children in high conflict or litigating populations benefit from 50/50 type arrangements. Rather the evidence is precisely the opposite with research finding poorer outcomes for these children. The guidelines fail to mention these directly relevant and robust studies, (e.g. research by Janet Johnston and Jenn McIntosh) or make unfounded methodological criticisms of them (e.g research by Carol Smart). In the absence of any empirical support the guidelines have to rely on research that is not directly relevant, such as the impact of father involvement in intact families; the general potential benefits of contact and the proportion of the whole separating population who report sharing children’s time equally. Moreover, while domestic violence and child abuse are rightly included as possible contraindications for shared parenting, there is no mention of the extensive research on the negative effects of parental conflict on children.

    3. Failure to consult. The guidelines for Cafcass, schools and Sure Start centres appear to have been produced by a single father’s group (FNF) without reference to, or consultation with, any other stakeholders, including the judiciary, Resolution, children’s charities, women’s groups or researchers. This is in contrast to the highly consultative approach generally adopted in this field, which is characterised by widely divergent perspectives and a lack of consensus. It is also contrary to the Government’s Code of Practice on Consultation (2008, Department for Business, Enterprise and Regulatory Reform). The failure to consult may account for some of the inaccuracies and problems with the document.

    Ways Forward
    There are two potential ways forward, apart from withdrawing the document entirely as jointly agreed guidance.

    The first is to reissue the three papers as consultation documents and to invite comment from all relevant stakeholders. The second is to produce a second edition of the documents which accurately reflects the law; uses research correctly; includes a more balanced analysis of the factors to be considered; and focuses on the interests of children.

    There is, of course, also the option of doing nothing. However, given the flaws in both the guidance itself and the process by which it was produced, this option is likely to generate considerable opposition, even perhaps, a challenge to its legality. It is in the hope that it may be possible to retrieve the situation, in the interests of children, that we have decided to submit these comments.

    Joan Hunt, Senior Research Fellow, Oxford Centre for Family Law and Policy, University of Oxford.

    Dr Liz Trinder, Reader in Family Studies, Newcastle University.

    15/07/2009

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