Reformed Meat

So the Government has published its Families & Relationships Green Paper in which it proposes a fundamental review of the Family Justice System and a number of other reforms. Like John Bolch at Family Lore I’m not sure what this really adds up to. There are a number of press releases from the relevant departments: DCSF and MoJ. So what does it all mean for the family justice system?

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Primarily, there’s a review which we won’t know the outcome of until 2011, and right now we don’t even know who will conduct it. Judging from the press releases it seems to be predicated upon the assertion that the problem is the adversarial nature of court proceedings and the fact that they heighten conflict. Jack Straw says:

‘We know that for many families the current family justice system is proving far too complicated, and its adversarial nature can lead to bitter, lengthy court hearings, prolonging what is already a stressful and emotionally draining experience. ‘

So in summary, the Courts make it worse. Of course it’s a no brainer that the adversarial nature of proceedings can increase the temperature but that does rather dance over the fact that it is only the most highly conflicted cases that end up in court at all. Most couples do find other ways  to sort things out, and even those that end up in the system must pass through a barrage of non-adversarial processes designed at resolution (in court conciliation, lawyer assisted negotiation etc.) before they ever get to an old fashioned trial. And in the current circumstances its not the court system per se which worsens conflict, and it’s not because it’s all too complicated –  it’s the lack of resources available to properly run the court system that leads to delay, frustration and despondency, and perpetuates or exacerbates conflict.

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And one might get the impression from reading the press releases that the alternative of mediation is something that is practically unheard of. That despite the fact that a mediation referral is compulsory for anyone publicly funded, that alternative dispute resolution services including collaborative law are offered as an alternative by many family solicitors, and that the court itself encourages mediation and provides in court conciliation. Again, many many families are diverted from the courts already – whilst encouraging more out of court resolution is a good thing, there will always be those conflicts which cannot be resolved without the help of the court. And for those cases the system absolutely must work properly. I don’t see anything in the governments proposals that will make the system more effective for that small slice of the most difficult cases – no money for Courts, CAFCASS or legal aid. Fundamentally a family is made up of two parents and child – if one of those parents refuses to mediate, is implacable or unable to put aside the conflict – how does the magic of mediation help that child, the other parent? Someone has to resolve that situation not by agreement but by making it happen. Who else but a Judge? Does the Government secretly hope that if they stick a few adverts for mediation on direct.gov.uk that all private law cases will be magically diverted from the court system and hey presto the LSC and CAFCASS budgets can be slashed by half?

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But what really doesn’t gel for me is that, hand in hand with the proposition that we must get all these families out of the courts (because courts just make things worse), is the move to make it easier for grandparents to bring a court case for contact. Sorry? Am I missing something?

  • Firstly, the vast majority of grandparents will never have any need to apply to court for contact unless it is because of a difficult relationship breakdown between the parents of the child, which has led to them being cut out. So the Government wants the parents to go to mediation, but wants to make it easier for their own parents or in-laws to drag them into court by being able to launch their own application for contact in the court? Genius.
  • Secondly, most grandparents do their utmost to avoid being drawn into the dispute between the parents – they support and they wait for things to get better. Sometimes they even broker a delicate peace treaty for the sake of the children or facilitate parental contact where the parents can’t meet without fighting. Why would we want to encourage them to become a part of the problem, to compete for a slice of the child’s already salami sliced time?
  • Thirdly, unfortunately some grandparents really do their best to foment discontent and actually ratchet up the disharmony. They side with their offspring and whisper and gripe and wind them up. Do we want that type of grandparent to be able to launch proceedings at the drop of a hat? Imagine a grandparent who can get legal aid where their offspring cannot pursuing an agenda effectively as a proxy for their child…Grandparents are often hugely important and courts recognise this, but at the end of the day the courts priority is and should remain a child’s contact with her parents.
  • Fourthly, we all know that where a grandparent is making a sensible application to the court they will almost inevitably be granted leave – the leave requirement does not prevent grandparents pursuing contact and there is really no pressing need to remove it.

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There is some potentially positive stuff in the paper about strengthening support for grandparents and extended family or family friends who are caring for children who cannot be with their parents – this is an area that could certainly do with looking at. Grandparents are often very unsupported by local authorities who are responsible for children in care proceedings, and can be taken for granted or seen as the cheap and easy option. Informal arrangements made outside of care proceedings often mean that needy families muddle along without services that could really help. Pa 3.59 is not explicit but it seems to be a reference to the difficulties obtaining legal aid for extended family members within care, residence or SGO proceedings.

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Overall though I’m not convinced this is really a coherent package of reform for families. It sounds superficially attractive to say: “more mediation, less courts, pat on the back for grandparents – job done”, but it is an odd mix of potentially ill thought through proposals. To me it has more than a whiff of being aimed at soothing certain voter demographics and influential groups. There is not a lot in the way of concrete promises or reform – much of it is still up for grabs. These are only proposals and the review will, one hopes, consider the kinds of issues I’ve raised above. For all the guff in the press releases the actual terms of reference of the review are encouraging and certainly provide scope for the review to highlight the need to increase resources to the courts and to find ways of promoting the welfare of children whilst minimising delay. So it could produce a genuinely fundamental set of proposals for reform and improvement.

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That said, goodness only knows what state the system will be in by the time the review report sees the light of day. I’d bet that some of my clients will still be crawling through the system by the time that happens. It’s a cruel irony that we must adjourn this argument whilst we wait an interminably long time for the crucial report…

Wishes & Feelings Reports – No Panacea

I attended the FLBA Annual Conference in Bath today and was struck by a really interesting talk by Dr Kirk Weir, Consultant Child, Adolescent & Family Psychiatrist. He presented statistics based on his work as an expert reporting in High Conflict Contact Cases over a number of years, in support of the proposition that an emphasis on a child’s reported wishes and feelings in such cases is misplaced and potentially misleading. The figures were quite striking.

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Dr Weir reported that of the children he assessed, all of whom were children expressing resistence to contact at the outset, most were able to resume contact once an observed contact was insisted upon. Contact was successfully reestablished and continued in the majority of cases. Factors affecting the likely success of contact leading on from such an assessed contact were neutral handover without the resident parent present (e.g. collect from school), the age of the child (although successful outcomes were achieved with all age groups success with over 7s was more unpredictable), and the length of the preceding period of no contact (the shorter the better). What was apparent from the material presented by Dr Weir was that:

  1. delay in these cases is likely to be harmful and to reduce the chances of a successful outcome (this is not news but the correlation was quite starkly apparent from the figures)
  2. wishes and feelings reports may lead us to abandon attempts to re-establish contact prematurely
  3. whilst for some children it is important to enable them to feel they have a voice, it is important to be aware that children need protection from the burden of having to express a preference for one or other parent or from having to take responsibility for such difficult decisions

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There are 40,000 contact applications issued in England & Wales each year. Delay is endemic. The President’s Interim Guidance actively encourages the use of short wishes and feelings reports as a first port of call in order to reduce the burden on an overstretched CAFCASS. These reports have their place of course, and many contact cases are far less entrenched or highly conflicted than the types of cases Dr Weir is involved with. But all cases start out the same way and most follow a pretty predictable route through in court conciliation, review hearings, wishes and feelings reports – trying this and trying that, softly softly…before months have turned into years and someone somewhere realises this has become a High Conflict Contact Dispute and BANG: you wish with hindsight you had grabbed the bull by the horns earlier on and got an expert in. If Dr Weir is right we’re going about it all wrong. And the current cheap and cheerful wishes and feelings reports may be storing up problems for further down the road.

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One of the topics not addressed by Dr Weir is that the LSC will now not fund any assessment of contact in private law cases and so Dr Weir’s own working practice of insisting that an assessed contact is an integral part of the assessment may no longer be achievable.

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Dr Weir’s paper on this topic has been submitted for peer review. If and when I hear of its publication I will post a link or reference.