This blog post is a guest post by Sarah Phillimore.
In past few years I have had a number of cases in child arrangements disputes where only indirect contact is ordered at the conclusion. I sometimes represented fathers, sometimes mothers but 100% of those orders for indirect contact were against fathers. Some had findings of fact against them, that they had behaved badly and given their children reason to fear them. Others had no findings made or were even deemed ‘unimpeachable’ but the mother’s consistently aversive reaction to any suggestion of their direct involvement in the children’s lives was considered sufficiently serious to rule them out of any direct contact.
My growing sense of frustration and unease with this approach is underscored by the fact that no body ever came up with any evidence to support various assertions along the lines of ‘this will keep the door open for the children’, or ‘in time they will be curious about their father.’ No one ever had any statistics for how many orders for indirect contact eventually blossomed into direct contact or how many simply withered on the vine.
My suspicion was that an order for indirect contact was a more polite way of kicking the father into the long grass, and the reality behind such orders was that he would not see his children during their child hood.
Of course I agree that violent or other abusive behaviour from one parent to another is a serious failing of parenting and there should be no question of permitting unsupervised direct contact until the abusive parent understands that and can demonstrate he (for it usually is he) has changed his behaviour.
But what of those cases where a mother has irrational, albeit genuine reasons for not wanting the father involved in the children’s lives? Or where the father has behaved badly but has shown genuine insight and a wish to change and make amends, for example, by engaging with a domestic violence perpetrators programme? Shouldn’t the courts then be doing all they could to protect the Article 8 rights of the children to have a relationship with their father? We are continually told that to deprive a child of knowledge about one half of his genetic identity is a serious deprivation and can have significant consequences throughout a child’s life.
So I was pleased when re W was decided. (Re W (Direct Contact) [2012] EWCA Civ 999). This seemed a clear exposition of the existing law, that orders for only indirect contact were a serious thing and while the court should not easily give up on trying to make contact work, it offered a helpful reminder at paragraph 70 that both parents have a responsibility to make contact work.
Encouraged by Re W, I attempted to appeal the next case where I acted for a father who was offered only indirect contact, on the basis that the recommendation of the guardian appeared to be based on no evidence or analysis of how this would actually meet the children’s needs, save for the expression of the hope that the children’s own ‘natural curiosity’ would bring them in time to ask about their father and wish to to see him.
I expressed considerable skepticism about the likelihood of that; it was clear that the atmosphere in the mother’s home would not promote to curiosity in young children who had not seen their father for several years and probably had no independent memory of him. The children were strongly allied to their mother who was implacably opposed to any form of contact.
McFarlane J echoed what he had said in Re W about the importance of parents taking responsibility for their children’s relationship with both parents: at para 59 Re D (A Child) [2014] EWCA Civ 1057,
It is they [the parents] who, on those findings, hold the key that might unlock matters for B. It is not going to be easy for B in his own way, in his own time, unaided to say that he wants to see his father. He needs every encouragement from his mother to deliver what she says is her position which is that he would benefit from seeing the father and that she, as she told us through her counsel today, accepts, not just in the forensic sense, but genuinely accepts, the findings that Judge Hornby made.
I was not successful in my appeal, the first instance decision being deemed ‘unassailable’ despite the lack of any evidence to support the assertion that the order for indirect contact was one that would meet the children’s needs in the short, medium and long term.
But where is the evidence? What informs us that indirect contact is a realistic option? Are my suspicions correct? Is it just a more palatable way of kicking a father off into the long grass.
I asked my instructing solicitor about her experience. She said:
I have had several cases over the years where indirect contact has been ordered as a final order. A handful have come back to me to seek an order for direct contact. The circumstances of these cases varied but, in my experience, if the mother was unsupportive of direct contact (which they invariably were) then the children didn’t want direct contact either. There is clear evidence that the resident parent has enormous control over children and, of course, the longer the children don’t see a parent then the less likely that they want to, either of their own accord or because of potential retribution from the resident parent if they did show any interest/indication that they did want to see the other parent. The pressures that are put upon children of all ages is enormous (emotional/psychological). Our current court system, being adversarial and not inquisitorial, does not facilitate enquiry into potential solutions.
It is a desperate situation that is unlikely to be resolved unless the Judiciary takes a firm grip and shakes the current system.
I asked via the guardian’s solicitors if Cafcass kept any statistics about indirect contact orders and the rate at which they ever translated into direct contact. I did not get any response but I will assume that this is because Cafcass do not keep such statistics – in fact no one appears to be monitoring these cases and reporting on the success or otherwise of their outcomes.
Section 11H of the Children Act 1989 was inserted on the 8th December 2008 by the Children and Adoption Act 2006 to provide the court with the power to impose a ‘contact monitoring order’. The court can ask Cafcass to monitor whether or not an individual is complying with the contact order and request a report about an invidual’s compliance.
It says something either about my own competence or the efficacy of these orders that I was only barely aware of their existence.
It does not seem that anyone is collecting any data about how often contact monitoring orders are made and what are the outcomes, but I would be very interested to know if I am mistaken about that.
So I turn to google. I don’t pretend to have carried out any meticulous research into this issue but I thought if there were clear evidence to support the often made assertions about even very young children’s ‘natural curiosity’ being strong enough to override the obvious hostility of their resident parent, I would surely find some mention of it.
I spent an hour. This is what I found.
1. Alison Perry and Bernadette Rainey of Swansea University discussed a Nuffield Foundation study of 2006 about indirect contact. They concluded:
- Indirect contact is an outcome of last resort rarely used by the courts.
- Cases in which indirect contact tends to be ordered can be broadly categorised as those where the non-resident parent is seen as presenting a risk to the child’s safety or well-being, and those where direct contact is not a realistic possibility, usually because of incarceration or geographical distance. In each type of case weight was given to the children’s opposition to contact.
- The experiences of the parents of indirect contact were largely negative.
- The parents had experienced the following main difficulties with indirect contact:
- lack of compliance, the resident parent failing to pass on letters or provide an up-to-date correspondence address; and unwanted contact with their former partner.
2. Clive Baker, a family law barrister said on his website in 2013, in answer to a query from a parent (see http://www.familylawquestions.co.uk/page1/)
I also appreciate how difficult indirect contact is. Many clients have described to me how it feels soul destroying sending a card, not knowing whether it will be given to your child and not knowing his or her reaction, with very little or no feedback. However, it is worthwhile keeping in mind that you will always be your son’s father and that as he grows older it is very likely he will be very grateful for the effort you put in at this stage to keep in touch with him and to show him that whatever the reason for him not living with you, you still love him. My experience and indeed research shows that the vast majority of children who are cared for by people other than their parents often make contact with their parents as they grow older (although that is a whole other post).
In answer to the question ‘what guarantee is there your son will get the cards?’
The short answer is, very little. The Court will expect that your son’s carers will let him read them and let him keep them (providing they are appropriate). The Court will expect your son’s carers to give them to him in a ‘positive’ way and also in all likelihood encourage him to reply, at least with a ‘thank you’ card or letter (depending on his age). I know that in reality and for all sorts of reasons this often does not happen.
3.The Family Lore clinic said in 2013 in answer to a query from a parent who wished to challenge an order for indirect contact (see http://www.familylore.co.uk/2013/11/family-lore-clinic-cafcass-recommends.html)
The other point to make is that the indirect contact may only be temporary. For example, in a case where there has been no contact at all for a while indirect contact may be seen as a way to reintroduce the parent to the child(ren). If the indirect contact goes well, it may then be varied to include direct contact. Obviously, in this case it may be better to be patient, rather than to try to challenge the welfare officer, which would involve everyone having to go through a contested court hearing.
So far, so unreassuring. I wonder how old these ‘vast majority’ of children are when they go looking for the non resident parent – and who copes with the fall out if and when they discover this parent was not quite the monster described as they were growing up.
I looked on the Families Need Fathers website; a search for ‘indirect contact’ revealed ‘no search results could be found for query: indirect contact’.
So here’s the thing. If indirect contact is clearly of benefit to children; if it keeps a door open that they can one day step through to a happy reunification with their father, that’s great. But if instead promoting ‘indirect contact’ is in reality nothing more than trying to soften the blow of saying to a father that his chances of seeing his children during their childhood are slim to none, please lets be clear about that.
I would be delighted if someone could point me to a solid piece of peer reviewed research about the likely outcomes following a final order for indirect contact, that will enable me to advise my clients properly. Is it worth spending time and money on anger management/counseling/therapy?
Because giving false hope is both unfair and unkind. And pretending we have a solution to a problem when we really don’t is a fool’s game. Avoiding difficult problems is rarely a good strategy in any field of human endeavor but particularly not when you are dealing with the long term emotional health of children.
s11 of the Children and Families Act 2014 which came into force on Oct 22 (?) now makes this an entirely acceptable practice in the courts. In the resident parent is hostile to contact, then they have absolute power to undermine indirect contact and tell the child that the other parent has abandonned them and doesn’t love them, simply putting the cards or letters straight in the bin.
What do you think of people you get a christmas card from every year, but never see? They’re not really friends are they? You certainly wouldn’t count them as close family.
I don’t think s11 really has any impact on it. And yes it came into force on 22 Oct – but only for cases begun after that date.
I agree with Lucy. There’s established case law which says the contrary. I also think that the presumption of parental involvement, watered down to direct or indirect contact changes nothing, rather than making things worse. A massive opportunity lost though.
The family courts for the most part do not work on evidence based outcomes (after proceedings). It is all wing and a prayer stuff as far as I can tell.
I usually inform fathers and some mothers, that if they ‘step away’ or ‘back off’ for an extended period through a final order, as advised by Cafcass/NYAS/experts/judges & others; which according to them “will keep the door open for the children”, or “in time they will be curious about their father”, then the likelihood is that they will not see their children again or for many years tragically.
That as Sarah Phillimore mentions and in my view, is the system kicking the parent and case into the long grass.
The book ‘Adult Children of Parental Alienation Syndrome: Breaking the Ties That Bind’ – is a good starting point to understand what these children go through who lose a parent and how it affects them in adult life, the stories from these now adults are informative.
The strong theme seems to be these adults remember being children who said they did not want a relationship with a parent but inside wanted and needed that relationship and did not want the absent parent to give up.
http://www.amazon.co.uk/Adult-Children-Parental-Alienation-Syndrome/dp/0393705196
Thank you Sarah for an excellent blog, I wish there was a positive answer to your questions.
And, to add to the confusion the 2014 Children and Families Act, Section 11, says:
“(2B) In subsection (2A) “involvement” means involvement of some kind, either direct or indirect, but not any particular division of a child’s time.”
Involvement is a dilution of contact. Furthermore, by suggesting that this is a dichotomy between indirect or direct contact, it is implicit that indirect contact is a perfectly acceptable alternative to regular contact and there is no suggestion that it is in any way an exceptional measure. I think we can look forward to seeing more orders for indirect contact.
You have highlighted a common problem in Family Law. I come from a scientific background. So, I naturally assumed that any assertions regarding the welfare of our kids would be supported by copious research findings. How wrong I was.
Sir James Munby’s transparency reforms are long overdue but I think it is now high time that transparency is extended to the research (or is it dogma?) that underpins family law. Time and again we see the same funding bodies, the same researchers and the now predictable conclusions. The studies are usually “empirical” and the data has usually been made available to a select few by Cafcass. Some Cafcass data is published: other data is simply not even recorded. The research is often based upon the same or remarkably similar sample groups. I could go on, but, suffice to say it lacks rigor and fails to inspire confidence. If you always ask the same people then it should not come as a surprise if you get the same answers. It is a sign of madness to do the same things and even expect the possibility of different outcomes.
I have no doubt that there are fathers and mothers whose children should be protected from them: however, I agree totally that a great deal more openness and honesty is called for. It is wrong for judges to order “indirect involvement” simply because the other parent is behaving awkwardly and refuses to respect orders or to soften the blow on a parent because a court does not have the balls or wherewithal to enforce its orders. Why reward bad behavior? Surely that just guarantees more of the same. I thought the child’s welfare was supposed to be paramount or is that a euphemism for rewarding parental non-compliance?
It is also unfair to give unnecessary or undue credence to allegations. Sometimes they are true but sometimes they are not. Unfortunately these are a feature of high conflict cases.
There is a simple solution. Cafcass define neglect very clearly and they include failing to exercise a parental duty of care in their working definition. People making wild accusations need to be aware that if they have not exercised the appropriate duty of care then they have been neglectful and they run the risk of being treated accordingly. There is no reason why evidence should be any less important in the family courts than any other. Why is neglect routinely overlooked?
There will also be times when irrational fears are expressed which are without any foundation whatsoever.
Is anyone actually taken in by platitudes such as “indirect contact” any more? I think children’s welfare really is paramount and I think we would all welcome a little more honesty.
This is a really excellent and important post – a question that desperately needs to be asked. I had an ‘indirect contact’ order for 8 years and its effect was to sever contact entirely. Even though contact was eventually restored, the relationship has been perhaps irreparably damaged and remains a very difficult one. These orders should be resisted as the sham that they are – a cowardly and dishonest way of terminating a relationship, usually, as Sarah recognises, because of the mother’s opposition to contact, and not because of any failing in the father. The courts and CAFCASS have a huge responsibility to ensure that contact is always direct, always encouraged to be as much and as flexible as possible, and always to monitor it, and enforce where necessary.
It is the extreme hopefully rare case of the instead well known [at FNF and all] still unchallenged alas point that: the very wide discretion of the [district] judge away from strict effective fact finding and evidence checks leads in fact to condone and/or legitimate Mother’s bad litigation conduct [and that of her ‘instructed’ ‘Resolution abiding’ solicitors and counsel]. IMHO any limitation of contact between Father and children away from direct contact [that includes reducing Skype time to suit Mum but not children or moving away from “for better for worse” ethics] is more often the result of Mother’s effort to use children’s arrangements to achieve financial advantage. The system (Cafcass, court) initially sides Mother without any pertinent soul-searching fact-finding efforts, especially when divorce for unreasonable behaviour rather than domestic violence or adultery remains the main reason for Mother seeking divorce and constraining Father. However when Mother deploys solicitors and counsel used to or highly specialist in sadder cases the temptation to raise the level of litigation with creative allegations to limit contact is there lurking. Unfairly [as overburden courts refuse to allocate enough time to debate] and in clear violation of Father and children’s human rights. So you will not find through a web search the extreme cases but there is plenty of evidence and information on the attempts of limiting contact by Mother.
The lacks of statistics depends only by the subjective discretionary thus uncheckable way of working by the system. FYI, FNF’s AGM and workshop are this Sunday in London. Why not join in?
What is the answer? Sadly, the recently introduced “presumption of parental involvement” satisfied itself that indirect contact is ‘good enough’ as introduced by Butler-Sloss’s amendment in the House of Lords. A great opportunity to improve outcomes, shot down.
No reasonable person would hold out that indirect contact is inappropriate where there is real and proven risk… but the rebuttal presumption of involvement was watered down to the detriment of children’s relationships. That there was no definition of what involvement should be to promote a child’s welfare was a further failure (as there is sufficient research in this area to inform policy makers… despite the Family Justice Review’s having misrepresented Australian Research – as pointed out by Professor Parkinson of the Sydney Law School).
Well done for highlighting these points Lucy, and the realities which come from poor policy, and some in the judiciary failing to follow the sadly retired Lord Justice Ward’s 2005 guidance (yes, 9 years old now!):
“Where, as in this case, the court has the picture that a parent is seeking, without good reason, to eliminate the other parent from the child, or children´s lives, the court should not stand by and take no positive action. Justice to the children and the deprived parent, in this case the mother, require the court to leave no stone unturned that might resolve the situation and prevent long-term harm to the children. ”
Did Ward envisage a card at Christmas as a turned stone? I sincerely doubt it. Still… thank heavens for judges like Mrs Justice Parker who set a standard I wish others would routinely follow.
Well done for trail blazing Lucy!
Michael Robinson
The Custody Minefield
You can thank Sarah, it’s her guest post. 🙂
Thank you Sarah for writing it. Thank you Lucy for publishing it.
I’m talking at FNF’s AGM this weekend, on the specific topic of parental alienation and developments in law. The powerpoint will be published next week.
While I’ve recently focused on publishing helpful PA and intractable contact dispute related judgments, I think you make a valid point that to aid litigants, it’s helpful to have a specific category on indirect contact. Some judgments and a new menu will go up today, and I’ll expand on it in coming weeks.
Once again, thanks to both of you for some very valid commentary, and what I’ll accept as a nudge too on content.
Michael
Oh… and I think there is something that can be done. You only have to look at judgments from Mrs Justice Parker to realise how if the judge is capable of grasping the issues, common-sense is achievable.
Could we clone her perhaps?
Michael
Sorry, coming late to this party but thought I’d post anyway. Michael Robinson, you say: “No reasonable person would hold out that indirect contact is inappropriate where there is real and proven risk… “. My practice since divorce, as a resident parent (mum), has always been to support contact, to encourage the children to see the value of contact and even to enforce it when for one of the two children, it actually became something negative for them. I do a 79 mile round trip twice every weekend that contact is due, at my suggestion, so that we all meet at the half way point so it’s fair. What I deeply resent is that the court doesn’t follow its own advice which states that contact is there for the child, and that the courts are only concerned with limiting contact where there are glaring, huge issues of welfare. I think that’s abhorrent and completely wrong. Children can have their confidence and feelings of self worth completely eroded with subtle but repeated instances of being treated differently, not feeling comfortable during contact, missing their home environment, feeling that they can’t be themselves and feel they don’t measure up compared to other children in the family. It can be incredibly simple things such as not leaving the bedroom light on for a child who’s afraid of the dark – it may seem hugely insignificant but when those sorts of things are repeated endlessly, over several years, there can come a point where the child reaches a certain age and they just don’t want direct contact any more. Their wishes should be respected without fail, in my opinion.
Thanks for all the thoughtful comments, with which I largely agree.
I am not naive enough to think the family courts can provide a ‘solution’ to this – what is probably needed is psychological intervention at a much earlier stage which I appreciate very few people can afford and/or would voluntarily engage.
But I am getting increasingly angry about how pious mantras of wishful thinking are trotted out at every case that we must respect as truth and wisdom – on the basis of no evidence whatsoever that I can see.
If there really is no solution to these cases that the State can impose, then just lets be honest about it so I can have an honest conversation with my male clients.
I would agree with the comments of others that this is an excellent post.
From a psychological perspective, ‘indirect contact’ is inevitably going to be an extremely blunt instrument – for example the meaning of receiving a card from a parent to a pre-school child who may have little direct memory of the parent, and developmentally little capacity to perceive the indirect contact as an expression of love and interest, is going to be very different than indirect contact for an older child with a pre-existing relationship with that parent (for example memories of the family being together).
I completely agree that some decent research is required on the whole concept of indirect contact and under what circumstances (if any) it can truly act as a way of maintaining a link between parent and child.
More than this, however, I would suggest that there really needs to be a much greater degree of psychological awareness as to the reasons why indirect contact gets even suggested as an option. I will leave the risk issues to one side as (one would hope) ‘risk to the child’ can and should be able to be properly detailed and properly evidenced, if it is going to be used as a basis for indirect contact being the favoured option.
In situations where one parent is strongly opposed to contact and where the court process appears to have little effect on this opposition, is where I would suggest the greatest risk is that indirect contact will be adopted as a last resort, not because it meets the child’s needs in the best way possible but because no one can figure out how to ‘shift’ the parent who is opposed to contact and indirect contact then gets suggested as a sort of better than nothing solution.
In my clinical experience, I have always, without fail, found that a parent opposed to contact has a reason for that opposition BUT it may well be a reason based on their own personal experiences/life history which they then can’t disentangle from the way in which they look at their child’s situation and needs. A not uncommon example might be that the parent has themselves grown up in a family where there has been a divorce, implacable hostility to the absent parent and a view that ‘we don’t need a man (as it most often happens with fathers I think) in our lives do we?’ When the person brought up in this environment begins to form their own relationships, they have no model of what a father is, what a father can offer, or they may have an inkling of what they have missed out on but it is just too painful to begin to examine. For this parent, they may genuinely believe, based on their own history, that it is perfectly fine, if not ‘normal’ for a child to only have a relationship with one parent and to therefore experience the efforts of the other parent to have a relationship with the child as intrusive or even as harassment or abuse.
Whatever the legal rights and wrongs of that kind of scenario, simply telling someone that their whole life history is ‘wrong’ and that they have to co-parent (at whatever level) won’t work, and probably will lead that parent to become more and more entrenched in a ‘no contact’ position, the more anxious and threatened they feel.
It is possible to change these dynamics, but it takes time and therapy, for the parent and for the family preferably at an early stage of the conflict, before the other parent is totally written out of the script (making it much harder for the child to make a relationship with someone who has been allowed to become a stranger). It seems to me that the Courts will often see these kind of intractable conflicts develop and be maintained for years and keep applying the same old legal remedies in the face of no real improvement or change – maybe a more multi-disciplinary attitude at an earlier stage might bear fruit?
I agree Lrw,
It’s easy to blame the courts but I’m not sure they have the tools / resources to resolve these issues. It is often said these situations are the result of the court failing to enforce. I wish it were that straightforward. There are undoubtedly cases where enforcement has perhaps been too readily ruled out but it isn’t a panacea and in some cases can be entirely counterproductive.
I confess to being a strong supporter of therapy and of the counselling approach especially in conjunction with mediation. However one of the first requirements for therapy to have any chance of success is the recognition by the patient that they need the help that to any outside observer is obviously necessary. I remember very well a woman who stated that counselling and mediation were “emotional rape”. She was as implacably opposed to any therapeutic intervention (which in her eyes I think indicated she was in some way “broken”) as she was to contact by her children with their father, her ex-husband.
Unless we have strong incentives for an implacable and alienating parent to consider changing their attitude through anger management, therapy or an honest will to recover from a failed relationship, the tragic outcomes Sarah describes will quite simply continue.
The incentives need to be provided by resolute and firm judges who use sensible and proportionate sanctions and possibly some carefully crafted financial incentives to restore the gender imbalance in post-separation parenting which has arisen – despite a relatively gender-neutral legal framework. Co-operation must somehow be made into a preferred option for both parents.
In a recent very progressive talk in Wales, Lord Munby stated that “A child’s welfare is to be judged today by the standards of reasonable men and women of 2014”. He is absolutely right of course and that is indeed the expectation most reasonable (sic!) people have of the family courts. Sadly one of our biggest challenges at Families Need Fathers is how to reveal to the many parents – mostly dads – who come to us for help when contact is clearly unreasonably denied, that not only are their expectations naive, but that the outcomes will so often shatter their confidence in justice for ever.
We don’t of course express this so bluntly nor even always – in fact we encourage them to cling nobly to the rules of the system in the hope that the promised reforms will inch closer along with their chances of retaining a decent relationship with their children.
But the frightening reality seems to be that despite normal people’s expectations of balance in shared parenting, too often a combination of a lack of judicial resolve, a strange political (in)correctness towards implacable mothers and plain old-fashioned bias and butt-covering allows many children to be de-fathered by this barbaric form of neglect.
I do believe progress is afoot at last but what a mountain we still have to climb. Lord Munby has kindly accepted to speak to us at our 40th year AGM event on Sunday and we are looking forward to hearing how he proposes to drive his reforms through.
There are still a small number of places left and the talk (not the AGM) is not restricted to our members… See http://www.fnf.org.uk/news-events-2/munby-talk-fnf-agm-2014?highlight=WyJtaW51dGVzIl0= for details.
I do agree, Jerry, that no one can ‘make’ another person see the need for therapy and if the person does not see the need for it, then change as a result is less likely. But (and it is a big but) if there was a decent triage type assessment system in place for private law/intractable contact disputes (ideally in place at an earlier stage) then it may be possible to identify parents who should be expected to undertake specific therapeutic interventions in order that they can reach the point where they can recognise where their own needs/feelings/life experiences have interfered with their ability to prioritise the needs of their children (to use the kind of language often found in Public Law Threshold criteria).
If a parent is not able/willing to support contact between their children and the other parent, and it appears more likely than not that this opposition is related to some form of hostility/unresolved issues on the part of the parent with care – why not make the therapeutic intervention mandatory?
As a Psychologist working in secure settings and with offenders at different points as well as in Child Protection, not many people have been delighted at being asked to/expected to engage in a psychological assessment or in therapy, but it has not stopped me working with them, and for some people working with them for very extended periods with positive results. Certain psychologist/therapists enjoy and are skilled at working with people who are difficult to engage or who are very defensive, angry or resistant to being seen as ‘needing’ help, and in this kind of contact scenario, the parent would be engaging in the intervention to demonstrate an intention to put the child’s best interests first, even if they would not have chosen this route left to their own devices.
It strikes me that at times the whole system is aware that a parent with care is intractably opposed to contact, and that it is inevitable that this will impact on the child in numerous ways – what would there be to lose in such cases if the opposed parent were expected, by the court, to engage in therapy specifically designed to understand the reasons for their opposition and find appropriate solutions? This places a level of responsibility on the opposed parent to act in the best interests of the child but also recognises that the parent may, for whatever reason not be able to ‘unstick’ themselves from their opposed position without help to understand it how it has arisen and support to come up with ways to move on.
If that same parent refuses to even try and engage with the therapeutic option, then that in itself is valuable information for the Court to have in deciding how to proceed.
I also agree. Asking the family courts to resolve complex and often toxic emotional issues between parents is like expecting a penguin to be able to knit you a lovely jumper. It’s never going to happen because the necessary tools and resources aren’t there.
Thanks Sarah, I would actually go further and include supervised contact in contact centres because it similarly can be used to create the facade that contact is being promoted when in fact the resident parent is doing everything possible to undermine the child’s relationship with the other parent. Supervised contact can be an option which allows direct contact which is ‘safe’ and which is actively promoted within this or in my experience it represents the best way to frustrate and undermine Contact whilst making sure you are not accused or seen to be denying or undermining the relationship with the other parent. I would get rid of the term ‘contact’ altogether and instead talk about ‘relationships’. A parent has a duty of care to their child to promote a positive relationship with the other parent. To me a resident p must actually prove that they are actively promoting this relationship. It should not be sufficient to settle for any restricted form of contact just to tick a box that ‘contact’ is happening. It’s an entirely unsuitable and fetishised approach. If a developing ‘relationship’ is not felt to be healthy or safe then it must be proved to a reasonable standard to be so. Even in DV cases it should not be enough to effectively scotch an entire parental relationship because some inter parental abuse or DV has taken place. The issue is the relationship with the child and whether the child appears to respond to and feel warmth to the ‘offending’ parent. Obviously it must also assess whether the parent seems in some way capable or desirous of promoting positive qualities and needs. Does the absence of DV in itself make a parent a good one? Obviously not. Similarly a parent should not be assumed to be a WHOLLY bad parent wherever DV or abuse has occurred. What if there is a scenario where the ‘perpetrator’ is also the child’s Primary carer in all other respects? It seems the current system could not admit such a possibility. Court custody battles are really an admission that a family has been taken into State care. Why not proceed on that basis? Contact Centres etc should be the first port of call for such a family – make proper empirical assessments of parental relationships from the off and move matters on accordingly. Barristers should be instructed by social workers not Solicitors who I believe are totally unnecessary and often unhelpful in the Family system. I would build Family Centres of social workers and Barristers and mediators and conduct the whole process accordingly. For ‘families who fight’ what is the sense of a system which merely allows the continuation of fighting by other means?
As a Family magistrate of twenty years experience, I found the blog and the responses of great interest. And, yes, the court cannot resolve years of disfunctional relationships, it cannot force parents to accept that Parental Responsibility means what it says, it cannot monitor the behaviour of either resident or absent parents. And it cannot act beyond what it is allowed to do by statute. Neither can it reverse the cuts imposed by Central Government.
I spent a day in Court yesterday listening to six sets of warring parents. There was not one set of parents who did not indulge in the ‘he said, she said’ ‘ he did, she did’ slanging match. Over and over again I insisted, sternly, that they the court was not concerned with their relationship, but what was best for the children. It proved impossible for any of them to put the children’s interests first. It was all about their desires.
I do understand the issues around indirect contact. However, as has been pointed out above, it is not in the interests of children to have direct contact with an abusive father, neither is it in the interests of children to be forced to make direct contact with a parent who has been absent for many years.
I will give one example: [edited]
Now, this is only one case, there are hundreds more. And while I have the most enormous sympathy for children whose family life with two loving parents has been disrupted or destroyed, it’s not for the courts with their limited powers to change society or sanction behaviours which, although not desirable, are not criminal.
If only parents would honour their marriage vows or at least take a long term view about creating children and think of the next twenty or so years of being a parent, so many children would be spared the sadness of warring parents.
The children come first.
Not the parents.
Oops, magistrate with 20 yrs experience : please don’t give an example! I’ve had to edit it out so that you are not publishing details in breach of s12 AJA 1960. I edit out parents comments when they try to comment about what happened in court and I’ve done the same for you.
But thank you for your comment!
I have rather fewer years experience as a family magistrate but had similar experiences yesterday (and agree with my colleague on the limits of what the courts can do). Time and again I emphasised that our focus was the welfare and needs of the child and the responsibility of both parents, and that neither parent should see our decision as a victory or defeat. This had no effect on the one who did think they had ‘won’ – much smirking at the other parent, despite our frowns.
Sarah
Thank you for such an excellent post which has provoked such interesting comments.
Having conducted “intractable”contact cases over the last 25 years I feel the courts have moved through phases of being willing to imprison parents for contempt to telling the non-resident parent to “do the right thing” and end litigation and step away, trying to move children from the resident parent, diverting to therapy and the latest is to emphasise the parents need to work together to sort it out and really the court can’t do much whether an order is made or not. That’s not a lot of help to the non-resident parent who has done nothing that could really amount to a good reason not to be in their child’s life.
It seems to me that the more options for getting contact going, for enforcement and for monitoring (is it s11a-z yet?) the less the courts use those powers. I too feel there is no research basis for the use of indirect contact.
I’m going to ask for a monitoring order in every case I have because maybe then some real thought can be given to what the court is doing and Cafcass might garner some information on which to base these recommendations.
An end order for indirect contact only when the court has found this is the only order possible when a child has aligned with a parent who will not promote contact strikes me as being the worst kind of order. The non-resident parent never knowing what gets through to the child, a lingering hope of some response at some time, a resident parent continuing to be irritated by the intrusion, a child getting a birthday and Christmas card from a parent knowing this is someone that it has been decided they should not see. So many possibilities for confusion and sadness. However, that’s just my speculation – surely those recommending and making the orders have seen some research to back up that this order is better than no order? We surely can’t be making orders without knowing? So if someone can provide a link to the research that would be great…
As Chair of Central London Branch of Families Needs Fathers which has 900+ attendees per year we often come across this. I have never known a successful outcome. Indirect orders are a cop out esp by Cafcass and in effect encourage and reward parental alienation. Weak and bad Judges prevaricate and lecture both parents on the importance of the child having a relationship with both parents before making these cruel orders. A very very few dads of remarkable resolve and ability manage to get back into Court and find a decent Judge who revisits. Probably 1 or 2%. Not good odds for children or fathers.
It is revealing to read comments from magistrates – not least because of what they expose about their training and knowledge of the law – but I really cannot accept some of the very familiar excuses which invariably pass the blame for the family courts’ failings onto parents.
Despite the Government’s efforts to direct more parents to mediation, many disputes will still end up in court. The loss of legal aid has meant a corresponding fall in referrals to mediation by solicitors. The courts offer parents a solution and have a duty to provide it – if they can’t deliver, they should shut up shop and go home.
At the very least, what they do should be backed by the latest and most reliable research – not all the usual Nuffield-funded Trinder/Oxflap guff – and judicial inventions like indirect contact must be supported by robust evidence or ditched.
We are all in this together, and all committed – I presume – to what is best for our children. A good start would be transparency and humility from the courts in admitting that much of what they do is based on supposition and habit, not on evidence and research.
Perhaps a working party is required – a task force to build a new family justice system, starting with a completely blank sheet of paper. I nominate Sarah and Vincent.
I work for Cafcass and am only too familiar with intractable cases and trying to prevent the outcomes described in this article.
Karen Woodall from the Family Separation Clinic has written an excellent paper exploring these types of intractable disputes categorising them into cases of ‘justified rejection’, ‘hybrid’ and pure alienation (concious vs unconcious type). I believe her approach and what she has to say about these types of cases is very interesting.
Liz Trinder has also done excellent research in the area of use of Enforcement Orders which touches on many of the same themes.
From my own experience the conciously alienating resident parent (term resident now outdated by C&F Act 2014) exists but is rare.
In most of the cases of very high conflict or intractable disputes that I have dealt with there is a signifcant history of both parties behaving unreasonably towards one another with the parties locked into a battle of mutual blame/recrimination. Unless the hostilities are nipped in the bud early, the children quite become unable to take the pressure of being caught in the cross-fire. This is when psychological ‘splitting’ starts to occurs and children feel forced to choose one or the other parent.
Usually as I listen to the parents – I can empathise with both of their points of view – yes in effect neither party has behaved well and listening to them trying to dump all the blame, hurt and rejection is very trying. Bad enough as an relatively uninvolved professional adult – completely intolerable if you are a child and these are your parents.
Often by the time families come to Court they have ‘passed the point of no return’ and the children have already been exposed to a high level of damaging experiences within the family. Outcomes are much less positive in such cases as in effect the damage has been done before the case gets into the Court arena.
I am waiting to see what happens with parties going into mediation before coming to Court – should be interesting, but I’m not overly optimistic.
I have personally (having worked with around 300 families) only ever recommended indirect contact as a Final Order in cases where there is established and proven high risk from the parent that the children don’t live with. The risk either is proven either via criminal convictions or information or Fact Findings. In all such cases, the person applying to see their child refuses to engage in work to address that proven risk. I can’t speak for Cafcass as an organisation overall – but have put in a research request to see if any National Data on this point is available and to whom and how it could be made available.
Where I have made a final recommendation for Indirect communication only, my expectation is probably that the parent will not be seeing that child until they are in adulthood or unless they have a change of heart and do end up addressing their substance misuse problem or their domestically abusive behaviour etc. Sometimes these parents come back into Court after rehab or after having completed the IDAP (domestic violence) programme and efforts to get the relationship with the children and that parent starts again.
In cases where alienations features or is suspected, new strategies include supporting indirect communication by appointing a 16.4 Guardian and having the Guardian personally deliver any letters and complete direct work with child at the same time. With the aim of trying to kick-start a direct relationship with the parent the child has not seen for some time, or at least prevent the parent the child lives with from misuing the opportunity (the throw the letter in the bin scenario, or worse using the arrival of the letter as an opportunity to denigrate the absent parent yet again). Such an approach gives a better basis for completing an assessment of what is really going on in the family and an evidence base for robust recommendations.
In cases at the severe end of the alienation spectrum – often where the usual routes have been tried and have failed, outcomes would have a much greater chance of success if there was funding available for proper accredited therapeutic support (as offered by Ms Woodall’s Family Separation Centre), a concurrant robust legal structure (for example Suspended Enforcement Orders, having the child become Looked-After and/or transfer to the child living with the parent that they have been alienated – and the willingness to use them which does take courage on the part of the Judiciary. In effect a ‘whole package’ approach.
This Government will never fund such a package of supports in my opinion. Funding cuts in the private law system are here to stay.
Contact Monitoring Orders have been on the agenda in recent Cafcass training and we are recommending them more and more. In my experience so far, they seem to help at the beginning of cases really at the point we become aware that a case has the hallmarks of becoming intractable or if we have concerns about non-compliance – where I’ve recommended it it’s been usually quite useful so far.
Interestingly we are also having much more training recently on the importance of evidencing the notion of ‘ascertainable’ in the wishes and feelings of children in response to an increased awareness of how difficult it is for children to have a truely independant view in high conflict cases or cases where there are features of alientation – and my entire team is made aware of the recent judgements in this area.
Anyway – if someone comes up with some other good research in the efficacy and uses of indirect communication – I too would be interested.
Some really interesting comments. So presumably Cafcass are going to start collecting data about the outcome of the new monitoring orders? That would be a start. Could FNF ask their members how many have seen indirect contact orders develop into direct contact?
But as has already been said, we are not dealing with legal problems here so the court is unlikely ever to be the right arena.
I like Lrw’s suggestion for more focused ‘triage’ work at the outset – I have been saying this about care cases for a while now. We do seem to adopt the ‘one size fits all’ approach when it is often easy to identify pretty early on which cases are going to be intractable.
It will be interesting to know what discussions FNF had at their AGM so I hope they will update us.
Sarah, FNF is planning to collect statistics more effectively from our members and visitors to our many branches.
My gut feel is that an indirect contact order is something of a kick in the stomach (or worse) to any father (and the child) who after trying desperately to retain or enforce contact with their child after contact has been broken by an intractable mother, finds that a court is only prepared to order (allow, actually) such a trivial level of contact and one which is unlikely to be enforced or verified. It breaks my heart whenever I hear of a dad and child who have suffered this fate. I would be very surprised if it led to further contact later down the line, but others may have different impressions/experience. My overall impression is such orders are often made without very convincing justification for such a draconian approach. Preventing any face to face contact at all between a parent and a child without overwhelming need seems barbaric and cruel.
FNF’s AGM went remarkably well and there was an extremely positive engagement between Lord Munby and our audience. We will be publishing details, including a transcript, on the FNF web site as soon as the necessary protocols have been completed.
Incidentally, one point that was made was that not enough judges appear to be aware of or see the relevance of making CAFCASS monitoring orders. We hope that will change as Lord Munby’s programmes develop.
Thanks, will look forward to reading the transcript.
A report by Dr Sturge and Dr Glaser argued in 2000 that domestic violence constituted a significant and serious failure of parenting. In cases of sustained physical abuse this would be justification for the Courts to deny contact or for close supervision by social workers in a designated centre.
The implication is clear: that sustained domestic violence reaches the threshold of “significant harm” and thus the court is justified in taking action to protect the child by making orders which deny contact to the abusing parent.
Since this report was published the definitions of domestic violence have widened to include other forms of abuse such as controlling behaviour over the abused parent’s activities etc. Thus gradually, emotional violence is being recognised.
It seems to me that implacably hostile parents who destroy a relationship between a child and the non-resident parent ( where there has been no serious domestic violence) are committing an act of gross emotional violence, with huge long term implications for the development and future life of the child. The violence is both against the non-resident parent and the child.
I would suggest that such behaviour can lead to greater harm than that caused by domestic violence. There is no recovery of the lost relationship. You cannot make up the time later.
If the courts used the language of “significant harm” routinely in this all too numerous category of implacable hostility, public policy might shift.
Obviously orders for indirect contact are meaningless. It would be pointless to accompany such orders with a contact monitoring order as there will be next to nothing to monitor. Contact monitoring orders are only of value when contact is teetering on the edge and basically need propping up by the Courts and CAFCASS ( I write as a fairly recently retired CAFCASS officer)
The issue of sanctions is important. How far should the state go in enforcing contact? In so many cases, transfer of residence is simply impractical, though as a threat can have an impact. Should there be care orders or supervision orders?
I take the earlier point re supervised contact centres. Experience suggests that in domestic violence cases it is very difficult to progress matters after what is often a relatively short period in a centre. Contact then tends to drift away. But use of such centres is not appropriate for implacable hostility cases not featuring domestic violence.
What we do need is a much greater investment in supported contact centres which are an absolutely crucial resource for children and non-resident parents. It is marvellous that volunteers do such a good job at minimal cost. But such centres should be on a statutory basis, be properly funded and should have in-house CAFCASS officers or social workers to assess and help progression of cases. At present, supported centres cannot report back to court about parental behaviour and attitudes….this being due to the Judicial protocol protecting volunteers from giving evidence in the family courts. This is crazy. I thought the whole system should safeguard children…..not minimally trained volunteers or parents keen to devise a strategy to bring an end to contact.. We simply do not have sufficient infrastructure to support child contact. It is noted that the Family Justice Review had almost nothing to say about child contact centres. Nor did it consider Australian style Family Relationship Centres.
I initiated a campaign on change.org re child contact centres last year but had a disappointing response from many interested in child welfare. A poor response also from MPs, Ministers etc. Resolution did support us.
Of course, it is also of note that the FJR did not consider implacable hostility cases or ways of tackling one of the biggest issues in family law.It is time we reached some kind of conclusion, even if it is to say that the state can only make recalcitrant parents attend court, courses, mediation, therapy etc but ultimately cannot ensure that actual contact occurs.
Very interesting post covering many areas. It made me think of the differences between normal contact and supervised contact. Is there not an opportunity to have a volunteer accompany the non resident parent (or join both) at handovers. Simply in order to encourage (and report on) whether the process takes place smoothly or at all? The logistics may seem daunting but may be feasible as volunteers would not require too much training as they are simply observers and they would not be required to cover an entire contact period – just the start and end. Their presence would probably help keep both parties honest and they could also collect statistics relating to monitoring contact.
In my own case, the most critical point during term time was the handovers. Had there been an impartial but involved witness there each time, I suspect matters might have gone much more smoothly and any disputes would quickly have been nipped in the bud rather than escalating into a shower of allegations in court weeks or months later.
To improve the logistics, perhaps such volunteers might be allocated to schools where several parents’ handovers might take place at once eg on Fridays/Mondays?
A little out of the box, Peter, I know, but I was wondering what someone of your evident experience might say to this line of thinking?
Jerry,
I agree that there is scope for extending the use of volunteers in family law work. But in my experience with CAFCASS and with child contact centres, I would suggest that problematic hand overs should be dealt with as CCCs, not at schools where other families can get sucked in and where the volunteer is also vulnerable.
Thank you to everyone.
As a non-resident parent being bullied by CAFCASS guardian; the children’s solicitor and the judge to accept INDIRECT CONTACT, I read with hope as I am brought to my knees by the impending final hearing of an enforcement application; to pray that our [edited] children learn to love all beings and recognise that we are all imperfect; despite a failing process that fails our children and bully’s the non-resident parent.
There are laws against bullying in education in the work place; in many facets of life.
The bully will be plagued to submission by their own bad intention.
I have hope that if our intentions are good then no matter what the outcome, our children will develop to be awesome life-changing beings.
Love and good intention will always conquer anything else.
I have good intention.
Thank you.