Observer campaign: families at war
'It makes more sense to forget I ever had a child'
For three months The Observer has been investigating the emotional fall-out of family breakdown. We have found a shocking culture producing routine misery on a vast scale for both children and parents. We have discovered wide-ranging inadequacies in the legal system: ill-trained professionals, badly prepared judges, and decision-making that is often a lottery. Part one of a three-part series by Dina Rabinovitch
Sunday July 2, 2000
'I was told it'd be a very informal meeting - that we'd have our heads bashed together and be told to grow up.' This is Edward, an investment consultant and father of four who is getting divorced. He is talking about a directions (or conciliation) hearing in the family law courts - an initial session in front of a judge.
The judge opened the proceedings by asking Edward why he was asking for residence. 'I said, "I'm not, the children live with me",' he recalls. 'She then looked very embarrassed, grabbed her notes and started frantically reading.'
The judge then told Edward she wanted to resolve the dispute that day. 'When I pointed out that my barrister said that wasn't the purpose of a directions hearing, she said "this is my court".'
Welcome to the world of family law, a world of uninformed decision-making, impatient judges and rigid court orders. In family law, judges have the widest discretion and are least restrained by precedent.
The thinking is that there can only be loose guidelines within family law, no strict rules, to allow for the 'uniqueness' of each family. But this results in a 'complete lottery', says one barrister specialising in family law. 'With family cases - and this is different from any other area of law - the judge is given this excuse to be inconsistent, quite maverick in approach, or even outrageous.'
What's more, this is a system which decides that the best people to carry out the central role of assessing parents and their children, the Court Welfare Officers, are professionals from the criminal probation service.
'People would come in on a Friday afternoon from working with criminal offenders, and start work as court welfare officers on a Monday morning,' says Alan Sealey, who last year resigned his position as chair of the Association of CWOs. He describes the service he left as 'a hell of a mess - haphazard and there's no training'.
'The Court Welfare Officer didn't seem to me to be a person who understood children at all,' says Dave, a builder, who was recently granted sole residence of his three-year-old son. 'She didn't seem interested in [his son] John, except about how much contact he had with his mum. In her report she wrote that "there weren't many pictures of mum around the house".' She might have wondered just how many people decorate their homes with photographs of their ex? (The amount of time a CWO will spend with a child varies enormously; there might be repeated visits or none at all.)
Lord Irvine, the Lord Chancellor, claims that fundamental changes to the system are imminent.
From April 2001, CWOs will be the responsibility of a new department, the Children and Family Court Advisory and Support Service (CAFCAs). But these 'fundamental' changes seem to amount to nothing more than a new home. (And nobody in the service seems to have noticed that the name seems, unfortunately - if aptly - to be a variant of Kafka.)
What's more, according to Mr Justice Wall, a senior High Court judge 'with all the administration involved we'll be lucky to have CAFCAs set up with a roof, let alone any fundamental changes'.
Those parents who do manage to gain an audience with a judge will face further problems. The standard divorce, money and contact cases coming to court, which are increasing in number, though divorce rates appear to have levelled off, will be heard by part-time judges and judges drawn from the county courts (traditionally known as the 'cut-price' or 'poor man's courts').
So what is going on in the family courts? Are they governed by a disdain for parenting, coupled with a particular suspicion of involved parents? Or perhaps still at work is the influence of a culture - the same one that sends its supposed elite off to boarding school - that does not understand children.
How else to explain the stories I was hearing all the time? Stories of judges ignoring women's concerns about domestic violence; stories of the fathers every year who kill their children during their post-divorce contact period. Stories of fathers given an hour a fortnight to spend with their children, post-divorce, causing damage that only those who have been separated from a child can understand.
I began taking an interest in family law following my own and friends' divorces, witnessing the reckless decisions I saw being taken about families' lives. At first, I couldn't believe what I was seeing. Some of the characters within family courts seem to come straight from the pages of Charles Dickens. Only in the family courts could one hear, as I did last month, the phrase 'in these very modern times in which we live, where some couples cohabit without marrying', uttered by a barrister.
Those going through the system are often rendered passive by it. They can see the problems but don't want their whole lives affected, so they choose to 'get on with things' rather than fight back. Or worse, they do fight back, and become manic, angered by the intricate injustices which, in turn, might result in them being seen as the problem.
Sarah Heatley's story (see the parent's story below) might offer an extreme case study. But every day routine misery is visited upon parents and children. Over the past few months, The Observer has been exploring the system, spending time watching these daily traumas unfold.
The mother, Iris, comes through the plate-glass doors of the family courts building first. She talks about what she thinks will happen that day at court. Her former partner, Dan, has sued for joint residence of their two children. Iris wants sole residence.
Iris imagines she will be ushered into a court room with a judge. She doesn't really see the day ahead anymore clearly than that. She knows she is paying 'around £600' for a barrister to be in court with her that day, whom she has not yet met.
There are tables in recesses along the corridor, off which the individual courts lead. The solicitor shepherds Iris to one of these tables, and the barrister arrives. Within the hour, Iris's solicitor, who has the most knowledge of her circumstances, leaves so as to save her client the hourly cost of her services and in order to get on with her own heavy workload.
Dan turns up, with a solicitor but no barrister. They sit at another table further down the corridor. The hearing is scheduled for 11am, in half-an-hour's time. A clerk comes out and says the judge is running a bit late. Iris's barrister reads her papers and says she will talk to Dan's solicitor, to see what can be negotiated.
The hearing in front of the judge never happens. The mother's barrister and the father's solicitor begin a whole day of back-and-forth, table-hopping negotiations, like over-active hosts at a gala dinner. This controlled frenzy is repeated all along the corridor, and indeed the other floors of this family court building, each time set in relief against the bleached-out faces of the mothers and fathers immobile at their separate tables.
None of the professionals - the solicitors, barristers, court welfare officers or indeed the judge - are surprised that the hearing does not take place. It is common practice for a hearing date and time to be fixed, but all the professionals involved come to the court premises with the knowledge that a discussion will take place in the corridors, rather than everybody going into court to put their case before a judge.
A 'settlement' is thus forced out of the parties under the worst possible circumstances - the threat of that great indeterminate, the judge, actually deciding the case. It is not a healthy environment in which to make important decisions about one's children. But it is very difficult, unless one is practising in this field, to get a clear picture of how it operates.
So much of what is going on in the family courts is secret. Family hearings are most often held 'in chambers', i.e. in private, and not reported. This is for obvious, but not insurmountable, reasons, and it means that much of what goes on is not investigated, or indeed challenged. And in fact, such is the pressure of family work that, around the country, any judge with spare time is pressed into service. On the one hand, lawmakers are talking about the need for an ever more specialised family court. But, in reality, the pressure of work means that pretty much any judge who wants to can obtain what's called a 'family ticket' - the right to sit as a family judge.
So parents expose their families to the mercy of whichever judge hears their case. Training, background, what a judge may have read most recently, will all be crucial to the outcome of the case.
Family judges have so much work ('10 cases on your desk each morning'), it can be hard for anything bar the most blaring of messages to reach them.
Last week a circuit judge, a perfectly kind and gentle person, told me: 'Quite often, you see a man, he tells you that "when we were married, she drove me mad, and I whacked her. I've never laid a hand on the kids, though, and I wouldn't." I must say, I find that quite compelling.'
If family court hearings were open, bad practice could be exposed much earlier. We would also all have at least the chance of a clearer idea of what constitutes family law and what fashions are being followed at any time.
According to Lord Justice Thorpe, in the early 1990s the Lord Chancellor's Department carried out a consultation about whether family justice should come out from behind closed doors, but the outcome itself was never published - a muffling of the secrecy inquiry worthy of a Blackadder script. But while the political shenanigans continue, parents - and children - carry on suffering.
A father fighting right now for overnight contact with his three-year-old daughter (and there are no allegations of damaging behaviour of any kind), told me: 'I've been pursuing this for two years now; last year I almost gave up - I thought it would make more sense all round for me to cut off contact completely and just forget I ever had a child.'
The child's story
Now 12, Jasmine was seven years old when her parents separated.
She did not see her father at all for a period of 10 months, following a court welfare service report recommending restricted contact.
She talks about being interviewed by a court welfare officer. After litigating for four years, her father established steady contact.
'It was a bit weird really - I was pulled out of my class, out of lessons to go to see him (the CWO). I didn't know what it was about the first time.
'He came to see me in school about three times, I think. He was stupid. He had these pebbles and he said one pebble was my sister, one was me, one my dad, and one my mum. Then he'd move my sister's pebble over to my dad, and mine over to my mum. It was rubbish. He'd say, do you want to live with your dad? You don't really know what to answer.
'I was about seven or eight then, I think, and I just said, "I dunno" or, "with my mum" or something.
'Things are good now, I see my dad quite a lot (alternate weekends, and Wednesday evenings), so I don't have to miss him that much.
'When the welfare officer asked me, I just picked my mum. I didn't know what to choose. I remember I felt like I was stuck, I got confused.'
The parent's story
In 1993 Sarah Heatley's ex-husband killed their two children, Jack and Nina, and then committed suicide, on his first unsupervised contact with them.
Sarah now has a four-year-old son, George. She was back in the courts this January, over contact with his father, Jan.
'Jan has shared care of his two older sons by a previous relationship. He always said he wasn't concerned with George, that it complicated things with his older boys.
'He would have George every Saturday for three hours. I didn't think it was worth staying in Sheffield for that, so I took a job in Colchester, with better pay.
'Jan applied for overnight contact with George. I said I wasn't happy with Jan's safety standards. The night I met him it was in a pub, and he'd left his 10-year-old son at home. But the case welfare officer (CWO) and judge recommended overnight contact.
'I felt that they thought, here is a hysterical woman, tread carefully. The CWO said to me, "I'm afraid we sometimes sanction contact, even when the circumstances are not ideal." I was told that I had to oblige, that it was in George's interests.
'In 1997, a television programme took me to meet the judge and the CWO who'd been involved with Nina's and Jack's custody. The CWO expressed no remorse or regrets - he just wanted to vindicate himself on film.
'When I told him I didn't want their father to have unsupervised contact, he'd said: "There's nothing to be anxious about."
'After the camera was switched off, the judge took me to one side and gave me his heartfelt sympathies. He hadn't known about Nina and Jack, until the TV people contacted him.
'He then told me he'd found out that my dad had written to him about it all, but his secretary had fielded the letter from him - to protect him.'
The barrister's story
'You go into court never knowing the outcome, or even knowing whether stuff that's been agreed by both counsel outside the court will be ratified by the judge. I can think of so many cases that just seem totally bizarre in outcome. For example, I once represented a father of four children. The mother had left, and was gone for two or three years, during which time the father cared for the children.
'Then mum reappeared and the father made an application for custody. We had numerous witnesses testifying to his good care of the children.
'The mother's counsel relied on the fact that she was the mother, but also the fact that she was white and the father black.
'The mother's counsel presented to the judge a report by an American academic, based on a survey, which said that black men by virtue of their race are unable to love their children.
'It was absolutely appalling, but the judge was listening to it all. I'm black, and I was spluttering throughout. The mother's counsel also played on the fact (and this is a ploy I've used myself) that the daughter would need a woman in her life as she approached puberty, and how dangerous it'd be to have a man look after her.
'Residence was awarded to the mother. We were appalled, because we knew she wouldn't be able to cope and would leave the children again. The mother's counsel in that case is now sitting as a family court judge herself.
'In a welfare case about a three-year-old girl, she was able to read, and the report said that therefore she couldn't be living in normal circumstances because normal three-year-olds can't read.
'The welfare report said mum should be taught how to interact more normally with her child.
'Our system is flawed in resolving family disputes and how we treat children. '
When parents are unable to agree on residence and contact for their children, this is what should happen next.
Stage 1: One side makes an application under the Children Act
Stage 2: First appointment at court, usually called a conciliation appointment in front of a district judge, to discuss the issues. If agreement is reached, the district judge can make an order in the terms agreed. If there is no agreement, the district judge sets a timetable - gives 'directions', so this is also called a direction hearing - for the final hearing.
Stage 3: Full hearing, with witness statements and Court Welfare Officer's report.
Some of the names in this article have been changed.
Next week: The real power inside the system: the most senior judges speak, as never before, on the problems with family law.
[ emphasis added by RW ]
Courts leave children confused and parents feeling like criminals
In the second part of our series, senior judges and professionals talk to Dina Rabinovitch about the failings of a system that produces routine misery for all who are sucked into it
Recently, one of the judges interviewed for this series telephoned. 'I wanted to tell you about a case I did last week,' he said. 'When the court welfare officer got into the witness box, one of the first questions I asked her was: "How long did you spend with the child?"
'If it hadn't been for our conversation, I would not have asked. Anyhow, her answer came back: "About 45 minutes." I must tell you, I was absolutely shocked. In fact, I'd thought she was going to say... hours and hours, and I'd be made to look an old fool.'
The judge then asked the CWO whether, after 45 minutes, she had got to know the child? 'She began to splutter, and talked about the time constraints laid on her by her job,' he recalls. 'From that point I asked more and more questions and it became very evident to me that she'd done a very superficial report. What was interesting - and shocking to me - was that as I continued to examine her recommendations, she became more and more partisan.'
If a judge like this - an honest and intelligent man, prepared to phone to report the incident - had not previously questioned and examined the roots of the system within which he works, then how can anybody else rely on that system?
In family law a judge can make orders affecting the most intimate parts of life. That judge will never have experienced the living conditions of the family, nor will they see what effect the order has once the family leaves court. For that, he relies on court welfare officers within the criminal
The court welfare service makes much of the fact that, to become a CWO, probation officers now have a compulsory induction course. This lasts from three to five days. After that, there is in-house training, the service claims. This is scanty at best. For example, at the Court Welfare offices at the Royal Courts of Justice in the Strand - described to me by judges as 'the best court welfare service in the country' - budget constraints mean the staff get only three to five days extra training a year.
The court welfare service is the branch of the probation service that gets the most complaints. Those within it complain that 'the CWO is the punching bag for both sides'.
'It's a toxic job,' says Jim Lawson, Chair of the Association of Family Court Officers, who portrays the CWO as being 'caught in the middle of warring parents, looking to win, rather than at the best interests of their children'. Just in case the message is not clear, he adds: 'It's a bit like Northern Ireland.' It would be worrying to think that such a grotesque analogy might characterise court welfare thinking on children's issues.
Spend some time with CWOs, and you become aware of a sense of inferiority. 'Nobody likes a court welfare officer,' you hear. Lawson mentioned the 'class system' within family law. 'You've got the judges at the top, and the social workers at the bottom. For example, social workers can be frightened when they go to court and they're faced with people who are power-dressed and speak a certain language.'
Yet so influential is the CWO's report that the only room for manoeuvre
away from its recommendations is determined by a judge's discretion. (One of the few strict rules in family law is that a judge may not depart from a CWO's recommendations without adequately explaining his reasons for doing so.) But it was a recurring surprise how little judges knew about the training - or lack of it - received by CWOs. Basic training might help to
eliminate episodes such as the following: Kathy (not her real name) escaped to a refuge when her children were tiny. Their father was a diagnosed schizophrenic, and violent. After many years - during which the children had no contact with their father - he attempted to gain access to them. The court welfare officer came to see the children at Kathy's house.
'He walked in and his very first words were, "I've seen your daddy and he's very well",' recalls Kathy. 'I was furious with him, because as the children grew up I didn't want them to blame themselves or me for him not seeing them. So, I'd always explained to them that Daddy's not well in his mind. The CWO couldn't have chosen a worse phrase.'
The Observer has spent the past three months interviewing judges at all levels, including Sir Nicholas Wall, one of the 16 High Court Family Division judges, and Lord Justice Sir Mathew Thorpe, an Appeal Court judge.
Thorpe, responsible for a scheme that speeds up financial settlements on divorce, was highly guarded. He insisted on having a press officer from the Lord Chancellor's Department present (with tape-recorder) during our interview. His answers were so bland and self-censored that it was hard to see his intelligent humanity, which only breached his guard once or twice.
(Incidentally, Thorpe was the only family judge I met who has himself been divorced.)
Thorpe called the Court Welfare Service 'admirable', and said that CWOs 'made really perceptive recommendations or observations'. He argued that they 'get under the appearances to understand the family dynamics and to point the judge to the crucial issues, the crucial functions or dysfunctions in the family relations'. But how can the judge assess the CWOs work? 'Because as you get to understand the problem through sitting perhaps for 10 consecutive working days, and hearing individuals reveal themselves, you yourself acquire some understanding of the dynamics,' he said. All well and good, but very few trials go on for 10 days. 'Average would be something in the order of two days,' he said.
Thorpe also admitted being puzzled 'at the administrative arrangements whereby the court welfare service is part of the probation service - involving career moves from family justice work into criminal justice work. Seemingly, the career structure demanded it.'
In his courtroom, no 34 in the Royal Courts of Justice in the Strand in London, I witnessed Wall wrestling with the question of judicial discretion versus the 'case law'. The barrister cited an Appeal Court ruling to the judge. It did not sound a just ruling, and Wall didn't like it. He
listened, and began to chafe at the knot of his tie, as if struggling with legal restraints. 'That's not a very attractive proposition,' he said to the barrister.
'Well,' he laughs, when we speak, 'I thought the Court of Appeal saying that a chap was entitled to keep his hands in his pocket and not pay if the woman didn't pursue him hard - I didn't find that at all attractive myself.
'If the man doesn't pay, it seems to be very hard to put the burden on the woman to pursue. But I'll sort that out,' he finished breezily.
'These things go in fashions,' he said, 'and fashions are dangerous.' Wall has been active in fighting one fashion: the presumption in the courts that it is best for children to maintain post-divorce contact with both parents.
'What happened, was that the need for the child to have contact overrode considerations to the contrary, particularly when there had been violence by the absent parent, usually the father,' Wall explained.
'All that I've done in two or three cases, was to say if a woman had implacable hostility to her former partner having contact, then that implacable hostility is not necessarily irrational - you can have rational implacable hostility.
'One of the bases for such rational hostility is if the former partner has treated either you or the child violently.
'I went one stage further than that, because I had a case which was an appeal from justices who'd refused contact to a violent partner. And although they'd got the law wrong, I upheld them. I said - and this was novel - that in these cases we're always saying to the mother of the
children that you must put domestic violence behind you, you must look forward - he may be a good father even though he's beaten you up. We never looked to the man.
'The particularly chilling part of that case was the six-year-old coming back from contact, and saying to the mother, "Well, when I'm grown up I can beat you up".'
Wall has prepared a consultation paper for the Lord Chancellor on domestic violence. 'We had identified huge gaps in court-based information, and we asked how might that be improved. One of the recommendations that we will make is that there should be a systematic ongoing gathering of information about court orders and court procedures, but there should also be
systematic research into the effects of different contact orders.'
If family court hearings were open, bad practice could be exposed earlier. We would all have the chance of a clearer idea of family law in this country - and what fashions are being followed at any time. In a recent article Paul Boateng, the Minister responsible for family law, said that the reasons for the secrecy in the family courts are so obvious as to not even need questioning: namely, maintaining the confidentiality of the people involved. Sadly, Boateng's eventual reply to weeks of delicate requests for an interview with me, was 'No'.
Both senior judges The Observer interviewed disagreed with Boateng's line on open courts. Wall and Thorpe both said confidentiality could be maintained by having judgments read out in open court, even if the hearings were in chambers.
Inside those chambers, Wall has applied his mind to attempt to get other judges to understand domestic violence. But most family judges are not dealing with such abuse, but with far more 'ordinary' residence disputes.
Yet those same judges who fail to understand glaring problems such as violence within families, are somehow considered able to dispense court orders to families with much more nuanced difficulties. It hardly amounts to justice.
'It was pointless. I don't trust adults any more': The families' stories
The son: Tony , aged 14
'It was all just a waste of time. A court welfare officer came to see me and my brothers last year. She came to see us at my dad's house, first. She came into the living room and asked my dad to leave. She said she wanted to get to know us. She left after about five minutes. All I remember her saying is, "Don't be frightened to tell me anything you might want to say".
'We saw her again at my mum's. She just sat there watching us, and taking notes. We were all sitting around, then we had some dinner and watched TV.
'Then we saw her a third time at her office. She interviewed each of us separately. She asked, "Are you happy with the arrangements, and if not, how would you like it changed?" And then she asked: "How do you get on with mum, and with dad?"
'She then wrote a statement on what we all said. I don't know if I was supposed to see it, but it was there, so I had a look. One bit of it was just titled Tony, about three-quarters of an A4 page. Right at the top it said, Tony is a credit to his parents. But then she wrote a load of rubbish. Basically, everything she'd written was the reverse of what I'd said. I remember she asked if I'd be comfortable [about something] and I said, no I wouldn't, and she didn't write that; she just wrote I should definitely do it. It was pointless. I don't trust adults any more.'
The father: Richard
Richard has three children, two boys aged 13 and 11 and a girl, aged 3.After his wife left him, she sent a letter through her solicitors saying she considered the children were better off living with him. A few months later she wrote again to say she wanted custody of the daughter. His wife then made a residence application for their daughter, which is when the court welfare service got involved.
'The CWO has now recommended that my daughter live with my wife six nights a week, and one night with me and her two brothers. She made this recommendation despite saying in her report that to split the family further would cause increased friction between the boys and their mother, which she also said should be avoided at all cost.
'I got in touch with the chief probation officer to say that the report's recommendation would be harmful to my children, splitting further close siblings. He said that, having read the report, he was somewhat surprised at the final recommendation. I then sent several more letters of complaint to the probation service. The chief probation officer then came back to me saying that, having spoken to the CWO, he did not agree with me.
'My case is coming to court in a few weeks. My solicitors have advised me not to complain about the CWO's report, but I have insisted. The assistant chief probation officer said, "We've never had a complaint before". There's actually no laid-down complaints procedure. A booklet I picked up in the probation office says, if you have a complaint about the welfare report, please refer it to the CWO.
'I'm an independent financial adviser; it's like me ripping you off with a dodgy investment vehicle and then saying you have to complain about that to me.'
The mother: Jane
'I got the letter to go see the CWO. The letter heading said Inner London Probation Service, and you feel, oh my God, you're dealing with a system you know nothing about and you feel like you're embarking on criminal proceedings. A part of me thought - is this what things have come to? Then at my son's school the teacher came up to me and said, "We had a letter
from the probation service about Ben [her son]".
'The court welfare office felt like entering a prison. I think part of it is a juvenile court. The lifts are in these kind of wire cages, and the walls are that prison-green, and the furniture is sparse and dingy. I kept feeling, I have to do a good job here, I have to create the right impression.'
The names in this article have been changed
The professional's story
'I was a CWO for 13 years, and in the probation service for 30. The service I resigned from last year was a hell of a mess. Haphazard, with no training. Compare CWOs with nurses or lawyers, who have to have a certain number of hours of training and further education in the field every year. Court welfare officers don't have that.
'I fought for a separate, independent and properly funded court welfare service, and it is my hope that is what Cafcas [the Children and Family Court Advisory Service, the new home of CWOs from next April] will become.
Hopefully, there'll be adequate training, though I don't know of any plans to institute such training as yet. It's imperative, because of the whole culture you get into when dealing with offenders. In the service in which I worked, the criminal justice imperative had priority. At least the new service should be wholly funded for family matters. [ see RW's letters to Hughes (ACOP) and Ogden (CAFCASS) - RW]
'I would like to see a new diploma for those becoming court welfare officers, with modular courses suited to intimate working with families. There are no plans for that yet, though some universities are proposing such a diploma. We need three things: first, properly qualified people in the service; second, a compulsory baseline minimum number of hours each year - say, eight to 10 hours - further training, and third, adequate funding.'
Alan Sealey is the former chair of the Association of Court Welfare Officers. He resigned his position in September 1999 to become co-ordinator of the Family Court Consortium.
Part 3 of 3
The following text from an article in the Sunday Observer mentions the demonstration at Dame Elizabeth Butler-Sloss's home address in Marsh Green near Exeter.
The Observer (UK) 16th. July 2000, page 14.
Anger at the lottery of outcomes is on the increase. Only yesterday a delegation from 'non-resident parents' groups marched on the home of Dame Elizabeth Butler-Sloss, president of the Family Division, demanding better treatment. At the moment, on the basis that each family is
unique, each dispute is treated on an ad hoc basis without governing principles. So one parent may be awarded an hour a week with his/her children, while another is allotted 30 hours over two weeks. This is in not in anybody's interest.
The Government insists that from next April, the new Children and Family Court Advisory and Support Service (CAFCASS) will help reduce anomalies in family law (see the Minister's response, right). But what is needed, above all is a set of guidelines for the Family Courts. These would address how much time a child should spend with each parent after divorce and in what sort of circumstances. Such guidelines should give both parents a reasonable expectation of continuing their relationship with their children.
If we had agreement on a set of guidelines then parents and children would know what sort of outcome to expect from going to court. At the moment, nobody can predict outcomes and ludicrous disputes drag on for years.
I would suggest that there is a standard arrangement that would work for both parents and children in most cases. It is fairer on children to let them keep one base for most of their time. It might be argued that this base should be with the mother. Even those who campaign: on behalf
of fathers' rights might concede the point. 'Many male non-resident parents would accept that the mother should have residence or custody, provided that they have solid access,' says Oliver Cyriax of the lobby group Information on Probation Officers in Welfare Work.
However, the children need to spend enough time with the other parent so that their stays feel like a second home. This is accomplished by giving the children enough time in the second home, and making sure that the intervals between their stays are not too long.
So, a pattern of visitation based around, for example three-night weekends, half of all holidays and a fortunately midweek visit would come to be regarded as the norm. This would be variable according to circumstances, provided that the parent opposing this normal contact could show good reason why there should not be normal contact.
Another-simple change would be to phase out the terms 'residential parent' and 'contact/non-residential' parent through an adjustment to the existing framework. The Family paw Act 1996 could be amended to create a presumption of reasonable contact (legalese for three night
weekends). If that proved too complicated, there could be a 'practice direction' to the courts from the Lord Chancellor's Department. The present Section 11 of the Family Lass Act states that the court will have to take into account 'the general principle that, in the absence of evidence to the contrary, the welfare of the child will best be served by his having regular contact with those who have parental responsibility for him'. If the word 'regular' was changed to the word 'reasonable' then the changes would be close to being in place. A practice direction would define what is reasonable in terms of time, and in light of circumstances. The children of divorce would then not be confused by the arrangements for other children; and most parents would have no reason to fight lengthy court battles for most would have an entirely predictable outcome.
'Although the word "resources" did not figure in the articles, it does in fact go a long way to explain the problem. It is a regular feature of the family court cases with a combined estimate of two, often t: days appear in a day's i Why ? In the main because the necessary number judges
and courtrooms are not being resourced/funded by central government.
This is unacceptable. The pressure it places upon parents to compromise their differences must on occasions result in legitimate grievances not being aired, with consequent injustice - which must always and only mean that the welfare of the child is not served. ' Circuit Judge
'Your articles on Family Law in Chaos offer an indictment of the failure of the adversarial system to resolve family disputes. Mediation is a more constructive way of coping with family breakdown and has been used in this country for 20 years, yet it is still often seen as only being
appropriate in a minority of situations. This is partly because once parties go to solicitors the adversarial, litigious approach takes over, and the couple are pulled further apart. Frances Place, Lyons Davidson Family Mediation, Bristol Court welfare officer '[In our defence] we deal with people who often-display open antipathy and lack of trust towards each other, who use children to get at each other and who sometimes cannot even agree on how long they were together Given these dynamics it is not surprising that the Court Welfare Officer is perceived as biased, unfair, etc by one or other of the parties.' MJ Bentley, Senior Court Welfare Officer, Greater Manchester
'The Lord Chancellor's opposition to elementary training for the key agency CAFCASS is understandable]. Guidelines suggesting how to do the job right would categorise most previous Children Act decisions as hopelessly wrong.' Oliver Cyriax, Information on Probation Officers in
Welfare Work, Hammersmith
'It is 18 months since I was involved in a contested residence hearing. It seems to me that the very way in which the system is operated militates against a decent outcome for children. There was no sense of gathering around a table to thrash out what was best for them solicitors
and barristers were arrayed against each other in.*front of the judge, who appeared to swing alarmingly from one firmly held opinion to another.' A father, Sunderland
Family Contact Centre
'As the co-ordinator of a Family Contact Centre reading Dina Rabinovitch's articles sent many flashbacks of scenes in our centre flooding into my mind. 'I have seen fathers so overcome with emotion that they cannot hold back their tears when their children come through the door, and children rushing with such enthusiasm at their non-resident parent that they all fall over. Although courts often order contact at a centre such as ours - there are over 280 National Association of Child Contact Centres (NACCC) in Britain - the centres rely on donations and 400 volunteers.' Teresa Hartley, Surrey
'The Observer has contributed to an ongoing debate about the way in which family courts operate. There are probably as many views on this topic as there are people involved in it. The Observer articles have touched upon the role of Court Welfare Officers. Currently within the
Probation Service, they will soon become part of a new child-centred service, created by the Criminal Justice and Court Services Bill. ' 'The new service, to be called the Children and Family Court Advisory & Support Service (CAFCASS), will look after the interests of children in
family court cases. There are currently three separate groups of professionals advising courts on children m family cases; CAFCASS bring them together, combining skills. We want best practice, and no duplication. It will be a better service, organised nationally and delivered locally and open to inspection. The Government will account for what CAFCASS does.' Jane Kennedy MP, Parliamentary secretary at the Lord Chancellor's Department