Oliver Cyriax has led this organisation's camaign against the malpractices in the Court Welfare Sertvice, and the obvious lack of training for its staff and lack of accountability. We provide information from the report The Family Court Welfare Service & The Family Division : A Question of Abuse, version 1.4, INPOWw, 4 Cardross Street, London, W6 0DR, September 1998. A full hard copy of this report is available from INPOWw on request.
THE FAMILY COURT WELFARE SERVICE & THE FAMILY DIVISION :
A Question of Abuse
The Institutions which Failed Britain's Children
September 1998 Ref 1.4 ftn
Each year, Britain's Family Division deals with in excess of 100,000 private law Children Act applications. Most actions concern matrimonial disputes between ordinary parents caught up in divorce or separation; typically, the non-resident parent is seeking to maintain or achieve material 'contact' with his child.
The cases, which are heard behind closed doors, are decided according to a single governing principle: the best interests of the child.
In this context, the broad outcome has always been surprising. Britain has the highest European rate of child-parent severance following marital breakdown; each year, it seems that some 125,000 children lose all contact with their non-resident parent, almost always the father.
It has long been rumoured that the Courts were prejudiced against men. But hard evidence has not been forthcoming. Hearings are held in secret and no research data is available on outcomes.
An Enigma Resolved
It now emerges that the Courts and the ancillary legal and para-legal professions have fallen over backwards in a largely inadvertent effort to keep child and non-resident parent apart.
The image of conscientious professionals animated by high principle, striving to fine-tune practical agreements about children in the light of the best available research, is the reverse of the truth.
It transpires that confidentiality, rather than protecting children, has protected and inculcated pervasive institutional incompetence on a grand scale.
By virtue of severing its links with the outside world, the Family Division has sealed itself into an hermetic and impenetrable information-free zone.
Children Act proceedings are conducted according to unexamined assumptions which make it all but impossible for the non-resident parent to achieve material contact with his child; the preliminaries and the hearings are vitiated by doublethink; the governing institutions are irresponsive, backward and collusively obstructive to a degree that (i) might raise eyebrows in a communist eastern bloc state of the 1950s (ii) is suggestive of an interdigitated cartel; the 'experts' on whose casual one-off say-so a child's entire future depends are untrained, unsupervised criminal probation officers; the concept of legal proceedings as a fit, proper, or practicable forum for discussion of the child's future is a fallacy.
The Collapse of the Family Court Welfare Service
This came to light in a curious way. In 1995 the Family Court Welfare Service (who write 35,000 reports each year on whether children should see their parents) received its first seriously-prosecuted complaint from a non-resident parent asking that they justify a report.
No prior welfare report had ever been subjected to such a test.
In not one of what may well be tens of thousands of cases where the non-resident parent was said to be 'unable to meet his child's needs' had an effort been made to check whether this allegation was:
ii) likely to be true
Until that date, the prevailing wisdom within the legal profession was, and for good reason:
i) that no proper response to any complaint directed against the Welfare Service would ever be forthcoming
ii) that the only foreseeable result of complaining about a report would be reprisals by the Welfare Service against the complainant
The Outcome of the Service's First Complaint
After fourteen months of intensive evasions in the course of the original complaint, the Welfare Service's highest investigatory body (a Panel of the Probation Committee) was convened to consider this first complaint.
The Panel pronounced itself fully satisfied with the conduct of the complainant's file.
In the letter rejecting the complaint, the Panel specifically conceded both that it had not read the file in question and, further, that it had (when this was drawn to its attention) declined to obtain the file.
In due course, the reason for this omission emerged.
When considering a welfare report for the purposes of 'quality assurance', it transpired that the Service's practise was to consider neither what the report said nor what it said it about.
Whatever the report said was no more than the officer's "opinion" and, as a result, deemed exempt from assessment; whatever it recommended could only be assessed by the Court. The Service had no guidelines or material standards against which to assess its work.
Accordingly, when evaluating a report as exemplary, there was no point in either the Service or the Panel looking at the facts, the evidence, the report, the recommendations, the consequences of the recommendations, or anything. In such circumstances, reading the file was properly regarded as redundant.
It mattered neither what the report said, nor what the report said it about.
A Local Difficulty
Over the past two decades, some half a million reports have been prepared on this basis and laid before the Courts as documents of weight.
The Courts have relied on these reports.
On the basis of these reports, a million young lives have been given irrevocable shape. In a substantial proportion of these cases:
a) the non-resident parent will have been deprived of his child without cause
b) the child will have been deprived of his non-resident parent without cause
The Extent of the Service's Default
In the course of the Service's handling of its first complaint, it emerged:
(i) that 'welfare officers' were untrained in every material aspect of their work
(ii) that different officers would or could make opposite recommendations on the same facts (e.g. either an indefinite period of no or nugatory contact, or alternate weekends plus half the holidays to take effect immediately)
(iii) that Management had no way of telling (and 'did not seek to tell') whether their officers' work was reasonable or whether implementation of their reports was liable to benefit or damage children
(iv) that Management was prepared:
a) to enter into a conspiracy of silence to prevent the Service's deficiencies coming to light
b) to lie, and to lie in writing to members of Parliament, in order to protect themselves and in order to protect each other
The Service's checks-and-controls proved either illusory or defective. The Home Office, drawn into the dispute, compounded the error by attempting to mislead the then Home Office Minister Joyce Quin in her dealings with what became a caucus of some thirty constituency MPs. On 16 February 1998, in a prearranged answer to a Parliamentary question, the Home Secretary informed the House that the Family Court Welfare Service was to be disbanded and replaced by a new agency.
This statement was amplified by the Lord Chancellor's Parliamentary Secretary on 21 February 1998. The process of reform will take three to five years. By virtue of the deadening effect of the principle of confidentiality (see post) this major piece of re-structuring has yet to receive mention in the press.
Natural Justice in the Family Division
The disbanding of the Welfare Services puts the Family Division in an interesting position. For twenty years, improper welfare reports have contaminated judicial proceedings; for twenty years, the Family Division has rubber-stamped improper welfare reports as though they were pearls of wisdom.
The Courts consider it impertinent to question recommendation put forward by a welfare officer; early this year (Re A (LTA 98/5436 CMS 2, 1998) the Court of Appeal confirmed that litigants had "no right" to examine or cross-examine an officer (see page 199). A grace-and-favour exemption makes provision for no more than the possibility of 'a few questions'.
This decision, although quite possibly wrong, characterises accepted procedure.
In essence, this prohibition on dialogue or dissent renders the court process a sham. The outcome of an application to see a child depends on the welfare report; before the case, the father is told he cannot query inaccuracies or distortions in the welfare report because he has the chance to cross-examine at the hearing; at the hearing, the father finds he does not have the right of cross-examination.
This contradiction, unobserved for so long, is indicative both of the slender thought given to the probity of Children Act proceedings and of the absence of a controlling intelligence to which to make the appropriate representations. INPOWw has expended three years of extreme effort in an endeavour both to bring these subterfuges to light and to find (or create) an audience who might consider the denial of natural justice in the Family Courts as inappropriate.
A system too frail to withstand analysis
The underlying rationale for such an un-British mutation of the legal process is simple.
The credentials of the Family Court Welfare Service, and the contents of their reports, do not bear analysis.
But it is to their word that the system adheres.
Therefore the word of the Family Court Welfare Officer cannot be, and must not be, questioned.
Effectively, non-resident parents are gagged from arguing their case. The 1991 Family Proceedings Rules originally required the court welfare officer's attendance at a hearing. The current position is that the officer need not attend.
Increasingly, if application is made for an officer's attendance, it will be rejected. If the officer does attend, he cannot (or should not) be questioned; if he is questioned, the effort will prove futile. His report is destined for implementation as written.
In like vein, non-resident parents are constrained from entering a defence to attacks made upon them by their former partner.
This is an unusual mutation for a court of law.
In the Family Division, it is folly for a non-resident parent to argue that allegations made against him by a resident parent are untrue. Such a course will be construed as an attack on the resident parent by a father 'anxious to score points off' his former partner.
Often, it is dangerous for a father even to assert or mention that the mother will not allow him material contact with the child; the judge will habitually support the welfare officer's estimation that such protestations:
(i) undermine the mother
(ii) are indicative of an embittered non-resident parent anxious to 'continue the dispute over the marriage'
(iii) irrelevant to the issue before the Court ( which is 'the best interests of the child')
The best interests of the child
It is a sad fact that the term 'the best interests of the child' has yet to receive a preliminary definition. This means that the primary criterion of these cases is not a criterion but an infinitely amorphous variable (affixed to the decision by way of subsequent justification).
In the sluggish intellectual waters of the Family Division, no thought has yet been given to whether a child's benefit would be better advanced:
a) by a system that allowed the resident parent to deprive a child of material contact with a non-resident parent (or 'father') for good reason
b) by a system which allows the resident parent to deprive a child of all or all material contact with a non-resident parent for no or no material reason.
Since these two 'models' give rise to different outcomes (children with two parents or children with one parent; parents with children or parents without children) on a wide scale, the oversight is odd.
Further, since the two definitions are opposite to one another in one of the most important matters concerning children (should they be raised as quasi-orphans?) then if one model is represents working towards the 'benefit' of the child', the other represents working towards his detriment .
A primary defect
The key question, as yet unaddressed, is whether parents and children should as a general rule be allowed to see each other.
In legal parlance, the point sounds like this: is the right (or the presumption of a right) of either a child or a non-resident parent to have material contact with one another:
i) a right (or presumption) of substance
ii) a right (or presumption) of no substance
If the latter, or if there is no such right or presumption at all, it would follow that (as currently happens) a right of no substance should properly be defeated by a reason of no substance.
This would tend towards an end-result whereby all or all material child-parent contact can be stopped for no or no material reason.
The alternative to the current end-view of achieving a nation of uncles is to consider what are the basic constituents of a right or presumption of substance.
As things stand, disputes are currently settled by the Family Division and the Welfare Service gazing in the wrong direction. When confronted by a case of which the salient feature is the partial or total lack of contact between parent and child, the Courts and Service reason backwards, seeking to justify the absence of contact by discerning defects in the applicant father's personality.
The result is that after the case, contact will be much the same as contact before the case.
The father is therefore obliged to re-issue proceedings.
Although some cases eventually reach a satisfactory resolution, many continue indefinitely or stop when the father abandons his child in despair.
All things to all men
It is a fact that the concerns outlined above (of crucial import to its operations and as basic as the presumption of innocence or guilt) have yet to be identified by the Family Division. If it be asked how or why such an oversight could have occurred, reference may be made to Part II of this document. Readers who have struggled this far are now poised at the cutting edge of the Children Act community.
The term the 'best interests of the child' is no more than a label affixed to the case retrospectively, irrespective of current research, irrespective of best opinion, irrespective of the facts of the case, irrespective of governing principles, irrespective of the merits of the case and irrespective of the outcome. This is an inevitability; all decisions (whatever they are) must by definition be in the best interests of the child since otherwise they would contravene the law. The definition of 'the best interests of the child' is whatever decision the Court reached.
The Knock-On Effect
The demise of the Family Court Welfare Service lays open to question the various components of the Family Division from the Court of Appeal down to the conduct of individual solicitors.
The picture that emerges is of a system backward, and collaboratively backward, to a degree which outsiders would find hard to credit.
The Welfare Service has yet to inform its staff whether, when reporting to the Court, they should work under the premise that, in circumstances conducive to contact, their objective should be to encourage, or to frustrate, child-parent contact.
There is nothing in the Children Act which states (as the Court of Appeal consistently affirms) that contact will 'almost always' be in the child's best interests. In the absence of due training and awareness of case law, no such information may percolate to individual officers.
If the officer is au fait with this relatively sophisticated concept, he is little the wiser. 'Contact' can mean as little as the right to send a child half a dozen postcards a year. Many welfare officers consider that to allow a father to see his child for a few hours a month is generous and reasonable.
The heart of problem (on which officers receive no guidance) is what exactly is meant by 'reasonable' or 'generous' contact. Does it mean fifty hours a year? Or a hundred days a year?
The conventional answer to this question is:
'It all depends. Every case is different. Each case is decided on its merits'
This assertion has an initial plausibility.
It has done for a generation of fathers and their children.
The Concept of Reasonable Contact
If the Family Division's working credo, 'All cases are different', is correct, then any facts can lead to any outcome.
If there is no indication that the parent seeking reasonable contact does not have to prove why he should be allowed reasonable contact (as opposed to the resident parent showing why he should not have reasonable contact) then the father must prove his innocence in the absence of allegations to disprove.
And if there is no broad concept of what reasonable contact is, then (even if the non-resident parent succeeds) any level of contact, no matter how low, is potentially reasonable.
Thus gross deprivation of contact can be justified for no or no material reason.
It very often is.
The Welfare Service's first guidelines are awaited on three crucial points:
a) what is broadly intended by 'reasonable contact' in the average case (e.g. rough parity of contact as the broad target; or alternate weekends as the broad target; or a few hours a month in a 'contact centre' as the broad target)
b) whether it is for the non-resident parent to show why he should have reasonable contact (i.e. to prove his innocence) or for the resident parent to show why he should not have reasonable contact
c) whether any right or presumption of a right to reasonable contact should be defeated only by substantial reason or for insubstantial reason.
In the absence of clarification, the non-resident parent has, as a matter of logic, a low chance of gaining reasonable access to his child through the Courts.
A Perfect Blank
The Service's problems runs deeper. Their first guidelines are awaited on practically everything.
The Service has yet to put pen to paper on a preliminary framework document on shared residence. In twenty years not one sheet of A4 paper has been prepared to afford officers preliminary guidance on what is, and what is not, relevant when framing a contact report for the Court.
Should fathers be precluded from material contact with their children (a) because they have issued legal proceedings to see their children (b) because of the estranged mother's reflections on the father's general character (c) because of concerns about the father's fashion sense (d) because the father has a criminal conviction (e) because the father is a convicted paedophile.
No one knows. The Service affords its officers no guidance. They do as they please. Some officers think this. Others think that. Is it 'too soon' to start overnight contact when a child is one? Or two? Or three? Or four? Or five? Or six? Or seven? Or eight? Or nine? Or ten?
No one knows. It depends on which officer is asked. Is it 'too late' to start overnight contact at eleven? Or ten? Or at nine? Or eight? Or seven? Or six? Or five? Or four? Or three?
No one knows that either. The Service has no views on this or anything else. Is it a good idea to have two days of contact, and then a twelve day break before the next meeting? Should there be contact on the week off? Should it be overnight contact? Does a child find it disruptive to be taken to school by his father? Can a father help with homework?
In the main, these issues (the answer to which would comprise the beginnings of a 'position paper' on the proper cycle of contact) are way over the heads of a Service grappling with a preliminary issue: is seeing fathers bad for children?
As matters stand, all and any opinions amongst the Service's officers equally acceptable including opposite opinions on the same matters.
Finger and glove
The lack of training provision for welfare officers is matched by the ignorance of the Family Division as a whole. The Lord Chancellor's Department has yet to undertake its first comprehensive (or perhaps any) survey on 'outcomes'. It has no information on whether the result of its operations is the creation of sustainable child-parent relationships following divorce; or a legacy of shattered lives, fatherless children and juvenile delinquency.
The Family Division's sole criteria for the 'satisfactory' outcome of a case is whether the parties return to Court, irrespective of whether the actual result was ruination of the lives concerned.
The question must arise of what sort of institution rubber-stamps 500,000 potentially damaging reports without making inquiry as to their provenance, credibility or utility.
Shared Residence: A Disappearing Act
The Children Act 1989 was (and is) hailed as a breakthrough in replacing 'access' and 'custody' with user-friendly conciliatory concepts of contact, residence. In place of strife, there would be shared residence.
Such plaudits are misdirected.
The Act has changed nothing. Shared residence disappeared from the menu. The tyranny of the custodial parent has been replaced by the tyranny of the residential parent. Interminable, meaningless disputes over access have been replaced by interminable, meaningless disputes over contact.
In framing the Children Act 1989, Parliament intended (see Hansard and Reference Sheet 89/5, ISSN 0263 3434, The Children Bill, see post, page 185) that shared residence should be a common arrangement following separation or divorce.
The Act provides, by Section 11.4, that application may be made for shared residence; the Department of Health's contemporaneous Notes on Clauses proposed that, unless impracticable for some reason, shared residence should be preferred to a sole residence order.
Following enactment, and without reference to Parliament, the DoH changed its mind. Its paper, 'The Children Act 1989 - Guidance and Regulations (1991)' suggested, in opposition to information placed
before Parliament when enacting the law, that shared residence was unlikely to be common. With former case-law authorities now obsolete,
this booklet became the Courts' guidelines. Present court practice is
only to grant such a shared residence order where both parties
agree. It is thus axiomatic that the courts will not grant such an
order in a contested case; INPOWw is aware of only one such contested order. Since hearings are secret, both Parliament and the public remain unaware that shared residence is unattainable by legal process.
Parliament is rightly proud of legislation which, effectively, was never implemented and no longer exists.
Those who seek shared residence ((LTA 98/**62 CMS2) are presently disparaged as mentally unbalanced on the specific grounds that they persist in seeking a shared residence order: (father repeatedly invited by judge to e.g. 'see what an adult psychiatrist would recommend he should undertake by way of therapy, if any; I [the judge] have a strong suspicion, as has the child and family psychiatrist, and the court welfare officer, that this is what is needed' ).
Like much received wisdom in the Family Courts, the opposition to shared residence is based on random adage ('A child needs one home'). No one knows why this is believed to be true - it is not supported by research - any more than is its companion piece ('There can only be two homes where there is harmony between the parents'). These two nostra (with the addition of a few sentiments in Re H) probably represent almost the entirety of the Family Division's collective legal and child developmental wisdom on shared residence; - an issue which, in other countries, inspires a deluge of favourable research that is, sadly, written by foreigners.
The Children Act 1989
An Act Which Failed
At the heart of the Children Act 1989 is a blank. In private law cases, it does not give children or parents:
i) the right to see each other to a material extent
ii) the presumption of a right to see each other to a material extent
iii) the right to see each other at all
Rights or presumptions which are of no substance or which do not exist can be defeated by objections which are of no substance or which do not exist.
Parents can merely apply to see their children.
Case law has hardly progressed beyond this tabla rasa. Whilst there is precedent (which can always be distinguished) that the resident parent must produce some reason to stop all contact with the father, the idea that almost all contact can be stopped for no particular reason is embraced with enthusiasm by the welfare service (and hence by the judiciary) as a commendable norm. Thus:
Case 1: contact held at a ninety minutes a week (supervised) for three years because the child (suffering no other irregularities) weighed less than the average at birth.
Towards end-year three, the applicant complained when his third welfare report recommended a 'gradual' extension of 75 hours per year. Complaint dismissed on grounds that (e.g.) the report was 'filed in good time' and followed the 'information format' (i.e. had numbered paragraphs).
Case 2: overnight contact withheld for third year because father fed child lunch at lunchtimes. Child ate it; child was hungry and therefore 'underfed'.
Contact is often denied in its entirety for reasons of no greater significance:
Case 1: Father said to daughter that he reckoned she had never seen him in a suit before. Welfare officer, out of earshot, saw father spread his arms and noted that the daughter did not embrace him. Told court that daughter did not respond to father's expressions of affection. No contact for two years.
Case 2: Mother denies all contact for six months. In 1996, a fifteen minute supervised meeting is arranged with father and child in administrative office. Two welfare officers (stating 'Pretend we're not here') scrutinise father and note down his body language on clipboards during an enforced game of snakes-and-ladders. Child throws dice off board. Officers recommend no contact (still continuing) because of the daughter's 'aggressive behaviour towards father'.
Case 3: Mother refuses all contact. Father tells welfare officer that he would like to see his child. Welfare officer (who had not seen either the child or the mother) reports that 'intervention by the court cannot be fruitful unless the parties shift their position radically', recommending that there be no further welfare report. No contact for one year and continuing.
Misleading the Public
An additional problem with the Children Act is that:
(a) the agency charged with its regulation (the Lord Chancellor's Department)
(b) the agency charged with its implementation (the judiciary through the Children Act Advisory Committee)
are given to making misleading pronouncements about the Act's intent, effect and contents.
This would matter less if court hearings were held in public; the misrepresentations would be exposed and corrective action taken. But no one can find out what happens behind closed doors until it happens to them, whereupon it becomes a criminal offence to broadcast what it is.
The sleight of hand whereby fathers are assured that they can cross-examine in court when in fact they cannot cross-examine in court finds its counterpart in the pronouncements issued by the Family Division and its agencies. Prior to the case, non-resident parents derive false reassurance from statements such as:
From the Consultation Document on the Law on Paternal Responsibility for Unmarried Fathers, the Lord Chancellor's Department, March 1998, page 13, Paragraph 42:
'The Children Act 1989... seeks to encourage both parents to continue to share in their children's upbringing, even after separation or divorce.'
From the standard preamble to the CAAC's annual reports 1991-97:
'The Children Act 1989 ... enshrines five main principles:-
children are best cared for by both parents wherever possible'
Parliament, parents and public have been induced to place their faith in an Act which does not exist.
1. Each year the Family Court Welfare Service writes reports for the family courts on whether and how much some 70,000 children should see their parents after divorce or separation.
2. The Family Court Welfare Service has failed Britain's family courts.
3. Britain's family courts have failed the nation.
4. Between them, these institutions have manufactured a needless generation of one-parent families.
5. Both institutions have their being in secret courts (from which there is little right of appeal) which sit behind closed doors.
6. The driving force animating the legal decisions of the family courts has been the ineptitude of the Family Court Welfare Service.
7. Britain's 660 Family Court Welfare Officers are:
(a) all but untrained in family welfare
(b) as to their generality write reports for the Family Courts based on assumptions which:
(i) have escaped prior scrutiny
(ii) are improper, dangerous and inappropriate
8. These unexamined assumptions make it difficult (or all but impossible) for the ordinary non-resident parent (typically a father) to gain material access to his children after marital/relationship breakdown.
9. Contact difficulties routinely beset ordinary fathers:
(a) against whom nothing of the slightest significance is known or alleged
(b) who, until the day of the matrimonial separation, had the full diurnal care of their children
10. These ordinary fathers are obliged to spend years in an attempt to prove to the satisfaction of the family courts that it is 'safe' to see their children.
11. In that they have rubber-stamped tens (or hundreds) of thousands of improper welfare reports, the Family Courts have failed the nation's children.
12. Over time, tens (or hundreds) of thousands of children have been deprived of their non-resident parents without any or any proper reason; and tens (or hundreds) of thousands of non-resident parents have been deprived of their children without any or any proper reason.
13. The result has been widespread, avoidable personal distress and widespread, avoidable social damage.
14. A failure of such magnitude presupposes a legal institution ('the Family Division') which is, component by component, flawed.
15. The exact structural flaws necessary to produce and explain such a failure are demonstrably in place, flaw by flaw, institution by institution.
16. These facts have, heretofore, been withheld from scrutiny because:
(a) the Family Courts sit in secret
(b) the component institutions are secretive
(c) it is a criminal offence to divulge what happens in a particular case
(d) the characteristics which rendered the Family Division unjust and inequitable are identical to the characteristics which rendered it impervious to the demands of justice and equity
The system has an Achilles heel. The means necessary to reform this huge, amorphous confederacy are (a) simple (b) at hand (c) free (d) available (e) will save hundreds of millions of pounds in direct annual expenditure.
1. The Family Court Welfare Service is under a compulsion to produce a position paper on when and whether fathers should see their children after separation.
At present, the FCWS has no views on this issue.
2. If this task is beyond its capacity, the FCWS will, as an interim measure, adopt the guidelines already produced by its only professional association.
3. This single, simple step will entail, necessitate and engender the requisite legal, procedural, professional and institutional reforms.
The central issue is that welfare officers should receive material training. For them to be trained, it is necessary for there to be something material to train them in. This requires the preparation of position papers and guidelines.
No more is required than for the Home Office to send a fax instructing local probation areas to devise (or adopt) guidelines on when and whether fathers should see their children after divorce or separation. Since this issue comprises the entirety of their FCWS workload, it is not premature.
The Home Office has the power to send his fax; local probation are obliged to comply with its dictates anyway. Moral, humanitarian, intellectual and financial considerations unite with political expedience in commending such a step as a priority. See e.g. pages 158 et seq; 271-3; 90-100