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Court Reporters - CAFCASS - Wolffe
Email: tempcb@dca.gsi.gov.uk
www.lcd.gov.uk
8 December 2003
Dear Mr M,
Thank you for your email dated 17 November 2003 to our general
queries email address, this has been forwarded to me for reply.
I have also received your emails dated 7 (2) and 18 November.
I will try and incorporate all the points in this reply.
You mention how the Children's Act has been twisted to protect
the interests of mothers. The Children Act 1989 is founded
on 5 key principles. The opening section sets out the principle
that the welfare of the child is paramount. This applies to
all proceedings under the Act where a decision is to be made
about the arrangements for care of a child. The Act stipulates
that generally, any delay in proceedings is likely to be prejudicial
to a child's welfare. When considering a child's future, courts
are obliged to apply the welfare checklist. This sets out
a list of factors to be taken into account, eg, any harm a
child has suffered or is at risk of suffering, and the ascertainable
wishes and feeling of the child in the light of his age and
understanding. The 'no order' principle means that courts
should only make an order when they are satisfied that this
is better for the child than making no order at all. Parental
responsibility is defined in the Act as the "rights,
duties, powers, responsibilities and authority which by law
a parent of a child has in relation to the child and his property".
The Government believes that children generally benefit from
a continuing relationship with both parents following divorce
or separation. The Children Act 1989 encourages divorced or
separated parents to reach agreement between themselves about
arrangements for the future of their children. The court's
role is to make a decision only in the minority of cases where
the parents are unable to reach agreement. In all questions
that come before the court about the upbringing of a child,
including issues of residence and contact, the court is required
to treat the welfare of the child concerned as its paramount
consideration.
The approach of the English law and courts to the difficult
and sensitive problems of the enforcement of contact orders
has been endorsed more than once in cases before the European
Court of Human Rights. As recently as 19th September 2000,
the court rejected a complaint against the Government (in
Glaser v UK) and said that the interests as well as the rights
and freedoms of all concerned must be taken into account and,
more particularly, the best interests of the child and his
or her rights.
You raise a couple of points on judge's and their decisions.
In all cases, the Government expects all judges and holders
of judicial office to display tact, sympathy and understanding.
The decisions taken are difficult ones and judges may be called
upon to reach a view that will, inevitably, be disappointing
or unwelcome to at least one of the parties.
The judge makes his or her decision after hearing and considering
all the evidence put before the court by both parties and
any other witnesses, including experts. In contested cases,
a CAFCASS officer is often appointed to assist the court by
investigating the family's circumstances, ascertaining the
child's wishes and feelings and making independent recommendations
about the child's future care and welfare. When the report
is considered at a hearing, the court may direct the CAFCASS
officer to attend when it will be open to either of the parties
to question the CAFCASS officer about the recommendations
in the report. In all cases it is the judge who makes the
final decision. The judge must take account of the CAFCASS
officers recommendations, but is not bound to follow them.
I agree with you that it is unsatisfactory for contact orders
to be flouted and for children to be denied contact with one
of their parents when the court has found this to be in their
interests. The enforcement of contact orders is a sensitive
area. Deliberate refusal to obey any court order is contempt
of court that can be punished with a fine of up to £2.500
or imprisonment of up to two years (two months in the magistrates'
court). However, such penalties may not be appropriate in
a child contact case because of the effect it would have on
the children at the centre of the dispute. The court can also
decide to transfer residence to the other (non-resident) parent,
if this was considered to be in the child's best interests.
The government is considering many of the issues raised in
your email. In 2001 the Children Act Sub-Committee (CASC)
publicly consulted on the issue of the facilitation and enforcement
of contact orders. The Sub-Committee published their report
"Making Contact Work" on 8 February 2002. The report
made a number of recommendations on the facilitation and enforcement
of contact between children and a parent who no longer lives
with them. The Government considered the proposals carefully
and published its interim response on 6 August 2002. As part
of the Government's work in responding to the CASC proposals,
a stakeholder group on facilitation and enforcement was established
comprising representatives from the judiciary, legal professionals,
Children and Family Court Advisory and Support Service (CAFCASS),
other government departments and the voluntary sector. The
Government will publish its full and final response to the
CASC report as soon as possible.
I hope this is of some help.
Yours sincerely.
Tim Porter Families In Change Branch Family Policy Division
Mr Oliver Cyriax - New Approaches to Contact
Thank you for your e-mails sent on 16 April
and 26 April concerning issues of child contact.
Many of the issues that you raise therein have been dealt
with in Mr Porter's letter to you of 8 December 2003 and my
letter to you of 20 January 2004.
As you are aware as a Policy Advisor I am unable
to comment on individual cases since the judiciary is entirely
independent of Government. I therefore have nothing further
to add.
I note that you have contacted the Department
by telephone and communicated with a senior official, Mr Warren
Davis. He has now left the Department and not other senior
official is able to advise you at this present time.
As you may be aware, Margaret Hodge and her
colleague in the Department for Constitutional Affairs (DCA)
have met representatives of various fathers groups.
On 19 March, the Government published its final
response to the Children Act Sub-Committee report 'Making
Contact Work'. AOn 19 March, the Government published its
final response to the Children Act Sub-Committee report 'Making
Contact Work'. [I enclose a copy of the response / a copy
of this response can be found at the following website address:
http://www.dca.gov.uk/family/abfla/cascresponse.pdf ]. This
follows two years of consultation with stakeholders following
the original report published in March 2002 (and an initial
Government response in August 2002) on how to underpin contact
arrangements between children and their non-resident parents
who no longer lives with them following divorce or separation
of the parents. The main outcomes of the report are:-
• A new 'Family Resolutions Pilot Project
in London, Brighton and Sunderland to divert families from
lengthy court cases by helping them to agree practical solutions
wherever possible;
• An additional £3.5million for
child contact centres, including the funding of 14 new supervised
contact centres; and
• The introduction of new forms to ensure
that judges are aware of and address concerns about domestic
violence at the start of contact cases
The Government knows that difficulties in enforcing
ordered contact causes concern in some cases. Together with
the DCA we are exploring a number of options to improve better
arrangements for children when parents separate and divorce.
This work will cover whether and how we improve compliance
with court ordered contact, how we can better support parents
in determining appropriate contact, and how post-order arrangements
can be improved. We hope to publish a consultative document
based on this work shortly.
copy of this response can be found at the following
website address: http://www.dca.gov.uk/family/abfla/cascresponse.pdf.
This follows two years of consultation with stakeholders following
the original report published in March 2002 (and an initial
Government response in August 2002) on how to underpin contact
arrangements between children and their non-resident parents
who no longer lives with them following divorce or separation
of the parents. The main outcomes of the report are:-
• A new 'Family Resolutions Pilot Project
in London, Brighton and Sunderland to divert families from
lengthy court cases by helping them to agree practical solutions
wherever possible;
• An additional £3.5million for
child contact centres, including the funding of 14 new supervised
contact centres; and
• The introduction of new forms to ensure
that judges are aware of and address concerns about domestic
violence at the start of contact cases
The Government knows that difficulties in enforcing
ordered contact causes concern in some cases. Together with
the DCA we are exploring a number of options to improve better
arrangements for children when parents separate and divorce.
This work will cover whether and how we improve compliance
with court ordered contact, how we can better support parents
in determining appropriate contact, and how post-order arrangements
can be improved. We hope to publish a consultative document
based on this work shortly.
Your correspondence has been allocated the reference
number 2004/0024767
Yours sincerely
Cynthia McFarlane
0207 273 4859
cynthia.mcfarlane@dfes.gsi.gov.uk
http://www.dfes.gov.uk/index.htm
25 May 2004
Dear Oliver,
The Family Resolutions Pilot Project
Thank you for your letters of 5 May to Bruce Clark and to
me, following our meeting on 29 April. I found our discussions
very helpful and I think it might be useful if I give some
more detail here about the context of the Family Resolutions
Pilot and its aims. Some of what I say will inevitably cover
aspects of what we discussed and areas outlined in my letter
of 6 April.
Both Margaret Hodge and Lord Filkin are committed to taking
forward the Family Resolutions Pilot Project. This commitment
is in the context of the Government's response to the recommendations
set out in the Children Act Sub-Committee's Report "Making
Contact Work'. The Project aims to help separating or separated
parents reach agreement about contact and residence for their
children, without needing formal family court proceedings.
The pilot phase will test the effectiveness of a range of
measures including information and advice and parental co-operation
sessions. Since our meeting, Bruce Clarke has again spoken
to Lord Filkin and the minister has reconfirmed his support
for the Family Resolutions Pilot Project.
In designing and implementing the project, ministers fully
understand the importance of drawing on the experience and
lessons learned from other jurisdictions. Undoubtedly a great
deal of good work has been done in the UK and elsewhere in
this area and it is very important we do not work in isolation.
In particular, the Project is drawing on the recommendations
of the ad hoc group chaired by District Justice Nicholas Crichton.
The project will promote good quality contact while, through
screening and risk assessment, it will safeguard children
from the risks of domestic violence, abuse and the adverse
effects of their parents' conflict. The pilot will provide
well presented relevant information and skills guidance in
planning for co-operative parenting, as well as further support
in reaching agreement.
However I am sure you can understand if I take this opportunity
to underline that the pilot and subsequent national rollout
will be operating in the context of the current statute law,
as interpreted by case law judgments. In practice, this means
relying on the current assumption of contact that has been
established through case law, rather than developing new presumptions
in the statute law. Therefore, the pilot will be based on
the current principle, as set out in the Children Act 1989,
that the child's welfare will be the paramount consideration.
In this context, it is the quality of contact between a child
and his/her non-resident parent rather than the simple quantum
of contact that is the more important issue. Further, it is
a key aim of the project to encourage parents to step back
from the adult conflict and focus exclusively on the needs
of their children. Therefore, the project cannot advocate
a structured programme along the lines proposed by "New
Approaches to Contact", in terms of specifying, from
the outset, the quantity of contact. This focus on quality
ahead of quantity will feature in the planning session(s),
where both parents will be expected to work together to draw
up their own plan for co-operative parenting. These plans
will, of course, need to be flexible across time, as parents
will need to adapt and develop them to reflect changing circumstances,
such as their children growing older and becoming more independent.
I realise that discussions during the past year have frequently
referred to "Early Interventions" and the "Florida
model". This in part came about through the significant
interest about what happens in Florida and our references
to the recommendations of the ad hoc group chaired by District
Judge Nicholas Crichton. However the title "Family Resolutions
Pilot Project" was chosen to emphasise the key principle
of parents continuing to work together in the best interest
of their children, even if the adult relationship had broken
down. Also, changing the title from "Early Interventions"
acknowledges that although the intervention may take place
early in terms of Court-based intervention, it is probably
not at all early for the families.
As I mentioned above, we are very conscious of the value to
be gained from looking at what other jurisdictions have done
and this includes Australia, Canada, New Zealand, EU countries,
the "Florida" model and the US generally. The pilot
will include an independent review of court based interventions
in other jurisdictions, with a clear account of the evaluation
and monitoring undertaken. The pilot has no in-built assumption
in favour of an already existing model.
Yours sincerely
Althea Efunshile
Director, Safeguarding Children Group
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COMMENT:
- the element of quantum has been removed from cases about
quantum
- quantum will not be a relevant factor when assessing how
much contact there should be
- cases about quantum will be assessed on the quality of contact
- no indications can or will be given to parents on what appropriate
levels of quantum are
The purpose of a contact application is to rule on the appropriate
level of quantum.
It is to be presumed that:
- if the quality is deemed good, there will be no need for
more contact
- if the quality is deemed bad, there should not be more contact
- if the quality is deemed indeterminate, there should be
no more contact while the case is deferred
- quality will be assessed on a subjective basis according
to nebulous criteria
- successive cases will be assessed on nebulous but different
criteria
- assessments will be made on the basis of fleetingly-observed
child-parent interaction or inferred child-parent interaction
The FR system may operate as an incentive to offer low contact
until (and after) the quality of contact is deemed adequate.
As applications can - presumably - be defended on what is
said to happen during contact, there may be additional incentive
to find fault with the non-resident parent's conduct or bearing.
Considerations of child welfare, over and above what is said
to happen during the designated period of contact, are presumably
not relevant.
The content of the pre-court machinery (information, skills
guidance, planning sessions, risk assessment) will presumably
focus on quality of contact.
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Authoritative statements on the
Children Act 1989
The general statements known to the NATC on the Children Act's
private law provisions are:
"New orders are introduced to reflect our emphasis on
encouraging parents to participate fully in the child's upbringing"
The Minister introducing the Bill, 27 April 1989, Hansard
"The Children Act 1989... seeks to encourage both parents
to continue to share in their children's upbringing, even
after separation or divorce"
Consultation Document, Parental responsibility, Lord Chancellor's
Department, March 1998, p 13, para 42
"The underlying philosophy of the Children Act is that
parents have a shared responsibility for the upbringing of
their children even after the parents' relationship has broken
down. This reflects the Government's belief that children
generally benefit from a continuing relationship with both
parents".
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The DfES Project is the diametric opposite of the NATC Early
Interventions project said by the Minister (on the basis of
information received from his civil servants) to be under
development: "The Early Interventions project which was
developed by New Approaches to contact NATC and others is
being developed and taken forward" (29.4.04 DCA/CEP).
Eight of the nine members of the DfES Design Team have no
knowledge of the EI project and have had no dealings with
the NATC (the general knowledge of contact issues may, in
addition, be tenuous).
The DfES Family Resolutions project was said, at the time
that funding was obtained by the DfES, to be "broadly
similar" to the NATC EI project. The DfESFamily Resolutions
project had not been announced or discussed prior to the publicised
official receipt of the EI project. It seems that the Family
Resolutions project was not the subject of a formal proposal
as a specified project.
The Family Resolutions Project is said to be a DfES project
and not a CAFCASS Project; the most recent CAFCASS guidelines
affirm in their entirety: Heading 6.5 (?Quality Counts Most
- not Quantity?) ?What counts is the quality of a child?s
relationship with the parent or family member, not simply
the amount of time they spend together. Quantity is only one
measure of quality.? [CONTACT PRINCIPLES & GUIDANCE: Progress
(Feb 04, ref BK, 7 pp)].
The CAFCASS author of this statement is on the DfES Design
Team. The author of this statement appears to be responsible
for mistaking the EI project for its opposite and presenting
EI to government, inverted, as a project developed by CAFCASS.
The CAFCASS (BK) statement on quantum is the only known supplement
to CAFCASS's assertion that: "CAFCASS does not currently
have guidelines in relation to the amount of time a child
should spend with a non-resident parent, nor does it have
detailed written-down guidance on the factors to be taken
into consideration on time based recommendations" (3
April 2002, CAFCASS/ DRC). The point of every CAFCASS welfare
report is a time-based recommendation. CAFCASS is the institutional
embodiment of the opposite of the NATC Early Interventions
project.
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The NATC EI project has support from the High Court judiciary,
the Family Law Bar Association, the 03/04 Chair of the Solicitors
Family Law Association, parents groups, mediators, the cream
of the profession generally and, perhaps most important, support
of the child development specialists.
Agreed facts are that the NATC EI documentation submitted
to the DCA and DfES has not been seen, not been read and cannot
be found.
The Family Resolutions project is due for implementation on
1 September 2004 as a prelude to national rollout.
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