MP calls for family justice reform
Fareham MP Suella Fernandes has called on the Government to reform family justice, to make the system fairer for parents.
On Tuesday in Westminster, Suella presented a bill to Parliament covering the enforcement of child arrangement orders, the need for a presumption of shared parenting and a commission on reform of wider aspects of family justice including no fault divorce, cohabitants rights, reform of financial remedies, better mediation/out of court settlement, opening up the family courts and enforceability of pre-nuptial agreements.
The family courts in my experience always encourage an ongoing relationship between both parents, unless there are significant welfare concerns. The court will also consider putting in place measures for contact to be supervised and/or take place by indirect means such as letters and cards, if there are welfare concerns. Before the Children and Families Act 2014 in our local courts, and I understand generally, shared residence orders were very much in vogue. These provided for the child to live with both parents, not necessarily exactly for equal amounts of time, but this was usually for practical reasons like work, geographical distances and so on. A shared parenting approach was and is considered best for the child. The Children and Families Act 2014 changed the terminology from residence and contact orders to child arrangements orders.
The Children and Families Act 2014 came into force on 22/10/2014 and inserted new provisions into the Children Act 1989. It introduced a presumption that, " unless the contrary is shown, involvement (direct or indirect) of a parent in the life of the child concerned will further the child’s welfare…unless there is some evidence before the court in the particular proceedings to suggest that involvement of that parent in the child’s life would put the child at risk of suffering harm whatever the form of involvement". This in reality was and is what the courts were doing, so arguably any further legislation and change in terminology was unnecessary.
In terms of the enforcement of orders relating to children, the need for such applications are thankfully rare as most parents respect and adhere to an order of the court. Orders are much more likely to be followed if they are reached by consent, as opposed to being imposed by a judge at a final hearing. Mediation, the collaborative process and other ways of resolving matters without recourse to litigation are therefore very much to the fore and are encouraged by family law professionals, including judges. Judges can and do adjourn proceedings for the purposes of mediation. The cuts in legal aid, though, have sadly meant more people are not receiving legal advice and are reluctant to settle and compromise matters as they are not aware of the legal position. This can mean more cases proceed to fully contested hearings which result in orders being imposed on parents. This also consumes more of the court's time and resources which is regrettable.
New enforcement measures were introduced by the Children and Adoption Act 2006 (Commencement No. 3) Order 2008, which came into force on 8th December 2008. These include an unpaid work requirement for parents in breach of orders and compensation being made for any financial loss. The court can also include activity directions and activity conditions for the contact arrangements. A common such direction is for the parents to attend the Separated Parenting and Information Programme which helps parents to consider the impact of their behaviour and any hostility on the children. It is free to parents if court proceedings have been issued, but it would be helpful if this could be made available to parents earlier at no cost when they first separate to help avoid the conflict setting in and building up.
As a last resort the court can consider transferring residence from one parent to the next but the case of Re S (A Child) 2010 EWCA Civ 219 is a salutary tale and warning for those considering this. The courts tried everything for the father to try to enforce the contact, including transferring residence, but it backfired and the child was very damaged by the process. Ultimately, as we are dealing with children and families it will always be hard to enforce, whatever further measures the government might come up with. There does not seem the need for any further legislation at the current time, save for to make public funding more available to people using the family courts so they can more easily access legal advice.
Suella's full speech in Parliament can be found here.