The Contentious Issue of Contact - Assignment Example

The contentious Issue of Contact Traditional social structure is changing rapidly. The increasing incidence of divorces and single family homes has been deemed to be responsible for rising rates of violence, especially among boys. Girls deprived of contact with their fathers grow up depressed and prone to mental problems*1. Traditional familial relationships are giving way to unmarried heterosexual relationships and civil partnerships of homosexual couples. There has been a steep rise in the percentage of families that are breaking up, causing emotional, social and mental problems for children. The prevailing belief that it is the mother who serves the child’s interests best, especially when it is young, have resulted in many earlier decisions of the family Courts awarding custody of children of separated parents to their mother*2. A separation signals a break in contact with the father for children of divorced or separated couples. The factor of domestic violence has also caused the Courts to favor awarding of custody to mothers*3. However, in recent times, father’s rights have become an increasingly important issue and family courts are seen as being unfair to fathers and depriving children of contact with their fathers*4. Moreover, the U.N. Convention on the rights of the child have developed standard international regulations whereby access orders should be based upon protecting the best interests of the child*5. The views of the child should be considered and the best interests of the child should be the primary factor in enforcement of access decisions. However, family Courts have established precedents that make access difficult for father and deprive children of much needed contact with their fathers. In the case of Re S*6, Justice Wall in granting a Parental responsibility Order in favor of the father stated: “I have heard up and down the land, psychiatrists tell me how important it is that children grow up with a good self-esteem and how much they need to have a favourable positive image of the absent parent. It seems to me important, therefore, wherever possible, to ensure that the law confers upon a committed father that stamp of approval.” Most of the applicants for contact in the family Courts are fathers, who want access to their children. In some instances, the Courts also order for access. However, getting an order on access and actual enforcement of those orders are a different ball game altogether. There have been many instances where the parents’ animosity towards each other has a detrimental impact upon the child and creates emotional problems, including lack of self confidence and self esteem. Children realize that they are the subject of conflict between their parents and this makes them deeply unhappy. Moreover, since contact with the father may sometimes be unsettling and upsetting for the mother which also impacts upon the child, courts have ordered that access be stopped in the best interests of the child, as for example in the case of Re K*7. In many cases mothers flout contact orders and the fathers are rendered helpless as they struggle with the protracted court processes to gain access, being denied of contact all the while. Some of the difficulties that are being acknowledged in arranging proper access to children are implacable hostility, parental alienation and domestic violence, all of which have contributed to making the problem of access one of the most difficult issues in family law and this conclusion is supported by several Court decisions that have demonstrated the difficulties inherent in enforcing access. Implacable Hostility: The most important reason for the difficulties in access have been the implacable hostility of one parent. Implacable hostility may be described as the unjustified, unreasonable hostility of one parent towards another. The most difficulties in establishing access are often to be seen when one parent demonstrates implacable hostility towards another. In the case of Re B*8, the mother adamantly refused access to the child. The father pleaded that the mother’s implacable hostility was not justifiable grounds for refusing access, nevertheless the Court did not grant him access because it held that this factor had to be taken into account. It was acknowledged in this case that contact with the father was very important for the child’s emotional health, but the implacable hostility of the mother was an exceptional circumstance which would harm the emotional health of the child if access was forced or sought to be enforced. Another example of a case where the implacable hostility of the mother kept the father away from his children for five years and involved 43 hearings and 16 different judges, was the case of Re D,*9 in which it was acknowledged, “The melancholy truth is that this case illustrates all too uncomfortably, the failings of the system.” Implacable hostility on the part of one or both parents all too often creates almost insurmountable difficulties that only grow worse with increased hearings. In the case of V v V,*10 Bracewell J stated, “Litigation in respect of residence and/or contact is not only de-stabling for parents and children who become a battleground to be fought over at any cost, but it is a process which progressively results in entrenched attitudes as if engaged in a war of attrition.” He also emphasized the worsening perception of the family Courts among members of the public as automatically approving the mother as the custodial parent to marginalize the fathers and permitting them to flout Court orders on access, thereby embroiling fathers in endless litigation. In the matter of O and S,*11 the same problems of implacable hostility resulted in continuous upheavals in the interim contact arrangements that had been made for the father to have access to his children. There were several court hearings in this case as well, for breach of contact orders by the mother, and in 2003, Gillen J gave a written judgment,*12 in which he stated: “If (L) continues to fail to promote their [the children] emotional and behavioural development as she should, frustrating the need for these children to identify with both parents, and persists in investing N with threatening characteristics in order to undermine his position as a role model, a court is likely to conclude that it is implausible for the children to continue to reside with her." This case illustrates the mockery of the Justice system in the family Courts because even such a statement by the Judge did not improve the situation on contact and violations continued. A witness called on behalf of the father stated, “…she had become more and more blatant about breaking court orders. She believed that the Court had no power over her and she mocked the Judge….” But recent trends in the Courts reveal that changes are being introduced. For example, in the case of A v N,*13 the parents were unmarried and separated when the child was three years old. The mother however, consistently refused contact and access on the grounds that the applicant was not the father of the child. DNA tests proved his parentage, yet the mother implacably refused direct contact. Indirect contact was ordered, contact through a third party was offered as an alternative, but the mother refused to obey any of the contact orders. This was when the first instance Judge ordered a committal for a period of imprisonment of 42 days. This decision is significant, because it reflects a gradually changing trend among to refuse to countenance deliberate flouting of contact and access orders. The mother appealed against this order, but the Judge stated clearly, “it is perhaps appropriate that the message goes out in loud and clear terms that there does come a limit to the tolerance of the Court to see its orders flouted by mothers, even if they have to care for young children. If she goes to prison, it is her fault.” In the case of Re M,*14 Wall J took action against a mother who had consistently disobeyed Court orders, ordered an investigation under Section 37 of the Children Act of 1989*15 and removed the children into the custody of their father under a two year period of supervised care. Parental alienation: Parental alienation is yet another reason for the failure of contact orders and distress sin separated families. This syndrome occurs when one parent seeks to either consciously or unconsciously, alienate the child from the other parent, thereby creating feelings of hostility towards the absent parent as was demonstrated in the matter of O and S*16. In this case, the mother had also tainted the children’s views and prejudiced them against the father. In view of the implacable hostility of the mother Gillen J ordered for a temporary transfer of residence with the father, inspite of the opposition of the children, that had been generated by their mother Domestic Violence: One of the most oft cited reasons in family Courts for denying access to the father has been the problem of domestic violence and alleged abuse. Maintaining contact with a violent parent can mean that the child may be put into danger. In a recent study that was conducted by Humphreys and Thiara, 60 percent of women left their husbands out of fear for their lives and 54% left because they realized that the abusive environment was impacting adversely upon their children*17. Wilson and Daly state that it is after separation that women are at greatest risk for their lives from their former partner and this is also the same time they apply for contact with their children*18. In the case of Re H,*19 the parents separated before their child, a girl was born. The mother contended that the father was a violent man and did not support contact with her child on those grounds. While some initial contact was established between father and child, which was a positive contact, the abusive conduct of the father towards the mother destroyed any further chances of contact, because it brought on illness in the child. In this case the Court denied access to the father inspite of his applications, because of the fear of domestic violence and its potential to impact negatively upon the child who was in a delicate health condition. In the case of Re D,*20 the Court supported the mother’s grounds for refusal of contact, on the basis of violence and the fact that it would stress the child. In this case the father was black and the mother white, however the Judge ruled out any racial bias because the child had a healthy and positive opinion of black people. If a parent has indeed been violent or is mentally imbalanced, then undoubtedly, restriction or denial of access will be in the interests of the child. However, it must be noted that regulations in the U.K. have changed so that even an allegation of domestic abuse is sufficient to create a cause of action for denial of access and contact with a child. In the case of Re O,*21 the Court set up a strong precedent for contact through its statement that contact is “almost always in the child’s interest.” One of the most important cases on contact where domestic violence was alleged was the case of Re L*22. Four cases of domestic violence were considered together and the guideline laid out for the Family Courts in the matter of domestic violence was that they should “consider the conduct of both parties towards each other and towards the children, the effect of violence on the children and the residential parent and the motivation of the parent seeking contact.” In such cases, the rights of the child as spelt out under the Un Convention on Human rights would have to be weighed against its best interests, and the interests of the child were to prevail under Article 8(2) of the European Convention for the protection of Human Rights. Measures being taken to enforce contact orders: From the foregoing, it may be noted that the Courts are aware of the general impression that exists among the members of the public about the failure of the Justice system and the frustrations experienced by litigants in Family Courts, especially on contact orders. Some of the cases discussed above have revealed the growing trend among the Courts to ensure enforcement of contact orders. Other case precedents also exist where attempts are being made to enforce the penal provisions available under the Children Act of 1989 to enforce contact and access orders. For example in the case of Re N,*23 it was established that in the event of a breach of an access order, the Court would be justifying in imposing a term of imprisonment against the parent who flouted the order. In the case of D v D*24, it was established that an access order must be so framed that it has a penal clause attached to it with an application to commit through a fine, suspended committal or an actual committal as in the case of A v N*25, discussed above. Therefore, the statement made by Adrian Bainham is well supported through the realities of the difficulties in access and contact arrangements made through the Courts and especially in the enforcement of contact orders, as made abundantly clear by judicial opinions expressed above. However, it is also clear that the problems inherent within the system are being recognized and the courts are setting precedents to establish the fact that they are aware of the unfairness and difficulties that have characterized the family justice system. There are some factors however that rest outside the control of judicial authorities such as the formal procedures that have been laid out for processing of family cases and the adversarial position that parties are forced to assume within family Courts due to the existing systems. Reforms in this area are therefore the responsibility of legislators and the executive branch of Government and some steps are being taken to reform the justice system to better address the complex problems and issues that need to be faced today, especially in regard to contact and access. Measures mooted by Government: In 2004, the Government released its report on the present day situation, which detailed the needs of the children and the responsibilities for parents, also identifying some of the drawbacks within the current judicial system which were the cause of its ineffectiveness*26. This report was followed by another White Paper in 2005, which detailed the “next Steps” to be taken in addressing the problems that the Courts faced, in order to better meet the needs of the complex issues that exist in society today. These reform proposals are the fruit of considerable input from judicial authorities as well, including those as Wall J who have highlighted the problems inherent in the current system. The Government has also drafted the Children and Adoption Bill of 2005. The basic premise of this bill is that children’s rights must be balanced with their best interests and the child’s rights will supersede the rights of the parents. Where the rights of parents are considered, this will only be to the extent that it is necessary in the consideration of the welfare of the child. This bill contains several far reaching provisions, such as allowing for adoption in cases where parents are unable to maintain effective contact arrangements or where physical, mental or emotional harm is being caused to the children by one or both of the parents. Additionally, the Bill also seeks to improve contact arrangements by allowing for supervised or protected contact at contact centers, some of which offer high security facilities and close observation, thereby providing an opportunity for children to enjoy close and continued contact with both parents inspite of animosity or conflicts between the parents after their separation. Another important measure that is being introduced is the increased facility for judges to consider interim or alternative care orders for children who are in a vulnerable position. Whereas previous contact arrangements were generally restricted to one custodial parent with the other parent being a non resident parent, the focus is increasingly being directed towards shared residence facilities, whereby the children get to spend equivalent amounts of time with both parents. The importance that was previously being given to the mother is being eschewed by new provisions where a father may also apply for and get access and residence for his children if the mother is found to be unfit or if she flouts access or contact orders. This move will be deemed to be a welcome one by many fathers Rights activists, since one of the most common causes for the problems with the justice system is the public perception that it is unfair to fathers and deprives them of contact with their children by being lax in enforcing contact and access orders. The greatest amount of frustration with the legal system has been caused to fathers, some of whom have even committed suicide after being separated from their children. Reforms that have been mooted in the Government papers and next steps that have been proposed are the facility of parent intervention and education programs, where parents will be able to avail of consultation and psychiatric facilities in order to seek peaceful resolutions of their disagreements in the best interests of their children. Since the major focus of the new proposal is to concentrate on the best interests of the child in accordance with Articles 8 and 9 of the European Convention, educational programs are being offered for parents in order to enable them to concentrate on what is best for their children with the help of experienced professionals. As a part of this intervention program, parents will also be offered expert legal help. The most important reforms that have been proposed are in modifications and improvements to the current judicial system. For one thing, the time taken for processing of applications will be reduced through the new move by the Courts to do away with much of the administrative, written record keeping part of the judicial process and to focus instead upon offering arbitration and in court conciliation programs that will focus on bringing about peaceful solutions to problems through arbitration rather than placing the parties into a confrontational mode. The Courts will aim to cut down on processing time and speed up the processing of individual cases. Arbitration facilities are being mooted using mostly private arbitrators, who would be able to provide an impersonal, non judgmental forum for parents to calmly interact with each other and determine the best interests of the child without letting their personal animosities enter into the equation. The new proposals also moot more contact centers and arrangements for supervised contact. This is likely to be extremely helpful in addressing the problem of domestic violence which often plagues many contact cases and is the cause for the implacable hostility of mothers towards contact and access for the fathers. The new proposals are geared towards aiding and promoting contact f the child with both parents, but in an environment that is safe, with the safety factor being provided through contact facilities. London presently offers several high security contact centers which have generally been shown to contribute towards a positive contact experience between parents and children. Therefore, on an overall basis, the new proposals for reform mooted by the Government appear to be headed in the right direction, since at long last, measures are being taken to reform and improve the notoriously slow process of justice in the family Courts. Bibliography A v N (Committal: refusal of Contact) (1997) 1 FLR 533 Children Act of 1989 (c.41) [Online] Available at: http://www.opsi.gov.uk/acts/acts1989/Ukpga_19890041_en_2.htm#mdiv1; accessed 1/7/2006 Flouri, E and Buchanan, A (2003). Distress among children whose separated or divorced cannot agree arrangements for them. British Journal of Social Work, 33, pp 227-238 Government report titled: Parental Separation; Childrens Needs and Parents Responsibilities (2004) CM6273 Humphreys & Thiara (2002 ), Routes to Safety, Bristol: Womens Aid Federation of England.) In the Matter of O and S (residence Order: Contact: Implacable Hostility) (2005)NIFam4 (May 4 2005) (unreported, GILF 3940, 30 May 2003) Re L (Contact: Domestic Violence) [2000] 2FLR 334 Re D (Contact: reasons for refusal) (1997) 2 FLR 48 D v D (Access: Contempt: Committal) (1991) 2 FLR 34 Re S (Parental responsibility) (1995) 2 FLR 648 Re N(A Minor) (Access) (Penal Notice) 1992 1 FLR 132 Re H (A Child)(2002) EWCA Civ 542 Re O (Contact: Imposition of Conditions) (1995)2 FLR 124 Re M (Intractable Contact Dispute: Interim care Order)(2003) 2 FLR 636 Re B (A Minor) (Access) (1984) FLR 648 V v V (Contact: Implacable Hostility) Re K (Contact: Mother’s anxiety) (1999) 2 FLR 703 Re D (2004) 1 FLR 1226 Re D (A Minor) (Contact: Mothers Hostility) (1999) 2 FLR 1 www.parents4protest.co.uk Wilson & Daly (1992) Homicide; New York: Aldine de Gruyter Read More