Family Law Issues - Essay Example

Unless the courts are seen to be taking the contact issue seriously, the message of the law that contact is an important issue of the child may be lost” Andrew Bainham, Children- The Modern Law. 3rd Edition, 2005. a) Discuss with reference to statutory provision and relevant case law the extent to which courts achieve effective balance between right of the child to enjoy the contact and the concerns of the carer. b) Do you consider the provisions of ss.11A-11P children act 1989 will equip courts with more effectively to deal with contact dispute sin the future? a) The Children Act 1989 (CA) was implemented in 1991 to revolutionise proceedings regarding the welfare of children in England and Wales1. Hester argues that the Children Act 1989 re-defined child care law by introducing new measures for working with children and families in both public and private family law2. Generally speaking, the CA embodies a fresh approach to working with and for children and under section 8 of the CA, the court can make four types of order within family proceedings in respect of the child’s welfare, with the main provisions being a residence and contact order. Section 8 of the CA replaces the previous custody orders with contact orders and the new system of private ordering was intended to promote and continue parental responsibility post divorce with minimum interference by the court3. Moreover, in the consultation process, Lord Mackay asserted that “while the law can sever the legal bond between husband and wife, the law in family disputes should do nothing that appears to weaken bond between parent and child4”. Therefore the issue of contact and child parent bond is vital and embodied in the spirit of the Children Act 1989. The consultation process research indicates that the most important factor in child’s adjustment is the quality of post divorce arrangements for all family members, which was highlighted in the official papers that led to the 1989 Act, such as Law Com No. 172, “Review of Child Law – Guardianship and Custody”5. A vital element in a child’s adjustment is a continuing relationship with both parents6. Children ultimately want two active involved parents7 and the July 2004 HMG Green Paper “Parental separation: Children’s needs and parent’s responsibilities”8 highlighted that it is vital to handle the process of contact and separation to reduce the impact of separation and divorce on children, which requires preservation of the parent/child bond wherever possible9. Whilst, no law can force someone to be an active parent as radically postulated by Helen Conway,10 it can nevertheless encourage that role even post separation. Prior to the 1989 Act, under the old system of private ordering there was very little to encourage joint responsibility or to preserve a real relationship between child and non-custodial parent11. Two orders attempting this were joint custody orders and access orders, with the former often symbolic and in the latter the parent/child relationship was often artificial and unnatural12. Additionally prior to the CA, the practical limitations of the orders often left the absent parent feeling redundant13. However, the efficacy of any legislative framework is intrinsically dependant on efficient judicial enforcement and Bainham’s statement suggests that the courts’ application of the CA provisions have undermined the overriding purpose to facilitate contact between parent and child. Indeed, academic debate has highlighted the shortcomings of the CA provisions in suffering from delay and lack of judicial consistency in practice. The focus of this analysis is to critically evaluate this statement and consider how far the courts have gone to preserve the importance of contact between child and parent. It is submitted at the outset that whilst Bainham’s statement is clearly supported to a degree by the ad hoc nature of judicial decisions (often leaving fathers aggrieved and let down by the judicial system14) the practical difficulties are somewhat caused by the inherent limitations of the CA to address problematic situations impacting the family relationship dynamic, particularly in domestic violence cases15. The section 8 contact order symbolises the purpose of the CA to promote contact and relationship with the parent. In general terms, a contact order requires a person with whom the child lives to allow the child to visit or stay with the person named in the order or to have contact with that person16. There has been a strong presumption since the introduction of the CA and the implementation of the section 8 orders that contact with the absent parent is generally in the best interests of the child17. In the case of ReR (A Minor) (Contact)18 LJ Butler Sloss argued that “it is the right of a child to have a relationship with both parents wherever possible…. When parents divorce the parent with whom the child does not live has a continuing role to play”19. This effectively requires the parent with the residence order to demonstrate why there should not be contact or supervised contact with the parent. Private orders available under section 8 of the Act further advance the view that the bond between parent and child is vital, and recognise the potential psychological impact to a parent of “labelling”20. The two principal orders namely residence and contact symbolise issues most likely needing resolving and how much the child should see both parents. The court is therefore no longer concerned with reallocation of rights but rather each parent retains responsibility and does not lose parental status21. The opportunity for conflict is theoretically reduced and therefore it is argued the “winner takes all” situation, leading many absent parents to feel redundant is avoided thereby maintaining the importance of the parent/child bond and presumption of contact22. The orders theoretically provide a practical solution to questions regarding child’s upbringing and flexible and less emotive than previous orders23. Under the CA the general principle is that contact is vital is bolstered by a number of provisions. Firstly, there is the concept of parental responsibility. Where parents are married, section 2 of the CA provides parents with automatic parental responsibility which is totally unaffected by divorce. If a section 8 order is made, parental responsibility is limited only to the extent determined by the order for example, living arrangements. For many items, parental responsibility runs with the child and either parent can exercise it when the child is with them, and act independently in exercising responsibility and there is no consultation requirement in the CA24. Additionally, the statutory limitation of the CA is that neither parent must act incompatibly with the order made and if in the absence of an order one parent objects to the other, then an application must be made to the court, which is argued to preserve the parent/child relationship by maintaining parental responsibility25. However, whilst the overriding intention of the CA is to preserve the parent/child relationship, if the parents are co-habitees, the unmarried father does not have automatic parental responsibility. As such, the unmarried father is left in an undesirable position of making applications for parental responsibility (which is unlikely to have consent post-separation). Whilst section 4(1) A of the CA enables an unmarried father to apply for parental responsibility without consent upon separation, the inherent flaw of the legal distinction creates a dichotomy between the preservation of the parent/child relationship depending on the marital status. This is further compounded by the fact that the grant of an order is not automatic and the court has discretion to make a parental responsibility order on the CA welfare principle. It is questionable whether such a distinction is appropriate in light of the changing dynamic of family relationships and consistent increase in cohabitation as a contemporary family unit26. Another central cornerstone of the CA is the innovative non-interventionist principle under section 1(5). The principle is rooted in the belief that responsibility rests with the parent and therefore state intervention is only justified if in best interests of child. Therefore there is a presumption of no order “unless…. Better for the child than making no order at all” of no order which, in this context, discourages parents from expecting a court order in every case simply as part of the package27. I In January 2005, in the foreword to “Parental Separation: Children’s Needs and Parents’ Responsibilities – Next Steps”28 it was argued that in time it will become socially unacceptable for a parent to impede a child’s relationship with another parent “wherever it is safe and in the child’s best interests29”. The non-interventionist approach theoretically encourages parents to make their own arrangements for children and preserves the legal propensity against state intervention in private personal matters. However, the inherent flaw of this provision is the dependence on parental co-operation, which lends itself to judicial intervention. Indeed the reference in the 2005 paper to “wherever it is safe and in the child’s best interests” clearly lends itself to judicial discretion in practice. Whilst Bainham is correct in highlighting the need to preserve the overriding intention of the parental/child relationship on considering contact, the complex nature of family relationships arguably requires a case by case approach. This highlights the problem of legislating for social and moral issues within a narrow and cohesive framework. Nevertheless, the courts must strike a balance and often the main problems have arisen in cases related to domestic violence and the judicial approach has traditionally been to view mothers bringing up problems of domestic violence in court applications as “implacably hostile30” and that nevertheless it is in interests of the child to maintain contact with father31. This highlights the inherent difficulty of legislating for morality within the law. For example in the case of ReP (Contact: Discretion)32 it was held that the mother’s reasons should not be given any credit as her own fears and personal welfare were irrelevant. However, whilst the preservation of contact is vital, arguably such an approach goes too far and undermines the welfare principle and the reality of the negative impact of domestic violence on the family unit33. On the other hand, it is arguable that the notion of contact is paramount as in taking such a robust approach and not denying the absent parent contact unless the evidence is overwhelming, is in fact evidence of the judiciary taking issues of contact seriously. Conversely Bird argues that this approach is inappropriate as it bullies a vulnerable parent and highlights the delicate balance to be struck by idealistic legal principles34. The difficulty of domestic violence cases has also highlighted the inherent problem of enforcement. For example the case of A v N (Committal: Refusal of Contact)35 demonstrated an increasing willingness of the courts to enforce contact orders and in this case, the court sentenced the mother to 42 days in prison for failing to comply with a contact order. Lord Justices Bedlam and Ward stated that “it is more harmful for a child to grow up without a relationship with his father than to see their mother go to jail36”. However, this decision and approach has been attacked on grounds that there is a distinct lack of realism and recognition in the CA within the welfare list of the risks and practical problems faced by women and children facing domestic violence37. The CA does not expressly acknowledge this anywhere and there is no recognition that domestic violence is a key factor in the break up of many relationships38. Indeed, whilst Dowling argues that such situations do not put children at risk39, a recent case law analysis by Family Court Welfare Services within inner London indicates that violence may present in up to 45% of families40. However, the reality is that every other day a woman is murdered by violent partner, one in six applications for re-housing comes from those fleeing violent partners and therefore it is clearly consequential that any children in the relationship will see or hear one parent being brutally attacked by the other41. Therefore whilst theoretically the objective of non-intervention and contact must be upheld, the failure to address the reality of domestic violence in contact and the negative impact this can have on the child/parent relationship beggar belief. Indeed, an early report of Marianne Hester and Lorraine Radford researching domestic violence and contact arrangements in England and Denmark42, recommended that where violence, contact should not be presumed to be in the best interests of the child. Moreover the research indicated that most surprisingly, the quality of the child’s relationship via contact with the absent parent was never questioned and contact was not ceased until strong evidence that the child was suffering from abuse as a result of seeing the absent parent, which clearly undermines the CA’s welfare principle. As such, Pearson attacked CA has being utilised for “abuse preservation”43. Accordingly, it is submitted that there is clearly a danger of the courts failing to realise that the contact principle requires facilitation of a positive parent/child relationship, not a relationship at any cost. Moreover, it is submitted that the failure to implement the recommendations in the Lord Chancellor Department report “Contact between Children and Violent Parents where the questions of parental contact in cases where there is domestic violence (2000)” was an opportunity missed. Moreover, whilst the Domestic Violence, Crime and Victims Act 2004 (“the Domestic Violence Act”) is often cited as the primary piece of legislation which specifically addresses domestic violence,44it has been criticised for failing to address the reality of cumulative patterns of violent behaviour, a lacuna which can be exploited by perpetrators of violence45. Furthermore, the reality is that there are still many pieces of legislation offering remedies for domestic violence and despite the well intended measures of policy makers in attempting to address domestic violence, there is still a plethora of “anomalies and loopholes inherent within the laws46” applied in practice. Overall, the civil injunctions offer temporary protection with the continued problem of availability of legal services funding to obtain an order in practice47. This is further compounded by the problem of effective enforcement and sanctions for breach of injunctions by the respondent and specific addressing of impact on children. Nevertheless, there appears to have been a judicial softening in addressing implacable hostility. For example, in ReD (A Minor) (Contact: Mother’s hostility)48 where the mother’s attitude was regarded as significant. Lord Justice Balcombe commented that implacable hostility of a mother towards contact was a factor, which was capable of supplying a cogent reason for departing from the premise that a child should know both parents49. Moreover, in Re L, V, M and J (Contact: Domestic Violence)50there were four appeals heard by the Court of Appeal regarding contact cases involving domestic violence. Lord Justice Wallur highlighted the key issues arising from these appeals and asserted that the impact on children exposed to violence of one parent had been underestimated by judges and advisors alike. As such, cases alleging domestic violence should be investigated with findings of fact to assess relevance of past violence. Finally, it was determined that domestic violence should be a highly material factor but should not lead to a presumption against contact. To this end, the Court of Appeal’s determination and summary is clearly welcome in acknowledging the need to consider the family set up impact of external factors. It is further submitted that such an approach if anything goes further to preserving a positive parent/relationship, which is vital as part of effective contact. Nevertheless, the fact that the consideration is ultimately to be determined on a case by case basis lends itself to the risk of ad hoc inconsistency. The problems of judicial enforcement of contact are further compounded by the potential implications of the Human Rights Act 1998 particularly in light of the general presumption that a young child should be with their mother51. Additionally the status of legal presumption for mother depends on judicial discretion52. In the case of Brixey v Lynas53 the House of Lords referred to “the workings of nature… where a very young child ahs been with its mother since birth and there is no criticism of her ability to care for the child only the strongest competing advantages are likely to prevail”54. However, this could arguably constitute sexual discrimination and could contravene Human Rights Act 1998. b) The Children and Adoption Act 2008 (The Act) came into force on December 8 200855 and the official aim is to remedy problem of enforcement powers under the previous system for breaches of contact orders. The new powers are far reaching and add to the existing powers of committal, fine or transfer of residence56. The central criticism of the previous enforcement provisions was the delay and lack of judicial consistency57. As a result, applicants for contact orders, often fathers have become increasingly dissatisfied with the court system and the numerous practical limitations of making contact work effectively on a long term basis58. The Act implements news sections 11A-11P into the CA and reflects the July 2004 Green Paper “Parental Separation: Children’s Needs and Parents’ Responsibilities” proposals to: minimise conflict and support good outcomes for children and their parents, without recourse to the courts; improving access for parents to services which will enable them to reach agreements; and improving legal processes and service delivery for the 10% of parents who go to court. However, the reaction of legal professionals to the Act has been lukewarm with some arguing that the “new powers to stop warring parents using contact with their children as a weapon could backfire and inflame fraught family relations according to judges”59. Under Sections 11A-11G, the court can direct a parent to take part in “contact activities”. The activities are intended to promote contact with a child or even go as far as making such activity a condition of contact. Contact activities include classes, counselling, guidance sessions to improve contact and mediation sessions. Whilst the intentions of such activities are clearly meritorious it could result in forced cost implications. Parents ordered to attend contact activities could be covered in some cases by legal aid, but others with low incomes could face being riddled with high costs, leaving access to aid and advice dependant on a “postcode lottery”60. Moreover, the resultant impact of this could in fact fuel parental stress in an already tense situation and undermine the facilitation of a positive parent/child relationship. It is further submitted that these contact activity provisions are slightly naïve in presenting unrealistic presumptions regarding human behaviour. It is the widened enforcement powers under sections 11J to 11N and Schedule A1 however that has created the most back lash from the legal profession. The powers in the Act are far reaching and can effectively criminalise mothers and fathers who breach contact arrangements. Sections 11J – 11N provide that where a court is satisfied beyond reasonable doubt that a contact order or condition attached to a contact order has been violated, the court can order parents who breach contact orders to attend parenting classes, pay a fine or compensation or impose “an unpaid work requirement”. The community service sanction is ultimately determined by probation officers through the community service scheme operated by the National Offender Management Service. Additionally, if a contact order specifies a “time and place requirement” as a condition of the order, failure to comply will result in an enforcement order. The enforcement orders under sections 11J -11N have been implemented in response to repeat complaints of parents who have breached contact orders, where courts have courts have been reluctant to enforce by prison sentences61. However, it has been commented that there is a significant risk that these enforcement provisions could further damage fractured situations and confine the exercise of judicial discretion. This is further compounded by the problematic wording of the Act in relation to the enforcement powers, which requires judges to add a warning notice to any contact order made that penalties will be enforced in the event of breach with no discretion permitted. Again, whilst the intentions of the Act are honourable in attempting to redress the imbalance in enforcement, the very nature of family disputes clearly requires judicial exercise of discretion to the nuances of each case. However, the rigidity of the Act’s enforcement powers has arguably swung the pendulum too far in the opposite direction. Indeed, a panel of family judges have commented on potential scenarios under the Act whereby “terrified children might be thinking: If I don’t go and see Dad, my Mum is going to prison”62. This is further perpetuated by the financial compensation provisions set out in section 11O to 11P, where a parent can be ordered to pay compensation to the other for financial loss caused by the breach of an order. However, the compensation could be limitless again forcing cost burdens on families and undermining the purpose of the CA in promoting co-operation and preservation of the child/parent relationship. Indeed, family lawyer Emma Fisher asserts that “Whilst some people may welcome the law flexing its muscles in this way, opponents question whether it will actually change the way parents behave. There is also a concern that it sends the wrong message by appearing to criminalise mothers”63. Ultimately, it remains to be seen how far the courts will apply new powers and one hopes that a pragmatic approach will be adopted. However, the removal of discretion will potentially lead to arbitrary decisions and it is submitted that whilst the Act’s intention of promoting enforcement of contact orders was needed, the rigidity of the provisions has potentially created a breeding ground for further bitterness and conflict amongst parents, perpetuated by cost implications. As such, the Act as implemented has arguably led to a missed opportunity in enforcement and legal facilitation of contact, which is fundamental to the parent/child relationship post-separation. BIBLIOGRAPHY A, Arden., & C, Hunter., (2003). Manual of Housing Law. Thomson Sweet & Maxwell. Bird, R, Domestic Violence Law & Practice, Family Law Series London (2002) S, Choudhury., & J, Herring., (2006). Righting Domestic Violence. International Journal of Law, Policy and the Family. H.Conway [1999] “Forced contact – a child’s right or an impossibility?” NLJ 374 A Diduck., & F Kaganas., (2006). Family Law, Gender and the State: Text Cases and Materials. 2nd Edition Dowling (2000). Working with children and parents through separation and divorce. Macmillan Frances Gibb (2008). Children and Adoption Act 2006: child-contact powers “could worsen parent wars”. The Times, December 8 2008. Accessed online on 9 December at www.business.timesonline.co.uk/tol/business/law/article5303886.ece S, Gore., (2007). In Practice: the Domestic Violence, Crime and Victims Act 2004 and Family Law Act Injunctions. Family Law Journal 37. J, Herring., (2007). Family law. 3rd Edition Longman Hester (2002) One Step Forward and Three Steps Back? Children, Abuse and Parental Contact in Denmark. Child and Family Law Quarterly, 14:3 pp. 276-279. M. Hester & L. Radford (1996) Domestic Violence and Child Contact Arrangements in England and Denmark. Bristol Policy Press. HMCPSI Violence at Home: A joint thematic Inspection of the Investigation and Prosecution of Cases Involving Domestic Violence 2004. Home Office., (2003). Safety & Justice: The Government’s proposals on Domestic Violence. Home Office London. Available at www.homeoffice.gov.uk Home Office (1999). Living without fear- an integrated approach to tackling violence against women. Published by The Women’s Unit, Cabinet Office. Home Office (2002). Domestic Violence: Break the Chain Multi-Agency Guidance for Addressing Domestic Violence. Available at www.homeoffice.gov.uk Law Com. No 172 “Review of Child Law –Guardianship and Custody” (1988). Lowe., & Douglas., (2006). Bromley’s Family Law. 10th Revised Edition LexisNexis UK. L.F., Lowestein (2005). Domestic Violence: Recent Research. Police Journal. Claire McGlynn., (2006) Families and the European Union. Cambridge University Press. Roxanne Mykituik (2006) Family Law: Cases and Materials, Osgoode Hall Law School, (2006) Lisa Parkinson [1988] Custody Orders: A Legal Lottery? Fam Law 26. Pearson (1996). Domestic Violence and Child Contact. Children Living with Domestic Violence. R, Probert., (2006) Cretney’s Family Law., 6th Revised Edition (2006) Sweet & Maxwell Women’s National Commission: Unlocking the Secret. December 2003 Statutes The Children Act 1989 The Domestic Violence, Crime and Victims Act 2004 The Children and Adoption Act 2006 All available at www.opsi.gov.uk Other websites: www.cjsonline.gov.uk www.homeoffice.gov.uk www.lcd.gov.uk www.courtservice.gov.uk Read More