Childrens Needs and Parents Responsibilities - Book Report/Review Example

Children’s Needs and Parents Responsibilities When assessing whether the Children and Adoption Act 2006 secures the best interests of the child it is necessary to look at how the individuals making the decision of what is in the child’s best interests come to that conclusion. The Green Paper Parental Separation: Children’s Needs and Parents Responsibilities that was launched in July 2004 made several recommendations as to what the panel considered was in the best interests of the child. The aims of the paper were to assist separating parents in being able to make arrangements that would be in the best interests of the child. It was anticipated in the report that this would be achieved by providing the parents with access to information, advice and mediation at the time of separation. The impetus behind the paper was to build on previous discourse that surrounded the best interests of the child. In the Green Paper Every Child Matters five outcomes were listed as needing to be achieved in order to secure the best interests of the child. These five outcomes where being healthy, staying safe, enjoying and achieving, making a positive contribution and experiencing economic wellbeing. It was a widespread agreement of both papers that the child’s welfare must be paramount. It is the general consensus that this is usually best achieved by a continuing and constructive relationship with both parents, as long as this is safe for all concerned. It was also agreed that both parents have a responsibility to ensure there is constructive contact with their child. To achieve this report suggest that the best way is for a collaborative agreement between both parents and that there should be a flexible approach when dealing with parental separation. The report also suggested that help and support of the families should be readily available and that the wishes and feelings of the children should be taken into account when it was appropriate to do so in light of their age and understanding. Following the Green Paper of 2004 the Government released the results of the report in January 2005 Parental Separation: Children’s Needs and Parents Responsibilities: Next Steps Cm 6452 in which it listed the proposed actions the Government would take to try to ensure the recommendations of the Green Paper were achieved. In legislative terms the Government was not persuaded that any fundamental changes to the Children Act 1989 would have any benefit for the child. The Government did however agree that new legislation should be introduced with regard to contact and enforcement of contact orders as well as considering amendments to Family Assistance Orders. It was also accepted that greater steps should be taken to prevent the child from harm. To achieve this the Government clarified the definition of harm that was included in the Children Act 1989 by adding the extra proviso that impairment suffered from seeing or hearing the ill-treatment of another could constitute harm of the child into s120 of the Adoption and Children Act 2002 in January 2005. A review of domestic violence was recommended, although the Government were swift to point out that they would not be introducing a presumption of no contact before it could be established that contact will be safe for all involved. The report also made further suggestions in respect of legal aid and the extension of in court conciliation in all cases before the formal court hearings. One such recommendation that came from this paper was that judges should be given the power to direct parents to in- court conciliation and mediation. It was also proposed to set up a Family Resolution Pilot Project aimed at the more difficult cases, and that CAFCASS should become more involved in active problem-solving. Court management was attacked with criticism aimed at the length of time it can take for hearings to be brought before the courts. It was recommended that a speedier process be introduced to reduce the delay in which it takes for the separating parties to be able to establish scheduled contact between the child and the separating parents. The report suggested that better contact could be achieved through the development and support of contact centres, extended schools and children’s centres. It was felt that legislation should be introduced to give the judiciary stronger enforcement powers. The Children and Adoption Act 2006 was introduced in the hope of addressing many of the issues that were raised in the report surrounding the importance of contact between the child and the separating parents. District Judge Crichton spoke of his disappointment of the Family Resolution Pilot. He felt it was important to analyse the reasons why it had not been the success that had been anticipated. He felt that the change of name to Family Resolutions Pilot from Early interventions was in some part to blame as there had been some opposition to the name from some groups of society. A second contributing factor was that the pilot was forced to be launched on the agreed date despite the fact that it was not fully ready for implementation on that date. Not all those who were expected to implant the pilot were fully convinced of the usefulness of the scheme. May of the parents invited to participate had already been involved in mediation and believed they were being offered further mediation and so were reluctant to participate. Relate, one of the partners in the scheme, refused to accept that cases were there was a hint of domestic violence should be included in the pilot. The courts also lacked the power to require the parties to participate in the scheme. As a result of these difficulties the scheme never acquired the number of parents they needed to enable the pilot to function as intended1. The Children and Adoption Act 2006 had the effect of amending parts of the Children Act 1989 in respect in particular of contact orders. Within the Act the courts have the power to order specific activities were they feel that these will improve the relationship between the parents and the children. These activities can include programmes, classes and counselling or guidance sessions. The aim of these could be to provide better contact between the parents and the child or to address issues where there has been violence in the family home. The courts do not have the power to order medical or psychiatric examination, assessment or treatment or make an individual take part in mediation. Where the courts feel that contact with the parent is not in the best interests of the child they have they power to vary or discharge completely the contact order. Having established the powers given to the authorities under the Act it is necessary to look at whether the Act actually does meet the best interests of the child. It is important to note as expressed by Thorpe LJ in Re L2 that the law can do little to resolve intractable disputes over children. It can neither engender harmony nor ensure that children have continuing relationships- and in particular beneficial relationships- with non- resident parents. Research done by Maclean and Eekelaar established that there was ‘little evidence of widespread joint parenting or joint decision making either while the parents were living together or afterwards’ 3. It has also been noted by other researchers that fathers tend not to concern themselves with the ‘burden of administering the endless minutiae of family life4. It was also noted that fathers had a tendency to focus their parenting on interaction and play as opposed to physical discipline5. Maclean and Eekelaar observed that the contact maintained by fathers with their children after separation could be affected by the age of the children and the re-partnering of wither the father or the mother6. Some of the reasons for re-partnering having an impact in such a way were due to new family commitments or to the increased pressure to work longer hours7 to be able to support two families. Research has shown that children want to see more of their father’s irrespective of whether the family is separated or still living together as a family8. Under the 2006 Act the courts have the power to issue enforcement orders for parents who refuse to comply with the contact orders. Using these orders that court can impose an unpaid work requirement on the person who has refused to comply with the contact order. The impact of such orders can make it so that the person on whom the order is served is then forced to spend less time with their children whilst they carry our the unpaid work. Andrew Tyrie MP questioned whether the provisions of the Children and Adoption Act 2006 would assist the court in enforcing these orders. Sir Mark Potter expressed the opinion that he was not confident that it would have the desired impact. He stated, 'There is often a shortage of work of the right kind ... I am a little bit concerned about what the practical arrangements are which will be made to give teeth as far as these things are concerned.’ In response Mr Tyrie suggested that 'In cases where the parties have at least some means, do you think it might be worth considering a financial penalty for failure to obey contact orders?’ It was the considered opinion of Sir Mark and Justice Munby that there are very few cases in which the parties would possess the means to pay therefore it would not be a practical proposition. Justice Munby said he preferred the use of mediation as opposed to bringing parents before the court and that financial penalties could result in a reduction in maintenance which would not be in the best interests of the child9. Although much research supports the theory that the child benefits from contact with both parents Bridge10 in his research feels that a child’s welfare is not promoted if he ‘feels obliged to divide and compartmentalise his life in a stressful way.’11 A review of joint custody conducted recently concluded that 'keeping the "child's family" together can sometimes actually turn out to be a serious risk for the welfare of the child' because of the 'real danger of serious parental conflict'12.  Other research has shown that 'It is at least possible that the absence of contact could often have no adverse effects and that it [contact] could be detrimental to children'.13 It has also been suggested that it is the nature of the contact they is more important to the child’s well-being than the frequency14. In a study carried out by Amato and Rezac where a sample of 1,125 children and adolescents between 5 and 18 were selected, that for boys from divorced families contact with a non-resident parent was negatively associated with child behaviour problems when the conflict between the parents was low and vice versa when the conflict between the parents was high15. A similar trend was noted with girls though not in significant amounts16. The conclusion they reached from the study was that maintaining or increasing the contact between non resident parents and children may be a mixed blessing. They reached the conclusion that when parents can co-operate and have an amiable relationship, frequent visitation between non-resident parent and child is likely to be in the best interests of the child. By the same token the felt that if the parents relationship with one another was antagonistic, that frequent visitation could do more harm than good17. Shared residence has also been shown to have very little impact on the well-being of the child. Most of the research into this matter was conducted in the USA. Some of the studies showed positive outcomes for the children studied. In a study conducted by Abarbanel were four families with shared residence arrangements were studied the results found that the children were well adjusted18. The conclusion of the study was that joint custody is 'at least as good an arrangement as any other', which 'works under certain conditions'19. The study highlighted four major factors that contributed to the success of shared residence. These included commitment to the arrangement, the parents mutual support of the children, the flexible sharing of the responsibility for the children, and an agreement on the implicit rules of the system20. A study carried out by Steinman of 32 children aged between four and a half and 15 in 24 shared residence families had similar findings to the above study. The only criticism Steinman made of the arrangement is that the children seemed to exhibit hyper-loyalty to both parents21. Leupnitz found further advantages to shared residence with regard to financial support, availability of child care and lack of ‘parental burn out’22. He felt that it was reasonable to conclude that ‘joint custody at its best is superior to single parent custody at its best.23’ Studies carried out by McKinnon and Wallerstein with 26 children aged 14 months to 5 years were not so positive24. Their study revealed that only 3 out of 7 children aged between 1 and 3 years and 3 out of 19 children aged 3 to 5 were doing well. Their conclusion was that ‘children in joint custody are indistinguishable in their initial distress and early response to marital rupture from their counterparts in sole-custody arrangements,’25 and that there is 'scant evidence to suggest that joint custody protects the young child against the stress of divorce’.26 Further criticism and controversy is caused when consideration is given to contact orders where there has been domestic violence in the relationship. Many experts would argue that it is not in the best interests of the child to be exposed to a possible situation where there is a danger that the child could be injured. Other issues are also raised in situations such as these as the contact orders might give the abuser the right to attend the home of the partner they abused in order to have contact with the children. This could put that person in danger of further attacks. The Rights of Women research report that was published in 1997 attempted to address such issues as this. A survey of the bulletins published for the Rights of Women over the 10 years it has been in existence shows that four of the six articles concerning child contact concentrated on the relationship between domestic violence and child contact. In 1997 the Best Interests campaign was set up to ’campaign for the safety and well-being of women and children in relation to child contact in situations of domestic violence.27’ During the same year the Rights of Women research report called Contact Between Children and Violent Fathers: n whose best interest28? was published. Two recent consultation documents Making Contact Work and Parental Separation and Children's Needs and Parents' Responsibilities29 also serve to emphasises the dangers that the group feel are inherent with allowing violent fathers to have contact with their children. The Women’s Aid’s response to the Draft Children (Contact) and Adoption Bill was to add provisos about safety to each relevant clause30. Women’s groups are in favour of contact between the father and the child except in cases of domestic violence. A statement issued by Women’s Aid at the Joint Committee meeting for the Draft Bill stated ‘'Women's Aid believes that all children have a right to enjoy regular contact with both parents and family members, following separation, provided that it is safe. We are concerned however that despite recent government initiatives and despite the present law, a significant number of mothers and children who have experienced domestic violence are not safe during contact arrangements due to contact orders being awarded inappropriately.’ These groups are also in favour of Part 1 of the Children and Adoption Act 1006 so long as the enforcement and the original contact were safe. The Rights of Women group expressed their sole objection to the enforcement proposals in the following terms: 'Having new enforcement provisions which judges could impose where there has been a failure to comply with an order appears to be a good idea but only where this is done in conjunction with a definition of domestic violence being implemented and training for all court officers in domestic violence. ... It is essential that the reason for failing to comply with a Court order is understood and looked at within the context of domestic violence.31' The groups also supported mediation and conciliation where there had been no previous domestic violence32. Women’s groups felt that all court officers needed substantial training to be able to decide when these forms of intervention are best used. In short it was the considered opinion that contact should only be an issue where there ahs been evidence of domestic violence and where there is such evidence the court should not consider issuing contact orders as it is more likely to be damaging for the child than beneficial. Issues surrounding contact orders are not limited to the UK; other countries also have to deal with the issue of when court orders should be issued to ensure the child has contact with the non-resident parent. In Australia after research conducted in 1995 the findings of those review the amendments introduced into legislation33 showed that the concepts of shared parenting had still not become the norm 3 years on form the recommendations. A committee report entitled Every Picture Tells a Story was published in December 20043 and concluded that ‘the amount of time a child spends with each parent should depend on 'the best interests of the child concerned and on the basis of what arrangement works for that family34’. Canada differs from Australia in that Canada takes the view that there should be no preference for one parent or the other when it comes to sharing parental responsibilities. Canada's former Minister of Justice, Martin Cauchon, emphasised this point when he introduced the Bill: 'Our approach, however, does not presume that any one parenting arrangement is better than others. We believe that such presumptions tend to focus on parental rights rather than on what is in the best interests of a particular child.35 The reforms that have been introduced as a result of the Green Paper are still open to scrutiny and the Government is still working on ways to assist those families were domestic violence has been involved. The Government is attempting to address these difficult cases through the introduction of a variety of resources including counselling and parenting programmes. When dealing with a non-resident parent who has been violent the Government have attempted to address this problem by referring the non-resident parent to a relevant educational programme. By attaching conditions to orders which the courts might require the parents to attend it is hoped that these classes will help the parents to be able to have constructive contact with their children. The use of community based orders to ensure compliance with the contact orders has been included to address the default in contact. In some cases the courts have awarded financial compensation from one parent to another where the costs of a holiday have been lost. At present breaches of contact orders have been dealt with by imprisoning the defaulter or by transferring the residence order to the other parent, although these two methods are rarely used because of the harm it is likely to cause the child. A much preferred option is mediation but were that is not appropriate or were it fails to achieve compliance the use of community orders are seen as an effective alternative and much more preferable to a fine or custodial sentence. In the lead up to the Children and Adoption Act 2005 2 select committees looked at the problems surrounding post-separation contact by taking evidence from interested parties. Oral evidence was given by Women’s Aid and Refuge both of which have the specific aim of helping women and children who have been the victims of domestic violence. This oral evidence was heard by the National Society for the Prevention of Cruelty to Children. Most of the groups that have recently participated in debates on child contact have been specifically involved with domestic violence. It would appear from this that this is one of the biggest areas that cause concern in respect of contact orders. Understandably those who have fled a violent home situation are going to be fearful have having to allow the offender to have contact with the children irrespective of whether the offender has ever abused the child physically or not. In terms of harm to the child it could be argued that they are likely to pick up on the fears of the parent with whom they reside and therefore be fearful themselves of having to have contact with the offender. The welfare principle established by the Children Act makes the presumption that a shared parenting order is in the best interests of the child. This presumption does not take account of the individual child’s situation. The widely held view would seem to be that children benefit from active involvement with both parents after separation. In some circumstances these benefits might be limited or totally absent. Research as outlined above shows that it cannot be assumed that shared parenting is in line with a consensus within child welfare knowledge. To allow this presumption that shared parenting is in the best interests of the child would have the effect of entrenching the law in a simplified version of welfare36. A blanket presumption that contact is in the best interests of the child fails to take into account a particular child’s welfare adequately. In 1985 the Booth committee rejected the presumption of joint custody as being in the child’s best interests. The committee made the observation that 'It must remain a question for the court, in the exercise of its unfettered discretion, to decide in each case what order would best serve the child's interest.37’ It was further suggested by Dewar that the move away from discretion and towards a rule based approach was equivalent to a move away from welfare. He stated that the rule- based approach conceptualised family law as a means of giving effect to rights irrespective of consequences, or to specific priori juridical models of family relations, rather than being concerned to search for the most beneficial or welfare-maximising outcome38. He blames this shift on a response to fathers’ claims for rights as well as the concern for the children39. A regional manager of CAFCASS reported that children who do not want to see the non-resident parent may have to work really hard to be heard40. If this becomes the case then those that are currently suggesting that children are treated as objects in the divorce process and arguing for greater involvement would see this as detrimental to the best interest of the child. The European Court of Human Rights has taken on board the importance of the child’s view. In one recent case the court found a breach of the procedural rights inherent in Article 8 where the 5-year-old child had not been asked directly by the reporting psychologist about her relationship with her father41.   Furthermore, courts in the UK have exhibited reluctance to impose orders on older children against their wishes. Courts in the UK have also been reluctance to impose orders on older children against their wishes. A recent decision in the UK courts Family Division refused to issue a contact order against three adolescents aged 12,14 and 16 for their father to have contact with them. In respect of the eldest no order at all was made and for the other two any contact had to be at the agreement of the young person concerned and was ordered in terms that reflected the wishes of the children. The judge, referring to the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (European Convention) and applying the Children Act 1989 welfare checklist, considered it his duty to take cognisance of the children's wishes, taking into account their ages and understanding. He stated that 'children of this age ... are entitled to have respect for their views ... If young people are to be brought up to respect the law, then it seems to me that the law must respect them and their wishes, even to the extent of allowing them ... to make mistakes.42’ The pressure from change came about as a result of the Children Act 1989 failing to deliver the anticipated increase in parental co-operation and a decrease in litigation. The non-resident parents voiced their dissatisfaction that the aims of the 1989 Act had not been achieved. A lot of non-residents parents complained of the loss of contact with their children altogether. They also stated that the bitterness and conflict that the Act was designed to eliminate or reduce had failed to work and there was still much bitterness between the separating couples. Some of the criticisms of the Act come from groups such as Families Need Fathers and The Equal Parenting Council. These groups represent non-resident parents who feel betrayed by the system that has not been able to prevent them from having contact with their children. The conclusions that can be drawn from the above research is that although the 2006 Act does give the courts greater powers over the use and enforcement of contact orders the Act has assisted in moving away from discretionary decisions on what is in the best interests of the child towards relying on legislation and rules to instruct the courts in what is in the best interests of the child. The use of enforcement orders through community orders should have the impact of making the parent who is in breach of the contact order to allow the non-resident parent to have such contact. In reality the effect of such orders can cause further alienation between the separated parents and could also be communicated to the children by way of comments made by the parent on whom the enforcement order is made or by the absence of that parent from the household whilst they have to carry out their punishment of unpaid work in the community. The Act itself fails to address the concerns of those who have come from a background of domestic violence. Those in these situations are unlikely to comply with contact orders or enforcement orders as they are fearful that the non-resident parent might injure the child if they are allowed to have contact with them. Some victims of domestic violence are also concerned that the granting of contact orders might have the effect of allowing the offender to collect the children from their home address thereby putting the victim in danger of attack by the offender when he calls to collect the children or upon returning them home. In order for the Act to have the desired effect the courts need to be allowed to adopt a more flexible approach to establishing the needs of the child and to be allowed to exercise their own discretion in coming to that decision without having ton rely on specific instructions within legislation. Bibliography Abarbanel, A., (1979) 'Shared Parenting After Separation and Divorce: A Study of Joint Custody', American Journal of Orthopsychiatry, 49, 320-329. Amato, P.R. and Rezac, S.J. (1994) 'Contact With Nonresident Parents, Interparental Conflict, and Children's Behavior', Journal of Family Issues, 15(2), 191. p 203 Australia, Commonwealth, House of Representatives, Standing Committee on Family and Community Affairs, Every Picture Tells a Story: Report on the Inquiry Into Child Custody Arrangements in the Event of Family Separation, Canberra: Australian Government and Publishing Service, December 2003, (visited 23 February 2004) 'Best Interests Campaign', Rights of Women Newsletter, September 1997. E. Hetherington and J Kelly, For Better or for Worse: Divorce Reconsidered (W W Norton and Company, 2002), at pp 133-134. G, Davis “The Things We Say” Fam LJ [2006] 36, 962 H, Reece “UK Women’s Groups’ Child Contact Campaign: ‘So long as it is Safe’ Child and Fam LQ [2006] 18(4) 538 H, Rhoades Boyd SB “Reforming Custody Laws: A Comparative Study” Int J of Law, Policy and the Family [2004] 18, 119-146 House of Commons Debates, 052 (4 February 2003) at 3102-29 (Hon. Martin Cauchon) http://www.parl.gc.ca/37/2/parlbus/chambus/house/debates/052-2003-02-04/han052-1010-e.htm. A. Diduck and F Kaganas, Family Law, Gender and the State (Hart Publishing 1999), at pp 272-278. House of Lords Joint Committee on the Draft Children (Contact) and Adoption Bill, Draft Children (Contact) and Adoption Bill, HC 400-I, HL Paper 100-I (TSO, 2005). 'Parental Separation: Children's Needs and Parents' Responsibilities' (2004), available at http:/ /www.rightsofwomen.org.uk/pdfs/parental_separation.pdf, which also focused on issues of race, disability and access to justice. J, Dewar. Reducing Discretion in Family Law, Family Law Research Unit, working Paper No 1 (Griffith University, 1997), at pp 21-22). J, Pryor and B. Rodgers, Children in Changing Families (Blackwell, 2001), at PP 198-204. J. Pryor, 'Relationship with Fathers – Well-being in Young Adults from Intact and Divorced Families (Paper presented to the annual conference of the SLSA, 2002). C. Bridge, 'Shared Residence in England and New Zealand- A Comparative Analysis' [1996] CFLQ 12, AT P 26. K. Kurki-Suonio, ‘ Joint Custody as an Interpretation of the Best Interests of the Child in Critical and Comparative Perspective' (2000) 14(3) International Journal of Law, Policy and the Family 183, at pp 98-199. L. Anderson, Contact between children and violent fathers: in whose best interests? A Rights of Women research report on the operation of the Children Act 1989 in circumstances of domestic violence (Rights of Women, 1997). Lord Chancellor's Advisory Board on Family Law: Children Act Sub-Committee, Making Contact Work: A Report to the Lord Chancellor on the Facilitation of Arrangements for Contact Between Children and their Non-Residential Parents and the Enforcement of Court Orders for Contact (Lord Chancellor's Department, 2002). Luepnitz, D.A. (1991) 'A Comparison of Maternal, Paternal, and Joint Custody: Understanding the Varieties of Post-Divorce Family Life' in Folberg, J. (Ed), Joint Custody and Shared Parenting, 2nd Edition, New York: Guilford Press, 105-113. M. Maclean and J. Eekelaar, The Parental Obligation (Hart Publishing, 1997), at p137 'Making Contact 'Work': A Charter for Controlling and Revengeful Fathers', Rights of Women Bulletin, Spring 2002, p 18 Part VII of the Family Law Act 1975 McKinnon, R. and Wallerstein, J. (1991) 'Joint Custody and the Preschool Child' in Folberg (ed), chapter 13. P. Amato and J G Gilbreth ‘Non Resident Fathers and Children’s Well-being: A Meta-analysis ' (1999) 61 Journal of Marriage and the Family 557 R. Collier, 'A Hard Time to be a Father?: Reassessing the Relationship Between Law, Policy and Family (Practices) (2001) 28(4) Journal of Law and Society 520, at p531 Report of the Matrimonial Causes Committee at Para 4.132. S, Gilmore “Contact/Shared Residence and Child Well Being: Research evidence and Its Implications for Legal Decision Making” Int J of Law, Policy and the Family [2006] 20, 344 S. Maushart, Wifework (Bloomsbury, 2001), at PP 129-134 'Sanctions of the last Resort’ Talk given at the Making Contact Work Conference 20 November 2001 F, Kaganas “Shared Parenting – a 70% Solution?” Child and Fam LQ [2002] 14(4) 365-379 Steinman, S. (1981) 'The Experience of Children in a Joint Custody Arrangement: A Report of a Study', American Journal of Orthopsychiatry, 51, 403. Van Krieken “The Best Interests of the Child” and Parental Separation: On the Civilizing of Parents” MLR [2005] 68(1) 25-48 Table of Cases Re L, V, M, H (Contact: Domestic Violence) [2000] 2 FCR 404 (CA) Re R (Litigant in person: Judicial intervention) [2001] EWCA CIV 1880, [2002] 1 FLR 432, Sahin v Germany; Sommerfeld v Germany; Hoffmanm v Germay [2002] 1 FLR 119; Re S (Contact: Children’s Views) [2002] 1 FLR 1156. M V M (Transfer of custody; appeal) [1987] 2 FLR 146. Read More