Posted by familylaw on 30th October 2014

Norman HartnellOnly Mums and Only Dads, the Community Interest Company (CIC) responsible for the creation of The Family Law Panel organised a forum in Westminster on Monday, October 27.

The topic under discussion was ‘How can we limit the overwhelmingly negative impact of divorce on parents, children, wider family and society as a whole?’ is central to the objectives of the panel, which aims to provide free, accurate and easily accessible professional advice to single parents regardless of background, ethnic group, sexual orientation or family set-up.

Speakers at the event included Nigel Shepherd, Vice Chair of Resolution and Family Lawyer at National Firm Mills & Reeve; Susanna Abse, Chief Executive Officer, Tavistock Centre for Couple Relationships; Duncan Fisher, Founder of Kids in the Middle; Sam Challi, Information Manager, MIND and Sion Humphreys, Policy Advisor and former Head Teacher, National Association of Head Teachers.

Norman Hartnell, The Family Law Company’s Managing Director also spoke, and shared his views on family law and what changes need to take place to improve the system. Below, we have shared Norman’s discussion from the Westminster debate which we hope will prove helpful and insightful into the kind of processes Norman would like to see put in place:

Family law isn’t working as it should. There is confusion from the law makers as to its purpose and muddled thinking in its application resulting in numerous injustices.

  1. The purposes of family law

I’d invite the debate to go back to fundamentals, to identify the broad goals and principles of what family law’s purpose is. I propose they are twofold, namely:

  1. First, the protection of vulnerable children and adults from harm in the context of family breakdown or abusive behaviour.
  2. Secondly, the provision of a fair conflict management system for those involved in relationship breakdown, to create a level playing field where otherwise the exercise of power alone (on a might is right basis) would determine outcomes.
  1. So what’s the problem
  • Relationship breakdown is always a time of high stress, fear and uncertainty for all family members involved.
  • What both of the couple shared as a family, they now have to divide between them. They have to deal with huge potential losses of home, income, pension and most of all, time with the children, when there simply isn’t enough to go round.
  • Now everything becomes a source of potential conflict, because from their separate existences what one has, the other can’t have;
  • The current adversarial system based on blame and point scoring feeds fear, promotes conflict and does not meet the needs of those it serves when what we need is a principled problem solving approach to every issue.
  • Legal aid changes are also causing enormous hardship for those whom the present system is not designed, those who cannot cope without assistance but who don’t fit into a neat category, such as those suffering from mental health problems, learning disabilities, PTSD; that’s what the exceptional funding provision was supposed to cover. It doesn’t.
  1. So what are we hearing from the law makers?

There are calls for ideas from the President, from the Justice Minister and from the legal aid authority. What are their governing principles?

  1. The government’s driving principle is short term cost saving, at the expense of creating longer term problems which are now coming home to roost. Government strategy on mediation has failed, far fewer are financially eligible since April 2013, so rather than doubling the take up of mediation as foretold, their cost based actions have led to a near 50% decrease.

Further, government departments, think in self-contained silos, they don’t do joined up thinking. Their strategy on dv has been to give priority to the criminal system focussing on measurable crime statistics and punishment rather than the protection of the individual through the range of remedies afforded by Family law.

  1. The Judicial response has been to devise processes in great detail by Practice Directions geared to the needs of the courts; not primarily to respond to the urgent needs for example of parents who in the context of a breakdown of a relationship are denied contact to their own child for months on end.

Let’s consider 2 examples of where things are going wrong, where the abuse of power by individuals is not being addressed adequately by our systems.

  1. The problem of increasing domestic abuse

My suggestions are:

  • That there should be a coherent Family Strategy across government departments which puts the needs of families and children first rather than cost savings or court based processes.
  • That there should be a promotion of much greater awareness of the continued legal aid for family law remedies for emergency cases, enabling urgent action to be taken.
  • That there should be meaningful consultation with front line practitioners before the introduction of any further changes.
  • That victims of DV should be in control of decisions affecting their own lives, including the decision whether the criminal law should inflict criminal punishment on the offender.
  • That inter agency projects such as the Dom Abuse Advocacy Project in Plymouth be encouraged, funded and rolled out across the country where, in a partnership between the local authority, family law practitioners and the police, there is a coordinated strategy to provide effective protection and intervention using family law remedies and the police have a protective, not punitive, focus.
  1. The scandal of children losing contact with a parent

The thing which means more to any parent than anything else is the ability to have a relationship with your own child, it is fundamental.

If a stranger abducts a child, the outcry for action is rightly immediate, the full panoply of the criminal justice system kicks in to use police intelligence to locate and rescue the child.

If a parent abducts a child abroad, 22 miles across the Channel, the bereft parent gets immediate free legal aid and the government in the form of the ICACU leaps to their aid.

But what happens when a parent in this country simply says “no” and denies the other parent contact to a child?

Let me tell you what the real process looks like and ask, is it any wonder that there is a huge sense of injustice which finds expression in anger against anyone connected to the system? Remember that every day for a child feels like an eternity.

  • It starts with a direct request met with a no.
  • The parent may take legal advice and a letter may be written which is either ignored, or the same response given.
  • The parent is then advised that they have to have an info meeting with a mediator to see if mediation can help, called a MIAM before any court proceedings can be started
  • The appointment is arranged, and the mediator says they will invite the other parent to mediation; the other parent agrees, but refuses to budge at the mediation or prevaricates in other ways. Eventually the mediator accepts defeat and issues an FM1 certificate on payment of £100 or so, enabling court proceedings to be started.
  • The estranged parent then has to complete and issue a long C100 legal form and pay £175 to the court. Following its rules, the court then fixes a first hearing, usually 6 weeks later, during which time the only thing which will happen is that Cafcass will undertake checks with social services and the police to find out if this family is known to either. The deprived parent doesn’t even see a Judge until that short appointment but if a deal is not brokered an order is made for another hearing. If the parent with the child makes any general allegation, (all they have to say is “the other parent was violent”) the court suspends contact until there is a finding of fact hearing, months later after a lengthy process of allegation and response and depending on court availability.
  • At the end of that process, even if nothing adverse is proved against the now estranged parent, they are often faced with one of two new arguments; namely that the child either does not want to see the parent ( in that case let’s commission a “wishes and feelings of the child” report which will take 12 weeks and will confirm that the child has been well and truly indoctrinated to such an extent that their words are perceived as their own) or that they no longer know the other parent and that contact should only be reintroduced on a gradual basis.

The delay occasioned by the court process in private law matters is in stark contrast to the 26 week limit imposed robustly by Judges involved in care proceedings.

My suggestions:

  1. That adopting a needs based problem solving approach in cases where there has been a denial of contact with a parent, the court introduces an effective triage system operated by a Judge, making a denial of contact a good reason not to have to attend a MIAM. That a court hearing takes place within 7 days when the other parent would be required to attend and the court would order a re-establishment of contact immediately with such safeguards as may be necessary, unless there is a good reason to suspect that at least supervised contact cannot be arranged safely. That legal aid should be available for all such cases.
  1. That for all issues the approach currently employed in mediation should be the template for the resolution of all family issues, and that we should be moving from the adversarial model to one in which conflict is managed in a constructive way.

How is that done? It is a two stage approach, the gathering of information and the consideration of options; all proportionate to the matter in issue. If something needs a quick intervention, then the information proportionate to that should be gathered and a robust decision made.

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