Where do fathers fit in ? (3)
by Robert Whiston
There is a tendency today to speak in rather sanitised terms of ‘parents‘ or ‘carers‘ rather than ‘mothers’ or ‘fathers’. People often say that the most important thing when raising children is to give them “lots of love”, something that all parents can do, regardless of whether they are a mother or a father.
By way of contrast to the present surge of interest in shared parenting, this 2004 paper (shown below), published by Joan Hunt and Ceridwen Roberts epitomises the political fashions of the early 2000s. Written when the political backdrop was very different to that seen today and the then academic ‘conventional wisdom’ reached into every nook and cranny. If nothing else it is a salutary lesson in restricted thinking.
“Child contact with non-resident parents“
by Joan Hunt & Ceridwen Roberts
University of Oxford
Department of Social Policy and Social Work
C O N T E N TS
- The legal framework in England & Wales
- The policy context
- Is contact good for children ?
- How much contact is taking place at the moment ?
- Contact and child support
- The position of the non-resident parent
- Shared parenting
- Contact and domestic violence
- Involving the child
Child contact after parental separation or divorce has become a highly contentious issue. Many separating families, despite the difficulties, sort out contact arrangements themselves. For some it becomes problematic, either because regular reliable contact is not established because there is a high degree of conflict, or because there are serious concerns about the child’s safety and well-being.
UK social policy encourages the maintenance of contact as a presumed social good which promotes the interests of children and the wider society. There is substantial dissatisfaction in some quarters, however, with the operation of these policies and views are polarised.
Some resident parents argue that their concerns about the non-resident parent, particularly about domestic violence, child abuse and abduction,are not sufficiently taken into account. Some non-resident parents claim they are marginalised by a biased legal system.
Children’s organisations say that children are not adequately protected and their voices too faintly heard. Contact has been the subject of two government-sponsored consultation exercises and there is pressure for a change in the law and its implementation and for the development of new approaches.
This paper aims to provide a dispassionate overview of this emotive topic as it concerns parent-child contact. (Contact with grandparents is covered in a forthcoming paper). It focuses on experience in England and Wales, drawing on other jurisdictions where relevant.
The debates here echo those in many other countries and while no jurisdiction appears to have devised a generally acceptable solution to the dilemmas, several have developed approaches on particular issues from which useful lessons might be drawn.
2. The legal framework in England and Wales
The law starts from the position that contact is a private matter to be agreed between parents, without the need for a court order. It does not explicitly seek to influence the nature of those agreements – unlike Scotland there is no requirement for the resident parent to allow contact or the other parent to maintain it.
Where parents are seeking a divorce or legal separation they must provide information to the court about the proposed arrangements for the children but examination of these is rudimentary and courts rarely intervene. There is no scrutiny of the plans where parents were not married.
Parents who cannot agree can apply under the Children Act, 1989 for a contact order. There is no statutory presumption of contact: the child’s welfare is the court’s paramount consideration. A pro-contact stance, however, is implicit in one of the key concepts of the legislation, that of on-going, shared, parental responsibility, and it is generally recognised that decisions made in leading court cases have resulted in a strong ‘judge-made’ assumption of contact. As the President of the Family Division has recently written:
The courts naturally start with the view that in most cases contact between the child and the non-resident parent is desirable both for the child and for the parent (Butler-Sloss, 2001).
Should the law be changed to include a statutory presumption of contact ?
Many countries do have this. Indeed it would already be the case here had the government implemented section 11(4)of the Family Law Act 1996, which declared:
‘the general principle that, in the absence of evidence to the contrary, the welfare of the child will be best served by:
(i) his having regular contact with those who have parental responsibility for him’ and
(ii) the maintenance of as good a continuing relationship with his parents as possible’.
A key issue for debate, therefore, is whether current law should be amended to include a similar statement of principle and if so, whether this should be expressed in terms of the welfare/rights of the child, as expressed in the UN Convention on the Rights of the Child, or should also include the rights of parents, as in the European Convention on Human Rights.
Such a strengthening of the law would be welcomed by groups representing non-resident parents. There are concerns, however, that, as is reported to have happened in Australia, it could result in the safety and well-being of children and their resident parent being compromised (Rhoades, 2002).
3. The policy context
The government’s declared aim is ‘to enable children to benefit from the stability offered by a loving relationship with both their parents, even if they separate ’(LCD, 2002a). In 2002 the (then) Lord Chancellor’s Department made increasing contact, where safe and in the interests of children, one of its Public Service Agreement (PSA) targets.
A baseline survey of contact patterns was commissioned and a Programme Board and various ‘stakeholder’ groups established to help deliver the objectives. This PSA ended in March 2003. It is not known whether similar targets, or the policy objective, will be set by the Department for Education and Skills, to which the former LCD ’s responsibilities for children’s policy have now passed.
[ NB. the PSA project was effectively sabataged from within by the Ministry refusing to budge on any aspect – see for example http://robertwhiston.wordpress.com/tag/amanda-finlay/ & http://robertwhiston.wordpress.com/2008/06/27/11b/– RW ].
Central to the development of government policy have been two reports arising out of consultation exercises conducted by CASC (the Children Act Sub-Committee of the Family Law Advisory Board, a body set up to advise the LCD), the first looking at contact and domestic violence, the second at the facilitation of contact and the enforcement of contact orders (Advisory Board on Family Law, 1999 and 2002).
4. Is contact good for children ?
It is often claimed that research shows that contact is good for children. In fact the evidence is contradictory. This is neatly shown by two recent UK studies, one (Dunn, 2003)reporting ‘unequivocal’ findings that more contact was associated with fewer adjustment problems in children, the other (Smith et al, 2001) finding no effect. Examination of the whole body of international research tends to show that it is the nature and quality [ emphasis added – RW] of parenting by the contact parent that is crucial, not contact in itself:
- The mere presence of fathers is not enough … To the extent that men remain involved in parenting after separation, or assume parenting practices they have not done before, they have a positive influence. As in intact families, the most effective way they can parent is by providing authoritative parenting … It is these aspects of parenting, encompassing monitoring, encouragement, love and warmth, that are consistently linked with … well-being (Pryor and Rodgers, 2001).
Nor is even good contact likely to be the most significant factor affecting children’s overall welfare: the care provided by the resident parent and the financial position of that household are the major influences (Hunt, 2003).
This does not mean that the policy of promoting contact is mistaken. Most children want to remain in touch. Contact has potential value in terms of developing the child’s sense of identity, preserving links with the wider family, and providing an additional source of support for children and even protection from abuse.
In ordinary circumstances a parent with an established relationship with the child should not have to prove that contact is in the child’s interests. It does mean, however, that care needs to be taken not to over-estimate the presumed benefits of contact [emphais added – RW] either where there is no pre-existing relationship or where there are known risks. Where there is abuse or neglect, exposure to domestic violence or severe parental conflict, contact can be extremely damaging to children.
[NB. And women are not the major abusers and killers of children ? Sadly, statistics show that they are – RW ]
5. How much contact is taking place at the moment ?
A simple question to which it is hard to give a definitive answer. It depends on which study is relied on, what is being measured, and who is asked: resident mothers typically report less contact than non-resident fathers; formerly married parents have more contact than ex-cohabitants or those who have never lived together (Maclean and Eekelaar, 1997).
Some relatively recent studies suggest levels of no contact of a third or more: one (Bradshaw and Millar, 1991) found that 40% of fathers had no contact after two years [emphasis added -RW], although it may be relevant that the response rate was only 25%. Others report much lower figures: 15 to 28% in the LCD baseline survey (ONS, forthcoming) and 9% in the Home Office Citizenship Survey (Attwood et al, 2003). At the other end of the spectrum some contact is relatively frequent. Research on a cohort of children in Bristol found that, where any contact was taking place (82%), for a third it was at least weekly and for 90% monthly (Dunn, 2003). The LCD survey reports that 17% of fathers had some form of contact every day, with 8% seeing their child daily; 49% at least weekly and 69% monthly. Between a half and two-thirds had overnight stays at least once a month.
[ NB. for more up to date ONS data on ‘overnight stays’ see http://sharedparenting.wordpress.com/2012/07/01/14/ and for international comparisaons see http://sharedparenting.wordpress.com/ – RW]
Are these figures grounds for concern?
More contact does seem to be taking place. However some non-resident parents are still disappearing from children’s lives and others having insufficient contact to develop the type of involved parenting likely to yield demonstrable benefits. In the LCD survey nearly three-quarters of resident and 69% of non-resident parents said they were satisfied with the arrangements, even higher levels being reported by those who had reached agreement (82% and 87%) compared with those who had never had an agreement or had used the courts.
[ NB. these totals are sheer speculation but it is logoical to conclude that if both parents were to be allowed to agree contact/residence apportionment then almost 100% would be ‘satisfied’ – the fact that parents are not allowed to reach such agreements tells us everything we need to know about what is wrong with the present system and what needs to be put right- RW ]
However, among the dissatisfied, insufficient contact was a key theme, particularly for resident parents (31% compared with 17% of non-resident parents).This finding reinforces the findings of many studies (see Hunt, 2003) that, in general, resident parents want their ex-partners to see the children more, not less, and suggests there is scope for an increase in contact.
[ NB. this stated or alleged concern for the overall welfare of the child is not borne out in the conduct of many mothers who prevent contact by the father – RW ].
It is vital to remember, however, that contact in some circumstances is damaging. There are already serious concerns that contact is being inappropriately ordered in cases where there are established risks. The challenge is to promote contact in a way which delivers benefits to children while not jeopardising their safety or well-being.
[ NB. It is also vital to remember that residence awards to mothers and the abuse they suffer from their children as a result of their conduct is, in some circumstances more damaging – RW ]
6. Contact and child support
Much research indicates that, for parents, financial support and contact are intertwined. Where there is contact support is more likely (Davis and Wikeley, 2002) while support can ‘oil the wheels’ of contact (Bradshaw et al, 1999). Conversely, paying out but not having contact is resented, and may be resisted, by non-resident parents, and contact without payment by resident parents.
[ NB. that is the father’s perspective only. From the mothers perspectice the ‘oil the wheels’ for contact is a euphemism for mothor’s blackmailing fathers – RW ].
In law the issues are treated as largely separate: the obligation to maintain exists irrespective of contact; the duty to comply with a contact order does not depend on payment of child support. Should they remain so? The CASC (Children Act Sub-Cttee) report Making Contact Work noted ‘a genuine sense of injustice on this question which can cut both ways’ and ‘invited’ the government to ‘re-consider the desirability and practicality of legislating for an inter-relationship’. This has been unequivocably rejected on the grounds that ‘contact is not a commodity to be bartered for money’ (LCD 2002a).
Recent changes in Child Support legislation go some way towards addressing one complaint of non-resident parents: now the child only needs to stay one night a week before payment is reduced (by one-seventh per night, up to a maximum of three-sevenths). This may, however, have unintended effects: children may suffer material disadvantage because of the impact on the income of the primary carer; resident parents may be reluctant to agree substantial staying contact; and there may be more litigation.
7. The position of the non-resident parent
- “I am angry with a system that allows fathers to be removed from their children’s lives for no good reason” – Matthew O’Connor, Fathers-4-Justice, Evening Standard, 14.4.2003).
The distress and anger felt by non-resident parents unable to play a full role in their children’s lives, vividly described by Bob Geldorf (2003) is well-documented (Bradshaw et al, 1999; Simpson et al, 1995).
Organisations campaigning for their rights (particularly, but not exclusively, fathers’) are growing, with some increasingly militant. There is a perception that the legal system is biased, allowing mothers to marginalise fathers or to shut them out of their children’s lives for no good reason.In particular it is argued that:
- – Women typically get residence and thereafter control the extent of the father’s involvement;
- – While legal remedies are available, fathers are discouraged by costs; deterred by legal advice about the prospects of success and disadvantaged by having to represent themselves against a legally-aided mother;
- – The slow legal system allows a status quo to be established which it is hard to overturn;
- – Court orders provide for insufficient meaningful contact; courts are too ready to limit contact;
- – Mothers can easily flout court orders; courts do not act decisively to ensure compliance.
There is force in some of these arguments. Children do largely live with their mothers, but probably because in intact families women still carry out most day-to-day care and maintaining the status quo is a key factor in any court decision. It is doubtful that courts systematically operate a maternal preference. Although there are anecdotal reports and one high profile case which is cited as proof (The Guardian; 20.04.2002), recent research found no evidence of this (Smart et al, 2003).
[ NB. one would expect no less a view from Carol Smart. The “women still carry out most day-to-day care” is such a dated 1950s view of the average family it is almost laughable. Women no longer have a monopoly of day-to-day care. To make ends meet mothers are more often part of a two-income household and thus the status quo is provided by the fathers. Much more appropriate are the views of journalist Jane Sandeman ( 29 Nov 2010, http://blogs.independent.co.uk/2010/11/29/where-do-fathers-fit/) shown below – RW] :
- “I am all for fathers loving their children and spending time with their children. But fathers have always done that. BBC Four recently ran a series on fatherhood which examined ‘The myth of the tyrannical dad’. It showed that fathers were close to their family in the early twentieth century. ‘They helped look after their babies, they played regularly with their sons and daughters, they helped educate them and they tried to get them jobs.’
- “What’s distasteful about the discussion of fatherhood today is it assumes fathers can’t relate to their children without being told what to do. Instead, they’re offered leaflets as part of the ante-natal information on how to be a father. It’s problematic that looking after your family by going out to work, and seeing your role in the family as the stoic, less emotive one is disparaged. A doting dad has become one who wears his intensive parenting on his sleeve. If he doesn’t play with his children for X amount of hours, it could lead to terrible consequences. Worryingly, policy is doing for dads what it has so successfully done for mothers: scaring the living daylights out of them and then dictating how they should behave.”
However the ‘situational power’ of the resident parent (Smart et al, 2001) is indisputable. S/he can cut off all contact; the other parent will have to seek court redress. S/he can move away from the area entirely. Certain decisions, such as moving to another country, need court authorisation, but this is rarely refused. Courts have been reluctant to use punitive sanctions to enforce contact orders.
To what extent do resident parents use their power unreasonably?
Many non-resident parents report this, those working in the courts are familiar with what appears to be unwarranted hostility and there is some research evidence (summarised in Hunt, 2003). On the other hand it is now recognised that courts may have been too ready to brand as ‘implacably hostile’ parents who have sound reasons for opposing contact.
In Australia, a study of applications to enforce contact orders (Rhoades, 2002) found that 65% involved major concerns about the non-resident parent’s care and that the ‘one-sided unreasonableness of the hostile mother stories was noticeably absent’. Only three breaches were considered serious enough to warrant a penalty. Other research suggests that resistance to contact may be a way of coping with high levels of conflict (Strategic Partners, 1998).
[ NB. Saints preserves us ! Where have these authors been for 30 years ? Are they so unworldly ? Of course 65% or more will allegedly involve “major concerns about the non-resident parent’s care” because that’s the silver bullet to stop contact and results in 40% of children loosing touch with their father. It is all part of the ‘revenge and get more money’ process some mothers become addicted to and cannot close it down – RW]
There is a pressing need for UK research on the incidence of, and reasons for, contact refusal. If it is true, however, that some resident parents do resist or sabotage contact for unacceptable reasons, what might be done ?
[NB. the reason that this remains an “unknown” is that after 40 years of Gov’t funded studies there is a realisation that asking only mothers – and never fathers – gives a distorted and biased picture that is never able to map on to the realities of life – RW ].
- – Would it help to have a statutory presumption of contact, perhaps accompanied by guidelines as to minimum expected levels of ‘normal contact ’ as is the case, for example, in Norway and some American states ? More radically, should the concept of resident/contact parent be abandoned, in favour of a presumption of shared parenting ?
- – Should courts be more interventionist, requiring parents to produce a satisfactory detailed parenting plan before granting a divorce decree, as in some American states ?
- – Should contact orders be enforced more swiftly and rigorously or would the emphasis be better placed on preventing problems reaching this point, through the provision of services ? Should use of these services be purely voluntary or, where necessary, court-mandated ?
8. Shared parenting
Shared parenting is the concept that, following divorce or separation, mothers and fathers should retain a strong positive parenting role in their children’s lives, with the children actually spending substantial amounts of time living with each. There are a wide variety of parenting arrangements to suit a range of situations and these provide for time-splits from 30/70 to 50/50. (SPIG, Shared Parenting Information Group web-site)
The Children Act promotes the involvement of both parents through the concept of continuing parental responsibility, and joint residence orders [ emphasis added – RW] can be made where children are to spend substantial amounts of time with each. Some are now pressing for the concepts of residence and contact to go, to be replaced by a presumption of shared parenting. This, it is argued, would give a stronger message that both parents are expected to remain substantially involved in their children’s lives; set the tone for negotiations; discourage one parent arbitrarily restricting contact; and reduce court disputes.
[ NB. the mentioning of ‘joint residence orders’ is something of a rarity – rarely found in authoritive books, papers or governmental publications but the authors are very correct. The 1989 Act does indeed allow for this form of custosdy so one has to ask why it has never been allowed to happen ? – RW ]
Opponents counter that it would increase the potential for the use of coercive measures by the court and put pressure on resident parents to make unsafe arrangements without necessarily reducing conflict or litigation (Kaganas and Piper, 2003). Making Contact Work considered the issue was beyond its remit, but suggested pilot schemes might be established. The government’s response was that this was unlikely to be possible – the court must make the order it considers to be right for the individual child.
[ NB. it would be no more “coercive” than th epresent prohibiting of fathers from seeing their children or making fathers see their children at limited times – like animals in a zoo –RW ].
The shared parenting movement is an international phenomenon and the UK government is coming under pressure to take action. The issue is being actively debated in Australia, where a Parliamentary inquiry is underway and New Zealand, where a campaign is ongoing despite the defeat of a Private Members Bill in 2000. Canada recently completed a widespread consultation although it rejected the idea, on the grounds that children are not best served by a presumption that any particular kind of parenting arrangement is best.
[ NB. if the UK government is coming ‘under pressure’ then it must either be lightweight pressure or strong resistance from Whitehall for the change progress [2004 – 2012] is a snail’s pace when compared with the Smoking in Public ban that took approx. 6 months from proposal to enactment – RW ].
The debates around shared parenting, particularly when evidence from other jurisdictions is cited in support, are sometimes clouded by the elision of different concepts: shared responsibility (elsewhere often referred to as joint legal custody); shared residence (joint physical custody) and equal parenting time.
[ NB. confusing ‘shared responsibility’ with shared parenting is uniquely the hallmark of those opposed to shared parenting. ‘Joint legal custody’ is another red herring since it is an American term and gives nothing that is ‘joint’ to the father. However, shared parenting, shared residence, and equal parenting time are all variatiosn on the szame theme of more fatherly ionviolvement – RW].
A legal presumption of equal parenting time is still unusual.In the US, for instance, many states have a presumption of joint legal custody; fewer have a preference for joint physical custody and only two appear to have a presumption of equal time (Kelly and Ward, 2002). Central to the issue, however, is shared residence.
Does shared residence work ?
A review of American research on joint legal/physical custody (Bauserman, 2002) concluded that it can: on average children were better adjusted than those in sole custody and were not exposed to more conflict. One might conclude from this that those who wish to make such arrangements should not be discouraged; perhaps even that some encouragement is given to consider this option. However a presumption of shared parenting time is a different matter and several caveats need to be borne in mind:
[ NB. research by Warren Farrell (2001) and Bauserman (2002), were the beginning of what has become an avalanche in the following 10 years – RW].
- – Most studies involve low-conflict families who have chosen this option. Research on high-conflict families with court-imposed shared arrangements indicates increased parental aggression and child disturbance (Johnston, 1995). More research would be needed to establish where the balance of advantage lies in families between these two extremes.
- Families have to overcome many challenges to make shared parenting work and those who succeed (the subject of most research studies) may be unusual and better resourced. Good outcomes may be due not to the arrangements themselves, but to the quality of the relationships which are an important factor in making them work (Smart et al, 2001).
- – Children, even siblings, vary enormously in their responses, some thriving, others struggling and views may change over time (Smart et al, 2001).
[ NB. This is Smart at her most destructive and so obvious and hackneyed it is here ignored. However, since low-conflict families are the majority i.e. 80%+, it would be silly to dictate their fate guided by a destructively dysfunctional sub-set of 5%, i.e. the high-conflict families which no custody arrangement can address satisfactorily – RW].
Recent research in the UK on children’s experiences of 50:50 arrangements also strikes a cautionary note. The initial study (Smart et al, 2001) was reasonably positive, reporting that for most children the arrangements were ‘normal’, providing a tangible experience of being loved and included in two families. The follow-up study, however, (Neale et al, 2003) found that from the child ’s perspective they had often become increasingly unsatisfactory and many children found it incredibly hard to change the arrangements once they were in place.
[ NB. not only does this underline the negativity of Bren Neal’s work (look at her sample size and questions asked) but draws attention to the rigidity and artificiality of court ordered access/contact visits – RW].
The critical elements in children feeling positive were: the prioritisation of their needs; flexibility; and feeling settled and truly at home in both households. Even where children felt shared residence was a good thing they looked forward to a time when they could stop ‘living like nomads’. The researchers concluded that:
- ‘Shared residence is not a magic solution to a difficult problem. To some extent it merely stretches an existing problem over years and it can be the children who have to absorb the pressures.’
[ NB. Yet curiously for a failed / flawed system it has, since the 1980s, been adopted in country after country as the best alternative – RW].
9. Contact and domestic violence
The significance of domestic violence to decisions about contact.
This is recognised in the government’s consultation paper Safety and Justice (Home Office, 2003) which sets out current strategies and invites responses as to whether more needs to be done. It is only recently, however, that the problematic nature of contact in the context of domestic violence has attracted much attention.
[ NB. the spectre of domestic violence has dogged all social policies formulation since the 1980s. The attracting ‘much attention’ is wholly due to the politics of gender warfare and the mainly female academics who pursue it relentlessly (it also provides them with funding and kudos for their reputations). It has had a disfiguring influence on what should be rational thinking and logical conclusions. At the drop of a hat papers will regurgitate the same old claims from the same old sources, who are usually chums, eg Stanko, Hester & Radford etc.– RW].
Two myths have been exploded:
- – Violence ceases on separation. One-third of all abuse occurs post-separation (Mirrlees-Black et al, 1996) and contact is a particular danger-point (Hester and Radford, 1996).
- Domestic violence only affects adults. Children suffer through the impact on the carer, frequently witness violence and suffer multiple adverse effects. There is a strong correlation with child abuse (Aris et al, 2002).
[ NB. This is only a revelation for feminists, i.e. that “1/3 of all abuse occurs post-separation.” Their perception of women actually living with men is that the stereotypical male is inherently violent and the majority of women have to tolerate violence from men. So it comes as something of a shock to realise that the centre of a man’s attention is not exclusively towards his wife but his children and interrupt his access to them and friction will result. Time and again the only “strong correlation with child abuse” found is from mothers to children and from a small minority of dysfunctional men/fathers. The totally femcentrist perceptions excludes the concept that children can also suffer through the impact on the visiting parent, i.e. the father – RW].
Contact arrangements, therefore, can be physically as well as emotionally hazardous for children:one study reported that 75% of children ordered to have contact with a violent parent were abused (Radford et al, 1999); at least 19 have been killed during contact since 1999 (Women’s Aid Federation of England web-site).
[ NB. This claim by Women’s Aidhas been disproved over and over again for the past 10 years yet it still reappears as if a true and honest representation meriting constant mention. If 19 children had been killed during contact since 1999 (and Lord Justice Wall found only 3 possible candidates), then women and mothers have to account for the 100+ children killed not since 1999 but every year. Women’s Aid have refused to take down the misleading and inaccuate data from their website. Harry Fletcher, assistant General Secretary of NAPO, said in 2002 that allegations of domestic violence against father had been made in 61% of the 300 cases in a study of family court cases undertaken by his union (Dec 15, 2002, The Observer http://www.observer.co.uk/uk_news/story/0,6903,860342,00.htmla). These claims were also dismissed by the minister (Rosie Winterton MP) and ministry responsible circa 2003 – RW].
The approach of the courts.
Domestic violence is raised as a reason for restricting contact in 22% of disputes reaching the courts (Smart et al, 2003) and is established/admitted in over a third of cases requiring welfare reports (NAPO, 2002). Victims and children face multiple risks during,and as a result of, litigation (Aris et al, 2002). The courts, however, have been slow to recognise the implications of domestic violence in contact cases (ABFL, 1999): even proven violence could be treated as less important than contact and parents who did not agree to arrangements they regarded as unsafe could be seen as ‘implacably hostile’ and threatened with sanctions.
[ NB. For normal people the NAPO agenda referred to will come as a shock. In black and white they make it clear they have no intention of being fair to heterosexual male fathers. However, they are more than eager to assist same-sex couples and lesbians in their fatherly role – RW].
A change in approach was apparent from the late 90s. Two developments, however, were critical. First, the 1999 CASC Report on Contact with Violent Parents, which concluded that:
- ‘the issue is not currently being fully or appropriately addressed by the courts’
and set out recommendations for best practice guidelines (LCD, 2001). These included:
- the importance of establishing the facts at an early stage; whether the safety of child and carer could be assured; and, consideration of such factors as:
- The conduct of the parties to each other and the children, in particular: the effect of the violence on the child and the resident parent; the motivation of the parent seeking contact; their likely behaviour during contact and its effect on the child; their attitude to past violence; appreciation of the impact on child and victim; and their capacity to change.
The second key development was a landmark judgment (Re L, 2000) in which the Court of Appeal refused direct contact, described domestic violence as ‘a significant failure of parenting‘ urging greater awareness of the consequences for children, and issued guidance in line with the CASC report. The court had taken the unusual step of inviting an expert report on the benefits and risks of contact which concluded that:
- ‘there should be no automatic assumption that contact to a previously or currently violent parent is in the child’s interest; if anything the assumption should be in the opposite direction’ (Sturge and Glaser, 2000).
The court decided that while there should not be a presumption against contact where domestic violence was established, it was a ‘highly relevant and significant factor which must be taken into account’.
The current position.
The first evaluation of the guidelines (LCD, 2002b) found heightened awareness of the issues, but also inconsistency. The proportion of cases in which contact orders are refused, for any reason, is minute and declining (0.8% in 2002). A survey of workers in women’s refuges reported worrying findings:
- “Only 11% of refuges thought that court practice had generally improved and 8% that it had deteriorated. The courts were still perceived to be reluctant to restrict contact; 47% reported instances of proceedings being used to track down victims; 35% said women were being threatened with sanctions to enforce compliance, including those where men had breached non-molestation orders or had convictions for violence. 6% knew of cases where contact orders were granted to men with offences against children and 12% of contact granted to men whose behaviour had resulted in the child being put on the child protection register (Saunders, 2001).”
[ NB. Well they would say that wouldn’t they ? At stake is a £10 million a year subsidy to Refuge and Sandra Horley is the chief executive of the Refuge franchise. Hilary Saunders, as in the “Saunders,2001” citation was formerly Children’s Policy Officer atWomen’s Aid (income over £2 million pa). Need one say any more ?- RW].
These concerns have already resulted in some legislative change – the Adoption and Children Act 2002 amends the Children Act to include, in the definition of harm to a child, impairment resulting from witnessing the ill-treatment of others. The government is working with a ‘Safety Stakeholder Group’ to ensure the forms used in proceedings bring domestic violence to the court’s attention. The guidelines have been incorporated into judicial training and into a Law Society Protocol.
[ NB. Both the ‘Safety Stakeholder Group’ and ‘Law Society Protocol’ are spineless whitewashes of an near-factious scenario – RW ].
These are substantial developments. Do they go far enough? Have they gone too far? There are strongly competing views.
- – Is domestic violence unduly dominating the contact agenda, as some father’s organisations claim? Domestic violence is not an issue in the majority of divorcing families. Although there is no research on this there are concerns that litigation encourages fraudulent allegations and this is encouraged by the guidelines.
[ NB. at last a chink of light – RW ]
- – Should the Children Act be amended, as Women’s Aid and the NSPCC are urging, to include, as in New Zealand legislation, a mandatory risk assessment check-list and a presumption that where a parent has been found to be violent there should be no unsupervised contact unless it can be shown to be safe? A recent survey of refuges by Women’s Aid (Saunders, 2003) suggests the quidelines are still not universally effective.
[ NB. this proposal it was promptly withdrawn by Women’s Aid when Whiston suggested that to take Women’s Aid at their word then not just the children’s fathers but all men intending to live with the mother should undergo this ‘vetting’ procedure if all men were the latent danger they were represented as being – RW].
- – The need for resources. There is agreement that more could be done to provide skilled risk assessment, treatment programmes for perpetrators and facilities for safe contact. Such interventions, however, are expensive. Is there the political will to provide them ?
[ NB. ‘risk assessment’ became the buzz word of the 2000s – RW].
- – Are children’s views and needs adequately taken into account ? Only 6% of refuges consider that children who resist contact are taken seriously in most cases (Saunders, 2003). Are children being given sufficient time and help to recover from the effects of exposure to violence? Is enough known about the long-term psychological effects of contact with an abuser to know whether, even if it can be made physically safe, this is a legitimate goal ?
[ NB. Erin Pizzey’s survey at the Chiswick refuge showed that the women who apparently ‘fled’ there were as violent as the men they supposedly fled from. Can one extrapolate that the female violence extended to their children ? – RW].
10. Involving the child
Research gives a clear message: children do not expect their views to be determinative, but many want to be consulted and listened to far more than they are (O’Quigley, 1999). Participation is supported by the UN Convention on the Rights of the Child and the European Convention on Human Rights. The government has accepted the need for a review of the way children are heard in contact and other private law proceedings (LCD, 2002a)and a wide-ranging consultation is promised for 2004.
The current position.
Children have some opportunities to participate in contested court proceedings, typically via a report from a CAFCASS Children and Family Reporter. Representation, by a children’s guardian and/or solicitor, is expected to become more common once the power to order it becomes part of primary legislation with implementation of section 122 of the Adoption and Children Act, 2002, planned for the end of 2004 (Minister for Children, Hansard 23.10.2003; col 355WH).
Although there are reservations about the effectiveness of such provisions (James and McNamee, 2003), the position of the vast majority of children whose parents do not become embroiled in court disputes is much weaker. The extent to which their voice is heard depends entirely on the receptiveness of their parents and the practice of any professionals with whom the family comes into contact. In the turmoil of separation many parents find it extremely difficult to talk to their children (Walker, 2001). The government has sought to assist by endorsing the use of Parenting Plans, which contain many reminders to involve children.
[ NB. ‘parenting plans’ were promoted by fathers groups for some years prior to the 2002 LCD Committee meetings but they gained no traction at the time. To their credit the authors make two important observations here; firstly, they admit that the vast majority of children do not have their lives and futures protected or registered by any form of court order and secondly that as a result they have no say in that future. That said, one suspects that the authors are depending on the unreliable data of the ONS Omnibus series that found that the majority of parents did not use court services but the number of court awards circa 90,000 disproves that projection – RW].
Mediators are expected to encourage parents to consult; solicitors undertaking publicly-funded work to note children’s views and the FAInS initiative (see later) envisages them offering support to parents in talking to children. Neither mediators nor solicitors, however, typically see children.
- – Should parents be required to take account of children’s views, as under the Children (Scotland) Act 1995 ? Though unenforceable such a statutory requirement would give a clear message about society’s commitment to child participation.
- – Should the courts, before granting a divorce, be required to ascertain the children’s views, as under the unimplemented) Section 11 of the Family Law Act 1996? Can this be done on paper or should children be seen ?
- – Should more efforts be made to reach children directly ? Consultation with children (Lyon et al, 1999) indicates they want information, advice, consultation and advocacy services. Some elements of this are being put in place and there are hopes that the creation of CAFCASS will promote the development of the comprehensive and coordinated children’s support service envisaged.
- – Should there be a presumption of representation, as in child protection proceedings? Some jurisdictions, such as New Zealand, provide for this. If not, should there be criteria to promote consistency and how restrictive should they be ? Resources will be key: a significant rise in representation will increase demands on CAFCASS and the Legal Services Commission.
- – Are adults ready to take children seriously ? Research suggests that professionals and parents are struggling to adjust to the new concepts of children as citizens, with rights to have their views taken into account (Lowe and Murch, 2001). This may be particularly apposite in the context of contact where, some argue, children who say they want contact are taken seriously, those who refuse, are not (Smart et al, 2001), even where there are safety issues (Saunders, 2003).
- ‘Post-separation parenting is not easy; to the contrary it is fiendishly difficult’ (Mr Justice Wall, Making Contact Work conference, 2003).
Bringing up children in any circumstances is not easy. Initiatives such as Sure Start and the National Family and Parenting Institute are a tangible recognition of this and reflect acceptance that the state has a role to play in supporting parents. Post-separation parenting presents special challenges (Smart et al, 2001) and although families can tap into universal services, research indicates (Buchanan et al, 2001) there is a need for a coordinated preventative and remedial strategy which specifically addresses their particular needs, including managing contact. This needs to address the very varied circumstances of the separating population, from well-functioning families who just need help to manage the transition, to those where there are serious concerns about parenting, high levels of conflict and domestic violence.
Some services already exist: traditional ones such as solicitors and courts, those which are more recent but now well established, such as mediation and contact centres, and newer initiatives such as helplines and web-sites. There is a widespread perception, however, that, as Making Contact Work put it, ‘much more needs to be done’. While pointing out the need for improvements in legal processes (accreditation for lawyers, reducing delay, judicial continuity; alternatives to punitive measures of enforcement) CASC also stressed the need for non-court-based services to be available at a much earlier stage.
The report emphasised access to information on post-separation parenting, the harm caused by conflict and the services available. Had the Family Law Act been fully implemented this would have been provided through the Information Meetings, which were a key element in the new divorce process.
The Legal Services Commission is piloting Family Advice and Information Networks (FAInS), which aim to provide tailored information and advice and referral to appropriate services. The success of FAInS will depend on a spectrum of services being available and the pilot schemes may well point up serious gaps in provision.
At the moment, although there is anecdotal evidence of a mismatch between need and supply, no audit of services has been carried out. Making Contact Work simply commented, in relation to services to address contact difficulties, that ‘in so far as such programmes currently exist, they will need to be funded; in so far as they do not, they will need to be developed’.
It is clear that many separating parents need practical help in developing strategies to manage post-separation relationships and defuse conflict (Walker, 2001; Trinder et al, 2001). This might mean increasing provision for counselling, therapeutic mediation and family therapy. One promising way forward is offered by skills-based post-separation parenting classes, such as New York’s ACT for the Children (Pedro-Carroll and Frazee, 2001).
Support is being sought for a pilot court-based project which would combine this type of class for litigating parents with help from a CAFCASS officer to work out a parenting plan (NATC, 2003). A few community-based programmes currently operate here, run by organisations such as Relate, while NCH Action for Children is seeking funding to develop intensive programmes for entrenched disputes. Government support and funding will be needed to support these and pump-prime other initiatives.
More services may also need to be provided directly to children, for example by including them in mediation; enabling CAFCASS officers to spend more time with the child; and increasing the availability of information, advice, counselling and therapeutic services. A recent survey of support services for children (Hawthorne et al, 2003) indicates many initiatives here which might provide the basis for a more coordinated approach. Positive results have also been reported from school-based interventions (Wilson et al, 2003).
The way forward
Developing policy on contact is fraught with difficulties. The issues are complex and the circumstances of the families involved very varied. The law can set a framework but may have only a limited effect on behaviour and is inherently difficult to enforce. Promoting the best interests of children may involve an element of injustice to parents. What then might be done ?
[ NB. Yes, developing a policy for contact is fraught with difficulties because it is an unworkable system – RW].
Caution is needed about legislative change. The case for amending the Children Act may be stronger in relation to domestic violence: there are grounds for concern and the change demanded is limited to litigated cases where violence is established. Introducing a presumption of contact is more problematic. It makes a strong statement of principle but would it make resident parents more willing to facilitate contact or non-resident parents maintain it ? It would almost certainly lead to increased litigation and therefore more children exposed to the damaging effects of conflict.
Contact is not a good in itself; the value comes from the quality of the relationships. This suggests that policy should focus on helping families manage separation in ways which best promote positive on-going relationships and minimise children’s exposure to conflict. Post-separation parenting is a very neglected area, which barely receives a mention in the recent government Green Paper, Every Child Matters, despite the large, and growing, numbers of children affected. There would be widespread support for a programme aimed at improving service provision.
[ NB. so think outside the box – think of shared parenting – RW].
However policy develops it is vital to keep the focus on the needs of children and to take account of their perspectives. It is all too easy for children’s interests and voices to be submerged in adult disputes.
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