UK Family Law Reform

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On 17th October 2004 the Conservative Shadow Secretary of State for the Family, Theresa May, pledged to end the misery of the family courts. Unveiling a strategy for institutional change.

“We Conservatives recognise what the experts and common sense have always told us: that the best parent is both parents. It is time for a family court system that protects children and respects parents.

Children who go through divorce - 146,914 of them in 2001 - have already lost out. We must not add to their distress with a court system that means they forfeit one of their parents as well. Under the next government, there will not be another generation of parents without children, and children without parents. Everyone - including the lawyers - accepts the time for change is overdue.”

Theresa May underlined that the programme was a practicable reality in advanced discussion within the legal profession, child development experts and parenting groups. She said:

“Too many families have been torn apart by divorce and separation. Not just because the adults’ relationship has ended, although that is painful enough. But because the bond between parent and child, or grandparent and grandchild has been broken.

Our Country deserves a better system of family justice: one that is open, fair and accountable; that protects children and respects parents; but above all, that recognises that the best parent is both parents."

Institutional Change

Under the proposals, CAFCASS, the Children and Family Court Advisory and Support Service, will be abolished. Theresa May said:

“CAFCASS has been a disaster from Day One. Its officers write tens of thousands of trivial reports each year - on decent families caught up in divorce. CAFCASS breeds heartache and delay. CAFCASS clogs up the system. It’s the bottleneck in the divorce system wasting hundreds of millions of pounds a year.”

Theresa May underlined her respect for the hard-pressed Guardians ad-Litem co-opted by Labour into CAFCASS.

“The Guardians in CAFCASS provide an invaluable service to children in real need. But this part of the service is under-funded. Resources that should go to cases of real neglect are squandered by CAFCASS on matters which should not be dealt with by the courts. CAFCASS has got it back-to-front.”

Other measures include:

- legislating the presumption of reasonable contact

- adopting the ‘good reason’ principle

- implementing Section 11 (iv) of the Children Act for co-parenting

- accrediting court-approved mediators and facilitators

A Restructured Court System

For parents who have reached the stage of issuing legal proceedings about contact, Conservative proposals include:

- clear guidelines prepared by child development experts and stakeholders in conjunction with the judiciary to outline the range of beneficial post-separation arrangements

- mandatory mediation before the first hearing conducted in the knowledge of what the Courts are likely to order

- family courts working to expert guidelines acknowledging that the child’s needs are best served by “frequent and continuous” contact with both parents

- court-backed mechanisms, including mandatory information sessions, to make these court-backed guidelines available to parents before the hearing

Establishing Clear Expectations

Theresa May said:

“Children don’t need frequent and continuous litigation. They need frequent and continuous contact - with both parents. We must end the era where parents litigate for years just to see their children for two hours a fortnight. Yes, we need more mediation. But mediation must take place in a clear context. Parents have to know what the courts are likely to order. Predictability is so important in the months before a case starts.

We want parents to sort out their differences without resorting to unnecessary litigation The Courts should be the last, not the first resort”

Conservative proposals mean that most contact disputes should be settled before the first hearing, as happens abroad. Theresa May explained:

“At the moment there is simply no information available. Separating parents have no way to find out what to do about their children. No-one tells them what the Courts are going to order. Then they find that the Government will pay their costs to continue arguing in court. Labour is fighting fire with petrol.”

The Conservative scheme represents a radical departure from recent Government proposals. Labour’s Consultation Paper (Cm6723) pays lip-service to the idea of guidelines. But the first step remains untaken. Theresa May said,

“The Government has failed to offer families a system that works. You have to start by bringing the judges, experts and stakeholders on board to agree what sort of orders the Courts should make. That way, you know what you’re trying to deliver. Then you build a legal system to deliver it. The Government never did its homework. It forgot the foundations. It’s the same old gerry-building: ‘anything goes.’

Theresa May said she could not condone the tactics of pressure groups like Fathers For Justice, but added,

“Let’s not forget that there is a legitimate grievance. Can any parent - hand on heart - imagine anything more terrible than losing their children? What would you do to see them? We’re going to build a proper system of justice”

“It is not just the parents who have had enough with a third-rate service. It’s the professionals. We found that the lawyers, judges and experts have been calling for radical change too. Their proposals go into Whitehall in perfect order; they come back from Margaret Hodge’s DfES in tatters - with CAFCASS back in charge. At the end of the day, the issue is really very simple. What do children want: one parent or two?”

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