UK Family Law Reform

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----- Original Message -----
Sent: Thursday, February 13, 2014 4:24 PM
Subject: Getting The Law Wrong Again.

Dear Mark Lancaster,

The Government have got themselves into a muddle about the current law and how the law operates in practice. The Government has repeatedly maintained that case law safeguards the principle of the two-parent model; that is to say, the principle that children normally benefit from a meaningful relationship with both parents following separation, unless good reasons can be shown why that should not happen. In other words, they say that there is already a presumption of meaningful relations or meaningful contact enshrined in case law. But when it is put to them, that that presumption should be mirrored in statute, they say that they do not like the idea that presumption of reasonable contact should actually appear in the Children Act 1989. So their position is contradictory, and the muddle of it is compounded by your belief that the present law is all right.

The present law is not all right, because it cannot prevent thousands of blameless and loving parents being granted next to no contact with their children for no material or good reason. I an not talking dangerous or dysfunctional parents but about normal, loving, non-violent parents who have had to come to court repeatedly to prove to a judge why it is reasonable for them to have a meaningful relationship with their child. That is the effect of the current law. They do not enter the court with a presumption of reasonable or meaningful contact; they enter it with a presumption of contact of some kind, which may end up as two hours once a fortnight, for no material or good reason.

Case law does not help those parents. The Governments contention that it does is based on a fundamental misreading of case law and of the Children Act 1989. Certainly you can find in case law warm pronouncements by judges about the desirability of meaningful relationships between the child and both his parents. But if case law is to be useful as a precedent, it has to pass a test. It would have to be recognised by the Court of Appeal as having clear applicability to broad and recognisable categories of parents. It would have to provide a steer to the courts in cases involving those same categories of parent about how much contact time it is reasonable for the resident and non-resident parent to have. Nothing like that exists in case law, which is why I say that the Government has misled it's self in referring to case law.

The question was asked in 2006: what is the definition of the term "reasonable contact"? The answer is that it can be defined by reference to units of time, dependent on the circumstances of the case, so long as those units of time are sufficient to deliver the desired end result, which is a meaningful relationship with the child. Most aggrieved non-resident parents will tell you that unless there is overnight contact, the chances of a meaningful relationship continuing are low.

The judge might say that in the best interests of the child, and to give the best chance of a meaningful relationship, it is reasonable for the resident mother to have 70 per cent of the contact time and the non-resident father to have 30 per cent. The apportionment is then translated into numbers of days and nights per year.

But all too often, material contact of this kind is denied or brought to an end for no material reason. It is brought to an end in the face of the resident mother's emotional protests. It is brought to an end because the mother accuses the father of having repeatedly asked for the marmalade in a sarcastic tone of voice. It is brought to an end because the mother accuses the father of changing the time at which a meeting is to take place, thereby upsetting the domestic routine. There needs to be a good reason to deny a blameless non-violent parent reasonable contact time.

With only a legal presumption of contact, a non-resident parent can be sure of only one thing—that he or she will be awarded at least some minimal level of contact unless a good reason can be shown why not. No more than that.

The fact that there is a presumption in law does not mean that a court must make a contact order. If there is a good reason in the interests of the child not to make a contact order—usually because to do so would pose an unacceptable risk to the child—then there is no contact order. In the same way, if the Children Act were to provide for a presumption of reasonable contact, that would not put the child at a greater risk of harm. A presumption is only what it says—a presumption. If a good reason is shown to the court why there should not be material contact, the court will not make an order granting it. It would not be reasonable to do so.

So I say to the Minister, please take further legal advice. With one breath, he is embracing the presumption of reasonable contact, and with the next he is resisting it. By sticking to his current position, by resisting the idea that a presumption of reasonable contact should be incorporated into the Children Act, he is doing one thing and one thing only—rejecting the two-parent model for bringing up children. He is rejecting the golden principle that the child-parent bond should not be lightly set aside. He is going against what he says he believes about how children can best maximise their life chances. And because he does not acknowledge that a very simple change to the law is what stands between contentment and utter grief for hundreds, if not thousands, of parents, he has allowed himself to believe that the measures contained in the Children & Families Bill will do good. They will not, because they are conceived on the premise that there is nothing wrong with the Children Act provisions on contact. If you do not cure the root of the problem, you will not cure the problem, and the root of the problem is something that the Children & Families Bill does not touch.

Yours Sincerely

David Mortimer