- Why Family Law Needs Reform Now!
- By Suella Fernandes
- Contributed by: Daveyone ( 77 articles in 2017 )
David and Sarah* separated after ten years of marriage in September 2014. They had two children, aged eight and five at the time. David was a good father who did not want to stop being a dad because his marriage had ended. However, nearly three years later, and more than £200,000 paid in legal costs by both parties, David is still fighting through the complex and bureaucratic family courts for the right to see his children eight nights a month instead of the six nights originally offered by Sarah.
Not only have those two nights been very expensive for both parties, but on several occasions Sarah unlawfully stopped the children from seeing David, breaking the court order and damaging their relationship. MORE
Camilla CavendishCamilla Cavendish wrote a very inclusive series of articles on this subject in 2009 so little has changed in that time http://www.familylawweek.co.uk/site.aspx?i=ed34815
Justice will only be served when finance is not the driving force. Solicitors don’t work for parents who act conciliatory, more the adversary more cash for them and all associated authorities such as CAFCASS are complicit.
I am presenting a ten minute rule bill in parliament calling for robust enforcement of child arrangement orders — the arrangement of contact and residence of children upon a divorce. The law needs urgent reform to prevent parents from acting with impunity. In the worst cases, a non-resident parent might be denied access to their child for several years, with their only option being to spend huge amounts of money in the courts with little guarantee of a fair outcome.
Children are less likely to experience depression, teenage pregnancy and delinquency when relationships with both parents are safeguarded. Children without a father in their life often struggle to reach their full potential. But the law does not enable this to happen because of a failure to crack down on intransigent parents who defy court orders. The criminal threshold for contempt is rarely met and judges are failing to assert their authority swiftly under the 1989 Children Act.
Of the 4,654 enforcement applications made to court in 2015, a mere 1.2 per cent were successful, according to data from the Ministry of Justice. The law needs to send the message that child arrangement orders are mandatory, not optional. A “three strikes” approach — after which residence (if safe) could be transferred — should be considered as a real consequence for those parents who fail to adhere to the agreements.
This message would be strengthened by a rebuttable presumption of shared parenting. The welfare of the child is paramount and this necessarily includes the child’s right to a meaningful relationship with both parents, as far as practicable (and as long as the safety of the child is not put at risk). That should be the starting point for determining the residence and contact with a child upon a divorce, not the weaker form of “parental involvement . . . direct, or indirect”, which has been on the statute books since 2014. This can amount to a birthday card or Christmas card in the worst cases. Non-resident parents, mainly fathers, are being airbrushed out of the lives of their children by the system. We can’t keep telling fathers that they have equal responsibilities and then not give them equal opportunity to carry them out.
Shared parenting and robust enforcement are part of a range of reforms that are needed if we are to bring our family law into the 21st century. Its antiquated system reflects norms of the 1950s and 1960s rather than relationships of today.
First, no-fault divorce is long overdue, as last week’s Court of Appeal case of the Owens couple depressingly hilighted. The farce of establishing fault and the needless allocation of blame inherent in the system sets the parties on an otherwise avoidable confrontational path, fuelling animosity and costs.
Second, financial remedies and maintenance are rooted in a bygone era where women were financially dependent on their husbands. The reality today is that most women are able to support themselves and so divorce should not mean an automatic entitlement to lifetime support from an ex-husband. Scotland and North America limit payments. Why don’t we?
Third, cohabiting couples with children are the fastest-growing type of family in the UK. Between 1996 and 2016, the number of couples in this position increased from 1.5 million to 3.3 million, yet they have no rights in the event of a split. Clarity and fairness are required from parliament.
Fourth, the enforceability of prenuptial agreements should be set out by parliament. If we are to support marriage, we need to accept that people are getting married later in life, with assets earned before their union. They should be protected in the event of a split, not put at risk.
And lastly, reform of the way in which the family courts operate in public law needs review. Far too many children are taken into care for wholly inadequate and poorly argued reasons, according to Sir James Munby, president of the family division of the High Court. Only the “glare of publicity” will enable this to stop, so we need to open up the courts.
Most family disputes need not see the inside of a courtroom but more incentive to use mediation and solicitor negotiation rather than our adversarial court system is needed if we are to save time, money and heartache. I hope that the government will run an independent commission to look into these matters to inform a family law system fit for purpose and fit for the 21st century.
*The names in this piece have been changed
Suella Fernandes is Conservative MP for Fareham
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Jason See1 hour ago
New child contact cases are now dealt with automatically by magistrates, following the introduction of the single family court. This is a disaster for contact fathers and their children, for the magistrates are free to make whatever order they wish, safe in the knowledge that the 1st appeal will be to a judge in the county court, that any subsequent appeal to the court of appeal is “2nd tier” and it is therefore nigh on impossible to gain permission to appeal at the court of appeal. The applicant father therefore cannot achieve a truly independent and bias free assessement via the court of appeal, new case law will not be made.
I have now been through this process twice, the first time my 1st appeal to the circuit judge had been determined by her my mistake “on the papers” when she expressed an adverse view that my appeal had no chance of success, she subsequently went on the take my appeal hearing when I pointed out by letter that practice guidance said that I should rightly be allowed one, she refused to recuse herself in that hearing and then refused my appeal. Despite this, my 2nd tier application for permission to appeal to the court of appeal was refused as “totally without merit” (!!!!). In my second contact application to the single family court, instead of presuming more contact with the absent parent (myself) is better for the child, and determining whether there was any reason that additional contact should not be awarded, the magistrates took it upon themselves to determine that the child had “enough” contact already and omitted to undertake a balancing exercise whatsoever (!!!!). The same circuit judge (as took previous 1st tier appeal) simply repeated the magistrates mistakes in the appeal judgement and criticised me (as had the magistrates) for even making the contact application. Roger Bickerdike of Zenith chambers analysed the judgements and found the magistrates and appeal judge to be in error by neglecting to undertake a balancing exercise at all, by instead simply presuming that “enough” contact was already in place. Notwithstanding this conclusion he advised me not to proceed as the bar is set so high for permission for second tier appeals to the court of appeal. 2nd tier appeal, and that it was likely I would once again be told my application for permission was “totally without merit” ….hence a restraining order could be made on me to control my making of further applications (!!!)
Magistrates are now completely free to determine what is “enough” contact for the child, when they should instead be presuming that more contact can occur, then should determine whether it is better for the child to benefit from it, by undertaking a balancing exercise. Judges dealing with 1st tier appeals from the magistrates can operate knowing that permission to appeal from their own judgement will certainly not be gained, being 2nd tier.download
This is a very adverse situation for children and contact parents (invariably fathers)
David Bush1 day ago
Whilst the principles offered by this article are welcome, I suspect the current law would be adequate if it was interpreted in fair, consistent manner.
The risk is that a new legislation and guidelines are handled by the existing bigoted judges with their biased views.
For example a father who wishes to continue a close and loving relationship with his children, is granted unrestricted access and a minimum of 4 days per week hosting his children. However the family, before the divorce could afford one mortgage on one family house. The Judge has decided it would be too traumatic for the mother to leave the family home and the mother requires maintenance, because she has not worked for five years.
So the father cannot afford to buy or rent a house and is renting a room, whilst paying the mortgage on the family home. The stress and trauma has now damaged the mental health of the father.
The children are offered a choice by their mother of a weekend sleeping on the floor of a bedsit with a penniless, traumatised father, or a weekend with their mother, toys, space and familiar friends. Needless to say the children don’t want to see their father.
Our Judges frequently have the view that the mother is totally vulnerable and any financial mistake she makes is under-written by the father, who is assumed to invulnerable to any life event.
Mothers know it is in their interest to have a contested hearing, they can damage the family finances, knowing that they will not be liable for having to earn a wage. The risk of unemployment and ill health is born by the father, who has no ‘safety net’ from his ex partner.
The iniquitous treatment of fathers in the family court system is a scandal and needs to exposed again and again until fathers are treated fairly.