Childrens needs, parents responsibilities

Supporting evidence for consultation paper

Contents
-

What we know about parental separation

What we know about what parents need and want

- DCA consumer strategy
- DfES and DH research on Supporting Parents

The legal context

- The way the family court system works

The international dimension

- Comparison and lessons from abroad

What we know about Parental Separation

Families are changing

1. The shape of the British family at the beginning of the 21 st century is

going through change at a rapid pace.
2. The UK census shows that between 1991 and 2001, there was a fall in
married couple households and a rise in cohabiting couple households
in England and Wales. These changes were particularly marked for
households containing dependent children; married couple households
with dependent children fell by 13% while cohabiting couple
households with dependent children rose by 102%. The number of
lone parent households rose by 21%. The graph below illustrates these
changes.
Households with dependent children: comparing 1991 and 2001 census data
5,000,000

Number of households

4,000,000

3,000,000

2,000,000

1,000,000

0
Married couple households with
dependent children

Cohabiting couple households

with dependent children
1991

Lone parent households

2001

3. The trend is for more children to be brought up with cohabiting parents

or with just one parent. However it should be borne in mind that the
majority some 60% of dependent children were living in married
couple households in 2001. Relationships between parents, whether
they marry, live together, or never set up a common home together,
are less stable than in the past.
4. The bonds between children and both their parents, however, remain
as important as ever. Children experience a number of transitions, such
as when parents separate, when the parents find new partners or when
new children are brought into the home or are born. They do not seek
these changes, and sometimes struggle to cope with them, particularly
if their own birth parents find it difficult to work together 1. The
1 Pryor and Rogers, 2001

Governments wider social policies, need to reflect these changing

patterns of family life, even though only a small minority of separating
families may seek to resolve contact and residence issues in the
courts.
Being a parent is hard
6. Parenting for happily settled couples is hard enough. Parenting in a cooperative and constructive way when the adult relationship has broken
down can be much harder. We know that nine out of ten separating
parents do not seek the involvement of the courts about contact and
residence issues. Of those who do, only a minority are involved in
intractable disputes.
We also know that the number of court
applications relating to these disputes between parents is rising though
up to half of these cases concern the variation or enforcement of
orders.
Before considering how these parents might be better
supported, we need to review what is known about these families.
7. The impact on children of parental separation is an inexact science,
characterised as it is by strong and changing emotions. New issues
arise, or old ones may resurface, when one of the parents moves
house, acquires a new partner or where major changes occur for the
child, such as a new school.
How do parents typically go about resolving their contact issues?
8. Our best estimate is that there are somewhere between 150,000 and
200,000 relationship breakdowns involving children, each year. The
range of this estimate is necessarily broad because of the difficulties
involved with measuring relationship breakdowns in cohabiting
households.
9. The ONS Omnibus Survey shows that in 80 to 85% of these cases,
parents manage to resolve contact arrangements independently or do
not seek resolution at all, in around 5% of cases they do so with the
help of mediation and in the remaining cases, around10%, they turn to
the courts for assistance.

The type of contact arrangement to which parents resort

Source: ONS Omnibus Survey

10.Results from the ONS Omnibus Survey suggest that irrespective of
whether they choose to agree contact arrangements between
themselves or with the help of the courts, some parents end up
dissatisfied with the outcomes they achieve. Greater satisfaction is,
however, generally linked with out of court solutions, possibly because
these allow parents greater control, thus enabling them to make their
own decisions about what is best for the future of their family.
Do all parents manage to reach satisfactory contact agreements?
11.There is good evidence that in the majority of cases they do, although
this does not appear to be the case for a significant minority and
estimates often vary.
Parental Satisfaction with contact arrangements

Source: ONS Omnibus Survey

Notes
1) the sample is of 1498 cases
2) only 26 children had arrangements agreed by mediation reported by nonresident parents so caution should be exercised in interpreting this
number

Do children continue to see both their parents when they no

longer share a common home?
12.There is good evidence that children continue to see both their parents
when the no longer share a common home, though estimates of how
much and how often vary. Most children live with their mothers after
separation, the 2001 Census shows that 91% of the 2.7 million loneparent families in England and Wales were headed by the mother.
Resident parents (most often mothers) tend to report less contact than
non-resident parents (usually fathers), and formerly married partners
report more contact than formerly cohabiting parents 2. The Office for
National Statistics (ONS) Omnibus survey indicates that between 10%
and 23% of children whose parents were questioned have no direct or
indirect contact with their non-resident parents 3. However, it is not
clear if there ever was a meaningful parental relationship for those in
this group. The Home Office Citizenship Survey found 9% had lost
contact4. Research on a cohort in Bristol found that for the 82% where
contact was taking place, for a third it was at least weekly and 90% at
least monthly5.

2 Maclean and Eekelaar, 1997

3 ONS Omnibus Survey
4 Atwood et al 2003
5 Dunn 2003

Frequency of direct contact of child with the non-resident parent

Source: ONS Omnibus Survey
12.Thus, while the majority of children of separated parents are in touch
with both parents, the nature and frequency of contact varies widely.
How do children feel about seeing both parents?
13.Most children want contact with their parents and continue to see both
parents as part of their family. How the children have that contact,
how much and how often and the quality of that contact seem to be
the crucial determinants of the childs experience of their contact.
Their needs and wants may change over time and through
circumstance. Frequency and regularity of contact are often important
to younger children, while older children put greater value on flexibility
as they have social activities of their own to accommodate. Children
usually enjoy contact, particularly if they are consulted about
arrangements, but it can sometimes be distressing. Problems include
parents who fail to turn up as expected, being exposed to conflict and
feeling torn loyalties, harassment or abuse, being used as a gobetween, managing relationships with a parents new partner or
children, and the stress of moving between two homes. Some children
resist contact, and feel that their views are not taken into account 6.
Is contact with both parents good for children?
14.It is often assumed that research shows that contact with both parents
is always good for children. In fact the research evidence is
contradictory.
For example, one recent UK study reported
unequivocally that more contact was associated with fewer adjustment
6 OQuigley, 1999. Hunt, 2003

problems for children7. Another study found that contact with a nonresident parent had no impact on the childs welfare and development,
but that this could be predicted more accurately by the quality of
relationships within the childs home 8. The mere presence of contact is,
another study suggests, not enough; it is the quality and nature of the
parenting, monitoring, encouragement, love and warmth, which count 9.
15.Contact with both parents has potential value in developing the childs
sense of identity, preserving links with the wider family, and providing
additional support. In ordinary circumstances, where a parent has an
established relationship, it seems clear that time spent with their child
is beneficial to the child. Yet contact per se is clearly not always
beneficial. Where there is no pre-existing relationship or where there
are known risks of abuse or neglect, exposure to domestic violence, or
severe parental conflict, contact can be extremely damaging to
children10.
16.The evidence therefore suggests that, whilst the ideal amount and type
of contact for any given child will vary, a significant minority of children
do not currently appear to be getting an optimal level of contact with
their non-resident parent.
Encountering Problems
17.Some parents may separate acrimoniously and have disagreements
about parenting arrangements from the outset. Others may encounter
them later, perhaps due to the changed circumstances of one parent
such as one having a new partner or moving location. Some parents
may have other unresolved issues and disputes or wider problems and
difficulties about, for example, money. These can sometimes create an
environment of conflict that could have a knock-on effect to complicate
discussions about childcare and parenting. These other issues need to
be cleared to focus on the children.
18.So whilst separating parents face similar problems their particular
circumstances mean they have their own sets of issues to address.
This suggests they may need different types and levels of help. No
one-size fits all solution is likely to be effective. The section below
describes and analyses the characteristics of those parents who
currently go to court and discusses what processes they experience.
How many contact cases come to court every year?
19.As already stated, around 10% of parents experiencing relationship
breakdown choose to resolve their contact issues with the help of the
courts every year. In 2003 this resulted in 67,000 contact orders being
made by the courts. This figure continues the rising trend that has
been seen over the previous 10 years, between 1992 and 2002, the
number of private law contact orders made by courts in England and
Wales more than tripled from 17,470 to 61,356.
7 Dunn 2003
8 Smith et al, 2001
9 Pryor and Rodgers
10 Buchanan et al 2001

Private Law Contact Orders per year

Source: Judicial Statistics

What do we know about parents resolving contact issues with the

help of the courts?
20.Analysis of 300 court files carried out on behalf of the DCA suggests
that over half of couples resolving contact issues through the courts
are married, just under one third are cohabiting and 13% were never
together.
The relationship between parties in contact cases
(based on 300 cases)

Source: Court File Analysis

21.The same court file analysis found that 54% of cases involved 1 or
more children aged 5 or under. These children are in their most
formative years and therefore the risk that they will be damaged as a
result of a bitter contact dispute is high. They are also extremely
vulnerable because, unlike older children, they are not yet able to
express their own views or wishes regarding future contact
arrangements. We as government therefore have an even greater

responsibility to protect their interests at times of parental relationship

breakdown.
The proportion of contact cases involving children of different ages
(Based on 300 cases)

Source: Court file analysis

22.In addition, the court file analysis suggested that around 60% of
parties involved in contact cases passing through the courts have legal
aid funding.
23.Court file analysis shows that of the estimated 10% of parents applying
to the courts for help in resolving contact issues, around a third involve
safety issues. It is estimated that of the 10% of contact cases decided
by courts, around 10% are the so-called intractable cases where
resolution is unlikely to be reached without court intervention
24.For those contact applications to the court where safety is an issue, the
most commonly cited problem is one of domestic violence (52%). Child
abuse and neglect is however, also a significant and frequently
overlooked issue, accounting for an estimated 40% of all safety related
contact applications. This raises an important point that both
mothers as well as fathers can be the subject of alleged safety issues
in contact cases.
The problem cited in contact cases with safety issues

Source: Consumer Strategy Directorate Court File Analysis

Notes: Based on 107 cases with safety issues out of a sample of 300 cases.

25.Intractable cases are often those which return to the courts time after
time, with one parent repeatedly flouting court ordered contact
agreements. The analysis of court files showed that almost half (48%)
of all contact cases come to court only once, while a further 28%
involve just one repeat application. The remaining 24% of cases have 2
or more repeat applications.

Source: Court file analysis

26.Court file analysis also showed that about a third of repeat applications
are driven by enforcement issues, while over a half are instead driven
by the need to have a previous order updated.
Drivers of repeat applications in contact cases
(based on a sample of 300 cases)

Source: Court file analysis

What we know about what parents need and want
The DCA Consumer Strategy
27.The DCA, with DfES involvement, has recently undertaken an extensive
body of work to establish what its consumers in this respect
(children, parents and others with wider interests involved in parental
separation) want. This was called the DCA Consumer Strategy and
focused on listening to the views of parents experiencing family change
as a result of a breakdown in their relationship with a partner. We
asked them to tell us whether the help and support made available to
them at such times adequately met their needs and where this was not
the case, sought their views about ways in which these services could
be improved in the future.
28.Although evidence shows that some parents are happy with the help
and support they receive at times of relationship breakdown, we know
that the needs of many separating parents are not being adequately or
consistently met. Results from the ONS Omnibus Survey suggest that
irrespective of whether they choose to agree contact arrangements
between themselves or with the help of the courts, some parents end
up dissatisfied with the outcomes they achieve. Greater satisfaction is,
however, generally linked with out of court resolutions.
Parental Satisfaction with contact arrangements

Source: ONS Omnibus Survey

Notes
The sample is of 1498 cases

Only 26 children had arrangements agreed by mediation reported by

non-resident parents so caution should be exercised in interpreting this
number

29.When relationships break down, emotions often run high.

Many
parents have told us that at the point of breakdown, they feel illequipped to overcome the conflict between themselves and their expartner such that they can reach an agreement that is in the best
interests of their children. In addition, many say that they face the
situation ahead of them unprepared, without an understanding of their
rights and responsibilities or a basic knowledge of where to go for help.
You need to do something to change peoples attitudes before they
arrive at the point of relationship breakdown Solicitor
Legally, as a co-habitee, I didnt quite know where I stood in terms
of my rights during the relationship breakdown process. Consumer
30. Limited emphasis is currently placed on educating parents prior to the
point of relationship breakdown in order to prepare them for the
emotional and practical issues associated with family change, although
Sure Start and some Marriage and Relationship Support initiatives are
now focused on addressing some of these issues.
31.Once relationship breakdown occurs, parents have told us that the
services they access must be respectful and considerate of their
feelings, whilst also being practical, flexible and responsive enough to
suit their own familys circumstances. No two families are exactly the
same and therefore no two families require exactly the same help and
support during the period of transition that follows a parental
relationship breakdown. Each family must therefore have the freedom
to access the services which they consider are most appropriate and
beneficial to them at this time.
I think theres no one fix to the problems everyones an
individual and there isnt one answer for everyone, is there really?
Consumer
32.Irrespective of their chosen resolution route, parents tell us that they
want to reach agreement as quickly as possible and in a way that
subjects both themselves and their family to the lowest possible levels
of stress and upset. In order to do this, parents may need to be
provided with tailored information and advice, which is easily
accessible in the places where they look for it and which supports them
to deal with their own emotional and practical issues appropriately and
adequately.
33.Our conversations with parents have made it clear to us that there is
still much to be done in this area, since not everyone currently receives
the advice and support they need at this difficult time.

34.One key issue for parents is, they tell us, that the information they
receive is too focused on legal and factual issues, rather than on
meeting their individual emotional and practical needs. This often
leads to feelings of frustration and bitterness and pushes many parents
into increasingly polarised and emotional positions than they might
otherwise be. The danger is that the system actually exacerbates the
acrimony between separating parents and ends up making things
worse rather than better.
They (solicitors) keep pushing you to be more confrontational
Consumer
The Emotion Spectrum

Source: DCA Consumer Strategy analysis

35.The DCA Consumer Strategy also indicated that the information

services currently available are difficult to navigate. There is no
obvious place to go for initial help or guidance and accessibility of
advice is often an issue i.e. it is not available in the way, and when and
where, parents need it. The result can often be despair, confusion and
a feeling of powerlessness.
36.
We know that most parents initially approach a solicitor for
information. Others consult their GP, local counselling services or
Citizens Advice Bureaux. Once parents make contact with these initial
sources of support, the information they receive does not always meet
their needs or refer them on to the most appropriate places.
Its just a minefield. Youre just not sure where to go for help or
information. Consumer
Information provision is very patchy. Consumer
37.This issue is illustrated in the following chart, which maps the places
where parents experiencing relationship breakdown go to for help and
information and compares this to the places where the DCA currently
disseminates this type of information. DfES also disseminate
information through local programmes: Sure Start, Childrens Fund and
Connexions, and work with local authorities through the DfES Network
of Investigation Referral Support to raise awareness of child protection
and safeguarding issues and domestic violence..
Mapping of Consumer Behaviour Against Available Information Sources

KEY

Parent Experiencing
Relationship Breakdown

Main channels for information

Internet

DCA Leaflets
14
Parenting Plan

Vol Org
e.g. OPF

DCA Leaflets
14
Parenting Plan

CABX

Solicitor
inc FAINs

GP

School

DCA Leaflets
14
Parenting Plan

Counsellor
e.g. Relate

Mediation

Helpline

CLS

DCA Leaflets
14
Parenting Plan

DCA Information Available

Source: CONTINYOU (ParentAid), LSCRC Periodic Study of Legal Need)

38.The FAINs pilot is trying to address this issue by equipping solicitors to

provide holistic advice to their clients who are experiencing relationship
breakdown, however the pilot remains in its early stages and more
work remains to be done in this area.
39.Many parents experiencing relationship breakdown have also told us
that they would like more support to help them explain what is
happening to their children and more information about how the split
might be affecting them. Again, we know that more needs be done in
this respect, with almost two thirds of parents we spoke to expressing a
desire for greater levels of information and support.
I couldnt find anyone to advise me on what to tell my children.
How do you tell a 5 year old whos in a terrible state what is
happening? Consumer
40.Around 10% of separating parents, including those with issues of safety
or acrimony, currently turn to the courts for help. In these cases, we
know that parents experiences of court processes are often poor. One
key issue is that current court processes are typically lengthy and
adversarial in nature, focused on establishing fact or even attributing
blame between separating parents.
This can cause unnecessary
distress for everyone involved, perhaps even exacerbating family
conflict and making the goal of establishing a workable long term
contact agreement between co-parents even harder to attain.
Its crazy the length of time it takes to go through the court.
Weve spent 2 years fighting over a parental responsibility order.
Consumer
You just want to steer clear of the courts, really.
absolute nightmare. Consumer

Theyre an

41.In addition, many parents perceive court based decisions as unfair,

lacking balance or independence, out of touch with reality and
insufficiently tailored to suit a familys specific circumstances. Greater
flexibility is needed to acknowledge the fact that childrens needs vary
week to week and also as they get older.
There are draconian laws for child access. Its a legacy from a
different time, out of touch with cultural changes and role models.
Consumer
Rather than a judge who only goes on the evidence thats put
forward, you need people who know you or understand your
situation. Consumer
42.Post relationship breakdown, many parents also tell us that they need
support to help them work effectively together as co-parents over the
long term. Families, whether intact or separated, continue to develop
and evolve. So too do the needs of the children within those families.
An initial contact arrangement between parents, made either with or
without the help of the courts, therefore needs to evolve too. In fact, in
many ways such an agreement represents the beginning of a new,
even more challenging phase in the familys development rather than
the end point in a one-off resolution process. Unfortunately, current
support services do not adequately recognise this and are more
focused on achieving initial agreement, rather than on providing
adequate long-term support for separating parents.
Mum and Dad divorced eight years ago. In court it was decided
that I have to visit Dad every weekend. It means I can never see my
friends at weekends. I want to see Dad part time, but he wont hear
of it. Child
43.Some parents also need help with the enforcement of court ordered
contact arrangements if and when these break down.
Current
enforcement measures often, however, leave parents disappointed,
without the certainty of outcome that they originally came to court
hoping to achieve. Current measures available to the court in this area
are widely perceived as inadequate because they often fail to enforce
contact arrangements without at the same time effectively indirectly
punishing the children involved.
Court orders are not worth the paper theyre written on.
Consumer

Supporting Parents DfES and DH research

44.The Supporting Parents initiative, carried out by the Department for
Education and Skills (DfES) and Department of Health (DH) over
several years focused on broadening research in the area of childrens
social care to consider how all parents might be better helped to look
after their children well. The initiative encompassed 14 specific
research projects, of which only one focused specifically on families
who had experienced relationship breakdown. The general research
findings do, however, provide relevant insights for our purposes and
are therefore summarised below.
45.Parenting today is incredibly challenging. The range of tasks and
responsibilities facing parents is immense. What is more, no two
children are the same and this means that our approach to parenting
needs to be flexible to suit the differing needs, ages and temperaments
of the children, as well as to fit the parents own specific resources and
circumstances.
46.Difficulty in meeting all of the demands placed upon parents does not
mean that there is something missing in those parents capacity to do
the job. All parents have their own strengths and weaknesses. At
times of relationship breakdown, the parents role becomes even
tougher children need their parents affection and emotional security
at a time when the parents themselves are struggling to deal with their
own emotional and practical issues. It is for this reason that parents, in
both intact and separating families, must be given access to adequate
resources and support that they can draw upon, if and when required,
to help them to meet their responsibilities towards their children.
47.Parents rely on support at three different levels informal support from
family and friends, semi-formal support from community and self-help
groups, and formal support, which is usually provided by larger
organisations with specialist expertise, for example in the areas of
health care, social services and education. Family and friends tend to
serve as the primary or initial source of support for most parents. They
can, however, only do so much to help and may also become a source
of considerable stress, particularly at times of relationship breakdown.
(Their own take on rights and wrongs comes into play). It is for this
reason that semi-formal and formal support services also have an
important role to play in giving parents an independent source of help
and advice, whilst also providing them with the specialist support and
expertise they need to deal with specific emotional or practical issues.
48.At the most basic level, evidence suggests that parents want semiformal and formal support services to be accessible and convenient to
use, professional and well organised and emotionally supportive as well
as practically helpful. They also want to be listened to and have their
views taken seriously. In short, parents want support services to be
responsive to their needs, respectful, treat them like adults and see
them as partners in solving parenting problems.
49.Whether they are talking about their relationships with family and
friends or their relationships with semi-formal and formal support

services, an abiding message from all parents is that they want to feel
in control when they are trying to solve parenting problems. This is
particularly true of newly formed step-families, where parents are often
reluctant to rely on formal support services at a time when they are still
trying to get their new families settled and established 11. This might
sometimes be a flash-point where previous parenting arrangements
come under particular stress. Support services, particularly at times of
relationship breakdown, therefore tread a fine line between being seen
as supportive to parenting and being seen as interfering.
50.Parents will themselves usually be the best organisers of their own
parenting support. The Government must therefore focus on providing
support services that are diverse and flexible enough to enable parents
to tailor a package of help to suit their particular needs.
51.Good information provision is also key to helping parents solve their
own problems. Parents want information to help them understand the
problems they are facing in order to work out ways of solving them
either on their own or with outside support.
52.Support is also a relationship that requires respect and partnership.
Support from any source should not make parents feel vulnerable,
small or obligated. If support does make parents feel this way then it
is, simply, not supportive.
53.The effectiveness of support and its ability to build and maintain good
relationships with parents is also improved if support is seen as a longterm holistic process, rather than a series of one-off interventions.
Parenting problems are often a consequence of overlapping difficulties
and it therefore makes little sense to deal with one of these difficulties
while ignoring the others. This implies that family needs should be
addressed holistically rather than in a piecemeal way, with individual
support services not concentrating on their own narrow area of
expertise and ignoring the broader family context of parents problems.
Providing this type of holistic support requires good assessment of
needs, co-operation and information sharing between support services
and with parents. The poor flow of information between current
support services points to the lack of a holistic approach at present.
54.Government and others provide a great deal of support to parents
already. Initiatives such as the Marriage and Relationship Support
(MARS) grant programme provide support to relationships through
organisations such as Relate. The parenting fund supports parenting
programmes that aim to help all parents, including those who have
separated from their partners. The DfES is providing funding of 3.5
million, through the Childrens Fund and Sure Start, from 2003-04 to
2005-06 to resource 14 new supervised Child Contact Centres in
England and support the NACCCs programme of moving centres from
affiliated to accredited status. DfES and DH recently published
guidance on supporting parents generally.
55.Whilst there are some important initiatives already in place to support
relationships and to help resolve difficulties within them, current
11 Smith M et al (2001)

support for those undergoing relationship breakdown is chiefly focused

on the here and now of finding an immediate resolution of the
immediate issues. However, help might be more effectively focused on
helping people manage these issues for themselves.
The Legal Context: The way the family court system works
What is the legal framework that applies when contact cases
come to court?
56.In England and Wales if a question about the way a child is being
looked after comes before a court, the Children Act 1989 requires that
the welfare of the child is the most important issue. (Children Act 1989
Section1 (1) When a court determines any question with respect to
the upbringing of a child[..] the childs welfare shall be the courts
paramount consideration). The Act sets out the framework within
which parents meet their responsibilities to their children.. The fact of
parental separation does not of itself trigger court intervention, as the
responsibilities of parents are not affected by where the parents live or
the quality of their relationship.
Those who have legal parental
responsibility for the child(ren) continue to have that even after
parental separation.
57.The court will only consider an order for contact [under Section 8 of the
Children Act] when the parents have a dispute which they cannot
manage for themselves, and they, or one of them, ask the court to
intervene. It has a no order principle which means it will make no
order if that is in the childs best interests and only makes an order in
those cases where those best interests, indicate one is needed.
58.As the President of the Family Division wrote recently:
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)
This is reinforced elsewhere in case law, thus establishing the
assumption in law that contact with both parents is generally in a
childs best interests. While courts may refuse to allow contact
between a parent and his or her child, this is rare in practise (Judicial
Statistics shows less than 1%of cases each year). Sometimes, indirect
contact may be ordered, or contact that is supervised or supported.
However, the most common form of contact order is for direct contact.
What can be done to enforce a contact order if it is broken?
59.Where the resident parent disregards the terms of a contact order, an
application may be made for the enforcement of the contact orders.
60.Courts have powerful measures available to them in response to noncompliance with contact order. These include:

Imprisonment
Fine

) Both can be suspended

)

Reversal of residence (so the parent originally seeking contact

becomes resident parent)

61.Courts use these more punitive measures with caution as imprisoning

or fining a non-compliant parent may have a knock-on detrimental
effect on the child. The child may be drawn further into the adults
dispute, perhaps blaming the parent seeking compliance for the fate of
the other parent, which, perversely, may make future contact even
more difficult. Imprisonment and fines are options for the court to
impose when a person is held to have been in contempt of court, and
the court will have the childs welfare in mind when deciding what, if
any, sanctions to impose. Reversing residence would involve making
an order under the Children Act 1989, and the welfare of the child will
be the courts paramount consideration. This explains the reluctance
routinely to utilise these measures. Reversing residence is not always
a realistic option for many families, as the parent seeking compliance
with the contact order may simply want the contact that has been
ordered.
What help is available to children and their parents involved in a
contact dispute?
62.The Children and Family Court Advisory and Support Service (CAFCASS)
was set up as a non-Departmental Public Body in 2001.
63.CAFCASS Family Court Advisers provide welfare reports when
requested to do so by a court. However, in many courts CAFCASS also
provides a service at the first appointment with the court, when an
officer sees the parents to explore the potential for reaching
agreement. These In-Court Conciliation services help many parents,
even at this late stage to agree arrangements for their children without
than asking the court to make an order for them.
64.It is important to remember that the cases which come to court
represent the minority of separating parents, and that they are often
those with intractable problems, including those which may place a
child at risk. (Buchanan et al 2001, Trinder 2004) However it may be
the case that conflict between mothers and fathers has increased for
more positive reasons, in that fathers attitudes have changed so that
they now want to spend more time with their children (Smart, May and
Wade and Furniss 2003). Mothers, however, particularly in the case of
younger children, sometimes have anxieties about the parenting skills
of the father. (Trinder, 2003) In these areas, the services provided by
the 400 contact centres up and down the country may be especially
valuable, by providing a safe and neutral venue in which both
confidence and competence can improve. The current Government
investment (2003-2005) of 3.5m demonstrates the value placed on
the contribution of these services.
Other Legal Issues
ECHR Issues

65.Article 8 of the European Convention on Human Rights states that

every person has a right to respect for their private and family life.
Within a family, of course, each member has his or her own rights,
within the terms of Article 8.
66.The European Court of Human Rights has stated that the mutual
enjoyment by parent and child of each others company constitutes a
fundamental element of family life (Bronda v Italy). It has also said
that it is an important function of the law in a democratic society to
provide safeguards in order to protect children, particularly those who
are specially vulnerable because of their low age. The EctHR has held
that when a serious conflict between the interests of two parties (e.g. a
child and a parent) can only be resolved to the disadvantage of one of
them, then the childs interests must take precedence (Hendricks v
Netherlands). This is in line with the welfare principle in the Children
Act.
67.The Court has also made clear that the state has a duty to take positive
measures with a view to children having contact with parents, including
in private law disputes. Any obligation to apply coercion must be
limited, since the rights and freedoms of all concerned must be taken
into account, in particular the best interests of the child, but realistic
coercive measures should not be ruled out (Hansen v Turkey). There is
a positive obligation to take active measures to promote the speedy
resolution of conflict.
The state must also ensure parents are
sufficiently involved in any decision-making process to ensure the
requisite protection of their interests (Kosmopolou v Greece).
International Instruments
68.A number of international instruments operate in this area including:
United Nations Convention on the Rights of the Child (UNCRC)
69.The Convention on the Rights of the Child is an international treaty that
recognises the human rights of children (defined as persons up to the
age of 18 years). It establishes that States Parties must ensure that all
children without discrimination in any form benefit from special
protection measures and assistance; have access to services such as
education and health care; can develop their personalities, abilities and
talents to the fullest potential; grow up in an environment of happiness,
love and understanding; and are informed about and participate in,
achieving their rights in an accessible and active manner;
European Union Regulations
70.Council Regulations (EC) No 1347/2000 (on jurisdiction and the
recognition and enforcement of judgements in matrimonial matters and
in matters of parental responsibility for children of both spouses) and
Council Regulation (EC) 2201/2003 (concerning jurisdiction and the
recognition and enforcement of judgements in matrimonial matters and
in matters of parental responsibility)

71.The aim of these EU Regulations is to improve cross-border

arrangements in the field of family law and, in particular, to extend the
principle of mutual recognition between member states to all decisions
on parental responsibility.
72.The new Regulation (2201/2003) will come into effect on 1 March 2005
repealing Regulation 1347/2000. The new Regulation will extend the
provisions of the old one to cover all children regardless of whether
their parents were married.
Council of Europe Convention on Contact Concerning Children
73.The Council of Europe Contact Convention concerns handling crossborder and other issues relating to contact between children and their
parents when the parents live in different Council of Europe states.
Ratification of the Convention is currently the subject of a public
consultation.

The International Dimension

Are there lessons to be learned from other countries?
74.Different countries around the world approach the issues surrounding
parental separation differently. The differences may be due to a variety
of reasons, including historical and cultural. No other country has
found a solution. Different interest groups in this area sometimes
select different aspects from different countries approach and
outcomes to support their own stance. This can often ignore crucial
differences that materially effect any conclusions that can be drawn on
prospective application of those approaches here. All countries that
face these issues encounter similar problems but often start from
different positions. Whilst families may have a great deal in common
the world over, the social and legal contexts in which people live differ
greatly.
75.It is also important to be clear about what is meant by the terms used
in other jurisdictions. Issues of current interest in other jurisdictions
include support for shared parenting, for alternative ways of dealing
with disputes outside courts, and if as a last resort a court order is
made but a parent does not abide by its terms, what could be done to
support the courts decision.
The paragraphs below review the
approaches used elsewhere.
Shared Parenting
76.Some confusion can arise from the terms used in different countries to
describe arrangements. For example, shared, joint or co-parenting can
have different meanings and practical implications in different
countries. In Scandinavia, for example, joint legal custody is the
norm, but this is different from, joint parental decision making, or
shared physical residence.
In Sweden joint decision-making is
required, but shared physical residence is impossible, as a child cannot
be registered at more than one address. In Finland a court cannot order
shared residence, and in Norway it can be ordered but only where both
parents agree. In Denmark neither joint legal custody nor shared
residence can be ordered unless both parents agree 12.
Shared
parenting is the term used in the Australian Family Law Act of 1995 Part
VII which replaced the former division of roles into custody and access
with a scheme designed to encourage parents who lived apart to raise
their children collaboratively13. This scheme closely resembles the
provisions of our own Children Act.
77.Last year the Australian government set up a commission to consider
the proposal that equal time should be spent with each parent. The
Commissions report Every Picture tells a Story published in December
2003 rejected the idea of a joint custody presumption on the grounds
that every family is different, and that the time a child spends with
each parent should depend on the best interests of the child
concerned. Instead the Commission recommended a rebuttable table
presumption of equal shared parental responsibility for separated
12 Ryrstadt 2003
13 Rhoades and Nelson 2004

parents which would require them to consult with each other about
major decisions. But at the same time a presumption against such
responsibility was recommended for families affected by entrenched
conflict, family violence, substance abuse or established child abuse.
78.In Canada also there has been recent discussion of legislative reform.
But in Bill 22, An Act to Amend the Divorce Act, the approach as
described by the Minister of Justice is not to presume that any one
parenting arrangement is better than others.
We believe that such presumptions tend to focus on parental
rights rather than on what is in the interests of the child (Martin
Cauchon, 2002)
79.Shared parenting, meaning for the child living in two places, has been
studied in the UK. It was found that although such an arrangement can
work well in the small group of parents where both parents are
enthusiastic and put the children first, it was generally stressful for
children particularly when there is conflict 14. The term collaborative
parenting is becoming more widely used in the UK, where the Children
Act gives responsibility to both parents after separation and the courts
are only involved when there is a dispute, in which case they will
guided by the best interests of the child.
International Approaches to Alternatives to court for conflict
management and resolution
80.New Zealand is often perceived as a enjoying a low rate of court use in
contact disputes. But is important to note that in New Zealand the
population is reluctant to use the court use generally for all civil and
family matters. There seems a cultural instinct to avoid court-based
interventions. Those who experienced highly-conflicted court cases
were found to be characterised by characteristics such as untreated
mental illness and lack of representation in court15.
81.In the United States the law relating to divorce is framed around the
rights of adults, and there is no equivalent of the Children Act.
Schemes to divert parents away from court have been developing,
including the scheme led by Judge John Lendeman in Florida whereby
parents are given information about the damaging impact of their
conflict on their children and invited to work out a parenting plan with
the help of a mediator. Other programmes are being developed to help
and support parents by teaching about their new roles as collaborative
mothers and fathers after separation. ACT, (Assisting Children through
Transition) based in New York, emphasises the learning of new skills
ranging from anger management to cookery.
82.In Australia, Victoria Legal Aid is currently setting up a new dispute
management service called Roundtable Dispute Management, which
combines legal advice and representation with the aim of a less
adversarial mediation style approach.
The UK Government will
continue to monitor this, and other international developments, to see
14 Smart et al 2004
15 Barwick et al 2003

what further lessons can be learned and applied here from experience
elsewhere.
What happens when courts make orders?
83.A court order has a different meaning in different jurisdictions. In some
countries the courts are required to make an order identifying
responsibility for every child whose parents separate. In others, the
making of an order may be a formal notice of an agreement worked out
by the parents, or that a dispute between parents has proved
intractable and required adjudication. It is the last group where
problems may most likely continue after the making of the order if the
child, mother or father is unhappy with the decision and unwilling to
comply. All jurisdictions have provisions for dealing with those who fail
to comply with the orders of the court and are in contempt of court,
though approaches are different. These are commonly difficult to apply
in the family setting, where attempts to intervene risk making matters
worse for the child, whose welfare is the central concern.
84.In Australia judges were given the power to order parents who
breached contact orders to attend a parenting support programme
before resorting to the imposition of penalties. The early experience of
this scheme suggests that its effectiveness has been hampered partly
by the resources needed to implement this but also by the attempt to
combine a disciplinary approach with a scheme designed to support
parents who are struggling with their post separation parenting
relationship and ongoing conflict. Perhaps the most successful scheme
to date is, Keeping Contact Going by Unifam. This is based on making
childrens views known to parents and providing individual sessions
with a therapist for both parents and children 16. This accords with
developments in Germany, where a child involved in a conflicted
contact case is given individual support and parents receive
counselling17.
85.The Australian Commission recommended a new system for dealing
with parental disputes about children. This recommendation is for
setting up a Families Tribunal staffed by lawyers and social welfare
experts, which would have conciliation and decision making functions.
All families where there were no issues of violence or abuse would use
the Tribunal, and parents would be required to attempt mediation
before applying. This proposal builds on recent developments in their
family justice system which have attempted to move away from
adversarial processes and practices, instead investigating and testing
accounts of past events with reliance on expert reports, towards a
more investigative approach. This approaches parental separation as
being about relationships rather than the law. These new processes
focus on the child, and the aim is to help parents manage their post
separation parenting18.
16 Rhoades 2004
17 Mueller Johnson and Maclean 2003, Johnson in press
18 Attorney Generals Department and Department of Family and Community Services, Government
response to the Family Law Pathways Advisory Group Report, Canberra 2003, and The Childrens
Cases Program http://www.familycourt.gov.au/ccp.pdf

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Barwick et al 2003, Characteristics associated with the early identification of
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Buchanan A, Hunt J Bretherton H, Bream V (2001) Families in Conflict;
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Hunt J, 2003, Oxford Policy Briefing Paper No. 1, Child Contact with Non-Resident
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Smith M et al (2001) A study of Step children and Step parenting Thomas Coram
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Trinder L et al ,2002, Making contact work: How parents and children negotiate
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