Do non-resident fathers get a raw deal from the family courts?

1. Do non-resident fathers get a raw deal from the family courts? Joan Hunt Senior Research Fellow Oxford Centre for Family Law and Policy

2. Background to the research

3. Assertions in the parliamentary debates on the Children and Adoption Bill 2006 The courts can and frequently do sanction contact arrangements that for practical purposes amount to almost no contact at all. Just as it is possible to share out a biscuit by giving someone else a crumb and keeping the rest for yourself, so it is possible for a contact order to permit a non-resident parent to send a postcard to his child once a year and nothing else.

4. Assertions in the Parliamentary debates The slightest blemish on the track record of the non-resident parent can be enough for him or her to be damned in the eyes of CAFCASS and the court as a "bad parent" and therefore unfit to look after the child. "He lost a sock". "He fed the child inappropriate food". "He fell asleep while reading a bedtime story". Those are the sorts of trivial immaterial reasons that are produced to demonstrate somebody's unfitness to look after a child.

5. The government’s response • Rejected the allegations • Amendments neither necessary nor desirable • Recognised lack of data • Commitment to commission research

6. The research questions • What are the outcomes when parents apply for a contact order? • How do the outcomes compare with what NRPs were seeking at the outset? • If there is a substantial discrepancy what explains this? The sub-text: Are the courts unfair to non-resident parents?

7. Methods • Court files • 308 applications for contact orders in 2004. • 5 FPC’s, 6 county, 6 court circuits; • rural, urban & metropolitan; low, medium & high volume • Hearing transcripts • 102 hearings, 43 cases • Interviews • Solicitors (27); Cafcass officers (23); Magistrates (8); legal advisors to FPC (5); District judges (9) Circuit judges (4)

8. How often do non-resident parents end up with insubstantial contact?

9. Outcomes (n=286)

10. Frequency of staying contact • typically at least fortnightly (89%) • 35% additional visiting contact • average total contact time 55 hours per fortnight (range 14-137 hours)

11. Frequency of visiting contact • usually at least weekly (61%). • only 6% (3/58 cases) less than fortnightly • average contact time 10.3 hours per fortnight (range 12 hrs to 9 minutes [one case])

12. The frequency of indirect contact • Only restricted in 10/21 cases ending in indirect contact • Wide range of frequencies • at least monthly (6) • 5 times a year (2) • 3 times a year (1). • only at birthdays/Xmas (2)

13. The relationship between the contact sought and obtained

14. 70% of NRPs who sought to establish/re-establish contact were successful • Where there was to be direct contact, most got the type of contact they asked for • 78% of those who sought staying contact • 79% of those who sought additional visiting contact • Where there was to be only visiting contact, 94% of those who wanted unsupervised contact got it.

15. Those who achieved staying contact typically got the amount they sought • 67% got the desired frequency • 67% got the length of stay sought • Very limited data re amounts of visiting contact sought/obtained (12 cases) • 8 did not get either the frequency or the duration sought

16. Applicants stood a better than even chance of obtaining the contact sought • 48% of NRP’s did not achieve everything they had initially asked for • 32% did not achieve the type of contact sought • 16% got the type but not the amount of contactsought

17. Non-resident parents were more likely to be successful than resident parents. • 60% of RPs ended up with an order/ agreement which did not reflect their initial position on whether there should be any contact or the type of contact • 56% of RPs opposed to direct contact failed to prevent it; • 72% of those opposed to unsupervised contact failed to prevent this • 61% of those opposed to staying contact failed to prevent this

18. Assertion 1: true or false? The courts can and frequently do sanction contact arrangements that for practical purposes amount to almost no contact at all. Just as it is possible to share out a biscuit by giving someone else a crumb and keeping the rest for yourself, so it is possible for a contact order to permit a non-resident parent to send a postcard to his child once a year and nothing else.

19. Are NRPs denied contact for insubstantial reasons?

20. Cases ending in no direct contact typically involved serious welfare issues

21. Outcomes by prevalence of serious welfare issues

22. Did applicants who ended up with no direct contact get a fair deal from the court?

23. Practitioner perceptions • The family justice system operates a de facto presumption that there should be contact unless there are very good reasons why not • Courts bend over backwards to achieve contact But • They are not always successful, even if there is nothing in the NRP’s behaviour/ care of the child to warrant refusal

24. There are cases which break my heart where I know that a perfectly lovely Dad hasn’t got contact. I often feel sorry for Dads. There are some lovely dads, who really have so much to give the children, and the children love them. But the resident parent just has so much power and it is difficult to negotiate. It’s really sad. I’ve come across some fathers where you just want to weep because they’re really genuinely good blokes, they’re going to have a good input into the children’s lives, but… Quotes from Cafcass officers

25. Unfair outcomes in cases ending in no direct contact? Criteria • No evidence of welfare concerns of sufficient severity to rule out contact • The NRP had cooperated with the court process Results • 10/60 cases which might be considered unfair to the NRP

26. Resistant resident parents There are a few cases, which occupy a disproportionate amount of the court’s available hearing time, where contact is refused by the resident parent, and they’re extremely difficult. What we’re talking about is the real hard core. There aren’t many. They might get publicity but they’re extraordinarily rare in terms of what goes through this court. Sustained hostility is quite rare. Quotes from judges

27. Tackling RP hostility to contact • Initial hostility common but usually overcome. • Courts use persuasion by preference, adopt a sterner approach where necessary and emphasise throughout the court’s position on the importance of contact. • Courts are reluctant to use the extreme penalties. A wider range of options needed.

28. I adopt a conciliatory approach, unless they are so defiant that you have to be a bit stronger. What I do is have the cases back before me frequently and try to get agreement from the mother. It’s a gently, gently approach. Sometimes you get to the stage where someone is so defiant that you’ve got no alternative but to make the threats. Sometimes that achieves something. I heard one judge saying, when dealing with this problem, ‘first you persuade, then you cajole, then you threaten, then you give up’. You hope that you can stop short of giving up.

29. Tackling RP hostility to contact • Initial hostility common but usually overcome. • Courts use persuasion by preference, adopt a sterner approach where necessary and emphasise throughout the court’s position on the importance of contact. • Courts are reluctant to use the extreme penalties. A wider range of options needed.

30. Resistant children • A substantial minority of all cases involve children who are/said to be resistant at the outset. • Often resistance dissipates. • A more difficult issue for the courts to address.

31. Where the child is of an age where the court has to take real notice of their wishes and feelings, it’s extremely difficult. Even if the court believes that the child is set up by the mother, either consciously or subconsciously. I’d say those cases are the main cases where the non-resident parent fails to get substantial contact. And it’s extremely difficult to do anything about it. We have our Cafcass reports, we have private reports, there’s a contact service which is very very good. We go to psychologists. And at the end of the day there are still a number of cases where the court cannot make an order because it is pointless to do so against the very clear wishes and feelings of an older child. (Judge)

32. Resistant children • Courts do not accept the child’s position at face value • They adopt a range of strategies to shift it • Dilemma of how long and strenuously to persist

33. There was a time when if children were adamant the court would obviously pursue it but eventually the child’s view would be acknowledged. But now, if they really, really don’t want to go, for whatever reason, they have to jump through a heck of a lot of hoops, they really do. That kind of case now will go through the normal welfare report and then it will go on to perhaps a 9.5. Often a psychological assessment of the child. All of this will go on and on and on, with quite old children sometimes. We’re always saying we should listen to children but when a child really definitely indicates, from their behaviour and from what they’re saying, that they do not want to do that it’s extremely difficult. At some point in those cases we switch from the position of contact is good and it’s good for you to know your parent to a position of wanting to protect the child from the system which is reluctant to listen to the child’s voice.

34. Possible unfairness in cases ending in direct contact • 1/11 supervised contact • 5/58 unsupervised visiting • 10/139 staying contact • Overall around 10%.

35. Enforcement

36. The main problem is not getting a contact order but enforcing if it is breached. The system is quite good at effecting an order and pushing people together. But the number of occasions where six months later the client is back saying well I’ve got the order but it doesn’t happen Quotes from solicitors

37. I don’t think it’s an enormous problem. People are still relatively unhappy at breaking what they think of as a court order. But there are brazen people who don’t care and get the idea that if they don’t comply not a lot’s going to happen. It’s not a massive problem though we always have a few. Not in many cases but in some.

38. The enforcement side is dreadful. You do feel that in certain circumstances the courts are timorous. Penal notices. I think sometimes they are not robust enough on that. I’ve never seen any court fine anybody

39. The sample cases • 30/289 NRP applications due to non-compliance • Order/agreement reinstated (12) • Penal notice made (2); refused (4) • Order/agreement not reinstated (14) • No direct contact (10); • Amount reduced (2); reasonable contact/as child wished (2)

40. Few cases in which the order had never been complied with. • A small number of arrangements broke down very rapidly; most held for a considerable time before a crisis was reached. • In all but 7 cases either the RP was raising serious welfare concerns (17) or the child was objecting (17). • Only 2 cases in which, in the researchers’ view, the court should have been more robust.

41. Conclusions • Claims that non-resident parents frequently get little or no contact for flimsy reasons are not substantiated. • It is clear that the courts start from the position that contact is something to be promoted wherever possible, they make strenuous efforts to secure it and in most instances they are successful.

42. Conclusions • There are cases where they fail and in some cases this will be unfair to the NRP. • But allegations of bias are a red herring, distracting from the real issue • The debate needs to move on

43. The key question for policy and practice What systems, resources and services need to be in place to enable the courts to be as effective as possible in facilitating contact arrangements which promote children’s interests, within timescales appropriate to their needs?

44. The research is reported in full in Hunt, J. and Macleod, A. (2008) Outcomes of applications to court for contact orders after parental separation or divorce. and summarised in a Briefing Note. Both available from the Ministry of Justice http://www.justice.gov.uk/publications/docs/outcomes-applications-contact-orders