Contact Issues in Family Law - Essay Example

Contact Issues in Family Law Ans The increasing incidence of divorce has created custody battles and problems of access, which have proved to be detrimental to children. Studies conducted by Flouri and Buchanan have revealed that rancor among divorced parents and lack of contact with their father can lead to depression in children, especially girls*1 and in the case of males, the absence of a father can also lead to criminal behavior.*2 According to Matthew Stannard, one of the causes for violent criminal behavior in fatherless boys may be a “mother’s hostility” towards the father which deprives the child of contact with him, or because the father doesn’t take fatherhood seriously*3. Bob Geldorf, one of the most vocal activists for the rights of fathers, pointed out that fundamental changes are required in the law and the process in family courts, which tend to favor mothers in the battle for custody of children.*4 The family Court system is based upon adversarial rules of litigation, and acrimonious divorce proceedings can often place the parents as bitter opponents in the Courts and cause child custody hearing to become scenes of power struggles. Moreover, the family Courts have been ineffective in enforcing court ordered access to fathers, since they are reluctant to separate the children from their mothers and there is a lack of availability of middle ranking punishments and incentives to ensure cooperation from mothers – even when punitive fines and prison terms exist for breaching of contact orders, they may not be imposed in view of the danger of adverse consequential effect upon the child.*5 Family cases take a long time to be processed through the court system, as a result of which fathers are denied access to their children for extended periods. In the case of D, Justice Mumby highlighted the plight of one father who was denied contact with his daughter for five long years after his divorce and finally abandoned his battle for custody of the child. Justice Mumby expressed his own disappointment with the existing legal system which had been an “exercise in absolute futility” for the father who felt very let down by the system and the Judge said; “In a sense it is shaming to have to say it, but I personally agree with his view. It is very, very disheartening.”*6 Public reporting of family cases are not allowed to preserve the privacy of the parties and even where cases are reported, the anonymity of the parties needs to be preserved, which can lead to implacable hostility on the part of either party in preventing or hindering continuous contact of the child with both parents. The disclosure of any details of a child’s case are in breach of the 1989 Children’s Act and this is increasingly becoming an issue when intervention is sought in custody and contact cases.*7 Family Courts have traditionally been guided in their decisions by the provisions of the Children Act of 1989, which states that in any provision or decision made by the Courts, “the child’s welfare shall be the Court’s paramount consideration.”*8 In most cases, after the divorce, the child – especially a young one - remains with the mother and when the parents are unable to come to amicable arrangements among themselves about the child, it is the father who applies for contact to the Court. When such an application is made, the provisions of the Act state that the court must have “particular regard” for “any risk there might be of that proposed application disrupting the child’s life to such an extent that he would be harmed by it.”*9 A 25 year study initiated by Judith Wallerstein examined the issues related to parental separation and concluded that (a) there are long term, negative impacts of divorce upon children; (b) the children’s voices need to be heard and made the basis for court decisions (c) court orders need to be flexible to incorporate the needs of each individual case and (d) there is a particular need to address the issue of domestic violence before provision for contact can be made.*10 According to the Department of Health, nearly 750,000 children a year witness domestic violence in their homes.*11 Under the provisions of the UN Convention of the rights of the child which sets out internationally acceptable standards, the child has a right to maintain contact with the non custodial parent, unless the contact is not in the best interests of the child.*12 The problems arise in a relationship which has become abusive and where the abuse may continue even after the couple are separated and in the case of domestic violence by one partner, contract may prove to be detrimental for the child. Research on contact indicates that if contact with the non custodial parent is to be beneficial for the child, then arrangements must be made in such a way that the contact is safe and has a low level of conflict for all the parties concerned*13. In view of the conflict between the need for the child to have contact with the non custodial parent vis a vis the problem of abuse or domestic violence, child contact centers have been set up, that offer varying degrees of supervised and supported contact. There are currently 280 contact centers throughout London and Wales, which offer supervised contact*14 and many of the high vigilance contact centers exist in London. A study conducted by Harrison and Humphreys*15 on contact centers found that while some mothers felt that the centers generated harassment and most fathers felt these centers were too controlling, the contact was a positive experience in most cases. Where supervised contact centers exist, they have been found to be beneficial in assessing safety risks for children and an evidence based assessment of levels of risk in contact cases where domestic violence is alleged. In the case of Re L*16 where four contact cases alleging domestic violence were examined, the Court laid out guidelines that particular consideration should be given to the “likely risk of harm to the child, whether physical or emotional, if contact were granted or refused.” Risk of harm to the child and the residential parent were to be minimized as arrangements for contact were adjudicated upon. The trend revealed in the history of family court cases thus far is however, not adequate to address the emergent issues. Apart from the time factor involved in resolution of the cases with consequent suspension of contact, there is also the issue of changing circumstances to be considered, and revisions need to be made in contact arrangements as circumstances change. The fear of one parent that the spouse may exhibit violent or abusive behavior that would be damaging to the child has arisen in several cases. For example in the case of Re K*17 permission was granted for a child to see his father, but the stress experienced by the mother at these visits contributed to the child’s distress, which led the Court to conclude that the contact was not beneficial for the child. In many instances, the underlying hostility the parents feel for each other affects the contact arrangements for the children and creates conditions that are not beneficial for them.*18 The factor of “implacable hostility” has been one where Court action has proved to be particularly inadequate. Implacable hostility denotes the attitude that is demonstrated by one parent in denying the other parent access to or contact with the children. Implacable hostility may be distinguished from the general animosity that characterizes a divorce, by the fact that it is so deep rooted that efforts of third parties can rarely overcome or mitigate it. Moreover, implacable hostility cannot be justified on rational grounds, but it impacts deeply upon the emotional well being of children and is therefore taken seriously by the courts. The definition of implacable hostility was first set out in the case of Re B where according to Latey J, “the fact of the mother’s invincible opposition, which I think in this case can be fairly paraphrased as her implacable hostility, is not in dispute.”*19 In this case, the Court did not grant access to the father on the grounds that contact would be harmful. In all instances, the welfare of the children has been the overriding concerns of the Courts. In the case of Re O*20 the mother consistently refused to permit contact on the grounds that it would be detrimental to the child’s well being to have contact with his father. In the interest of the welfare of the child, the Court determined that direct contact may be unfavorable, with the mother’s resistance and imposition of conditions impacting negatively upon the emotional health of the child, and thus sought to encourage indirect contact. Although the Court was unable to enforce direct contact through punitive action on the mother, Judge Bingham dismissed the mother’s appeal resisting indirect contact, based upon the fact that the Children Act of 1989 provides “a wide and comprehensive power” to make orders effective to ensure contact.*21 He clarified that the courts were concerned about the welfare of the mother or father only in so far as it impacted upon the welfare of the child, which included enforcing contact orders, if necessary to promote the overall welfare of the child. In the case of Re D*22 the mother consistently refused to agree to contact with the father, on grounds that she was genuinely fearful for herself and her child. The father in this case was black and the mother white, however the Judge ruled out the race factor, since the child was found to have a generally positive attitude towards the black race. Although contact was denied, the Judge was of the view that the father should reapply for contact again at a future date when the mother’s anxiety may have been assuaged. Therefore, this case established that the courts would be slow to reach the conclusion that contact would be harmful and implacable hostility itself would not be grounds for denial of contact, unless valid reasons were proffered in support of the claims. The case of Re D*23 established a trend by Courts to examine the underlying causes of the hostility in cases of contact where implacable hostility is demonstrated by one partner. In applying the factor of domestic violence in the demonstration of hostility, the case of Re L*24 was significant because it established the principle that there should not “be a presumption that on proof of domestic violence the offending parent had to surmount a prima facie barrier of no contact”, rather it was to be one of the factors that would form the basis upon which the Court exercises its discretion in applying the welfare principle in the Children Act of 1989*25. For example in the case of Re H*26 the father’s application for contact and parental responsibility were both decided negatively on the basis of the mother’s allegation of his abusive conduct. In view of the fact that the child was ill and in a delicate condition and her mother had cared for her throughout, the Court denied access in spite of the father’s display of commitment. The above cases highlight the frustration that fathers are increasingly experiencing in family courts where implacable hostility on the part of mothers has resulted in flouting of court orders on access. In the case of A v N*27 the mother persistently refused to allow contact, flouting court orders on access repeatedly in spite of the fact that DNA tests had proved the parentage of the father. Indirect contact orders were also flouted and the mother declared that she was prepared to go to prison rather than allow contact, based upon the father’s involvement in drugs. But the courts are increasingly becoming aware of fathers’ rights as well and the need for children to maintain contact with fathers, and in this case the Judge ordered committal for 42 days imprisonment, refusing the mother’s appeal on the following grounds: “It is perhaps appropriate that the message goes out in loud and clear terms that there does come a limit to the tolerance of the Court to see its orders flouted by mothers even if they have to care for their young children.”*28 Therefore, the precedent set by A v N can perhaps serve to address the inequities that have persisted in family Courts in preferential treatment for mothers and implacable hostility is increasingly being refined as grounds for contact refusal, especially in view of increasing awareness of the importance of the father’s role. The need for reform is being recognized through new developments and legislation as identified below and the Courts will have to eschew traditional solutions of custodial parent in favor of more equitable dispositions through shared residency arrangements for children. Ans 2: Hayes H identifies a trend evolving in family law for mediation in custody and contact issues, which appears to be a favorable proposition, with mediators in family cases being increasingly drawn from the private sector.*28 The Children and Adoption Bill proposed in 2004, aims to make provisions for facilitation of contact and enforcement of contact orders in the case of children who are going through parental separation. It includes a wide programme of reform in family law cases, which have become necessary as changes in family structure and circumstances have created a different social framework that is constantly evolving. A recent Government published in 2004*29 identifies the need to address the welfare of children in a changing society where breakdown of relationships is much more common than it was and where the traditional role of the mother as caretaker of the children is not sacrosanct anymore. The Government has identified its firm belief that even after separation the children should continue to have meaningful contact with both parents, unless it is expressly contraindicated for safety reasons. This report also highlights the fact that the slow moving, adversarial process of the courts has failed to address the complex emotional and practical needs for the upbringing of children. The Human Rights Act of 1998 also requires courts to interpret laws in a manner consistent with the European conventions on human rights whereby Article 8 requires respect for private and family life.*30 Through this Green Paper, the Government has therefore put forth some proposals to aid in this reform process: (a) the establishment of an integrated domestic violence Court where both civil and criminal matters can be dealt with at one place by one judge (b) implementation of a parenting plan designed to educate and assist parents in reaching satisfactory arrangements on parental contribution and sharing of responsibilities (c) access for parents to specialist legal advice to resolve disputes, through the Family Advice and Information Service (d) increased use of mediation and in court reconciliation (e) refining and enhancing the process of contact through the Family resolutions Pilot Project to ensure that children enjoy a continuing relationship with both parents and a renewed focus on making contract arrangements work.*30 (f) changing the role of the courts by improving case management, through devoting les time to report writing and more efforts for earlier listing of cases and a focus on conciliation appointments and contact enforcement hearings. The Children and Adoption Bill of 2005 is derived from the Family Act of 1996*31 and aims to establish and enforce contact. Drs Sturge and Glasser have highlighted the importance of parental contact and have examined direct and indirect contact vis a vis the benefits and risks of the same.*32 They see the centrality of the child as being the most important factor in arriving at decisions on custody and contact cases. Implacable hostility on the part of one parents is often the cause of the parental alienation syndrome, whereby one parent alienates the child from its other parent. Lady Elizabeth Butler Schloss articulated the problems created as follows: “There is of course no doubt that some parents, particularly mothers, are responsible for alienating their children from their fathers without good reason and thereby creating this sometimes insoluble problem.”*33 The result of such alienation is that more cases coming before the Courts are those where “contact between a young child and the absent parent has become bedeviled by stubborn opposition to contact being shown by the child…..for good reason or for no reason at all.”*34 In view of the above factors, the move by the Government to focus upon establishing and enforcing contact appears to be well founded and will change the direction of the Courts towards finding ways to combat implacable hostility on the part of one parent. The child centered policy of the new Government proposals are likely to be helpful in determining what is best for the child, without the preconceptions about the mother’s caretaker role. While the legal framework so far has been focused upon adult relationships and needs, the shift in focus to the child is likely to be beneficial, especially since shared residency programs are increasingly being advocated by the Courts over and above the main custodial parent approach. Where necessary, a child centered approach is also likely to introduce flexibility into the decisions on each case, depending upon the particular circumstances that attend it. Since the child’s opinions and feelings will now become an important part of the Court’s decisions, it is likely that decisions will be more child oriented and less judgmental, where the aim of the decision will not be to determine the better parent who can assume custody of the child, but rather focus upon taking the child’s wishes into consideration in making the decision about the nature and duration of contact with both parents. The major thrust of the new legislation introduced through the Children and Adoption Bill 2005 is to promote parental cooperation in ensuring that the child has contact with both parents. The Parenting Plan that has been introduced as a part of this bill is likely to prove beneficial in resolution of disputes, since the focus of the effort will be in involving both parents and ensuring that the best interests of the child are served irrespective of the personal preferences of the parents. Therefore, it is likely that courts will try to introduce shared residency in more cases, to ensure that the child spends equal time with both parents, thereby preventing many of the disputes over preferential treatment for one parent. By educating parents and aligning them in the direction of placing their child’s interests before their personal feelings of animosity and bitterness after the divorce, it is likely that many disputes can be resolved through intervention with parents before they even reach the adversarial position in the courts. The recognition by the Government that the child’s best interests will be served through regular contact between parents and maintenance of good relationships between them will contribute towards educating the parents in suitable fashion so that some of the problems that currently arise due to the problems of the parents can be corrected. However, the Government has also made it clear that parental contact is to be enforced only when it is “safe”. This qualification is important because it will help to strengthen the decisions of the Courts in tackling the problems of domestic violence as well. In view of the fact that the importance of contact with both parents has been highlighted with the qualifying clause about safety, the Courts can now tackle the problem of domestic violence in a more effective manner through enforced contact requirements, by ensuring that mere allegations of violence are not used as the basis to deny contact to fathers. The Courts have been provided with increased powers to enforce contact, but since the interests of the child are paramount, the use of contact centers is also a viable option open to the courts to tackle the complex problems of contact and custody. The Courts now have enhanced powers to enforce action in the child’s interest, which could include placing the child in foster care or ordering supervised contact, thereby reducing the harm done to children by abuse or neglect by one or both parents. Moreover, the fact that Courts can now enforce punitive action if court access orders are flouted, as established in the case of A v N will increase the Court’s power to bring about effective solutions which will be more equitable to the child and its interests. The reduction in written reports and greater focus on conciliation is likely to prove to be a boon to the Courts in terms of issuing its decisions, since many of the administrative delays can be reduced and the efforts of the Courts can be directed towards developing effective solutions to the problems of custody and contact through faster processing of cases. The fact that courts will now adopt a conciliatory approach rather than an adversarial one by offering mediation and in court conciliation is a welcome move and this is likely to contribute positively towards a resolution of many of the current problems that arise from the adversarial approach employed by the Courts. The efforts of the Courts will now be focused upon dealing with each case on an individual basis, with the desired degree of flexibility to ensure that the best interests of the child will be served. Since mediation, in court conciliation and expert legal consultation are all being offered as options under the new Act, it is likely that many of the complex disputes involved in family law may be resolved faster and quicker and more satisfying solutions may be found that will answer the requirements of individual cases. References: * Articles 9(1) and 9(3) of the UN Convention on the rights of the child, approved by the General Assembly on November 20, 1989. * A v N (Contact: refusal of contact) (1997) 2 FLR 48 * European Convention of Human Rights and Fundamental Freedoms. [Online] Available at: http://www.pfc.org.uk/legal/echrtext.htm * Flouri, E and Buchanan, A (2003). Distress among children whose separated or divorced cannot agree arrangements for them. British Journal of Social Work, 33, pp 227-238 * Flouri, E and Buchanan, A (2003). The role of mother involvement and father involvement in adolescent bullying behavior. Journal of Interpersonal Violence, 18, pp 634-644 * Government report titled: Parental Separation; Childrens Needs and Parents Responsibilities (2004) CM6273 * Harrison, Aris R and Humphreys, C. (2002) Safety and child contact: An analysis of the role of child contact centers in the context of domestic violence and child welfare concerns. LCD. Executive Summary of this study available online at: http://www.dca.gov.uk/research/2002/10-02es.htm ; accessed 1/7/2006 * Humphereys, Cathy. (2003) Squaring the circle – Contact and Domestic Violence Family Law Journal, pp 419 * Hayes, H. (2002) Family Mediation in the U.K.: A survey of Practice Family Law (32) Bristol: Jordan * In the matter of D (dob 2 August 1996) (2004) EWHC 727 (Fam) [Online] Available at: http://www.hmcourts-service.gov.uk/judgmentsfiles/j2466/f-v-m.htm; accessed 1/7/2005 * NACC Directory of Child Contact Centres June 2003 (page 11) * News Report (2005). Bob Geldorf now at the forefront of the campaign for father’s rights. Family Justice. The Independent. [Online] Available at: http://www.parents4protest.co.uk/_private/independent_news_geldof_electoral_battleground.htm; accessed 1/7/2006. * Re B (A Minor) (Access) (1984) FLR 648 * Re D (Contact: Reasons for refusal) (1997) 2 FLR 48 * Re D (A Minor) (Contact: Mother’s hostility) (1999) 2 FLR * Re K (Contact: Mother’s anxiety) (1999) 2 FLR 703 * Re K (Contact: Psychiatric report) (1995) 2 FLR 432 * Re O (Contact: Imposition of Conditions) (1995) 2 FLR 124 * Re H (A Child) (Contact Order) (No: 2) (2002) 1 FLR 22; [2002] EWCA Civ 542 [Online] Available at: http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWCA/ * Stannard, Matthew (2002). Families need Fathers . BBC News report. [Online] Available at: http://news.bbc.co.uk/1/hi/uk/1958237.stm; accessed 1/6/2006. * Sturge, Claire and Glasset, Danya. (2000). Contact and domestic violence: the experts’ court report. Family Law. 30, pp 615 -629. * Wallerstein, J, Lewis J and Blakeslee, S. (2002). Divorce/Separation (Outcomes) Contact London: Fusion Press Read More