In March 2017 I introduced a Bill calling for reform of the family justice system. My speech is below:
That leave be given to bring in a Bill to make provision for the enforcement of Child Arrangement Orders, including times within which enforcement action must take place; to establish a presumption in favour of shared parenting under Child Arrangement Orders; and to make provision for a commission to review and make recommendations on the operation of family justice; and for connected purposes.
David and Sally separated after 10 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 just because his marriage had ended. However, nearly three years later, with more than £200,000 paid in legal fees, David is still fighting through the complex and bureaucratic family courts to see his children eight nights a month, instead of the six nights originally offered by Sally. Sadly, this is not a fictional story. It is one of the many sad cases of high-conflict divorces. Family breakdown is painful for all involved, and it is the state’s duty to support those going through this difficult experience. However, as in the case of David and Sally, not only have those two extra nights per month been financially and emotionally expensive for them, but on several occasions Sally has unlawfully stopped the children seeing David, breaking the court order and undermining the father-child relationship.
Child arrangement orders are made by the court to regulate the contact and residence of children on divorce. In the majority of divorces, the orders are complied with, but in many cases a defaulting parent—that may be the mother or the father—can generally act with impunity. The courts are slow to respond and reluctant to penalise, sending the damaging message that court orders are optional, not mandatory; that the relationship with the non-resident parent is meaningless, rather than crucial; and that the system is inherently inequitable, rather than robust. In the worst cases, a non-resident parent, usually the father, can be denied contact with their child for several years. If they do not have a spare £10,000 to spend on legal fees, they are essentially erased out of their child’s life, with no remedy whatsoever. How can this be humane for a child, and how can it be fair to the parent?
The welfare of the child is paramount—that is an abiding and unassailable principle of family law—and children are less likely to experience depression, teenage pregnancy and delinquency when relationships with both parents are safeguarded, while children without a father in their life often struggle to reach their full potential academically, socially and professionally, but the law does not reflect this because of the failure to crack down on intransigent parents, and because judges and social workers turn a blind eye to parental alienation.
Family courts make huge and life-changing decisions for parents and children, often on thresholds of proof that are far lower than those required to achieve enforcement, so it is no wonder that the criminal threshold for contempt is rarely met and that judges fail to assert their authority swiftly under the Children Act 1989, or subsequent legislation in 2006 and 2014, and attempts to bolster enforcement have not worked. Data from the Ministry of Justice reveal that a mere 1.2% of the 4,654 enforcement applications were successful in 2015. Although the letter of the law sets out discretionary penalties for breach, they are rarely applied in practice, and the rise in the number of unfounded allegations of domestic violence as a defence against enforcement is worrying.
A new approach is needed: a tougher three strikes approach is long overdue, under which residence should be transferred, if that is safe, and community service should actually, not theoretically, be imposed on parents who are in breach. The confiscation of driving licences or passports should seriously be considered by Parliament. Legislation that emphasises the importance of both parents in children’s lives, other than in cases of violence, is needed in England and Wales. Real enforcement is one way of doing this, and shared parenting is another.
A rebuttable presumption of shared parenting should be a key principle when determining the contact and residence of the children. To be clear, this would not be an explicit statement of an equal 50:50 time division, and it does not mean shared care. As Professor Patrick Parkinson, a former president of the International Society of Family Law has made clear, it should, as a minimum, mean the child has a 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.
Such a principle is commonplace elsewhere around the world, and it operates without difficulty. It could assure the child of an opportunity for the maximum continuing physical and emotional contact with both parents, and encourage the parents to share the rights and responsibilities of raising the child, as the law states in Iowa. It could provide for frequent and continuing contact with both parents, as in California. It could go even further to
“encourage the love, affection, and contact between the children and the parents”,
as in Colorado. Any of these examples would be a more appropriate starting point for judges when setting child arrangement orders than the weaker form of
“parental involvement...direct or indirect”,
which has been on the statute book since 2014. Although that was an improvement on the previous position, parental involvement can amount to a birthday card or a Christmas card in the worst cases, and non-resident parents, mainly fathers, can be airbrushed out of the lives of their children by the current system. We cannot keep telling fathers that they have equal responsibilities, and then not give them equal opportunity to carry them out.
Shared parenting and robust enforcement form part of the package of reforms that is needed if we are to bring our family law into the 21st century. Our antiquated system reflects the norms of the 1950s and 1960s, rather than relationships of today, and many issues remain unresolved, leaving gaps for Parliament to fill. A commission, to last no more than one year, should be launched by the Government to inquire into the following issues and to report back with recommendations for reform.
First, as last week’s Court of Appeal case of Owens depressingly highlighted, England’s fault-based divorce law results in absurd outcomes. Despite being in a loveless marriage, the petitioner was unable to divorce her husband because of the archaic rules requiring her to prove fault on his part. The reality is that not all marriages end because of fault. We therefore have a law that promotes the farce of allocating blame, setting parties on a needless confrontational path that fuels animosity and costs. A commission should report on whether it is now time for no-fault divorce.
Secondly, financial remedies and maintenance are rooted in a bygone era where women were entirely financially dependent on their husbands. The reality today is that many women are able to support themselves, so divorce should not mean an automatic entitlement to lifetime support from an ex-husband. Scotland and North America limit payments, so why don’t we? Unless Baroness Deech’s Bill on this subject secures Royal Assent, a commission should make recommendations on how to strike a better balance so that England can shed its reputation as the divorce capital of the world.
Thirdly, 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. Inquiry into what basic protections are justified would be valuable.
Fourthly, 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 and during their union. They should be protected, if the parties agree, not put at risk, and a commission should look into this.
Fifthly, reform of the opaque way in which the family courts operate in public law needs wholesale 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. Only the glare of publicity will enable this to stop, so we need to remove the cloak of secrecy and to open up our family courts.
Lastly, most family disputes need not see the inside of a courtroom. Instead, we need better incentives to use mediation or solicitor negotiation, for example by virtue of a costs penalty for parties who draw out the process. Saving costs, time and heartache should be priorities.
Madam Deputy Speaker, I am not married. It will not surprise you, therefore, when I say that I do not have the battle scars of having lived through a nasty divorce. My views are informed by my previous work as a barrister in the civil justice system for 10 years. Moreover, I speak today as an objective onlooker moved by stories of injustice, hopelessness and deep sorrow. Yes, divorce is traumatic, but it need not be a tragedy that befalls thousands of non-resident parents. I hope the Government will take the opportunity to begin the work of creating a family law system fit for the 21st century.