The Problem with Family Law

The NATC is the clearing house for enlightened professional thinking on family court reform.

The focus of this site is Section 8 private law child-arrangements, also known as ‘parenting time disputes’ or ‘contact’ and ‘access’ disputes under the Children Act 1989.

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There are obvious follow-though implications for the conduct of public law disputes: where a child can lose both parents (rather than one) for no substantive reason. The underlying reason is the same - there is no guidance or legal principle in public law to suggest that the child-parent bond is a matter of consequence.

These public law disputes do not fall within the ambit of this site, which concentrates on ordinary divorce or separation.

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The central problem with the management of post-separation child-arrangements is the lack of guidance.

The law itself says almost nothing of interest. It merely stipulates that everything should be done for the best - without indicating what that means.

The task of providing separating parents (and the courts) with guidance on what the child’s “best interests” are in these Section 8 disputes has been delegated to an agency called Cafcass.

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Cafcass are the Courts' official experts. They make recommendations to the court on the best-interests outcome for every contested case.

The issue overseen by Cafcass is the best-interests apportionment of the child’s time between the parents: specifically, how much time - how often and for how long - should the children be allowed with the parent leaves home?

But Cafcass has no general guidance for parents on this topic - either on what to do for the best - or on why it might matter.

In the words of its longest-serving CEO: “We do not focus on parenting time as our remit is to work out the best arrangements for an individual child on a case by case basis”

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But, case by case, for each individual child, parenting time is the child arrangement.

The underlying point has lain unperceived for three decades. It goes to the heart of the family justice system.

The length of time a parent is allowed to spend with their child is the determinant of whether that child, and that parent, can or will have a significant relationship with each other.

If the level of child-parent access can be set at near-zero at will, as it can be under the present dispensation, the child-parent relationship is unprotected.

But Section 8 of the Children Act was introduced on 27 April 1989 to “encourage parents to participate fully in their children’s upbringing”.

The point of the Children’s Act primary private law provisions has gone by the board. The central issue in these cases has escaped the attention of the Courts’ advisors. So, two things have been clear for over 20 years:

- what has gone wrong

- how it can be put right

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It so happens that after decades of status quo mismanagement the route to sensible change has eased open. An informed intervention from a motivated and well-placed family law professional can now trigger reform: see ‘Reform 2023’.

A greatly improved service can easily be delivered to the children of separation and their families at reduced cost. 

No legislation is required. The specific change needed - for children, mothers, fathers, grandparents, families, lawyers and the courts themselves - is agreed. That change is supported by eminent professionals, the judiciary and the President of the Family Division included.

A system to resolve these disputes before the first hearing, very probably without going near a court, could be open within a year.  

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This orthodox remedy - for a problem first drawn to Whitehall’s attention in 1996 - has been sidelined by Whitehall for a quarter of century. The first useful step that the private sector would action on Day One remains untaken.

1. Observations and strictures in this site relate solely to the management of Section 8 disputes.

2. All observations on this site relate to cases with no safety issues.

3. ‘Parenting time’ is the new phrase for ‘contact’, which is the old phrase for ‘access’. The terms are interchangeable. They are used synonymously. ‘Visitation’ is another equivalent, as is ‘child arrangements’.

4. Official efforts to deliver change have been confined to altering this terminology. The same things now have different names. The ‘child arrangements’ of the 2020s specify the length and frequency of 1980s ‘access’. Consideration of how this is best determined, and why it matters, remains the originating 1989 blank.

How family law is managed

The machinery controlling family law is managed by Whitehall. That machinery is set to repeat the same error.

The main cog in the Whitehall machine - the periodic Family Justice Reviews - is populated by officials from the two agencies responsible for the problem.

The Negation of Family Law Reform

Cafcass started trading in 2001 with no guidance either for parents or its staff on best-interests levels of child-parent. Nothing has changed. Whitehall created Cafcass with this built-in deficit; Whitehall will not acknowledge the Cafcass problem. Cafcass takes pride of place on Whitehall’s Family Justice Review committees.

The fantasy that Cafcass does have the missing guidance has disabled Family Justice Reviews since the turn of the century. The Children Act’s private law provisions cannot do what they are meant to do: there is no guidance to tell anyone that almost all child-parent contact should not be stopped for almost no reason.

Reform: putting family law straight

The innovation required is common sense. It is the approach adopted abroad, decades ago. It has senior judicial support here. This is what needs doing: the lack of guidance can be remedied by the introduction of guidance.

Separating parents who are engaged in disputes about the level of parenting time should be provided with the basic preliminary guidance that everyone (especially officialdom) assumes they already receive - but don’t

The Path Not Taken

The problem is that Cafcass will not and cannot prepare that guidance. To do so would mean that Cafcass could not continue in anything like its present form. It would entail (i) Cafcass turning itself inside-out and (ii) an acknowledgment from Cafcass that Cafcass had run on empty for two decades. For Cafcass, the first step in the right direction is its last.

But that does not preclude reform; it eliminates Cafcass as the source of that reform. The requisite reform can easily be delivered, without being mediated by Cafcass, as soon as the key fact - that Cafcass has no guidance on the level of contact - is acknowledged.