The 1997 guidelines on child contact

In 1997 the fledgling Association of Family Court Welfare Officers issued a set of guidelines that, for the first time, placed a value on the child-parent bond.

Without guidance along these lines, an FCWS officer could recommend the stoppage of all material contact for no material reason - and, if that became the case’s outcome (as it most likely would) that outcome was labelled ‘in the child’s best interests’.

The 1997 AFCWO guidance introduced the principle that everyone assumes is there now, but isn’t. It installed a requirement for a ‘good reason’ to prevent meaningful contact - and appended a broad outline of meaningful contact according to the case’s facts.

Until then - and this is still the law - a good reason is only required to stop absolutely all contact / parenting time. On this system - the system we still have - once there is some contact, no matter how low, the case is decided on ‘the child’s best interests - which are not defined either in law or by guidance to include contact above almost-no-contact.

The phrase ‘the best interests of the child’ - the supposed cornerstone of the Act - adds nothing to the way these cases are managed. As far as the length of parenting time is concerned, it is an infinitely movable feast. The case is thrown back on itself.

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The key for useful guidance is to provide a ballpark defined by units of time in routine cases with no safety issues. That delivers a workable framework for these disputes; anything less, does not. To read the AFCWO’s guidelines click here.

The transformative effect of this modest 1997 AFCWO guidance was to raise the safety-net in place for favourable cases from the loss of a child/parent for nothings to contact / parenting time that included overnight stays. It still is an advance on where we are now.

Ancillary Benefits of Child-Contact Guidance

In passing, without any great song-and-dance (as guidance does in the nature of things) a number of other important goals were achieved:

(i) Different categories of case were delineated.

The AFCWO guidance varied according to the child’s developmental needs by age.

(ii) These categories were recognisable: parents could see where their case fitted in: they knew what ‘band’ applied to them.

As soon as guidance of this type is in place, many or most parents can see what to do for the best.

Those who are merely confused or uncertain can tell what sort of level of contact to allow.

Those headed towards malignant litigations will receive advance knowledge of the welfare report’s likely recommendation, i.e., a good pointer to the court’s likely order. This becomes the framework for constructive negotiation.

(iii) The guidelines allowed for flexibility

The AFCWO guidance does not say, this is what will happen. It says, contact on this sort of scale is the sort of thing that should happen on these sorts of facts.

There is a firm presumption of reasonable contact, a rough delineation of what that means, and due provision for flexibility. It is “a framework, with the contact to be accelerated or retarded, extended or diminished, as circumstances justify.”

(iv) The AFCWO guidelines settled the overlooked ‘burden of proof’ that otherwise goes walkabout.

If this point (fundamental to all litigation) is not covered, disputes lose shape and purpose: no-one knows who has to show what, or what should happen if they do.

The AFCWO guidelines placed the onus on the parent opposing reasonable contact (as defined) to adduce good reason why there should not be reasonable contact.

That reason had to be ‘good’ - because otherwise a bad reason would do - and if a bad reason would do, anything would do. Parental whims were replaced by a fitting acknowledgement that the child had presumptive rights in his/her parent.

(v) A benign side-effect was to introduce the standard legal principle of proportionality.

Until there is some framework setting out a child’s proper expectations in terms of contact, there cannot be a principle that the more it is proposed to depart from that framework, the greater the reason required. In default, any outcome could (as it still can under the present system) flow from any facts: anything goes.

(vi) The guidance was embedded in a document of authority.

The ‘authorities’ with maximal sway inside a courtroom at that time were the judge - and the FCWS Officer - who made the recommendation that influenced the judge’s decision.

Best thinking on contact issues is of no significance inside a courtroom unless and until it is endorsed by the judiciary and / or by those the judiciary accept as experts. Given that, and the guidance becomes a framework to be applied and followed; without that, it remains mere opinion, for disputation by the other side.

Child contact: the first useful precedent

All in all, this 1997 document was a perfectly good version of a viable best-interests framework. It was the work of an afternoon or so (first draft / amendments etc).

A chassis of this kind - provided it is produced by or recognised by the courts - can be developed at will to include any amount of useful advice. The proposed levels of contact may need another look; revised figures can be ‘dropped in’ to a framework like this as the prevailing wisdom dictates.

This 1997 document remains our jurisdiction’s only contribution in a field that otherwise remains bare.

What Happened to the AFCWO Child Contact Guidelines

The ‘Origins of Reform’ confirms that the FCWS would not adopt, adapt or consider the AFCWO guidance.

The AFCWO’s Chair - the senior welfare officer in Wiltshire - had seven FWCOs on the payroll. Section 8 cases in Wiltshire went to rapid and beneficial ‘two parent’ settlements; in neighbouring counties (and anywhere else that could not articulate the principle, ‘reasonable contact in the absence of good reason to the contrary’) similar cases litigated themselves into nothing for years.

As the FCWS had nothing to offer as an alternative to this guidance - it had no written material on the best-interests patterns of contact - the FCWS became a ‘naked in public’ target for MP disquiet. The end-game was clear: a new agency to make the deficit good. After serious internal turmoil, and blood of the carpet, on 16 February 1998 Whitehall’s plans to replace the FCWS with a new family courts advisory service (in due course named ‘Cafcass’) were announced. To read the AFCWO’s guidelines click here.