2004: Family Law Back-to-Front
The Department’s reflex imperative from 2003-06 (‘get rid of the EI project’) tied its knickers in a twist. A profound mistake was injected into government thinking.
The Department (click here) got the law back-to-front.
This unexpunged error still contaminates family policy.
By 2004 the Department was fully engaged with the Green Paper ‘Parental Separation’ about access to children - for which the EI reform was the remedy - which had been derailed by the Department - although the Department said EI was still in progress. So - what was that about? What was problem with the existing court system? What was the way the existing system worked? What was the law?
From 1996 to 2003 the Department had contented itself with saying that, whatever the law was, the law was ‘in the child’s best interests’. But what did that mean?
An easy way to assemble an answer was by reasoning backwards.
Whitehall: Making Family Law Up
If the department was not going to change the law, and it was not, the law itself must be right.
So, the law must be the right thing.
Which meant, the right thing must be the law.
The Department announced that the law was what everyone thought it should be, and what everyone thought it already was (until they went to law):
“After separation, both parents should have responsibility for, and a meaningful relationship with, their children, so long as it is safe. This is the view of most people in our society. And it is the current legal position.” Parental Separation: Children’s Needs and Parents Responsibilities, Green Paper 2004, Executive Summary, p 2
This wild guess bore the signatures of three ministers from three departments: the Secretaries of State from the Department of Constitutional Affairs (now the Ministry of Justice), the Department of Education and Skills, and the Department of Trade and Industry. All three departments now laboured under, and promoted, a common delusion. That which by common assent they agreed needed to be done, was done already. So there was no need to do it.
Getting the Law on Child-Contact back to front
There is no presumptive entitlement either to a meaningful relationship - or meaningful involvement - or their enabler (meaningful contact). There is only a presumptive entitlement to a ‘relationship’ - at meaningless levels.
The law is satisfied by any involvement, or any contact: - no matter how fleeting. Of course the law provides that the level should be in ‘the child’s best interests’, but that provision is entirely circular: the term is not defined to include contact at meaningful levels. The case is thrown back on itself.
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Contact at levels that satisfies the law can be a hundred times less than ballpark levels for meaningful contact. The latter points to sustainable attachments and the least-bad solution, the former to wide-scale child-parent severance.
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Make-Believe Family Policy
In 2004 the departments announced the change that EI reform would have introduced (meaningful relationships / meaningful involvement / meaningful contact) but without introducing the EI reform. The nation was ushered into the Hall of ‘Let’s Pretend’. Fast forward to 2020, and the Department still faces in two opposite directions simultaneously (a third may be coming down the line):
The reality: almost nothing
the Private Law Working Groups 1 and 2: the law is that children generally benefit from a continuing ‘relationship’, or continued involvement, no matter how low
Cafcass - see the Child Impact Assessment Framework - agrees: the law is ‘to presume that involvement (direct or indirect) of each parent in the life of their child will further the child’s welfare’, i.e., involvement no matter what, including indirect ‘involvement’ where child and parent never actually see each other.
This is the true position.
2. Let’s pretend: almost everything
The 2020 Private Law Subgroup (PrLWG3, para 7) says:
‘The law is clear, that in the absence of safety concerns, a child should be able to enjoy a close relationship with a parent following separation’.
This is untrue. The law merely provides that there should be contact at vanishingly low low levels.
This mistake was endorsed by the PrLWG’s judicial chair.
Family Policy at Loggerheads with itself
The 2004 fantasy of a legal safeguard protecting meaningful contact reappeared in the 2008 Hunt departmental research (p253) and walked into the 2011 Family Justice review, where it was both discredited and taken as gospel through to 2014. The same misconception is alive and kicking in 2020, incorporated into in PrLWG3. Policy is built on imaginings.
Two terrible disservices were done, one on the construction of the law - and the other on the role of Cafcass.
A. Illusory Remedies
If there is a presumption of meaningful contact - which there isn’t - mediation is bound to help.
Because, the imagined legal framework would be doing its benign work in the background.
If only that framework existed, everyone would have some idea of what would happen if the mediation breaks down: contact will be ordered at meaningful levels - and if Cafcass knows its job (as everyone in a position of responsibility assumes) it will have guidance on what that means in practice.
But there is no such framework. Mediation cannot work to optimal effect (or at all) if no-one knows what will happen if the mediation fails. Bang go ten years or twenty years of policy - built on foundations that are not there.
The same goes for parent information classes, set to roll on indefinitely, making things worse.
The information that parents want and need (the broad parameters of how much contact they should have or allow) is not covered.
The classes become a deterrent to arranging significant access or best-interests agreements, not a facilitator. Parents do not learn that that they should allow meaningful contact. The takeaway points are that one parent can demand however much contact they want, no matter how high, and
the other can impose whatever level they want, no matter how low
and
the parent who seeks more contact is a trouble-maker (‘conflict is bad for children’)
and
any proposal can be justified provided the Benefit of the Child’s Best Interests is claimed
Whitehall’s new Family Support Service - which may perhaps come into being in the mid 2020s - provides a new way to distribute misleading guidance and/or empty guidance that does not mention the issue in dispute.
A new broad departmental delusion hoves into view (see PrLWG2).
The general import of Delusions 1-3 is the fantasy that no pains have been spared by Whitehall over the years to do everything possible for these parents. Yet - they continue to litigate. Maybe these parents are addicted to bickering, despite all the clear (but imaginary) guidance they receive?
The down-flow is the view that these parents and children do not deserve a proper court system - when they have one already - but misuse it! Is it not time to ring down the curtain on access to the law?
This is the direction in which policy trends: everything possible has been tried (apart from the first useful step) so it’s time to close things down.
Cafcass & the Land of Topsy-Turvy
If Whitehall has the law back to front, and it does, Whitehall is bound to assume that Cafcass - which acts within the real law - is doing the opposite of what it actually does.
Contrary to these false expectations, Cafcass’ job is not persuading decent parents to allow for meaningful levels of contact, but, to counsel parents that meaningful meaningful levels of contact are beside the point. __________________________
Child-contact & the Hierarchy of Presumptions
Family policy currently occupies every contradictory point of the spectrum. At this writing (December 2020) Whitehall’s Private Law Working Group maintains through its Subgroup (endorsed by the PrLWG’s Chair) that the legal system is based on:
(1) the ‘all’s well’ Presumption of Meaningful Contact;
and
(2) its drastically-impoverished cousin, i.e., the Presumption of (meaningless) Contact.
Criminal lawyers would baulk at a casual substitution of the Presumption of Guilt for the Presumption of Innocence. This is an error on that scale.
This presumption is a gateway that governs which parent in a litigation has to show what - in order to achieve one thing, or its reverse. Everything - case-outcomes included - flows from those gateway assumptions.
Depending on which invisible presumption is applied, the same facts will produce divergent or opposite outcomes. These differing results, whatever they are, will be labelled as ‘the child interests’.
The practical implications of the Hierarchy of Presumptions remains undiscovered terrain in family law.
Meaningful child-contact?
Under the Presumption of Meaningful Contact - the system the department says we have (but do not) - the unjustified prevention of meaningful contact is a bad thing; whereas, under the Presumption of Contact (the system we do have) near-total child-parent severance is a neutral act: child-and-parent can be separated at will.
Click here to see how the Department came to imagine that mutually-exclusive opposites were the same. The concluding paragraphs of PrWLG4 cover this ground in more detail.
Family Law: brightest and the best ?
The Proceedings of the 2004 House of Commons Constitutional Affairs Committee (Family Justice) confirms the sea of the institutional and intellectual incomprehension in which family law subsists. The Committee itself consisted of 11 cross-party MPs. It sat for a year. It took verbal evidence from the President of the Family Division, senior judges and QCs, magistrates, the Family Law Bar Association, the Solicitors’ Family Law Association, Cafcass, FNF, Women’s Aid, mediators, academics, journalists and more
The fundamental of this sector escaped notice.
The Committee discussed the presumption of contact at length - and then assumed, in its Conclusion (page 44), that the presumption of (mere or any) contact was the same as the presumption of meaningful contact. All the Committee’s work was undone. Everything that would have been explained as Day One Basics remained a mystery. The key to understanding what had gone wrong, and how to put it right, escaped notice.