Family Justice Reform

Andrew Bridgen Excerpts

Wednesday 15th November 2017 Westminster Hall

[Suella Fernandes]

I thank my hon. Friend for raising the issue of extended families. Kinship carers and grandparents in particular can play an essential role in the upbringing of our children, and they too can be cut out of children’s lives because of the obstacles placed in their way through our system, which needs some change.

Many parents in these situations have lost their life savings, their home and, perhaps worst of all, their hope. What price is too much? For those who cannot afford it, the cost can be even worse: no contact and no relationship with their children. In one of the saddest cases I came across, a dad was permitted to send merely a Christmas card every year. In another, a father spent three years and more than £100,000 fighting to see his children eight days a month, rather than the six days originally granted by the court.

Children are entitled to a meaningful relationship with both parents, but the current system enables a parent to be erased from a child’s life. It is not about parental rights; it is about child wellbeing. Children who have a good relationship with both parents are less likely to experience depression, teenage pregnancy and delinquency. Children without a father in their life often struggle to reach their full potential academically, socially or professionally.

[Andrew Bridgen (North West Leicestershire) (Con)]

I thank my hon. Friend for facilitating this important debate. Is she aware of research I have done on the comparative death rates of resident and non-resident parents, which indicates that it is almost twice as likely for a non-resident parent to pass away while their children are small? I indicate that that probably means that it is normally men actually committing suicide because they no longer have contact with their children.

[Suella Fernandes]

It is a tragedy. Those cases are unspeakably sad and a reflection of the need for reform. There is a clear need, if we are to fight the burning injustices in our society, to start with the foundation of our society: families and, more specifically, parents. That change is vital.

My first proposal is to enshrine a rebuttable presumption of shared parenting. In the majority of divorce cases, parents are able to agree on how their children will be cared for, with whom holidays will be spent, how decisions about a child’s life will be made and how the child may spend time with grandparents and other extended family, as my hon. Friend the Member for Mid Worcestershire (Nigel Huddleston) mentioned. However, in many cases—approximately 165,000 in 2016—agreement cannot be reached. In those cases, a judge will determine the contact and residence for the parties, and that is when problems can start. As well as the paramountcy of the welfare of the child as the guiding principle, parental involvement—direct or indirect—is the relevant test in deciding access and residence. I see the former Minister, my hon. Friend the Member for East Worthing and Shoreham (Tim Loughton), in his place. He should be applauded for his efforts in campaigning to secure considerable progress in this field and improving the lot of non-resident parents through the 2014 Act.

My point today is that that standard is too low, as it does not enable a meaningful relationship to be fostered between parent and child. A rebuttable presumption in favour of shared parenting would go further and, as a starting point, actively enable more of that vital, meaningful relationship to be fostered between parent and child, in the event of family breakdown. To be clear, I am not talking about equal parenting. A crude, mathematical, 50:50 division of time is not always practical, desired by the parties, or optimal for the child. Rather, legislation that emphasises the importance of both parents in a child’s life is needed—other than in cases of violence or where the child is not safe, obviously.

Shared parenting is commonplace throughout the world, and operates without difficulty in Sweden, Canada and the US states of Florida and Iowa. Alternatively, Dr Hamish Cameron has suggested that there could be a presumption of the continuity of the previous arrangements. If both parents used to take the child to school, that should be the starting point. If both parents provided equal care, they should continue with that arrangement. Such examples would improve on the parental involvement—direct or indirect—position that we have now. If we are going to continue to tell fathers that they have equal responsibilities, we also need to give them equal opportunities to carry them out.

Secondly, child arrangement orders, which determine the contact and residence of children upon divorce, need to be better enforced. The current enforcement scheme sits alongside the general contempt powers of courts. If satisfied beyond reasonable doubt, courts can refer the parties to a separated parents information programme, vary or make orders for compensation, or commit to prison—remedies that are so rarely applied, it is easy to forget that they actually exist.

Although the majority of orders are complied with, too often they are breached with impunity—usually by the resident parent, due to the reluctance of courts to penalise non-compliance effectively. In 2015, of the 4,654 enforcement applications made to court, a mere 1.2% were successful. I question whether the criminal standard of proof is the right one, when family courts make other decisions, including placement in care or change of residency, on the lower threshold of the balance of probability.

--- Later in debate ---

[John Howell (Henley) (Con)]

I did not intend to speak today, but I feel I ought to comment on the mediation aspect, which has numerous advantages. Of course, any mediation is only as good as the mediator. If we acknowledge that, we can take the collaborative approach of mediation to put together something that is in the interests of the parties involved. There are a couple of other aspects of mediation that I want to bring up. First, it saves a considerable amount of time in dealing with the problems, rather than taking them, perhaps on several occasions, before a judge and expanding on them there. Secondly, it saves a considerable amount of money. I have been trying to get to the bottom of how much money mediation saves, and I think it is a considerable sum.

There is an important overriding aspect, which is that mediation is the best way of ensuring that we deal with the emotions involved. There is no doubt that a divorce is a very emotional time for both parties and for third parties such as children. Mediation can deal with matters in a non-emotional way.

[Andrew Bridgen]

My hon. Friend makes a good point about mediation, but how can it work without guidelines for parents, depending on the age of the children, on what contact might be reasonable and what they might expect? One of the main reasons why conflict over contact with children is so intense is because there are no guidelines on what parents might expect on separation. It is basically the all or nothing rule, so people go into battle and they could come out with nothing or they could come out with complete contact. That is the crux of the problem.

[John Howell]

My hon. Friend makes a valid point. However, there is much more to be gained out of mediation in terms of working out what the arrangements for contact are. I fully accept that that is a major difficulty, but there are many more opportunities for getting it right in a non-emotional way and by trying to take those raw emotions out of the situation than there are in a formal legal battle. That is why I emphasise taking away the difficult emotional aspects through mediation.

Above all, mediation leaves control of the situation in the hands of the parties. It does not take it away and give it to a judge. The parties do not lose control of the process or of how to deal with the children and with access. They retain control. Anyone who sits through a mediation will experience the enormous amount of power that that gives people to be able to decide for themselves, rather than passing it off to a third party. In the session that the all-party group on alternative dispute resolution had on family mediation, that came across strongly as one of the things that should be valued.

[Andrew Bridgen]

I hear what my hon. Friend is saying and I absolutely agree about the parties keeping control over the contact levels they have with their children. Normally in a court that is farmed out to the Children and Family Court Advisory and Support Service, which came out of the family court welfare service. In correspondence with CAFCASS, we have established that in all the time that CAFCASS has been set up, there has never been any training for its main function, which is making recommendations to a court on the allocation of contact time for various parents. How can it be that it has such power, yet it admits to me in correspondence that it has never had any formal guidance, and it does not record the contact that it recommends at various stages? There is no record of the contacts awarded and whether they are right. Also, CAFCASS’s statements are not sworn, so it cannot even be held to account for the recommendations it gives in court.

[John Howell]

My hon. Friend makes the very point that I was making about the difference between that system and the mediation system. Mediators are not people who have no knowledge. They are not appointed off the street. They have spent a large part of their time in office going through training to make sure that they understand the process and the sensitivities of the issues, particularly the emotional sensitivities, and can deal with those in a professional way. Certainly if there any examples of mediators who do not do that, I would like to hear about them, because that is contrary to the whole mediation process, which provides enormous benefits to couples. I say that as a final comment and contribution to the excellent debate that my hon. Friend the Member for Fareham (Suella Fernandes) secured.

--- Later in debate ---

[Andrew Bridgen]

Will the Minister concede that under existing law the resident parent often has a financial incentive to withhold contact from the non-resident parent, because the fewer the nights spent with a non-resident parent, the greater the amount of child maintenance paid over? How do we square that?

[Dr Lee]

I thank my hon. Friend for his intervention. As a constituency MP, of course I recognise examples of the situation he describes. I assure him that I will pass on his concerns to the Minister responsible.