Reports by Tony Coe of Equal Parenting Council.
Thanks to everyone who attended the protest on 20 September.
Particular thanks to our fearless National Protest Leader, Mark Harris, for all the preparations and media briefings. Matthew Mudge did a fantastic job, and on the day, made the Equal Parenters' presence felt. He set up a table in front of the Congress building and set out materials from the various organizations in the EQUAL PARENTING COALITION. He had prepared EQUAL PARENTING purple lapel ribbons - all v. professional, thank you so much Matthew.
Anson Allen brought the public address system and the judge's costume. Peter Weaving played the part of the judge - a visual that was mentioned by many of the overseas visitors. He and Margaret McClaren attended the protest despite having had a hard couple of days in court securing a shared residence order. They were both exhausted after the hours of preparation and court room ordeal, yet they still made the effort to attend.
Michael Cox and many other prominent campaigners came along way carrying banners bearing polite but powerful messages. These are the ones that do us good - the disrespectful ones do the opposite, by the way, believe me!
Forgive me for not mentioning everyone, but this email is already too long, and I'm barely started. You were ALL brilliant! I was especially grateful to my wife, Christine, for supporting the protesters outside while I attended the conference itself. And it was super to have the representatives from MATCH. I can't stress enough how important it is for the excluded mums to come out and show that this is not just a male issue.
Oliver Cyriax, veteran campaigner for the Cause, was a key member of the protest delegation. He handed out 200+ information papers to conference delegates.
DID WE DO ANY GOOD?
Yes, yes, yes, yes! This conference was attended by top family court judges and lawyers from all over the world. Most significantly, it was attended by the UK's top family court judges. The impression our judiciary were trying to give was that the UK was the model to follow. Without our protest outside, and our influence inside the conference, the overseas guest would have left with the clear impression that the UK had it right!!!
The protest was mentioned at numerous conference sessions. Many overseas judges came up to me and were fully supportive. The conference delegates were overwhelmingly supportive. There was comment about how well behaved the protesters had been. We got great media coverage locally on BBC and in the press, better even than the event itself.
I put our case at every opportunity, many times by addressing the meeting. Our position was supported robustly by a Canadian judge who spoke of the importance of enforcing contact orders with determination. "Judges are too soft, she said. I tell them to bring their toothbrush, cause they're going to jail next time. My contact orders are to be obeyed. Everyone knows it, so they obey them!" Pretty obvious stuff, isn't it, but not to our judges.....yet!!!
The crowning glory came at the final session (yesterday, Friday) I attended, which the Chair, another Canadian Judge, opened by referring (a) to Maureen Freely's article "When can I see my children?" in The Times (Sept 17) and (b) to the protest outside. He said that they had come thinking that the UK was the model to follow, but clearly it was not working to everyone's satisfaction. Wow! Did we ever make an impact!
Sending me as a delegate was a major expense for EPC �750 approx. in direct expenses which it cannot afford; but was it ever worth it!
(Bear in mind, EPC does not charge a sub. nor do we get a penny in public funding. Your kind donation, if you make one today, will help make sure we can continue our good work at HQ. We are v. much in the red on this, so please don't assume someone else will donate instead of you.)
I had the chance to speak personally to virtually every one of our top family judges. Lord Justice Wall told me EPC's was one of the most powerfully argued submissions in response to MAKING CONTACT WORK. It had impressed the committee and would be influential in their recommendations.
I was thanked at the end by the conference organizers for registering for the conference and participating fully in the discussions. What a turnaround! When I first arrived, they had people follow me around to watch my every move! By the time I left they were telling me how grateful they were for EPC's participation in the conference.
THE DOWNSIDE
It was disappointing that other like-minded organizations did not send a delegate to this conference, nor members of their leadership even to join the protesters on the outside. What an opportunity missed! The impression given is that this is not a big problem. It is only a few cases! That is what they believe.
If you want to see this problem fixed within the foreseeable future, you simply have to come to protests. I know not everyone is comfortable with protesting, but it is clear to me that they are making their mark. How fast they work is directly proportional to their size, it's that simple.
There is much more I could say, but will save it for my full report which will follow in due course. I wanted to get something out to you all on my return from Bath (late last night).
Once again, congratulations and many thanks to all those who attended. If you could not attend, please send a donation to help offset expenses.
Best wishes, Tony
Tony Coe, President, EQUAL PARENTING COUNCIL Speaking Out for Children of Broken Homes Direct Line 020 7590 2701 - mobile: 07768 366 100 Email: [email protected] "Children need BOTH Parents!" www.EqualParenting.org
BATH WORLD CONGRESS ON FAMILY LAW – SEPTEMBER 2001
NOTES ON THE CONFERENCE: I was the only official representative from any organization representing parents. Vast majority of attendees were lawyers.
OPENING SESSION set the theme.
The judge visiting from overseas who opened the Congress said, "justice is about fairness and balance".
Children are our richest national resource. We should be investing in prevention. Persistence and determination are omnipotent.
David McIntosh, President, Law Society of England and Wales. His parents split up when he was 7. Without a very good, West Country family lawyer his mother (and he) would have been seriously disadvantaged. Children are well served by the family division. Rights are enforced, he said. [Oh dear!]
MEANS AND METHODS OF INTERNATIONAL COOPERATION IN RELATION TO CHILDREN
CHAIR: LJ THORPE
The Hon Madam Justice Claire L’Hereux-Dube, Supreme Court of Canada: re international abductions, she said: "For a child and parent to be separated even for a day can be an eternity".
[I thought how equally this applied to all those everyday cases where the abduction is one of the child’s mind – ie where the child has been turned against the other parent without good reason – Parental Alienation]
"We made it mandatory for judge to interview child re custody. Child’s views must be probed sufficiently."
LET THE CHILD SPEAK OUT – THE WISHES OF THE CHILD AND FAMILY DISPUTES
CHAIR: The Hon Justice Richard Chisolm, Family Court of Australia
The Hon Justice James (Jim) Williams, Supreme Court of Novia Scotia, Family Division.
Must consider implications of child’s choice.
In Ohio, a child of 12+ can decide custody unless parent is unfit.
In Georgia, a child of 14+ ditto.
[Note "custody", not deciding whether to even see a parent! North American practioners are incredulous when I tell them UK courts allow children simply to shut themselves off from one perfectly good parent]
The judge made some good points about getting the child’s views:
1. Evidence of child – don’t put child in the middle.
2. Lawyer for child.
3. Through parties/others
4. Expert report/assessment – place context on wish being expressed.
5. Interview with judge.
Is preference clear and unambiguous?
Are the alternatives/implications well understood by the child?
How informed is the expressed preference?
Strength of wish
Overall context – e.g. Siblings, extended family?
Influence?
These matters should be considered early, at the pre-trial stage.
Dr Judy Cashmore, Psychologist University of New South Wales.
Research states that children are saying:
they want To know what’s going on
they want their views to be respected as a person ("Why are you talking about me?")
they don’t want to make decisions – participation doesn’t necessarily mean taking decisions
they don’t want to be part of the process (some say)
most weren’t expecting the separation
they don’t feel well informed
they don’t feel they are being consulted
In Australia, 60% of contested cases involve expert family reports, which are very influential.
STUDY: one-off meeting with stranger no good. Children don’t like being misinterpreted. Child wants to tell the judge but they want the judge to keep what they say confidential from parents. Children say they are not happy with their views being filtered. They clearly don’t trust that their message will get through.
There is very little longitudinal research – info. on long term outcomes.
The Hon. Mrs Justice McGuinness, Supreme Court of Ireland – extempore response to previous speakers.
Research on children’s views of process and outcomes is important. Best interests/welfare changes all the time with Societal changes.
Court report based on one interview is no good.
Courts must be careful about expert reports. The facts on which the report is based must be true.
Not all children want to be involved in giving their own decision.
CONTACT ENFORCEMENT AND FACILITATION
CHAIR: The Hon Mr Justice Wall, Family Division, Royal Courts of Justice
His Hon Judge Patrick Mahony, Family Court of New Zealand
In high conflict cases the children align themselves with one parent. Court gets report from a "registered psychologist". Use of parental education classes is fruitful. They take a planned approach to post-separation parenting.
There needs to be clear and unambiguous arrangements in the parenting plan to reduce the opportunities for conflict.
Avoid situation where one parent effectively exercises veto.
Intervene quickly post separation.
Andrew McFarlane QC Barrister, England
KEY: Is there a good foundation for opposing contact?
Court can require surety or impose a fine.
S34 – Officer can be sent round to get child.
Where it is clear that the child would benefit from contact with both parents, the courts should make and enforce contact orders.
Eunice Halliday, Director, National Association of Child Contact Centres
What children want is a relationship, not just contact/access.
She would like to see a better term than "contact" or "access". One Canadian judge in the audience suggested "parenting time", being the term she always writes into her court orders. [EPC has said the same all along!]
Parents attending contact centres sometimes don’t know how to play with their kids. The volunteers get on the floor and help.
Recommended a new web site www.itsnotyourfault.org [superficial and v. slow]
Vicky Leach, National Family Mediation Adviser of the NCH Action for Children, England
KEY: What is right - for the children?
Children want fairness. They also want to know what’s going on.
They don’t want to choose a parent.
Court Reporter has insufficient time to build trust and ascertain true wishes – that is to say, to get to the bottom of the child’s wishes and feelings.
They simply report on their brief encounter with the child.
Advocates referral of the court order for contact to mediation to discuss how the parents are going to make the ordered contact work. [Example of the sort of support CAFCASS should be providing, instead of just writing reports that follow contact down to zero.]
DISCUSSION:
A Canadian judge from Edmonton made the point from the floor that she thinks judges are too soft. She has a reputation for enforcing her orders, whether for parenting time (she eschews the term contact) or maintenance.
She tells the obstructive parent to bring their toothbrush next time! She will jail offenders without hesitation. They soon correct their conduct. The threat is almost always sufficient.
[She believes strongly in parental education classes and is sending me information on a programme in California that uses role play and is proving very successful. The course organisers believe in both parents being involved and there being overnights from the get-go, even if it’s a baby. Her colleague, a judge called Sylvia, told me she, Claire and their fellow judges have a reputation for being tough on parents who interfere with the other parent’s relationship with the children. Their reputation means that parents mostly comply with their orders. Their lawyers tell them they better! Contrast that with UK lawyers who know, on the whole, judges here will largely do nothing to ensure contact happens.]
INTERNATIONAL MAINTENANCE & CHILD SUPPORT ENFORCEMENT
CHAIR: Sharon Corbitt, Chair, Family Law Section of the American Bar Association, USA.
Prof. Robert Spector, Professor of Law, University of Oklahoma, College of Law, USA
Children are society’s most valuable treasure – applies to every society.
Convention places burden on states to apply foreign law.
Enforcement is expensive. Money must be provided to exercise authority. Otherwise, authorities have no value.
Prof Takafuni Sato, Attorney, Japan, International Convention of the Rights of the Child
Mr Sato practices law, solo practice in Hiroshima.
Japan operates a sole custody system (not joint). The custodial parent often does not want any support from the other parent, and the non-custodial parent often does not want to provide support.
There are only 8 Notaries in Hiroshima, which has a population of 1 million. Notaries are mainly ex judges, etc. Fees are high due to oligopoly.
A notarised agreement or mediation document is almost as good as a court order. But even a court order is not much good.
Big flaw is there is no sanction for non-disclosure of assets. Judge has no power to reveal assets. It is not a crime under Japanese law not to pay maintenance, even if as long as 5 years of arrears.
David Truex, Solicitor, International Family Law Chambers, London, England – Getting Blood from Rolling Stones: International Maintenance Enforcement.
See his handout. He is at the coalface trying to get maintenance from overseas obligors. It can take years and costs a fortune. Process must be streamlined and supported with money so that maintenance can be collected.
[He accepted my point that parents who are allowed to remain involved in their children’s lives are much more likely to meet their financial obligations. However, he said that takes time and, in terms of priorities, that it was more important to put bread on the table.]
[Professor Kurt Siehr, Director, Institute of Private International Law, University of Zurich, Switzerland, one of the speakers at this session, approached me privately afterwards and said he thought my point was absolutely right, but the solutions not so easy.]
REPRESENTATION OF CHILDREN IN LEGAL PROCEEDINGS.
CHAIR: The Hon. Mr Justice Holman, Family Division, Royal Courts of Justice
Marvin Ventrell, Executive Director, National Association of Counsel for Children, NACC, Association of Children’s Attorneys, Denver, Colarado – Representation for Children in Abuse and Neglect Cases
Often faced with 2 representatives - "Best Interests of the Child" rep.(usually a Guardian) versus "Expressed Wishes Representative" – on either side of the court.
He talked about "youth empowerment".
Michael Antrum, Solicitor, Law Society of New South Wales.
Children’s Court must be representative of best practice.
Liz Goldthorpe & Pat Monro, Solicitors, Association of Lawyers for Children, UK – New Government structures for the Representation of Children in Family Justice – Rights or Welfare?
LIZ: Case of Maria Colewell, 7 years old. Her death in 1993 led to Public Inquiry that led to the appointment of an independent representative in care proceedings. There have been 50 Public Inquiries since.
PAT: Has acted for children since 1970s. Important for representation where a child protection issue arises.
Private law (unlike public) does not have a right to child representation.
Legal representative and welfare representative – the "tandem approach".
LIZ: Judicial Review. CAFCASS lost and had to pay costs. Took unlawful action. One third of Guardians do not want to join CAFCASS.
Justice Holman proposed a motion that all children should be represented in ALL legal proceedings. I proposed qualifications and was supported by a very senior Irish family court judge, but the ALL motion was carried.
I asked Justice Holman to add a note that nearly all attendees were beneficiaries – i.e. lawyers!
IMPACT OF SOCIAL CHANGE ON THE FAMILY
CHAIR: Chief Justice Alistair Nicholson, Austraila
Dame Brenda Hale – Court of Appeal
She posed the question, acknowledging that it would be controversial, have we gone too far in asserting the right of the child?
Must balance with responsibility. There are reciprocal obligations on children.
There is a big trend towards people not marrying, but two-thirds of births are registered to 2 parents.
Cartoon on slide showing little boy asking mother: "Mummy, where do daddies come from?"
Department of Health recent research – not yet published – says that in stepfamilies a higher proportion of children are in touch with their other parent and are enjoying it.
Still large numbers of children lose touch with one parent.
Children’s rights are no more important than their needs. Those needs have to be assessed by adults – their parents or substitute.
A well-known professor said that the interests of the weakest often depend on the security of the strongest. Yet we are making marriage unattractive to men. At the same time we have made divorce more attractive to women.
Cartoon around Scrabble game: "Marriage, isn’t that some sort of pre-divorce agreement?"
Children lose out if they don’t have 2 involved parents.
30% of divorces happen when children have grown up.
Grandparents are important in facilitating contact.
HUMAN RIGHTS OF CHILDREN
CHAIR: The Hon. Lord Bonomy, Court of Session, Scotland
Professor Vitit Muntarbhorn, Professor of Law, Chulalongkorn University, Bankok, former UN Special Rapporteur on Child Trafficking (Thailand)
Child has a right to be heard and to have views respected.
But, he asks, does the CRC neglect the rights of the family and the rights of parents?
[Child’s wishes and feelings are important but they should not overrule their needs. Children can’t decide whether they attend school, do their homework, smoke, take drugs, visit the dentist, etc. Also the context in which those wishes and feelings are expressed must be taken into account.
[Research is needed on what children would want if their parents were to separate – i.e. the views of children who have not yet been contaminated by divorce/the family justice sytem. We need to ask, what values are we teaching our children.]
SOFTENING THE BLOW – DOES A CHANGE FROM "CUSTODY" TO "RESIDENCE" MAKE A DIFFERENCE?
CHAIR: The Hon. Justice Emile Kruzick, Superior Court of Ontario, Family Court, Canada
He held up a copy and referred to Maureen Freely’s article in The Times, 17 September 2001. He also referred to the parents’ protest outside the conference centre. Perhaps the law is not working so well here in UK.
Prof. Christine Davies QC, Faculty of Law, University of Alberta, Canada
She referred to the Parliamentary Committee report "For the Sake of the Children" and said it recommended joint parenting. The emphasis is on Parenting Plans.
Senator Ann Cools took up the fathers’ position when law was being toughened on payment of maintenance. Cools did a deal that it could only go through if the Parliamentary Committee went ahead.
However, the recommendations have been tabled for 3 years pending further research. Fathers are up in arms at this.
The National Post – major Canadian newspaper - took up the fathers’ position.
The Minister will reply to the report For the Sake of the Children in May 2002.
Jennifer Cooper QC, Chair Canadian Bar Association, Family Law Section, Canada – Child Custody Litigation – Best Practice in Canada.
She has been a lawyer/mediator/collaborator for 20 years.
There is a trend towards mandatory parenting education programs – on the basis, if you want the privilege of using the family court system, then you have to first take the education first.
Court users, i.e parents, had been saying that the court system disempowered the parties. The courts took these views on board.
There are now early intervention conferences.
Terminology has changed from "custody" and "access" to "shared parental responsibility".
In the Manitoba Court, they have introduced AUTO ORDERS. There are pre-set terms that go into orders. Provisions must be selected from these precedents or there has to be a good reason to depart from them. Simplifies negotiating consent orders.
The benefit is the parties can leave the court with the order in their hands. There is a high level of customer satisfaction.
The Hon. Justice Richard Chisolm, Family Court of Australia – Recent Legislative Reform of Children Law in Austria: A review.
An older judge, he mentioned that the conference organisers were selling his handout, Legislation Research Report and his paper, but we could get them for free at the web site www.familycourt.gov.au
To see the intentions of the new law it is necessary to look at the speeches that led up to it. [I mentioned in my reply that speeches in our Parliament that led to Children Act 1989 said, in effect, shared residence was the way to go as the common form of order. This intention subsequently ignored by UK courts.]
The Bill was intended to reduce the attitude of separating parents treating children as property. The idea was to stop children being treated as possessions.
This goes to the concepts of power and responsibility – residence and contact orders, he said, don’t touch these issues.
Each parent retains equal rights and responsibilities – even if they live with one parent. One intention was to reduce the idea of the other parent being "only for entertainment" – e.g. Disneyland Dads.
He said the jury was still out on whether the reforms were working. Certainly fathers like them.
DISCUSSION:
One Australian, elderly judge said from the floor that he had encountered many such protests in his long career – I think he was retired. He suggested that the protesting parents probably fell into 2 categories (a) those who had been pronounced unfit to see their children; and (b) those who had a contact order that was not being observed by the custodial parent.
I responded that I knew many of the parents outside personally. Most were loving, devoted parents who were being excluded from their children’s lives for no good reason; that the UK family justice system was not working as Parliament intended and the system was in chaos. These parents had valid reasons for protesting and the last thing I wanted to see happen was for representatives of the judiciaries from other countries to leave this conference thinking that the UK system was working well. Nothing could be further from the truth.
Tony Coe