The philosophy of the Children Act 1989 is non-interventionist. There is no legal requirement for parents to go to court for an order to settle matters if they can come to their own arrangements. Even where court proceedings are commenced, the Children Act itself requires the court to refrain from making any order at all unless it deems that an order is necessary in the best interests of the child.2 The Private Law Programme3 which governed private child law disputes in 2011 reflected the philosophy of the Children Act 1989. It required judges to find the appropriate balance between facilitating adult conciliation and managing the risks for children.
The Private Law Programme promoted early intervention by professionals at pre-application or application stage to resolve disputes using alternative dispute resolution wherever possible. Mediation was considered to be particularly helpful for disputes over residence and contact where there were no child welfare issues.4 As our sample had a fixed end point,5 not all of our cases started within the revised Private Law Programme.6 However, we observed from the files that in most courts the parties’ first hearing had taken place on a Cafcass day where they had a chance to meet with a Cafcass officer to try to resolve their issues in advance of the first hearing. Further directions hearings were often also scheduled on a Cafcass day.
The Private Law Programme recognised that domestic violence, drug and alcohol misuse and mental illness had an impact on private child law cases and that consent orders should be scrutinised where
1 (The President of the Family Division, 2004) [2005] Fam Law 196. 2 Section 1(5) Children Act 1989.
3 (The President of the Family Division, 2004) [2005] Fam Law 196.
4 Family Law Protocol (The Law Society 2005); The Children Act Advisory Committee, The Handbook of Best Practice
in Children Act Cases (Lord Chancellor’s Department, 1997) Ch 4, [38].
5 We selected cases, which ended between February and August 2011. 6 The longest-running case in our sample, E36, had begun in 2000.
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such risk factors existed to ensure that children were safe.7 The revised Private Law Programme promoted parental resolution of issues with the assistance of a Cafcass officer within a risk identification framework managed by the judges.
The text of the Private Law Outline envisaged two types of court hearing – an initial directions appointment to promote conciliation which could be followed by a formal hearing. The Family Court retained broad discretion to conduct a case in the most appropriate way possible and could decide whether or not to hold a full hearing.8
Only 27 of cases in our entire sample proceeded to a full formal contested final hearing. Instead, it was normal for multiple directions appointments to be used to reach agreement. This process allowed decisions as to the frequency and details of contact to be made on the basis of submissions by the parties without evidence being formally heard.9 This use of directions hearings is common practice and has the obvious advantage of enabling parties to reach their own agreements without one being judicially imposed upon them.10 In our sample, even contested applications were routinely settled without resort to trial.
Our findings reflect those of Bailey-Harris who found that family courts had developed systems for managing cases through a series of first appointments and review hearings. The judges provided target dates by which the parties were expected to have made substantive progress, ideally agreeing a final outcome which could be approved by the court in a consent order.11 Mitchell cautions that the practice carries a danger that cases may drift in the hope that problems will resolve themselves without a need for issues to be properly addressed by formal hearing. 12
In our sample, the number of hearings ranged from 013 – 26. Most of these hearings were short 15 minute reviews. In Cladford, a number of directions appointments were made over the telephone by conference call between the judge and the parties’ representatives. The courts were attempting to save time and minimise costs for the parties.
7 Practice direction: Revised Private Law Programme [2010] 2 FLR 717, [1.3]. 8 Re C(A Child) (Contact: Conduct of Hearing) [2006] All ER (D) 214 (Jan).
9 Applicants have no legal right to a full hearing: Re C [2006] All ER (D) 214 (Jan) & Re D (Children) (Contact: Conduct
of Hearing) [2006] All ER (D) 85 (Feb, CA).
10 J Mitchell, Children Act Private Law Proceedings: A Handbook (2nd Edition, Jordan 2006) [16.21].
11 R Bailey Harris ‘Settlement Culture and the Use of the “No order” Principle under the Children Act 1989’ [1999]
CFLQ 53.
12 J Mitchell, Children Act Private Law Proceedings: A Handbook (2nd Edition, Jordan 2006) [16.23] - [16.25]. See also
G Davis & J Pearce, ‘A View from the Trenches – Practice and Procedure in Section 8 Applications’ [1999] Fam Law 457.
13 Case D18, which was disposed of simply by reading the parties’ letters.
Number of Hearings Cases % of Cases Cumulative %
Disposed of in 1 hearing or less 22 11.2% 11.2%
2-3 hearings 46 23.4% 34.5% 4-5 hearings 43 21.8% 56.3% 6-10 hearings 62 31.5% 87.8% 11-15 hearings 16 8.1% 95.9% 16-20 hearings 7 3.6% 99.5% Over 20 hearings 1 0.5% 100.0% Total 197
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57% of the final orders in our sample were marked as consent orders.14 Whether or not the parties
gave truly free consent to these court orders marked ‘by consent’ is difficult to ascertain. Consent can sometimes seem to be more apparent than real, especially when the consent order is made suddenly after long-standing and significant conflict between the parents.15 This is particularly so in cases where one party was unrepresented or where there was heavy Local Authority involvement. Our concerns about consent in this context are further discussed in Chapter 6, at page 124.
The high number of consent orders does not necessarily mean that parents could have come to a resolution without the need for court involvement. The different roles played by the court were essential to achieving resolution.16
In some cases where the parties were in full agreement from the beginning, a formal order from the court was necessary to give the situation a recognisable stamp of approval. For example, in E28, the mother lived in Germany and the father lived in the UK. The couple wanted a residence order to allow the child to attend school in England without any administrative difficulties.
There were also a number of cases where adults who were not the children’s legal parents, but were caring for them, needed formal recognition of the situation through a court order. In E20, for example, a 7-year-old child had been living with her paternal aunt for nearly six years. She wanted a residence order and parental responsibility so that she could eventually apply for British citizenship for the child. These cases are examined in more detail in Chapter 6, at 6.3.
In other cases, it was necessary for the court to adjudicate a dispute over a factual matter before the parties could reach an agreement. Without these decisions, negotiations between the parties could not have moved forward.
In C40, dad’s suspicions that mum was using heroin were confirmed by tests, despite her repeated denials. She then engaged with a drug treatment programme and following a series of regular drug tests and supervised contact, a shared residence order was made by consent one year later.
The court did not always determine factual disputes. In some cases the court deemed the parties’ dispute over an incident of past behaviour to be irrelevant to the issue of contact or residence and used undertakings to alleviate concerns about similar behaviour in the future. For example, in C18 the mum’s concerns about dad’s drinking were assuaged by his undertaking not to consume alcohol on any day that he had contact. The final order for contact was made by consent.
There remains a risk in cases where a factual dispute is not resolved, but is instead deemed to be irrelevant, that agreements will break down in the future if parties continue to revisit the issue.
In B27 the parties had a previous shared residence order from 2008, under which the two daughters aged 10 and 13 lived predominantly with their mum in Borgate, spending alternate weekends and half of the holidays with their dad in the North of England. The preamble to the 2008 order stated that the parties had agreed that a fact-finding in relation to mum’s domestic violence allegations was not necessary. The Borgate social worker who wrote the Section 7 report noted that this was regrettable; in the absence of the fact finding mum was continually dragging up these same allegations. The parties eventually agreed that the children would move to live with their dad for a six-month trial period, and the father withdrew his application for residence.
14 106 parent cases were marked ‘by consent’ as well as 7 non-parent cases 113/197 (64%). The percentage is similar
to Cassidy and Davey who found 52%: D Cassidy & S Davey, ‘Family Justice Children’s Proceedings: Review of Public and Private Law Case Files in England & Wales’, Research Summary 5/11 (Ministry of Justice, 2011).
15 C Smart and others, Residence and Contact Disputes in Court: Volume 1 (University of Leeds 2003) p28; J Hunt &
A Macleod, Outcomes of Applications to Court for Contact Orders after Parental Separation or Divorce (Ministry of Justice 2008) p175.
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Interim orders were used to manage contact, and sometimes issues of residence, while the dispute was being resolved. These interim orders were regularly reviewed and progress monitored.
The way in which interim orders were used differed from court to court. Some judges seemed to have a policy of immediately making an interim residence order to stabilise the situation before obtaining more information,17 with which to make the final decision. Other judges avoided the use of formal orders at interim stage as far as possible, merely noting any compromises the parties had struck in the preamble to interim orders made to obtain further evidence.18
This second approach, designed to get the parties to stick to their own agreements without giving them the force of a court order, was particularly prevalent in Cladford. Parties in Cladford who could not stick to their interim agreements were sent to a different judge for a final hearing where a formal order was finally made. This seemed to be a deliberate approach to encourage settlement with the imposition of a formal court order viewed as a last resort.
In other cases, details of contact were left out of the court order and instead merely recorded in the preamble to the order. This held the parties to a bare minimum agreement that contact would happen but rendered other aspects of their agreement unenforceable. For example in B11, the interim contact order stated that the father would have contact on alternate Saturdays from 10am to 6pm. The preamble to the order recorded that, in addition, both parties had agreed to work towards more contact including 1 overnight for the father per month. In B25 the formal order laid down a timetable for day time contact at the weekends. The preamble recorded that the parties agreed that overnight contact would take place every other weekend subject to the father confirming his ability to provide appropriate accommodation.