Background:
Each year, some
85,000 families with children under 16 undergo divorce.
The standard aftermath includes disputes over how much
the 'non-resident parent' (generally the father) should
see his children. Children First, a 1998 Government
paper, indicates that 40% of separated mothers admit
to thwarting contact. Some 80,000 parents issue proceedings
a year, many of them fathers seeking reasonable contact
with their children. A common outcome is permanent severance.
Local
authorities may have participated in the manufacture
of a generation of one-parent families via the Probation
Service levy.
The
Family Court Welfare Service
The
controversy centres on a Probation Service offshoot:
the Family Court Welfare Service. Each year its 660 officers
prepare welfare reports on some
10% of the nation's birthrate.
Officers
receive no material training in their work. Normal family
men are routinely assessed as unfit to have significant
contact with their children; normal children are routinely
sentenced to years of a 'relationship-building programme'
to condition them to withstand visits from ordinary Dads.
The
lack of training is a fact. The Service cannot produce
its guidelines on what sort of recommendations its officers
should make because the guidelines do not exist. There
is almost nothing to train officers in. There is no qualification.
Parking wardens train for longer in parking.
A
few questions at the next finance committee will confirm
that the Service never did its homework.
A
House Built on Sand
According
to the Lord Chancellor's Department, the Children Act
1989 'seeks to encourage both parents to continue
to share in their children's upbringing, even after separation
or divorce'.
Until
welfare officers are trained, the reverse will be achieved.
When
deciding how to apportion a child's time, the courts
rely on the welfare officer's assessment. Misplaced
faith in the Service's professionalism has delegated
a major social policy issue to unqualified criminal probation
officers on the lookout for troublemakers.
After
two decades, the Welfare Service has failed to produce
a single sheet of A4 paper setting out what sort of recommendation
should be made in what sort of circumstances; officers
can recommend 12 hours of contact a year, or 182 nights,
on the same facts.
The
Service has conducted no research. It is in possession
of no research. It does not know what its officers recommended,
or why, or what the consequences were. After 500,000
quasi-identical disputes, it has not progressed beyond
the adage, 'all cases are different'.
The
Service has no view on whether, in the median case, the
pattern of contact should be 'alternate weekends' ; or
a 60/40 split; or a couple of hours a week. Is a child
'too' young for overnight stays at the age of one? Or
five? Can children 'bond' with more than one adult at
a time? The Service's entire research base may be a photocopied
article from the spring 1982 journal of the Pennsylvanian
Trial Lawyers Association.
Hard
evidence of this deficit, which emerged in 1996, precipitated
three years of stonewalling by the Probation Service
and its parent Ministry, the Home Office. The possibility
now confronting the Lord Chancellor's Department is that
some 35,000 suspect reports a year are rubber-stamped
by the Courts.
The
Legal Framework
Parents
who leave home are surprised to find that they have no
right to see their children again. The law can be summarised
in a single sentence: if the 'resident parent' wishes
to stop all contact s/he must put forward a reason.
There is a presumption of some contact - but no presumption
of reasonable contact. The only right conferred by the
Children Act 1989 on the non-resident parent is to apply
to see his/her children.
In
the context where the parent needing to fall back on
his rights has no rights, a welfare officer's default
assumptions assume critical importance.
If
'all cases are different', any reason - no matter how
trivial - can justify any level of contact, no matter
how low. Hence it matters little if allegations recited
in a welfare report are significant or true. And since
almost no contact is the precursor of no contact, a concern
that the father might cook cheese sauce will send him
slithering towards loss of his child.
Disputes
which could be ended in days are fuelled for years. If
there is no presumption of reasonable contact, withholding
reasonable contact cannot be wrong. The parent frustrating
contact is praised; the parent seeking meaningful contact
is denigrated for 'confusing his own needs with the needs
of his child'.
A
Deficient Service
The
Service's failure to train officers has led to elementary
error. Section 1 (5) of the Children Act says that there
should be 'no order' unless it is 'better'
for the child; officers infer that the applicant should
show that his proposals benefit the child.
But
the child will be well irrespective of seeing one parent
or two. The 'benefit test' entails non-resident
parents in proving that their proposals (say, going for
a walk) will make the child better. This is impossible.
But proposals which cannot have visible benefit may have
visible detriment, leaving the child worse off.
The
child's fingers might get grubby ('inadequate attention
to personal hygiene'); the child might become tetchy
two days later ('difficulties in adjustment').
Or the welfare officer could invoke the maxim that 'conflict
is bad for children': for, when parents disagree
about the level of contact, there is conflict. So contact
should not be increased until the conflict is resolved.
Parents
denied material access to their children have, as an
almost invariable rule, done nothing wrong.
A
Deficient System
A
Cleveland-scale disaster may have passed unnoticed every
day for years behind a veil of confidentiality.
It
is only very recently that the Home Office and the Lord
Chancellor's Department were forced to reply to correspondence
on family policy issues. The result of not having given
an account of themselves for years is that they have
no account to give.
The
idea of conscientious teams of professionals toiling
over the latest research is misplaced. There is no official
research. After ten years, a million cases and billions
of pounds, the first study on outcomes is awaited, as
is the first verbal exchange with an actual court-user.
Neither of the lead Ministries has any idea of what they
have done for the last decade.
The
counterpart of bureaucratic myopia is a broad denial
of natural justice. In secret family courts, there is
almost no right of appeal. There is no right of cross-examination
of welfare officers. Hearsay evidence is accepted; perjury
is tolerated. A judge can pass any 'sentence'
for any 'offence' irrespective of whether it
happened. He can rewrite his judgement. Expert evidence
is habitually excluded. The experts on whom the courts
rely are untrained. The dilemma governing the outcome
of every case has received no consideration.
Should
non-resident parents show good reason why there should
be meaningful contact with their children? Or should
resident parents show good reason why there should
not be meaningful contact? This issue, as crucial
as the presumption of innocence, gives opposite meanings
to 'the benefit of the child'.
A
Bug in the System
The
history of how these deficiencies came to light illustrates
how far the Welfare Service and the Family Division have
gone out of true.
On
18 May 1995, in defiance of all legal advice, a non-resident
parent lodged the first seriously-prosecuted complaint
about a welfare report. After a year of evasion, the
papers reached the Service's final tribunal: a secret
'panel' of the Probation Committee. The President of
the Family Division was on this Committee; over time,
its members received hundreds of letters from other complainants
about the shortcomings of the Service. From 1996 the
President must have known that the evidence on which
his courts relied was suspect.
On
16 July 1996 the complaint was rejected in a letter confirming
that the Panel did not read the file and had refused
to obtain it; on 27 August it emerged that the Welfare
Service's only professional association had been threatened
with closure because its Chair had spoken to the complainant.
On
19 November 1996 the Chief Probation Officer wrote to
the complainant's MP stating that the Panel had gone
through the file it refused to obtain 'with a fine toothcomb'.
The CPO was put under complaint on 18 December 1996.
Receipt of this complaint, acknowledged in writing, was
later denied in writing. On 19 November 1997 Iain Coleman
MP described the Service concerned as 'approaching an
open scandal'; on 27 November 1997, when the Service
was infested by dozens of unacknowledged complaints,
its Chairman wrote to a second MP: 'The Service takes
all complaints seriously and they are always acknowledged'.
The
clue to why the original file went unread was contained
in a letter of 10 June 1996: the Service could not tell
'and did not seek to tell' whether reports were reasonable.
When considering a welfare report for 'quality control',
the Service excluded both what the report said and what
it said it about. The inference - that the Service had
no training and no guidelines - proved correct
All
over Britain disenfranchised parents were emboldened
to lodge complaints against their reports for lack of
professionalism. The Service countered by restricting
complaints to any aspect of a report apart from its contents.
Attempts to put the prohibited questions in court forced
a Court of Appeal disclosure that there was 'no right
of cross-examination'.
Complaints
against welfare reports evolved into complaints against
area CPOs for failing to train their staff. Probation
Committees turned a blind eye. They too went under formal
complaint; the Home Office denied responsibility for
the Committees; the Lord Chancellor's Family Policy Division
denied responsibility for the Home Office.
By
late 1997 the Home Office, under siege from dozens of
constituency MPs, began a correspondence whose common
coin was demonstrable untruths. This put the Welfare
Service's parent body at risk. On 16 February 1998 Jack
Straw announced plans to sever the Welfare Service from
the Probation Service.
Progressive
Decay
A
year on, the edifice of family justice is crumbling.
The Service is under hundreds of complaints; the Head
of the Probation Unit has been moved to liquor licensing;
the President of the Family Division is going; the Inspectorate
of Probation, in connivance with the bodies it should
inspect, has lied to a Cabinet Minister; the welfare
service Consultation Paper is in limbo; judicial reviews
are pending against a dozen Committees; and the Home
Office's 1998 decision to study a first set of 'guidelines'
prepared by the professional association in 1996 has
castrated the Lord Chancellor's Department.
To
adopt proper guidelines for welfare reports would entail
staff training and show that a generation had gone to
waste for nothing. But the Service has no mechanism for
training staff. The imperative of diluting the guidelines
has been delegated to a Home Office 'network' of unnamed
probation officers.
But
different guidelines produce different case outcomes;
to review guidelines is to review family policy. The
Home Office is userping the function of the Lord Chancellor's
Family Policy Division.
The
end-game is unavoidable: the preparation of proper guidelines
by competent professionals reporting to a proper Review
Body. At stake is the future of this and the next generation. |
