Of the problems that constituents bring to my ‘surgeries’, I would estimate that for nine out of ten cases, in whatever way the problem has presented –be it housing, debt, schooling or whatever- scratch the surface, and the real underlying cause is family-breakdown.
Sometimes that breakdown is explicit and presents in a dispute over access to the children.
I never cease to be amazed at the way in which some parents are prepared to use their children as weapons in a continuing vendetta against their former partner.
I think that the current state of family law exacerbates the situation and cries out for reform.
In practical terms, the amount of access that the non-resident parent can have, is set by the resident parent. If the non-resident parent accepts this then that is fine, but if this is not accepted, then the only option is for the non-resident parent to go to court.
The court will decide the matter in accordance with the principle set out in the Children Act, namely ‘the Child’s best interests’, but nowhere is this defined, and nowhere is it set out what reasonable expectations of access ought to be.
Of course, cases will differ and there must be discretion. Indeed, there will be some parents that ought properly to be denied any access to their children whatsoever.
There ought to be however, a principle underlying a child’s right to see a parent and a parent’s right to see a child. I suggest that the principle should be: ‘unless there is a good reason not to grant reasonable access, then such access should be had’.
This still leaves us with the problem of what ordinarily will constitute reasonable access. The Judges in the family courts rely on the ‘expert’ advice of the Children and Family Court Advisory and Support Service (CAFCASS). I am suspicious of this expertise: I understand that CAFCASS gives its officers no written guidance on the parenting-time that should be recommended. Neither does it offer that advice to parents, so that they can have an idea of what sort of access is expected in their type of case.
The absence of any published guidelines is a standing invitation to the resident parent to be unreasonable and to resist any settlement arrived at by mediation, because there is no expectation about what a court would decide in their sort of case. So, the burden and expense then falls on the court system. Where, because there is no defined principle or reasonable expectation, the outcome can range from full reinstatement of contact to protracted and near total severance as the case grinds on.
Furthermore, unreasonable behaviour can become habit-forming. Resident parents -having got into the habit before a court settlement, find it hard to get out of it, resulting in multiple returns to court.
I believe that it is high time that the judiciary defined reasonable expectations for broad categories of cases (age related, or whatever).
This guidance needs to be given to separating parents so that they know how the courts are likely to deal with them, should they get there.
This will then inform their behaviour from the outset and make for more reasonable and less costly mediation.
At the very least, it’s worth a try.