The family justice review review

(c) Eric Ward

Yesterday, David Norgrove, wrote an article entitled, “Children’s welfare should not be trumped by parents’ rights” in The Guardian. This referred to the family justice review that he, and a panel, had conducted on the family justice system. Albeit in a blog post, I am going critique a part of the review that has drawn headlines, namely that divorced and separated fathers will not get a legal right to a ‘meaningful relationship’ with their children.

The overarching, and noteworthy, goal of this report was to ensure that any recommendations chimed with the ‘best interests of children.’ But what exactly are the ‘best interests of children?’

In paragraph 1 of his executive summary, Norgrove writes:

We published our interim report in March. This is our final report, which reflects our conclusions following well over 600 responses to our consultation and input from meetings in many parts of the country.

For all the repeated mentions of this notable aim, there is a distinct lack of evidence of children’s views in the construction of this review. There are no supporting statements that might demonstrate that children participated in this study. Therefore, what constitutes ‘best interests of children’ is left to more powerful voices.

The vast majority of quotations come from the consultation responses provided by legal and academic experts, and interested family organisations. Whilst children were provided with an opportunity to comment on the interim report, there is no evidence that they did so. How would interested children possibly get to know of such a report? CBeebies? T4? YouTube?

Whilst Norgrove has given reasonable consideration to an Australian study on the implications of implementing a legal right to a ‘meaningful relationship’, equally, he has not drawn on any studies that have considered children’s responses to the effects of divorce and separation. Even with taking the Australian study at face value, and forgetting its noted problems, no effort has been made to rebrand the term ‘meaningful relationship’; government services have rebranded ‘alternative dispute resolution’ to ‘dispute resolution services’. Surely, legal alternatives could be given further thought.

In paragraph 2.4 on the family justice system, reference is made to:

The United Nations Convention on the Rights of the Child also makes explicit the importance of children’s rights being considered and upheld in the family justice system. Article 12 of the Convention makes it clear that children have the right to have their voices heard in decisions that affect their lives.

That being the case, why is there so little evidence of their voices being heard in this report.

I have other issues with this report, including the make-up of the independent panel members and the idea of an online hub that is supposedly accessible to all. However...

(c) Irate

The major purpose for conducting the family justice review is to speed up the judicial process. Admittedly, this is also designed for clearing up problems associated with the adoption process, but in terms of private law, it appears to be creating additional layers of bureaucracy. As well as going through an online hub, parents would need to negotiate pre-application protocols, mediation, and a separated parents information programme.

Paragraph 4.73 notes:

We note that the concerns about delay and the effect on the Private Law Programme apply equally to the Pre-Application Protocol, which is already in force. But our difference from the respondents quoted in the preceding paragraph rests in many ways on a different view of the proper role of courts. We would argue first that the extra time will be well spent if it results as we expect in fewer cases going to court, and secondly that the opportunity of the FHDRA will still be there.

“If…as we expect”…not, then, the most effusive of reasons to be taking this route. 

Potentially, we have a system that is perceived to exclude parents from having an automatic right to a ‘meaningful relationship’, and then makes it harder to secure these rights. Would the parent concerned be willing to spend the extra time going through this process? How would the child feel not seeing the parent concerned whilst the process was ongoing?

There is a discursive link between contact and maintenance that is discussed in the report. In a system that prioritises the rights to family life of one parent over another, would this affect maintenance payments? Would this be in the ‘best interests of children’?

Without going into the arguments for the rights of grandparents (which too should be looked at in more depth), it is men in particular, who are the target audience for a review of private law. Fathers4Justice have long fought for the rights of men and their right to a more equal family life. From a feminist perspective, I wonder how women perceive this review. Does it perpetuate a stereotypical view of a patriarchal world in which women ‘naturally’ look after children, thereby exacerbating the financial pressures associated with looking after a child as a single parent?

Given the government’s recent talk of a broken society following the riots, and of the need for parents to engage in their children’s education, the family justice review into private law needs further consideration before implementation. From the perspective of children, primarily, but also from anyone else who has been excluded in the process.