Child support, family mediation and social workers are all under the microscope. Lucy Trevelyan looks at plans for the latest child law review


Lord Mackay of Clashfern, Margaret Thatcher’s Lord Chancellor, described the Children Act 1989 as ‘the most comprehensive and far-reaching reform of child law... in living memory’.


The Act came into force in 1991, revolutionising the law relating to both private law (disputes between parents over their children) and public law (disputes between local authorities and parents). It is described by the Law Society’s children law sub-committee chairwoman, Sally Dowding, as ‘a vast improvement on the hotch-potch of law which pre-dated it’.


Nevertheless, it was not perfect. Two years ago it was modified to give unmarried fathers shared parental responsibility if they are named on the birth certificate.


And in September last year, the government published a Green Paper, ‘Every child matters’, paving the way for yet another overhaul of child law.


Meanwhile, Theresa May, shadow secretary of state for the family, has been charged by opposition leader Michael Howard with conducting an extensive consultation on the Act and its workings in practice.


In a speech last month, Mr Howard said the Act has done many good things, but expressed his fear of an imbalance between the rights of children and parents.


He said: ‘We need to make sure it doesn’t lead to parents being denied vital and important information about their child. Or a child being allowed to make a decision that is not in his or her best interests. Or the state interfering in the family unit in ways which do more harm than good.’


Ms Dowding says: ‘I welcome any serious debate about what is obviously an extremely important issue. However, I firmly believe it is such an important an issue that it would be completely inappropriate for any political group to seek to use it for perceived political advantage.’


She says it is very important to balance the rights of the adults involved as between each other, but finds it difficult to think of an example where the rights of the parent should properly take precedence over the rights of the child.


She says: ‘Human rights jurisprudence very largely recognises the paramountcy of the child’s rights where these apparently conflict with those of the parent.’


Edward Solomons, deputy Official Solicitor & Public Trustee, comments: ‘We support the principle that the welfare of the child is paramount. Within that principle, the balancing of the human rights of the parents as well as those of the child can usually be achieved.’


Mr Solomons, who represents the Government Legal Service on the Law Society Council, adds: ‘There is a need for all concerned in Children Act proceedings to be conscious that where a parent has a learning difficulty or mental illness, they also come within one of society’s vulnerable groups, and it is important that their needs within the proceedings are recognised.’


David Wheeler, co-chairman of the Solicitors Family Law Association’s children committee, says this sort of conflict frequently arises in contact cases. He says that although courts strive to take a balanced approach, the interests of the child must prevail. ‘That’s set in stone. It’s a really positive thing because it means the child takes centre stage.’


Mr Wheeler says that as the Children Act developed, so have family lawyers, who take a more sophisticated approach to orders. ‘For example, when the law came in we didn’t think there would be many joint residency orders but they have been quite useful.’


Another welcome recent development, he says, is that children are increasingly more involved in the process in private law cases.


Gieve: difficult balance Katherine Gieve, head of the family law department at London firm Bindman & Partners, warns that such involvement needs to be carefully handled: ‘It’s a difficult balance of respecting the child’s rights and listening to their voice, and yet still protecting a child. In some cases, the child may feel s/he is being asked to take on more responsibility than a child should.’

Ms Gieve says that too often – particularly since the Victoria Climbié inquiry – there is too much emphasis on changing practice and procedure when part of the solution is much simpler.


‘You can’t value enough the quality and experience of a social worker. Although the process can be important, problems can arise because of a lack of good judgement by social workers. You won’t improve the process unless you have social workers who are experienced and well supported. In some London boroughs, this just isn’t happening.’


She adds that broadly, the Children Act is working well but the courts have sometimes not kept up with enormous social changes which have brought a change in the family norm, with children increas-ingly coming from one-parent families or living with a step-parent.


Ms Dowding says the changes made to the rules governing parental responsibility to take account of the increase of children born to unmarried partners is a good example of the law being amended to adjust to changing social patterns.


‘Under the Act as originally drafted, mothers automatically had parental responsibility for their children, which they shared with a married father. Unmarried fathers did not automatically have parental responsibility but could acquire it by agreement or court order. The Act was modified by the Adoption and Children Act 2002 to provide that an unmarried father registered on the child’s birth certificate after December 2003 automatically shares PR.’


Another good example of the law being fine tuned, says Mr Wheeler, is the introduction of the public law protocol, which was welcome even though it puts more pressure on practitioners. ‘This protocol introduced a much stricter timetable for care cases,’ he says.


Ms Gieve says the protocol draws attention to the parts of the process that are not working well. She is hopeful that something similar will be developed for private law cases.


She says: ‘Early hearings in public law cases are very important, as they are in private law cases where differences can’t be resolved through discussion.’


Mr Wheeler says three areas in the UK are currently running a pilot scheme looking at early intervention in disputed contact cases. He says the idea is to get the ball rolling as soon as an application is received by the court, which could see parents encouraged to move away from court and mediate instead.


‘There is a lot of feeling in the court system that some private cases would be better dealt with through conciliation. This is an experiment to see if this will work. It certainly works well in some US states.


‘It’s a bit controversial because in the US mediation is compulsory. However, the government has said it is not going to make mediation mandatory, which is good. We want people to be empowered, not coerced into finding a solution. Mediation is not a panacea – it’s not going to work for everybody.’


Ms Gieve says that although easy availability of mediation, conciliation and therapeutic services – which could involve former spouses and partners receiving psychological help in order to establish a working relationship – some cases are not suited to such approaches and an early court hearing is preferable.


‘There is a lot of anxiety that court proceedings turn people sour. But what’s important is to have an early application in which a judge takes responsibility and carefully assesses what sort of case it is and how it should proceed.’


She says for this to happen, more judges are required and more court time given to family proceedings.


Mr Wheeler says there has been some improvement in the operation of the troubled Children and Family Court Advisory and Support Service (Cafcass), but it is still often the cause of delay in both public and private law cases.


‘There are still delays in the appointment of guardians in child protection cases and it can take a long time to get a report from Cafcass in private law cases.


Ms Dowding says: ‘Cafcass had a very bumpy start in 2001 – but there is no doubt that Cafcass is making a determined effort to address the problems.


‘While there are a number of functions which, in an ideal world, Cafcass will eventually fulfil, it is vital that any remaining problems with the core service are ironed out before Cafcass seeks to extend its remit.’


She therefore applauds proposals in the Green Paper for involving Cafcass more in dispute resolution – ‘provided it doesn’t exacerbate the difficulties of delay in cases where court proceedings are inevitable, but would suggest that it would be even more effective if it could be accessed before proceedings are issued’.


The Green Paper paved the way for a new Children Act, and the government hopes to get it through Parliament in the current session, which finishes in November. Its key aims are to establish a children’s commissioner for England and introduce a series of measures to support better integrated planning, commissioning, and delivery of children’s services, and provide for clear accountability.


Other miscellaneous provisions include clarifying and simplifying the registration of child minders and providers of day care, and restricting the grounds on which the battery of a child may be justified as reasonable punishment.


Another agency which has drawn fierce criticism since its launch in 1993 is the Child Support Agency (CSA). Mr Wheeler says that although things have improved since the introduction of the formula to calculate payment levels, the CSA is still having problems with enforcement.


Ms Dowding says: ‘The CSA has never proved itself to be effective and there is a strong case for its abolition. As a compromise, jurisdiction should be returned to the courts in cases where, after a prescribed period, the CSA has been unsuccessful in obtaining maintenance from the non-resident parent.


‘This would address the mischief that the CSA is almost invariably unable to obtain maintenance from an uncooperative self-employed absent parent. On the other side of the coin, a significant number of parents are anxious to support their children and unnecessary state intervention in such cases can be counter-productive.’


Cafcass took over the role of representing children from the Official Solicitor and Public Trustee Office. The Official Solicitor’s involvement in children cases is now largely limited to those cases where a parent requires the office’s representation, such as by reason of mental incapacity. The office’s annual report last month showed that its workload is going up (see [2004] Gazette, 2 September, 8).

Ms Dowding says: ‘The Official Solicitor does a very good job in such cases – usually by delegating to an experienced children panel solicitor who acts as his agent for the purposes of the proceedings.’


Mr Solomons says: ‘We are proud of the service our relatively small office provides, especially where we look after the interests of children and vulnerable adults. Inevitably the tension between almost infinite demands for our services and finite resources leads to an inability for us always to be able to respond as we and others might wish. But, realistically, there are no major changes we would seek to make [to the office].’


His comments follow recent research that shows three-quarters of the office’s 166 employees are happy with their careers – up from 67% last year.


Mr Solomons says the office had recently successfully recruited some high-quality lawyers (it has 15 in all). However, elsewhere, recruitment of child lawyers – particularly young ones – is becoming more difficult.


Mr Wheeler says: ‘There has been some interesting research recently that child lawyers are ageing – there are not enough new child lawyers coming in.’


Ms Gieve says: ‘It’s partly a generational thing. In the mid- 1970s, many people were interested in becoming child lawyers, but maybe things have changed. You still have a lot of people like me in their 50s who don’t want to retrain but you don’t see as many young people coming in.


‘Lack of funding is also taking its toll. It is not at all good and doing some publicly funded work doesn’t cover its costs. Many family lawyers are dropping legal aid work altogether. My firm is committed to public work but you can only do so much work at a loss.’


Despite the funding problems with legally aided work, Mr Wheeler says being a child lawyer is ‘incredibly rewarding’ even though it can sometimes be hard to remain emotionally detached.


‘As a lawyer you have got to be emotionally detached and objective, but it’s sometimes hard when you see the problems people get themselves into. Until you have represented a child who has been abused or a child or parent with mental health problems, you just don’t know how you’re going to feel.


‘When you’re representing a parent in care cases, it is inevitable that there is going to be an application that they are not capable of looking after their children, which is very difficult. But one of the most positive things about this work is when a parent acknowledges that they’ve got problems and turns things round.’


Ms Dowding says: ‘The best bit about being a child lawyer is when intervention heads off proceedings entirely and the parties are left with a solution which works for them and best promotes the interests of the children. The worst bit is when parents are determined to use their children as a weapon against their former partner.’


Lucy Trevelyan is a freelance journalist