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Published: Fri, 02 Feb 2018
Welfare of a child
When we talk of Family law, we concern ourselves with legal rules as they are applied by the courts to regulate family relationships. These relationships between couples, their property and their children can often be difficult to resolve and traditionally the courts have proven both expensive and slow in helping to resolve them. On the breakdown of a relationship couples encounter many problems and the law provides solutions where necessary. However these solutions come at a cost and are not always palatable by both parties. In contrast to the courts adversarial approach, is mediation which has found favour in recent years. It is less costly and encourages co operation between the parties thus helping to sustain and develop existing relationships. Arguably the most contentious of family issues is that where the issue of contact with children is involved as emotions are highly charged and often the non resident parent can feel alienated and marginalised .In this essay I will be examining whether child contact proceedings are better resolved by a judge in court or by way of compulsory mediation. The government’s family justice review committee is considering whether it would be appropriate to make mediation compulsory in private family law cases dealing with relationship breakdown. As a consequence disputes over contact and residence arrangements may become subject to compulsory mediation procedures. However any cases involving domestic violence or where there are issues relating to the child’s safety would be excluded from compulsory mediation. 
The Paramount Consideration Of The Courts Is The Welfare Of The Child.
The Children Act 1989
The Children Act (1989) brought in to effect major changes to the law relating to children in England and Wales. It came in to effect on the 14th October 1991 and clearly set out in Section 1 that when a court is to determine any question with respect to the child’s upbringing or the administration of a child’s property or any income arising from it, then the child’s welfare shall be the courts paramount consideration.  The Act embodies the core principles which are to be applied when considering any order which is to be made by the court. The child’s welfare is to be of paramount concern to the court and as such any delay is to be considered as not being in the child’s best interest and should be avoided where possible  . Additionally the courts should exercise restraint and should not make an order unless it is in the interest of the child. 
The courts are given further guidance in section 1(3) of the Act which provides a list of matters the court should have regard to when deciding what is in the child’s best interest. This” welfare checklist” includes the ascertainable wishes and feelings of the child concerned which are considered in light of age and understanding. The child’s emotional, physical, and educational needs. The likely effect on the child of any change in his or her circumstances. The child’s age, sex, background and any other characteristic which the court considers relevant. Any harm which the child has suffered or is at risk of suffering will be also considered. Each parents capability and that of any other person in relation to whom the court considers the matter relevant, of meeting the child’s needs and the range of powers available to the court under the Act in the proceedings in question.  When deciding matters relating to parental rights and contact the court will refer to the welfare checklist.
The Act reflected a change in philosophy in the law relating to children, moving away from the concept of parental rights towards the rights of the child. The Principles and Practice Regulations and Guidance emphasise that children should be given a voice and their views elicited and taken seriously. The Act also emphasised greater co-operation and the sharing of parental responsibilities stressing that continuity of relationships is important and should be respected, sustained and developed. Thus family links should be maintained through contact with both parents and fathers should not be overlooked and marginalised. 
Another key change introduced by the Act was the introduction of the concept of parental responsibility. Parental Responsibility is defined in Section 3(1) of the Act as “all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property”. This shifted the power between the resident and non resident parent on to an equal footing especially in relation to dealings with third parties such as schools and hospitals.  The Act provides that parental responsibility will lie with both parents where they were married to each other at the time of birth of a child. Where the parents are not married, the mother alone has parental responsibility unless the natural father acquires it by agreement or court order. 
Section 8 Orders
Under sec 8 of the Act a range of orders were introduced that are available to parents who are in dispute over children upon separating or divorcing. The orders can be applied for or made by the court of its own volition. When making an order or subsequently varying or discharging it, the court must at all times have regard to the welfare checklist. The orders available are for “Residence”, “Contact”, “Prohibited Steps” and “Specific Issues”.
A “Residence Order” is an order which establishes with whom a child is to live with and replaces the previous orders for custody. However residence orders differ from their predecessors in that they are able to take account of shared care arrangements and provide more flexibility for parents. Additionally under the Act, residence and parental responsibility are seen as separate concepts and the making of a residence order in favour of one parent does not remove the other party’s parental responsibility.  Importantly, a shared residence order prevents parents feeling marginalised and places equal importance on the role of each parent. 
A “Contact Order” is an order requiring the parent who has residence of the child to allow the child to visit or stay with the person named in the order. A contact order can provide that the child have contact with any other person not just a parent, thus giving grandparents and step patents the right to see children which they may otherwise be denied. This demonstrates the courts attitude in shifting away from the interests of the parents who are usually bitter and intractable, to the welfare of the children. The form of contact can be wide ranging from contact by letter or telephone, contact at a contact centre or long or short term stays. Where necessary the court is able to attach conditions or make directions under section 11(7) where necessary. 
A court may also make a Prohibited Steps Order or a Specific issue order. The former can be made against anyone but can only prohibit a step which could be taken by a parent meeting their parental responsibility for the child. In contrast a “Specific Issue Order” is an order giving directions to determine a specific question which has arisen in respect of a child. The aim of these “single issue” orders is to maintain the equilibrium of decision making between the parties. No one parent has a right to make decisions or take steps in relation to a child which the other is unhappy with. Therefore both parents have the right to make decisions on such matters as education and medical treatments and where there is a dispute the court will resolve it.
The Adoption And Children Act 2002.
Section 1 of the Adoption and Children Act 2002 is an overarching section which sets out considerations which apply when a court, adoption agency or local authority is considering an exercise of its powers to place a child for adoption. Thus when deciding whether it should dispense with parental consent on an application for adoption or to allow an application for contact under section 26 of the Act the court must have regard to the paramount interests of the child.  The paramountcy principles contained in the Children Act 1989 were incorporated in to the law relating to adoption.  The paramount consideration of the court or agency in any decision must therefore be the child’s welfare (subsection (2)). The welfare checklist is similar to that set out in the Children Act 1989 with the addition that the court or agency must consider the child’s welfare throughout his life as adoption has lifelong implications for a child. In addition any delay is considered likely to prejudice the child’s welfare and should be avoided where possible (subsection 3).  When deciding whether too make any decision as regards to the adoption of a child the court or agency must consider the all the powers available to it under the Act as well as under the Children Act 1989.The court may only make an order where it considers that it would be better for the child than making no order at all.
ARTICLE 8 ECHR
With the passing of the Human Rights Act 1998 the European Convention on Human Rights (ECHR) was incorporated in to the UK domestic law. In October 2000 the Act came in to effect in England and Wales and enabled all of us to protect our rights under the convention through domestic courts and by Appeal to the European Court of Human Rights in Strasbourg, France.
Article 8 of the ECHR grants the Right to Privacy and states that everyone has the right to his private and family life, his home and his correspondence without unlawful interference by a public authority. 
When the UK courts are considering a claim by a child under the Human Rights Act, they should refer to the United Nations Convention on the rights of the child. However despite a strong decision ECHR chamber decision in the case of Sahin 2003 few cases concerning the rights of children make use of the UN Convention. 
The European Convention on the Exercise of Children’s Rights-Strasbourg 25.1.96
Signatory states clearly indicated that the rights and best interests of a child should be promoted and to that end they should have the opportunity to exercise those rights particularly in regard to family proceedings affecting them. Thus it was recognized that a child should be provided with relevant information to enable such rights and interests to be promoted and that due weight should be given to the child’s views. It was accepted that parents played an important role in protecting these rights and in cases involving conflict it is desirable that families try to reach an agreement before bringing the matter before the courts. Article 13 in particular states that parties should be encouraged to use mediation or other processes before resorting to judicial involvement.
RE L (CONTACT DOMESTIC VIOLENCE) 2001 FAM 260
MEDIATION IN FAMILY PROCEEDINGS
Recent statistics suggest that as many as 40% of marriages end in divorce and whilst it is relatively cheap and simple to obtain a divorce most couples will have financial matters to disentangle as well as arrangements for the children to resolve. Consequently it is common for couples to turn to solicitors for advice to protect themselves from what can be an emotionally challenging time..
In recognition of these issues the Government introduced the Family Law Act 1996 which was aimed at encouraging more people towards mediation in order to resolve the problems they faced on divorce and separation.
The increasingly positive attitude in favour of mediation was advanced further by Lord Woolf in 1999 in his report Access to Justice  . The Woolf Reforms recognised the shortcomings of the legal system at that time, which for many proved to be cumbersome, slow, expensive and inefficient. Lord Woolf introduced radical reforms to the civil justice system and suggested mediation as being appropriate in some cases as a way to overcome these shortcomings. The courts are based on an adversarial system that did not always serve the interests of the parties.
Mediation is currently available in child contact proceedings however it is entirely voluntary. If one party refuses to attend then the matter will usually proceed to a court hearing. This is despite the fact that a mediator is an independent and trained negotiator, who gathers all the information necessary including the views of all persons concerned before making recommendations. These recommendations will usually reflect what a judge is likely to order should the matter precede to a full hearing. The only difference being that mediation is far less expensive and less traumatic for all parties concerned particularly children. Often mediation is seen as being far less of an aggressive move as it is diplomatic in nature. No one is being “taken” to court. Family law mediation is the most common form of mediation practised in the Auk and the cost of mediation is far less than the costs involved in court hearings. As such it is an attractive proposition for any government seeking to keep down the cost of community funding.
It is usual for a mediator to sit with both parties and discuss the arrangements to be put in to place on the breakdown of a relationship. Matters such as the division of family assets, who is to remain in the matrimonial home, with whom the children are to live and when and where contact with children is to take place will all be considered. When an agreement is reached an official summary will be prepared and sent to court to give it effect.
Whilst mediation is cost effective and in most cases an effective way of dealing with issues revolving around separating parents it is worth reflecting on the notion of the paramount interest of the child which the courts are bound by. Mediators have no such explicitly set out obligation in this respect and they are not bound by welfare checklists or guidance. A well trained mediator is assumed to consider the needs and wishes of all the parties concerned and that may include the children; however there is no elevated position given to the paramountcy of the interest of the children. The mediator will advise what is in the best interest of the family and there is no promise that this is the same as what may be in the best interest of the child. Additionally there is no confidentiality in mediation and as such each party may hold back and the settlement may not be a true reflection of their wishes or needs.
Lord Woolf said “Skilled mediators are now able to achieve results satisfactory to both parties in many cases which are quite beyond the powers of the lawyers and the courts to achieve”.
The Outcomes of Contact Applications to Court.
A recent study commissioned as a result of the commitment given by the government to Parliament in the course of the passage of the Children and Adoption Act, 2006 was entitled, Outcomes of Applications to Court for Contact Orders after Parental Separation or Divorce.  .The aim of this legislation, as far as the contact-related provisions were concerned, was to provide courts with a greater range of powers to facilitate and enforce contact. However much parliamentary time was devoted to debating proposed amendments which would introduce a statutory, rebuttable presumption of minimum levels of contact, into the Children Act, 1989. These attempts were in response to the concerns of non-resident parents who went to court for a contact order but ended up with little or no contact for insubstantial reasons.  The government strongly resisted all arguments for introducing a statutory presumption of contact on the grounds that the courts already started from the point that contact was to be promoted unless there were good reasons why it should not be and that a statutory presumption would undermine the fundamental basis of the Children Act, the paramountcy of the interests of the child. It was acknowledged, however, that there was little statistical data on the outcomes of court proceedings. As Baroness Ashton, for the government, put it,
“I recognise the concern at the heart of many of the issues, that is, those
Parents, often non-resident fathers, who do not get a fair deal.” 
The study was therefore commissioned to provide statistical data and an evidence base the research consisted of an in depth analysis of 308 court files where a contact application had been made in 2004. The applicants were almost all non-resident parents, typically fathers. The report recognised that upon separation less than one in 10 parents seek the assistance of the family courts in making decisions about contact arrangements for their children. The report carried out a study to ascertain outcomes for those parents who do go to court to secure contact with their children.
The key findings of the report were that it was rare for the court to have to make a final ruling. The study found that only 11% of the sample cases went on to a full contested hearing of which a third settled in the course of the hearing itself. Most cases ended with direct contact and where they did not this was usually because the applicant withdrew from proceedings Where contact was granted it typically involved overnight stays, at least fortnightly, with some children having additional visiting contact. Visiting contact was usually weekly or more and was almost always unsupervised. Non-resident parents were largely successful in getting direct contact where there had been none and in getting the type of contact sought. Additionally, those who achieved staying contact usually got the amount they sought; those with visiting contact mainly did not. Four in five resident parents who opposed unsupervised contact raised serious welfare concerns. The initial position of the resident parent and whether they raised serious welfare issues were significantly related to outcome, as were the age of the child, whether there was any contact at the point the application was made and the interval since the child was last seen. Importantly, there was no evidence that non resident parents as a group are systematically unreasonably treated by the family courts. On the contrary, the study shows that the courts start from the position that contact is generally in the interests of the child, they make great efforts to achieve this and in most instances they are successful. In a small minority of cases, however, it might be argued that the outcome was unfair to the non-resident parent
The study demonstrated that the reason why some non-resident parents do not achieve contact they sought was not the result of a court order but typically the non resident parent either withdrew the application, dropped out part way, failed to turn up to the final hearing or did not actively oppose the application. It also found that some non resident parents failed to cooperate with court process. The report showed that only a small proportion of cases could be regarded as unfair to the non-resident parent in that there were no serious welfare concerns and they had cooperated with the process. Six involved children resolutely opposed to contact, four resident parents who might be seen as’ implacably hostile’.
The report concluded that the courts and Cafcass are not biased against non-resident parents, who generally get a fair deal. However it recognised that resident parents are in a strong position from the outset and it is easier for them to play a tactical game and play things out .This results in some applicants becoming frustrated and giving up because the process is too long and costly in financial and emotional terms. There are a small percentage of cases where the resident parents and children remain intractably opposed to contact and the court’s abilities to deal with this are limited, and at the end of the day the court has to act in the interests of the children and sometimes that means the non-resident parent may lose out.
Solicitors, the judiciary and Cafcass officers saw the resistance of the resident parent and/or the child as the two main obstacles to achieving contact. Often these could be overcome and implacable hostility was considered to be quite rare.
The resident parent’s ‘unreasonable’ hostility is typically addressed initially through
Persuasion, with sterner measures coming into play if this fails. Most resident
Parents come round; a few do not. Eventually the non-resident parent gives up or
The court, very reluctantly, has to acknowledge it can do no more with its current
Powers and resources. Dealing with the child’s hostility is even more testing. It may
be very difficult to get at the root of the problem. It also poses two dilemmas. First,
how to balance the obligations to take account of a child’s views and to act in the
Child’s long term interests. Second, how long to persist trying to get contact going
when this may expose the child to the damaging effects of uncertainty and conflict.
The report concludes by accepting that the family justice system is not perfect. There are issues about delay, resources and services which need addressing in order to meet the needs of the troubled minority of families who resort to litigation most effectively. Adults have a right to a process which is as fair as possible. It is crucial, however, to focus on children and give effect to the overriding principle of the Children Act, the paramountcy of the interests of the child.
Some commentators have sought to place family law in context of social and political context and considered the application and analysis of the welfare principle as it is applied in Canada, France and the USA as well as in the UK. (Diduck and Kaganas)  They explain how the concept has changed since the nineteenth century and raise important questions about the certainty of the courts sought versus flexibility, indeterminacy and the marginalization of minority family forms. Exploring the growth of knowledge In this area, they consider the growth of child welfare research and its reinterpretation by policy makers and the courts .In conclusion Diduck and Kaganas claim that the welfare principle operates through claims of neutrality and objectivity to privilege the hegemonic family form and to marginalize parents who fail to conform.,
In recent years there has been a clear recognition that the welfare and the best interests of a child are and should remain the courts paramount consideration when deciding questions of contact upon family breakdown. This principle now forms the cornerstone of legislation dealing with a child and their rights. In any proceedings for contact before it the court is not concerned with blame allocation between the parties or indeed what is in their best interests but will stand apart from the debris of the dissolution of the breakdown and stand firm in the child’s corner.
One argument in favour of mediation is that courts are too inflexible, however
Judges do exercise a wide discretion in children’s proceedings with the doctrine of precedent playing a limited role in family law cases. The majority of cases are decided on the facts particular to them and in practice can be distinguished by the court where following them would cause injustice. The Court of Appeal is reluctant to overturn the discretionary decision of a lower court unless it is blatantly unreasonable or clearly wrong in law.
However, legal proceedings in a court are lengthy and the requirement for reports to be carried out by third parties such as cafcass often proves unpleasant for the children concerned. Mediation is a less invasive procedure and although it is encouraged, at present it is not compulsory.
However, much depends on the quality of the mediation provided as a good mediator should be able to give a good indication to the parties what the court would be likely to order and should consider the views and needs of the children concerned. However there is no overarching principle of paramountcy and this is cause for concern.
In conclusion although there are many positive reasons for mediation to be made compulsory in that it saves time, money and is less emotionally draining on the parties, any move toward compulsory mediation should be made hand in hand with the provision that mediators like the courts have to give precedence to the welfare of the children. That is to say those mediators too must be bound to consider the rights of the children as paramount. Where this is done then there are clear benefits as with mediation the parties are more likely to maintain a good relationship and that provides a better foundation for co-parenting. It is cheaper, and can deliver more creative solutions.
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