34.  Clause 1 of the draft Bill would insert new sections 11A to 11E into the Children Act 1989. These would allow a court to require a person who is a party to contact order proceedings to undertake a "contact activity". The court could exercise this power either when making, varying or discharging an order (by imposing a contact activity condition under new section 11B), or when considering doing so (by making a contact activity direction under new section 11A). In considering whether to order a contact activity, the welfare of the child would be the court's paramount consideration. A contact activity is defined in the draft Bill as:

• an information session organised in order to provide information or advice regarding arrangements for, or other matters relating to, contact with children; or
• a programme, class, counselling or guidance session or other activity devised for the purpose of assisting a person to establish, maintain or improve contact with a child, or which may be used for such a purpose.[19]

The nature of problems over contact

35.  The Commons Constitutional Affairs Committee concluded its report with the observation that "The system at present is focused on the resolution of disputes between adults: the interests of children should be paramount".[20] We agree with this and, before we consider the proposed contact activities in detail, we make a more general point. We are concerned that the provisions of the draft Bill do little to challenge the 'adult to adult' character of this litigation. They also, we believe, reflect one particular view of the nature of problems over contact (essentially, that these reflect intransigence on the part of the resident parent). We strongly suspect that the problems faced by families where one parent applies to the court are considerably more complex than this, and not easily resolved by means of one-off enforcement measures.

36.  Recent research at the University of East Anglia provides a valuable insight into the nature of the problems faced by these families, and also the problems which they present to the court.[21] The parents were (disproportionately compared with other separating couples) young, on low incomes, with very young children. The parents' ability to communicate with one another was limited and the relationships were characterised by a lack of trust, empathy, or flexibility, with high levels of anger. In many of these families there had been violence in the home. Quite commonly, there were child protection concerns. The disputes presented to the court did not reflect straightforward arguments about 'contact'; they reflected a range of issues, including commitment to the child, reliability, parenting quality, the child's reaction to contact, and perceived attempts to bully or control. In short, these families experienced problems on a different scale from those experienced by the majority of separating parents, including multiple risk factors associated with poor outcomes for children. Typically, also, the court was presented with competing 'his' and 'hers' accounts.

37.  It seems to us plausible, given this insight, that many of these families need support and a facilitative approach to problem-solving, sustained over time. We recognise that there are provisions in the draft Bill which might enable this to happen, and we commend the Government's attempt to offer something constructive to these families through the court process.

38.  There is also a substantial body of cases (most of which do not involve an application to the court) in which the non-resident parent either withdraws from the children's lives or undermines the prospect of a continuing relationship with them through his or her inconsistent or unreliable behaviour. We recognise that it is difficult for the court to intervene effectively unless parents apply for a contact order, but we see no reason why an application should not be permitted in circumstances where the resident parent is claiming that the other parent is failing to discharge his or her responsibilities to the children. At present the courts have no jurisdiction to receive an application couched in these terms. We therefore invite the Government to give consideration to permitting either parent to apply to the court where contact has broken down or is not proceeding satisfactorily. This would enable resident parents to apply to the court in circumstances where, in their view, the non-resident parent was failing to discharge his or her responsibilities to the children. It would then be open to the court to impose a contact activity upon that parent.

Power to make a contact activity direction

39.  A limitation of a more technical nature was identified by witnesses to the Committee. The Family Law Bar Association (FLBA) drew attention to the fact that new section 11A(1)(b) would permit the court to make a contact activity direction only in cases where the making of a contact order was opposed. Philip Moor QC from the FLBA told us:

"I was slightly troubled about that, because quite a few resident parents come to court and say, 'Oh, I'm not opposing the order,' but you know there are going to be difficulties, and I would have thought it would have been easier if it just said: 'This section applies in any family proceedings where the court is considering [making] an order falling within subsection (2)' so that there cannot be a technical defence to get you outside that section."[22]

40.  We agree with the FLBA that problems may arise even in cases where the order is not formally opposed, and that the ordering of a contact activity might be of use in such circumstances. We recommend that the court should have the power to make a contact activity direction whether or not the application for contact is opposed.

What should "contact activities" include?

41.  The terms used to define a contact activity in the draft Bill are very broad. During the Committee's inquiry it became apparent that there was some confusion about what the term "contact activity" would encompass. One witness commented: "I do not think it is quite clear in the Bill what contact activity is".[23] Some questioned whether it would include support groups, or telephone-based support services, or therapy sessions for parents to overcome their own difficulties.[24] Others queried whether "other activity" could include mediation although, as we discuss below, this is currently excluded from the definition (paragraphs 53 to 59).

42.  Some witnesses proposed that contact activities should encompass activities designed to reduce the risk of harm to children and parents during contact, including an independent assessment of risk of harm to the child, anger management classes and "perpetrator programmes", where these are available.[25] Refuge told the Committee that:

"The primary educative and remedial need for domestic violence perpetrators is to address their abusive behaviour rather than their parenting skill. Refuge would strongly recommend making attendance at a perpetrators' programme or series of individual meetings where the impacts of violence/abuse upon children are discussed, a precondition of contact. Refuge would also urge the courts to exercise caution regarding the degree of 'change' expected from attendance at such programmes."[26]

43.  Women's Aid drew attention to potential difficulties arising from the family court making directions to that effect and the problem of linking existing programmes together:

"What we are for is safe contact but that risk has to be managed. That means having available a range of facilities. The problem with anger management is that it is not a way of addressing abusive behaviour in a violent relationship. You have to have proper perpetrator programmes, a policy which the government is pursuing through the Home Office and the probation services, which is putting in place properly accredited perpetrator programmes to a certain model. The problem at the moment is that entry to those programmes requires usually a criminal conviction of some kind to a level of assault which is unlikely, when we are talking about referral from the family justice system. There is a problem at the moment of linking from the family justice system into some of the measures that are available within the criminal justice system. That would need to be addressed."[27]

44.  We invite the Government to consider including "perpetrator programmes" (aimed at people who have been violent towards their partners) in the list of contact activity directions. The difficulty with this, we recognise, is that referral to such programmes by the court is currently only made in the criminal justice context, and is in any event only feasible where this resource is available in the locality. This leads us to raise a more general concern about the intended relationship between contact activities and those programmes or initiatives which are currently the responsibility of the probation service. We recommend that the Government give further thought to this relationship, and in particular that they clarify the steps that will need to be taken before the family courts can be in a position to refer parents to these statutory and voluntary-run activities.

45.  We consider that prior to making a contact order the court should always have in mind the safety of the resident parent and the child, and that it should not make such an order unless it is satisfied that it is safe to do so. That principle should also apply when the court is contemplating a contact activity direction. Accordingly, we recommend that, prior to ordering a contact activity, the Bill should require the court to consider the safety implications of making such a decision, both for the individual parents and for the child; and that the court should not require such an activity unless it is satisfied that it is safe to do so.

46.  The Committee understands why "contact activity" has been given a broad definition in the draft Bill, so as not to exclude any sessions, programmes or classes which are shown to be of use in improving the outcomes in difficult court cases. However, it is crucial that everyone involved in contact proceedings is clear about the kind of contact activities that might be ordered. Organisations considering developing such activities, many of whom will be from the voluntary sector, also require clarity as to what kinds of session, programme and class will fall within the definition. We recommend that non-statutory guidance is made available to parents involved in contact proceedings and potential providers of contact activities, explaining in more detail what kinds of session, programme or class the courts may order under the contact activity provisions.

Availability of contact activities

47.  Before making a contact activity direction or imposing a contact activity condition, the court must satisfy itself of a number of factors, including whether the proposed contact activity is provided in the area in which the person who would be subject to the order resides, or is in a place to which he or she could reasonably be expected to travel.[28] The court may ask a CAFCASS officer or Welsh family proceedings officer to provide information on this.

48.  The 2002 CASC report stressed the importance of ensuring that facilities to which parents might be referred existed on the ground.[29] A number of our witnesses echoed this view:

"It is of crucial importance that [contact activities] are available here and now. It will not be helpful at all to be told, 'Well, we can't do anything until four weeks on Monday because we don't have the facilities, the resources, the staff'."[30]

"It is no use the courts having the power to refer parents to activities if the activities are not available. I would like a reassurance that such facilities will be available, and what steps the government is taking to ensure that they are."[31]

49.  As with many of the proposals in the draft Bill, the availability of funding will be essential to the success of the new contact activity provisions. A number of family groups warned that unless a "clear funding stream" was identified to support such services at a local level, the proposals would fail.[32] We recommend that the Government review the availability across England and Wales of the sessions and programmes that might become contact activities. In the light of this review the Government should ensure that there is sufficient funding available for adequate provision across England and Wales.

Suitability of contact activity providers

50.  Before making a contact activity direction or imposing a contact activity condition, the court must satisfy itself whether the proposed provider of the contact activity is "suitable".[33] We have heard concerns about the use of the term "suitable":

"The Bill actually refers to "suitable providers" and I think that is too vague... We would like to see that being much clearer as to what is a suitable provider."[34]

51.  The Government have stated:

"It is not intended that there should be any formally set criteria or qualifications, not least because it is important that courts should have flexibility to make use [of] as wide a range of activities and providers as is appropriate in particular cases. It will be for the courts to determine if a given provider is suitable, most likely with the advice of CAFCASS."[35]

52.  We would not like to exclude any useful organisation from being utilised by the court. However, we do consider that, particularly where safety is an issue, consideration should be given to ensuring that the relevant contact activity providers have the right training, facilities and, where relevant, accreditation, required to undertake their task. We recommend that the review of contact activity provision we propose above should also consider the setting of minimum requirements which must be met before an organisation can be considered a contact activity provider, or provide for the inspection and approval of an organisation by an appropriately qualified person.

Mediation

53.  The Government have made it clear that contact activities will not include mediation:

"The words 'other activity' would not cover mediation because mediation is a different sort of activity to programmes, classes, counselling or guidance sessions. Anything under the heading of 'other activity' would have to be similar to those things."[36]

54.  The Government have argued that including in the draft Bill a provision to impose compulsory mediation would be counter-productive, or even dangerous in cases involving domestic violence which the court might not yet have considered.[37] A number of witnesses agreed that imposing mediation on parties would be unworkable.[38] The FLBA explained that:

"To talk in terms of 'compulsory mediation' really is rather a contradiction in terms, because mediation, as we all know, is a voluntary process which both parties have to come to. It is not about forcing a solution on to the parties; it is about getting them to think about what might be the best outcome for the children for whom they have responsibility."[39]

55.  However, the Constitutional Affairs Committee's report criticised the Government for failing to distinguish between two different things: a "compulsory exploratory meeting with a mediator and forcing people to mediate".[40] An introductory meeting would allow parties to discuss whether mediation would be suitable in their case but leave them with the option to refuse to take that course. The Constitutional Affairs Committee recommended:

"Where it is safe to do so (and subject to the court's discretion), we believe that all parties should be required to attend a preliminary meeting with a mediator on the basis described in section 13(1) of the Family Law Act 1996."[41]

56.  Section 13(1) of the Family Law Act 1996, which has never been brought into force, gives a court power in divorce proceedings to require each party to attend a meeting "for the purpose of enabling an explanation to be given of the facilities available to the parties for mediation in relation to disputes between them and of providing an opportunity for each party to agree to take advantage of those facilities".

57.  The use of compulsory information or assessment sessions on mediation was an approach strongly advocated by a wide number of witnesses, including the United Kingdom College of Family Mediators and Dame Elizabeth Butler-Sloss.[42]

58.  When we questioned the Minister for Children on the role of mediation in the draft Bill, she did not appear to rule out the use of compulsory information sessions to explain the mediation process:

"We are putting strong signals into the system at every part we can to encourage couples to mediate. For example, in the Bill itself, whilst we are not making mediation compulsory, we are giving judges the facility to make sure that those couples go to an information meeting where they are told about mediation, so information about mediation will be compulsory. Whether or not they then engage in mediation will not be compulsory. The broad explanation is simply that we think mediation only works if it is voluntarily and willingly entered into by the couples."[43]

59.  We recommend that the Government include within the full Bill a provision giving the Court discretion to refer parties to a mediation service in order to explore whether this could be a viable option in their case. Exploring the prospects for mediation is not, and should not be confused with, compulsory mediation. One way to achieve this would be to bring into force section 13(1) of the Family Law Act 1996 (amended so that it applies not only to divorce cases but to all private law child disputes).

"Family resolution" scheme

60.  Following proposals in its Parental Separation Green Paper, the Government initiated the Family Resolutions Pilot Project (FRPP) in September 2004.[44] The scheme is being run in three pilot areas—Brighton, Sunderland and Inner London—for a period of 12 months. The Government is expected to report on the outcome of the pilot in April 2006, after which a decision will be taken about any national extension to the approach.[45] The Government stated:

"The Family Resolution Pilot Project has been developed in a way which enables it to operate within the current legal framework in this country. This means that participation is not mandatory, though there is a strong judicial expectation that parties to cases will participate. We expect that this will be quite sufficient in the vast majority of cases. The evaluation of the project will report on this."[46]

61.  FRPP follows a three stage process, involving:

(1)  group meetings with parents, which include observing a video and engaging in discussion;

(2)  "conflict management" workshops, which the two parents attend separately; and

(3)  a joint meeting with a CAFCASS officer to plan post-separation parenting.

62.  Relate recommended incorporating such a resolution scheme into the full Bill:

"This pilot project is the best example of contact activity for people who are using the court process that Relate is currently involved with. We believe that, within its limited remit of providing an understanding of the impact the dispute has on a child and offering some skills to support parents to co parent effectively, it has so far proved to be an appropriate activity."[47]

63.  The Government informed us that elements of the FRPP might be included within the spectrum of contact activities.[48] However, they intended that FRPP would be separate to the provisions in the Bill:

"The contact provisions in the Bill are intended to give courts access to a flexible range of options that can be used in response to the differing circumstances of individual cases, rather than to point to any particular model. However, the Pilot's two parent groupwork sessions, which focus on raising awareness of the needs of the child and learning conflict management skills, are developing a model of parenting class which we intend should be a contact activity of the type the Bill makes available to courts. Irrespective of any decision about national rollout of the Pilot, these groupwork models themselves may be useful indicators of how to meet demand at local level, following court referrals."[49]

64.  Evidence to the Committee revealed very different views as to how the pilot was working. Informal feedback collected by Relate indicated that parents welcomed the "awareness and skill raising sessions" but that two sessions were not sufficient to meet their needs.[50] In contrast, Mrs Justice Bracewell, a judge sitting in the Family Division of the High Court, was of the opinion that the scheme was not being used as anticipated:

"One of the difficulties is that some of the parents are refusing to take part because it is not compulsory and they are saying that it is not convenient for them to go to information meetings and to see videos and to have discussion groups on an evening between seven and nine and they are complaining about it and not turning up. The other problem is that we rather suspect that solicitors are giving their clients the option and saying, 'Now, do you want to go down this road? If you do, we will file the application in the Sunderland County Court. If you don't want to do it, we will file it in an adjoining area where we do not have to do this.' And we suspect there is not quite the enthusiasm among the solicitors that we had hoped for."[51]

65.  The FLBA confirmed that a similar situation was evident from the pilot in Brighton. Early indications were that:

"the scheme had been very, very slow to take off and no … 'end products' in terms of agreements had been brought in front of a court for formal endorsement despite the passage of already six months."[52]

66.  The FRPP is still in its early stages. Informal feedback has been mixed. The Government may, in the light of evaluation of the FRPP, wish to consider taking an order-making power in the full Bill to place family resolution schemes on a statutory footing, should they prove to be effective.

20   Para 155 Back

21   A Profile of Appplicants and Respondents in Contact Cases in Essex, Liz Trinder et al, University of East Anglia, DCA Research Series 1/05, January 2005 Back

22   Q 1. See also Q 257 Back

23   Q 149 [Mrs Tyler]. See also Ev 187, para 3; Ev 50. Back

24   Ev 156; Ev 55; Ev 191, section 1; Ev 50. Back

25   Q 303 and Q 318 [Ms Cronin]; Q 72 [Dame Elizabeth Butler-Sloss] Back

26   Ev 198 Back

27   Q 307 [Ms Harwin] Back

28   New section 11C(5) Back

29   Making Contact Work, para 14.54 Back

30   Q 52 [Mrs Justice Bracewell] Back

31   Ev 11, para 9. See also Q 161 [Ms Sibson]; Q 307 [Ms Harwin] and Ev 183, section 3 Back

32   Ev 155, para 1. See Also Ev 177 - 178 and Ev 86. Back

33   New section 11C(4) Back

34   Q 166 [Mrs Brooks] Back

35   Ev 119, para 1 Back

36   Ev 116 Back

37   Ev 116  Back

38   For example, Q58 [Dame Elizabeth Butler-Sloss]; Q 151 & 154 [Ms Bloor]. Back

39   Q 7 [Mr Kirk] Back

40   Family Justice: the operation of the family courts, para 91  Back

41   Family Justice: the operation of the family courts, para 94 Back

42   Ev 55, para 3; Q58 [Dame Elizabeth Butler-Sloss]. See also Ev 181, section 1; Ev 155, para 4; Ev 55, para 3. Back

43   Q 325 [Margaret Hodge MP] Back

44   Parental Separation: Children's Needs and Parent's Responsibilities, July 2004 Back

45   Next Steps, para 64 Back

46   Next Steps, para 65 Back

47   Ev 34, para 2 Back

48   Ev 119, issue 4 Back

49   Ev 122, para 1 Back

50   Q 168 [Ms Sibson]. See also Ev 24, para 1.2 Back

51   Q 57 Back

52   Q 9 [Mr Kirk]. See also Ev 38; Ev 156, para 2(iii). Back