Obstruction: PrLWG2 para 50

This is the still point of the turning world. In twenty-five years, the issue has never been so clear-cut:

Q: Should parents receive guidance on the issue in dispute?

• the judiciary say yes

• Whitehall’s Private Law Working Group (PrLWG) says no

The year after this 2020 stalemate was announced in PrLWG2, Ministers ruled in favour of the judiciary: the judiciary and their legitimate experts can prepare guidance on the issue in dispute. Despite the PrLWG’s best efforts, the road to reform is open. Meanwhile Whitehall continues as if nothing had happened.

______________________________________

The PrWLG: at its own throat

The thinking of the 2019-2021 Private Law Working Group goes in opposite directions:

(i) we must provide parents with more and better guidance

(ii) we must intervene to prevent parents from receiving guidance

(iii) we must set up a new national ‘Family Solutions service’ (FSS)

(iv) the FSS will give parents:

• the guidance that does not exist

• the guidance we interdicted

Child-Contact Reform: the stay on the provision of useful advice

The core text of PrLWG’s second report at paragraph 50 is below. The issue can be condensed into simple dialogue:

The senior judiciary: we think it is not too soon to issue some advice on…

- norms for ‘time with’ arrangements PrLWG: no

- the principles governing visitation PrLWG: no

- normal levels of contact by age rLWG: no

- good handover arrangements PrLWG: no

- returns-to-school PrLWG: no

- standard expectations PrLWG: no

- and all the standard basics PrLWG: no, no, no

Doublethink

According to paragraph 50, to provide guidance on the issue in dispute would be illegal, and unethical and undesirable:

• the first paragraph from the PrLWG’s thinking quoted below (‘the pros’) says with reasons why many professionals, including the Central Family Court judiciary, think there should be guidance on the issue-in-dispute.

• the second paragraph (‘the cons’) says why Cafcass / the MoJ / the PrLWG will not allow it

To a degree, the fate of the next generation turns on the soundness of this second paragraph.

Its reasoning is slipshod. It cannot withstand informed scrutiny. Most likely, it was not intended to: we inhabit the world of ‘anything will do’.

Merely to head off the idea of guidance serves the official purpose: as long as the central problem is not addressed by the Review, a comforting vista of blame-free and result-free churning stretches ahead - for decades - of lackadaisical Reviews, hand-wringing and the rearranging of deckchairs.

Here is what the PrLWG actually said. The para 50 text below, extracted verbatim, is presented in two blocks, the Pros and the Cons: these headings are NATC additions.

In the report, these two sections are separated by a block of indeterminate bridging prose that pays lip-service to the concept of early interventions: provided those interventions are limited to providing parents with information that has no bearing on the best-interests apportionment of the child’s time.

The text then turns to the supposed reasons why guidance is bad.

[THE PROS: what should happen]

 Para 50 PrWLG 2: …we received many submissions advocating for the publication of standard ‘framework’ guidelines about the court’s approach to certain types of case and certain ‘standard’ facts, for the assistance of separating parents. The rationale is that these guidelines would steer parties towards a d.i.y. resolution of their problems, knowing what the courts would be likely to order if they were to litigate. In this way, it was argued, the number of families turning to court would reduce. As to detail, it was envisaged by the consultees that a standard set of expectations should be published (i.e. how much contact is ‘normal’ for a child of a particular age, what forms of contact are appropriate/available, sample handover arrangements; these could be reasonably general or specific: it is useful for children of X age to be back in their main home by Sunday evening; children of Y age can more easily accept being dropped back to school on a Monday morning by the parent they are ‘spending time with’). The judges of the Central Family Court for instance felt that “clear statements of principle as to norms for ‘time with’ arrangements would help”.

[THE CONS: why officials won’t let it happen]

The PrLWG further considers that while ‘standard guidelines’ may have superficial attraction, their introduction would nonetheless be contentious, not least because of the lack of evidence of what is or should be ‘the norm’; moreover, it is not clear whether what is ‘the norm’ is necessarily in the individual child’s best interests. The PrLWG considers that emphasis should in any event be given to the quality not the quantity of contact. The PrLWG is further concerned that any ‘guidelines’ would be contrary to the individualised decision-making ethos of section 1 CA 1989 and specifically contrary to Section 1(2B) “(2A) ‘involvement’ means involvement of some kind, either direct or indirect, but not any particular division of a child's time”.

 ______________________________

 COMMENT

An issue is whether paragraph 50 is seriously intended. Reference to PrLWG3, where this thinking is reversed, suggests good faith is at a premium. As noted throughout this site, the essence of the PrLWG endorsing Cafcass’s contradictory views consists not so much of those views being endorsed by an independent body but by Cafcass - and the agency that created Cafcass on a deficient basis - agreeing with themselves.

Disentangling the strands, working from the bottom up:

 1.      It is contrary to the law at Section 1 (2A) or (2B) for advisory agencies to give guidance

 This view, propounded by a Committee with a large complement of Cafcass and civil servants, and others not necessarily at the very top of the legal tree, is set against the view of the best legal authorities: who say the opposite.

 -       this PrLWG objection is plainly misconceived

-        the reference to Section 1 (2A) and (2B) is wild

 -       some / most / all Cafcass reports recommend ‘a particular division of the child’s time’

 -       ‘a particular division of the child’s time’ is what the Courts order

Neither Section 1 (2A) nor Section 1 (2B) of the Act prohibits advice either on the particular division of the child’s time, or on orders that make a particular division. That is what happens in these cases - and always has, a million times or more. Cafcass advises on a particular division of a child’s time in a particular case; and the Court orders a particular division.

The 2A / 2B statutory reservations against ‘a particular division of a child’s time’ may be directed against the imposition of flat-rate (e.g. 60:40) apportionments irrespective of the facts and irrespective of the benefit of the child.

There is (and can be) no bar to best-practice guidance on the child’s likely best-interests.

There is no imperative, and can be no imperative, to order opposite outcomes on the same or similar facts.

A subsidiary muddle is apparent about ‘involvement’ and indirect contact. Of course best-interests guidance can deal with when-and-whether indirect involvement might be advisable.

 2.      Informed guidance is contrary to the individualised decision-making ethos of Section 1 CA 1989

 This novel argument originates from an agency (Cafcass) and/or a committee deliberating on how best to provide parents with support / information / advice / guidance.  Breaking it down:

 (i)              Is is true - from the Courts’ perspective?

No. The existing system is that the courts are guided by inexpert recommendations from Cafcass - who do not have guidance for their staff either on how a child’s time should be apportioned or on why that might matter. The reform proposed by the judiciary is that the courts (and the parents) continue to make individualised decisions - guided by an informed framework, developed by experts, who do have guidance on how a child’s time should be apportioned.

On standard principles, that is an improvement.

(ii)       Is it true - from the  Parents’ perspective?

No. It is not clear how advising parents on their options before they litigate - e.g. that they could do a Monday-morning handover at school, and when this might be beneficial - limits the capacity to make an informed decision. On conventional reasoning, the decision-making process is enhanced.

Society in general accepts the utility of things like informed decisions and education.

Perhaps the PrLWG seeks to imply something else - for instance, that you cannot have a family law system - unless everyone can and should do as they please? Or, maybe this is a backdoor nod to the truism that ‘every case is different’? This is so - but it does not mean there are no categories of case - and it does not mean that similar or same-fact cases must be treated differently.

3. Emphasis should be on ‘quality over quantity’ ?

The adage fails on first examination. It is a Catch-22:

 - if an applicant’s contact is ‘high quality’ he/she does not need more contact

 - if it is not, he/she should not have more

The introduction of this concept as a primary principle would:

(i) act as a bar on any increase in contact

(ii) reliably promote new heights of static litigation about contact’s supposed quality  

Only one parent is present during contact. The parent alleging low-quality contact is by definition not there.

The introduction of ‘quality not quantity’ as a driving principle would entail new assessment(s) and reports - by third-party professionals attending contact; and, new hearings to consider those assessments; all as prelude to the ‘go-on-as-we-are’ Catch-22 outlined above - at which point, in equity, the quality of the child’s contact with the resident parent should also be evaluated - as an invitation to further litigation - on whether - or not - there should be parity of deemed quality from the two parents; and, if so, how that could be best be achieved. And so on.

In 692 pages of three major consultations this millennium, and all Cafcass’s Operating Framework, ‘quality of contact’ is mentioned just once - by one single external respondent - in a single dubious sentence.

Of course the quality of contact is a consideration - to be factored into the case, as best may be, in the usual way.

4. It is not clear whether what is ‘the norm’ is necessarily in the individual child’s best interests (etc) ?

If so, it is not too soon to make an effort to establish (i) what ‘the norm’ is, and (ii) whether it is in fact beneficial: this is not premature after a quarter of a century and 1,000,000 ‘one-off’ cases. There are unsettling implications for the quality of decision-making. The case for guidance is strengthened.  

However, a danger inherent to objections of this type - focussing on metaphysical abstractions like whether it it is normal to be normal? - is that they tend to become a recipe for deferral accompanied by calls for research and research into that research.

Meanwhile, the obvious abuses of the existing system continue unchecked, and the obvious remedy lies fallow.

Although there has been very little research on outcomes, there has been some. It shows that almost half of all parents receive no or almost no contact. But, under the present dispensation, that does not matter: the level of child-parent contact is not considered a child-welfare issue. That topic too could be researched, ad infinitum. Or, we could do something about it.

_____________

In the event, the merits and content of the para 50 objections escaped professional scrutiny, comment or discussion. They were assumed to be writ in stone, not water, and - as anticipated and presumably as intended - kicked useful change into touch and misdirected institutional thinking further down the primrose path.

Happily this diversionary process was based on a constitutional error. On 7 May 2021 the Minister conceded that preparation of guidance - on the issue in dispute - is properly a matter for the judiciary. Cafcass and the the Ministry of Justice may tie their own hands as they see fit; they cannot fetter the judicial discretion (see 2022: Family Law Reform).