Norgrove and Australia: Parenting Time Policy Built on Error
All in all, the Norgrove family justice review ran from 2010 to 2014. The Cafcass point was missed; its lack of guidance passed unobserved.; the EI project was dismissed without being considered.
This review formed the nonsensical starting point for the current Family Justice Review, 2018/22.
To read the full article click here. Two important points are clarified:
Point 1: Common Misinformation about the ‘Australian Experiment’
Point 2: The Perils of Primary Legislation
In addition, the Norgrove Review itself is covered in outline at Point 3: it is still highly relevant.
1. Family Law and the Australian Experiment
As from 2012, a false narrative was created about the ‘failure of the Australian experiment’. These misconceptions are still current. They had an adverse effect on Norgove’s recommendations and the 2014 Children and Families Act amendments to the 1989 Act. The principal lineaments of this delusion are:
(i) Australia introduced ‘shared parenting’
(ii) and/or Australia imposed a standard time-split (e.g. 60/40) on all cases
(iii) and/or Australia opened the back-door to an influx of shared-parenters
AND that this led to
(iv) damage to children
(v) an upsurge in litigation
The first four points are wrong. As set out in the concluding paragraphs below, the fifth is is debatable.
2. Family Law Reform does not require legislation
The churnings of the Norgrove Review provide a useful introduction to the perils of legislation.
The EI reform does not require legislation.
EI is simply a procedural innovation where inexpert or or non-existent advice is replaced by a bona-fide expert framework that incorporates best-interests considerations. The Courts have always accepted and relied on advice.
There can be no objection to the Courts’ upgrading from bad advice to good - and this would of itself alter the way the law is applied - which is of course what people want to achieve when they set out to alter the law. In other words, the law can be altered without changing the statute itself.
The law is the sum of (1) what the law itself says and (2) authoritative guidance on how those words should be interpreted. In family law, every case is different and there is no authoritative guidance. So the law is merely what the law says, plain-and-simple: which is, there should generally be ‘involvement’, no matter how low.
However, if there was judicial guidance - say, that there should be involvement at meaningful levels in the absence of good reason to the contrary - that would become the law; because, that would be the principle used by the judiciary to decide case-outcomes.
A start on that guidance could be made without the five-to-ten-year uncertainties of gathering the momentum to put a new Act on the parliamentary agenda.
The AFCWO guidelines were the work of a couple of afternoons.
3. The Problem with Primary Legislation
By contrast, to pass primary legislation that includes (say) the presumption of meaningful contact is a massive and hazardous undertaking. Assembling the political will to proceed (together with the approval of the various government departments) is a multi-year project. But, let’s just say: that has been done - and then let’s say, the ‘presumption of meaningful contact’ miraculously makes its intact way onto the statute book. That brings us back where to where we already are, i.e., to the need to sketch out what meaningful contact means in recognisable family circumstances.
‘Soft’ guidance of the type required for Section 8 cases has no place within the blunt workings of an Act. Parliament cannot realistically compile a body of nuanced advice incorporating caveats, qualifications and grey areas to map out different outcomes for different types of case. Parliament can merely direct that this should be done.
However, there is no reason to think a new Act would get as far as the presumption of meaningful contact. The moment an Act is mooted, Whitehall becomes involved. In this instance, the two main players (over and above hundreds of other agencies competing to be heard) are Cafcass and the Ministry of Justice. Both wallow in a haze of miscomprehensions.
The second half of the attached document shows how badly and how easily these parliamentary undertakings can go wrong.
4. The Norgove Family Justice Review: making up the law
The starting point for Norgove’s betises about the family law system is at para 4.14 of his Final Report:
“A clear principle in case law is that it is in a child’s best interests to have a continued meaningful relationship with both parents following separation where it is safe.”
As above, this 2011 retelling of the 2004 official falsity assumed the imaginary underpinning of the Act was located in imaginary case law.
But, given that ‘every case is different’, there is no binding case-law - save that after several decades of litigation, a single agreed principle had indeed coagulated by the 1990s: namely, that there should not be no-contact-at-all in the absence of good reason.
This pre-existing principle was incorporated into Statute at Section 1 (2A) in 2014 as the presumption of child-parent involvement.
The definition of involvement includes contact at meaningless levels. The new law is that there should be something more than no contact at all - unless the contrary is shown; which is, the same as the old law. This does not safeguard meaningful levels of contact. It safeguards meaningless level of contact.
Norgove: Imaginings
The Norgove Review started off back-to-front, imagining - first - that the courts were bound by law to award what they were not bound to award (i.e., to provide for a meaningful relationship wherever there were no safety issue) and - second - that this was the advice and guidance that Cafcass would provide, to the courts and to parents, under the law.
The Norgrove Review never retrenched from these errors: it merely decided that a presumption in favour of meaningful relationships should not be included in Statute - because, if it was… everyone would assume …. that a meaningful relationship… necessitated …. de facto shared care or the 50-50 division of time.
This strange surmise, presented as fact, now forms part of officialdom’s Compendium of Error, handed on as a received truth to subsequent Reviews. See PrLWG 50.
Norgove and the Early Interventions project
Ministerial intervention (Tim Loughton) was required to arrange an NATC / David Norgrove meeting to present the EI project.
Mr Norgove said he could not consider EI: inasmuch as EI was a solution to the Family Division’s Section 8 difficulties, it fell outside his remit. He was tasked not with identifying the solution but with identifying the problem (correspondence available): approached with similar disinterest.
The supposed upsurge in Australian litigation
The initial figures were:
"While the number of applications for final orders relating to children’s matters that were made to the FMC between 2005-06 and 2008-09 increased, this increase was more than offset by the decrease in the total number of such orders that were lodged across the system. Specifically, the overall number of such applications declined by 22% from 18,752 in 2005-06 to 14,549 in 2008-09 (Figure 2). The number of applications to the FCoA declined by 72% from 7,479 to 2,086 over this period and the number to the FMC increased by 17% from 9,405 in 2005-06 to 10,987 in 2008-09 and the number of applications to the FCoWA decreased by 21% from 1,868 to 1,476.”
Source: https: //aifs.gov.au/research/research-reports/evaluation-2006-family-law-reforms-summary-report (by email 20/7/22)
Thereafter, things seem to have gone less well. The NATC understands that the number of applications to Family Centres may have gone down after the first few successful years because lawyers persuaded court registrars to apply the exceptions to compulsory attendance, e.g. by making allegations of violence. In addition, the legislation has become over-complex, with changes made not by amending the existing provisions but by adding subsections and sub-subsections. In addition, new structural changes have moved many cases back to non-specialist judges. Australia has ceased to be a good example for imitation.