Children and Families Advisory Group Report

February 2001

Principles governing Contact guidelines.


This report does not represent the policy or aspirations of Families Need Fathers, but rather what FNF managed to steer through the CAFCASS Children and Families Advisory Group (CFAG) so that it was endorsed by that group.

 

Contents

 

 

Introduction and qualifications

The CAFCASS Children and Family Advisory Group recommends that the CAFCASS Board adopt guidelines to contact.

Guidelines are essential to professional practice, to consistency and fairness to children and parents. They will help structure enquiries and the search for information. They will help discussion and negotiations between parents, and reduce conflict and litigation. They should be published and available to parents and others interested.

Guidelines to contact should be part of a wider set of guidelines, which should include guidance to practitioners on making recommendations on issues other than contact (e.g. residence and parental responsibility); the values and perspectives of CAFCASS; how welfare enquiries should normally be conducted; the investigations to be made and within what timescale; how clients should be treated; what should be said to them; how welfare reports on various question should be presented and what they should contain; how to deal with complaints etc.

It is assumed that National Guidelines will be subsumed in these. While every case is unique in detail, personalities and in the combination of factors present, there need to be guiding principles about common or widespread factors.

Guidance needs to cover cases that may have repugnant aspects. However, most separating parents - and their children - are decent and loving. They will have human frailties, especially perhaps the anger, hurt and feelings towards each other that are generated by family breakdown.

These notes assume that 'risk assessment' procedures (such as those proposed by the Association for Shared Parenting) and including provision for new assertions to be responded to will have been prepared and applied. Guidelines should also cover procedures and ways forward in other cases such as:

When there are allegations of various sorts, for example of violence or fear (involving a child, or partner or ex-partner. or both), neglect, sexual or other abuse, drink, drug or substance abuse, involvement in crime, unconventional life styles and in other situations to be determined;

If the children appear not to want to have contact, or are reported as not wanting it;

Where there are high degrees of conflict. Research evidence is that while conflict is bad for children, it should not be assumed that it eliminates the benefits of contact (1). The alternatives, such as 'parallel parenting,'(2) should be explored. Priority should be given to ascertaining and removing the reason for the conflict and, if it is appropriate, tackling the person or people who appear to be responsible;

Where there are, or could, be various risks, for example of abduction, of a parent going far away/abroad or disappearing;

Where a parent is a member of a 'cult or subculture; other situations will be identified.

These notes also cover orders for direct contact. There should also be guidance to CAFCASS workers on making recommendations concerning court orders for:

  1. Residence;
  2. Indirect contact. This may either supplement or be an alternative to direct contact;
  3. Parental Responsibility;
  4. Specific Issues and Prohibited Steps orders. It will not be possible to anticipate all, but relevant factors should be covered.

Decisions will be taken by' Courts, and not by CAFCASS workers. This needs to be borne in mind in what follows. However, in the majority of cases the Courts will presumably continue, if satisfied with the recommendations of the Welfare Officers, to endorse them.

(1) Cited in Rodgers, B & Pryor, J., Divorce and Separation, Outcomes for Children. Joseph Rowntree Foundations, York 1998

(2) Buchanan, C, Maccoby, E, & Dornbusch Adolescents after Divorce. Harvard University Press, London 1996

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The Law

The Law states that the welfare of the children is paramount (i.e. the most important but not the only factor). Some judgements have hinted at something even stronger - the feelings and needs of adults are relevant only in so far as they impinge on the welfare of the child. The Courts and CAFCASS will often need to balance different factors and the interests and wishes of the people involved and guidance will need to cover them.

The recommendations that follow give priority to the welfare of the children, but other issues - including the wishes and needs of the parents - are covered at times.

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The Guidelines

The questions needing to be addressed by guidelines for contact are as follows:

  • WHY?
  • WHO?
  • HOW MUCH?
  • WHERE? -
  • WHAT SUPPORT?
  • QUESTIONS AND DISPUTES

The full guidance needs to cover not only why contact, but also how much or how little.

Contact is not a separate issue from 'residence but its routine and natural concomitant, reflecting the rights of children and adults to family life where parents live apart.

The Guidelines need to look at the legal and moral basis of contact decisions, especially in the UK at the Children Act and its "Welfare Checklist".

International Law and Conventions, together with the Human Rights Acts and other legislation, recognise the right to family life. Divorce and/or separation of the parents changes one family relationship and maybe sunders it. It does not end family life, even in the family that is divided. The relationship between the parents is only one of the relationships that make up 'families'. Relationships between parents and children are another and they should be considered independently of the relationship between the parents.

The importance of the various relationships within families is not the same in all. CAFCASS workers need to be aware of cultural and social diversity, and sensitive to the relevant factors in the cases before them.

The guidance needs to require that the enquiry and the report looks at the perspectives of each of the parties in turn, giving paramount consideration to the children.

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Children

The following are points that arise from evidence and experience, and need to be incorporated in the final guidelines:

Children who have formed loving bonds with a parent or carer suffer distress and damage if they are denied meaningful contact with them. Such bonds should be protected and supported unless there are compelling grounds for doing otherwise. The contact should always be sufficient for the children to have a strong relationship with both parents and for both adults to act effectively as parents.

Some children have never had a chance to bond with a parent. There may be many reasons for this. These need to be explored. Unless there were child-centred reasons for the exclusion. eg. abuse, the children should be given the chance to bond with their parent and the parent with them. The appendix, in its 'default arrangement' suggests a norm for the amount of contact in such cases.

Children develop best where there is consistent loving care, stimulus, discipline and support. Where these are offered to them, children benefit from receiving them. The onus should be on those who seek to deny the children these benefits to show why they cannot, or should not, have these from those offering them. Child protection concerns need to be investigated by specialists.

The outcomes for children in all respects - health, education, staying out of trouble, forming healthy families in their turn - depends substantially on their self-esteem. This depends on their being loved and on their not feeling rejected or abandoned, especially by people who are important to them personally or symbolically. They should not, unless powerful contrary reasons are shown, be denied contact with people central to their self-esteem or be caused to think they have been rejected or abandoned.

Children are naturally curious about their family, social and cultural background. They need to have answers, normally by direct relationships with the people involved, to their questions. These issues may be of particular relevance when children come from, or are linked to, minority ethnic or other groups, or where they are in combined (step-) families.

Children feel threatened and unhappy during separation of their parents. They should be given support and enabled to retain as much emotional and other security as possible, including adequate contact with family members, so long as this could be arranged safely. While this is a matter primarily for the courts, interim contact (contact prior to a final hearing) needs to be sufficient. An appendix to this paper looking at such a minimum may follow if approved.

Children are distressed and damaged by conflict in the family. Guidelines will need to cover both the benefits of contact, and of the avoidance of conflict and the balance to be struck when necessary. It should also contain suggestions for minimising conflict.

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The Parents

The separation of the parents - and their new feelings to each other - may not of itself reflect on them as people or parents. Indeed conflict over residence and contact can arise where both parents are heavily committed to, and skilled in, parenting but who cannot agree on who should do it or how it should be organised.

CAFCASS staff will need to examine and assess the motives of the parents. The full document should cover possibilities and ways forward in appropriate cases. The Association for Shared Parenting document listed many. These will vary from wholly child-centred concerns (for example, fears for their safety) to cynical ones (for example, to assert 'control' or maximise financial gain). In many cases the reason for conflict will be unresolved issues in the relationship with the other parent. However, genuine disagreements between people who are loving and caring parents may be the commonest factor. The point of view of each party may, understandably, over-emphasise their own role and play down the importance of others, but it may be driven by sincere, if partial, feelings about what is best for the children.

CAFCASS workers will often have to deal with the parents when emotions are still raw and one of their tasks will need to be differentiating things said by parents about each other that are based on those feelings from those that are solidly founded.

All cases, it has been recommended above, should be 'risk assessed' but where there are no grounds for concern (eg for the protection of the children) parents who are supportive of the benefit to children of a full and healthy relationship with the other parent are likely to be the more child-centred ones. CAFCASS practitioners, faced with the wish of one parent to limit the contact of the child with the other, should attempt to discover and report on the reasons and what might be done to remove or reduce them. In the absence of child-focussed reasons for restricting contact, the worker should be more responsive to the wishes of parents who recognise the benefits to the children of having two involved parents than to parents who argue for restrictions.

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Wider Society

Social engineering is no part of CAFCASS's role, but what is good for children and wider society will generally be the same.

Recommendations for contact should be checked as to whether they take sufficient account of the following:

The increasing employment of both parents as a result of their own wishes and the encouragement for them to work, and the benefits that may result from their working;

The fall in the time children spend with a parent and the desirability of remedying this;

The benefits to children and parents of easing the stress of parenting. especially when that is likely to be most acute or when one or both of the parents may need relief and/or support;

The established wish of children to have more involvement with both parents;

The benefits to children of having appropriate role models, including people who combine caring with employment;

The wish of many parents to have a better balance between caring responsibilities, paid work and other activities;

Increasing opposition to allocating caring and earning responsibilities to parents according to gender;

The desirability of spreading knowledge of, and involvement in, parenting and its responsibilities;

Financial issues: involved parents are more likely to share the costs of child rearing;

Housing issues: both parents need to have access to accommodation for their caring responsibilities;

Avoiding the costs of court proceedings.

The 'gatekeeping' of reports, to check that they contain no unacceptable assumptions or language, should continue and be strengthened.

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Who?

The Law specifies who can apply for contact as of right, and who needs leave. CAFCASS staff, in making recommendations to the Courts, should be concerned with the welfare of the children. The Guidance needs to indicate that provision should be made for children to have contact with the following. Sometimes these will need to be specified, in others recommendations for contact with e.g. a parent should be sufficient for the children to get to know others through them (e.g. the wider family that side).

Those with whom the children have bonded; those with whom the children would naturally bond;

Those able to offer the children consistent love, stimulus, discipline and support;

Those important to the children in building a sense of self, especially in ethnic minority and combined (step-)families;

In practice these may amount to the following: parents, siblings and half-siblings, carers and former carers, grandparents and other members of extended family if the children cannot get contact as part of contact with someone more closely related.

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Adults

Those who have formed loving bonds with the children, those who would naturally bond with them, those with family links with them who are able to meet their needs or contribute to meeting their needs should be presumed qualified to have contact.

In practice the list may be the same as above.

Some children will be potentially 'overprovided tbr'. Since people are different, it is likely that children will benefit from involvement from more than one person. While children need stability and security, and the arrangements have to be practical (see below), it will be rare for the number of potentially important carers to exceed those they will be able to relate to beneficially. Where there are fears of that - for example one parent is asking for contact when it has been proposed that care be shared between the other parent and grandparents, or where a parent is asking for contact parent when the children would be in daycare - some idea of 'priorities' and the reasons for them should be given. Such issues will often arise in combined (step-)families.

A natural parent should normally have priority over others and over non-family provision, e.g. children should not normally be put in the care of a nursery or childminder if a family member is available for their care, or with a grandparent if a parent is available.

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How Much?

This can be analysed into:

  • How much time?
  • How organised?

The benefits to children of contact in the ordinary case are well established. There is, however, little case law, or reliable or systematic evidence on how much contact is indicated, or how it is best organised. Instead there seem to be diffuse expectations which seem to vary according to individual and social beliefs. This variety can give rise to a sense of wrong, where amounts of contact that seem reasonable to some are not accepted elsewhere and there seems no procedure for resolving the issue.

Nonetheless, the questions of the amount and organisation of contact are central to CAFCASS's task in making recommendations to the Courts. A national service which is inconsistent and unpredictable will be criticised. This will lead to avoidable litigation, complaints and a sense of injustice in individual cases. One purpose of these guidelines is to reduce the range of variation of outcomes in apparently similar situations and more work needs to be done reduce it further.

The guidelines need to suggest ideas on how answers to these questions - how much contact there should be and how it should be organised - should be arrived at, and what factors need to play a part in any recommendation to the Courts of what might be appropriate.

In all cases, how the recommendations were arrived at, and the information on which they are based, should be clear and open to challenge.

Recommendations should promote what is best for children: the problem is interpreting that. CAFCASS staff should start from a presumption of shared parenting, provided that risk assessment has been adequately done. CAFCASS should commence in deliberation from the notional presumption that the child is entitled to equal contact with both parents. All relevant factors, especially the childrens' views (including a final risk assessment) will enable the recommendation to be a shared parenting arrangement.

Recommendation should aim to keep parental roles as stable as possible with either parent. Shared parenting will involve substantial involvement of both parents, both parents being able to operate effectively as parents and the children perceiving both their parents as important figures in their lives. The exclusion of a parent from any important aspect of a child's life (eg routine contact with school, local friends) should be avoided if possible. Shared parenting does not imply that the children have to spend equal time with each.

The following factors should be addressed in the welfare report and any recommendations:

  • The needs of the children
  • The wishes of the children to the extent of their maturity. Children often say what they think they are expected to say.
  • The bonding of the children
  • The need for stability and continuity
  • The ability and motivation of the parents to provide the necessary care and love
  • The benefits to children and carer of the meaningful involvement of more than one person
  • Practical considerations, such as finance, travel, schooling and the employment commitments of the parents
  • What might be done, and whom might be seen in contact and 'residential' time
  • The needs and wishes of the parents
  • The need to motivate parents and ensure that the arrangements made are adhered to
  • Financial considerations for both parties. Amounts of contact may be affected by the costs to the parties
  • Housing considerations for both parties
  • The need to look at the long term. Family life, roles and behaviour after separation is very changeable. Whatever arrangements may seem best at one moment, it is unlikely that the situation will remain the same. There is a need to preserve children's relationships as 'resources' that might have quite different roles later, eg if a combined (step-) family breaks down.

There may be radically different views, which guidelines should explore and advise on, about what is appropriate in various situations. Over babies and young children, for example, there is a view that they should only occasionally and briefly be taken away from the mother. There are those who argue that babies should learn to recognise and feel safe with both their parents and possibly others. What is important is that the care is from a familiar, loving and competent person in situations the baby is at home in. It is important to be satisfied the parent is capable of meeting the emotional and physical needs of the baby and coping with difficult situations such as prolonged crying.

CAFCASS guidelines on these and similar matters should be as evidence-based as possible. Adequate evidence on the effects of different amounts and patterns of conflict is lacking. CAFCASS should commission research to add to it.

In the ordinary case, however, small and/or infrequent amounts of contact should be regarded as possibly non-viable and avoided, so long as there are not concerns about the safety to the child. There should be a debate about what contact arrangements have the best chance of thriving, indeed about how important specific contact regimes themselves are in the relationship between parents and children. They are almost certainly important, but in interaction with other factors. The evidence, however, certainly does not rebut the common sense notions that the more time children have with their parents, the better is their relationship, and that a meaningful relationship cannot be sustained with little time together. This would seem to indicate more contact than is conventionally granted now.

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How Organised?

The principal issue here is between frequent short periods of contact and longer ones further apart. Or some combination of the two (some short visits, some longer ones).

The proposed 'diary' should always be justified.

Here are some of the relevant factors; reports should be required to address them;

  • The views of the children
  • The views of the parents, including practicalities and costs
  • What is needed for the things the parents/carers propose should happen when the children are with them (e.g. share their life, share holidays, go to school)
  • The age of the children (younger ones maybe needing more frequent contact than older)
  • There will need to be provision for situations like going to distant places to see extended family which may not be possible or affordable frequently or for short periods. Separate guidelines should address risks of abduction

Where contact orders fail to address questions likely to arise (e.g. where the children spend Christmas or birthdays or other significant events) or how hand-overs should be arranged or who is to be responsible and pay for travel, these may lead to potentially avoidable disputes. The Guidelines should contain a checklist of the most important things than might need covering.

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Where

The guidelines should cover those circumstances in which it would be advisable, in the service's eyes, not to allow a parent contact with their children alone, or to limit where they could take their children. This should be an aspect of the 'risk assessment' that it is proposed should be attached to reports. There should be a presumption that the parents will be caring and responsible unless there is 'good cause' to think otherwise. Restrictions imposed reduce the quality of contact and the feelings of children and parents about it, and they should be imposed only for good reason. Further guidelines should specify what constitutes good reason.

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What Support

Parenting is learnt, usually 'on the job' often, but not always, with support and advice from others, such as the wider family. Professional advice is available from health visitors, doctors, teachers and others according to circumstances. There is clear evidence of what parents need to do for children around separation and that many parents do not have ready access to it. It may need to be brought to their attention. CAFCASS employees should assess the skills and qualities of both the parents to provide for the needs of the children, and what help and support - both formal and informal - they may have access to and their willingness to use it. Inexperience may indicate that the amount of contact that would otherwise be proposed be phased in. but should not be a bar to contact unless the person seeking it is resistant to learning. If deemed desirable, information and advice should be offered and recommendations on these matters should be included in their report.

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Questions and Disputes

These guidelines presume ordinary caring parents and no unusual circumstances. Other situations - see the preamble - will need covering in the final CAFCASS paper.

CAFCASS workers should be concerned that questions to do with contact remain firmly about the welfare of the children involved. In appropriate circumstances there should be monitoring of living arrangements: the question of whether 'home visits' to both homes should be obligatory should be debated.

Where there are concerns expressed about the willingness and aptitude of a parent to use contact or residence appropriately, the guidance should specify that three options should be considered. First, the making of a short-term order subject to review. Secondly, the making of a Family Assistance Order. Thirdly, the use of the default arrangements outlined below.

    1. The making of a short-term order subject to review.
    2. The making of a Family Assistance Order.
    3. The use of the default arrangements outlined below.

The Children and Family Advisory Group resolves:

  1. The CAFCASS Board be asked to produce guidelines to contact and the other issues raised in this paper.
  2. This paper be accepted as the basis of the guidelines to contact.
  3. This version be promoted, with the authority of this group, to facilitate a wider debate.

John Baker

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Membership of the Children and Family Advisory Group (February 2001)

 

Anjana Bahl

Children's Rights Alliance for England (Deputy - Veronica Plowden)

Patricia Bailey

Mothers Apart from Their Children (MATCH) (Deputy - Penny Cross) 

John Baker

Families Need Fathers

Adrienne Burgess

Fathers Direct

Carla Crawford

National Youth Advocacy Service

Carol Floris

Voices from Care 

Helen Snedker

Welsh Women's Aid 

Kate Green

National Council for One Parent Families 

Carolyn Hamilton

Children's Legal Centre 

Clem Henricson

National Family and Parenting Institute (Deputy - Mary MacLeod) 

Graham Porter

Association for Shared Parenting 

Zarah Qurashi

National Youth Advocacy Service 

Jenny Robson

The "Who Cares?" Trust 

Hilary Saunders

WAFE (Women's Aid National Office) 

Ruth Sinclair

National Children's Bureau 

Sue Steel

MCSI 

Robert Tapsfield

Family Rights Group

Patricia Terry

Cabinet Office Women's Unit 

Elena Fowler

National Youth Advocacy Service 

Cheryl Walker

Parentline UK 

Robert Whiston

MANKIND

Catriona Williams

Children in Wales

Nicola Wyld

Voice for the Child in Care 

 

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