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EXECUTIVE SUMMARY
The issue of child contact following parental separation and how family law and policy could facilitate the making of good child contact arrangements was the subject of much discussion during the passage of the Family Law (Scotland) Act 2006. This report presents the findings of a small literature review of mechanisms for dealing with child contact issues across jurisdictions in order to inform future discussions.
Many if not most child contact arrangements following parental separation are decided privately by mutual agreement between parents, with little involvement of social agencies or courts. Other families use family support services. Thus, court-based mechanisms for managing parent child contact should be seen within the wider context of much more prevalent private ordering and use of support services directed towards this issue.
The mechanisms considered in this review encompass advice, information and education mechanisms (including parenting plans, parenting agreements, parenting education), legislative, court-based and civil law mechanisms, and relationship support and social welfare support and service mechanisms, both those linked to or mandated by the courts and those independent of them. These various mechanisms can be applied in the contexts of contact dispute prevention, resolution or enforcement. The review looks at how some jurisdictions address contact issues where there has been a history of intractable conflict, child abuse or neglect or domestic abuse.
A selection of countries with similarities to Scotland are surveyed, including England and Wales, France, Sweden, Denmark, Australia, Canada, the United States and New Zealand. Many share with Scotland key values that inform child contact mechanisms, and a common international legal context, principally enshrined in the European Convention on Human Rights ( ECHR) and the UN Convention on the Rights of the Child. While some jurisdictions share the Scottish legal framework of parental responsibilities and rights, and its legal terminology of residence and contact, others use terminology such as custody and visitation or access.
Although it does not mention contact directly, Article 8 of the ECHR implies that a child has a right of contact with his or her parents and wider family as one part of their 'right to respect for his private and family life'. The principal legal framework governing contact in Scotland is set out in Sections 1 and 2 Children (Scotland) Act 1995, which define parental responsibilities and associated parental rights ( PRRs). Amongst these is the responsibility (and associated right) of a non-resident parent to maintain contact with their child, if that would be in the child's best interests. S.11 of the Act sets out the orders a court can make, including an order in s. 11(2) about where a child should live (a residence order) and an order regulating the arrangements for maintaining contact between a child and a person with whom the child is not living, e.g. a non-resident parent (a contact order). However these particular provisions are set in the context of the three overarching general principles guiding any court action in relation to children, as set out in s. 11(7) of the 1995 Act, namely
- 'the court must regard the welfare of the child as its paramount consideration',
- the no-order principle: that the court should only make an order if it is better than making no order,
- 'Taking account of the child's age and maturity, the court shall so far as practicable give the child the opportunity to indicate whether he or she wishes to express any views on the matter in dispute; if the child indicates that he or she does wish to express views, give him or her the opportunity to do so; and have regard to these views.'
In relation to the question of whether contact with a non-resident parent is good for children, there appears to be a general legal presumption in almost all of the jurisdictions examined that contact with a non-resident parent is good for children. However whether contact with a non-resident parent is good for children is pervasively questioned in much of the literature examined, and what may be in children's best interests generally may not be in an individual child's best interests. Two such instances of whether a child's best interest is served by contact are where there has been a history of domestic abuse or intractable conflict. O'Connor (2002) concludes "Ongoing contact seems positive for most children, but there are instances when contact is definitely harmful and the child would be better off without it.' Particularly damaging to children is conflict that is 'frequent, intense, physical, unresolved and involves the child' (Buchanan and Hunt 2003). One recurring message is that positive outcomes for children are associated with frequent and predictable contact. The presumption in law in favour of contact by non-residential parents as being in a child's best interests may be misplaced. In view of the fact that the cases that end up in court tend to be at the high conflict end of the spectrum, a more neutral legal stance in which each case is decided on its merits might accord better with the research evidence which emphasizes the quality of the non-resident parent/child relationship, and in particular the absence of conflict in the post-separation parental relationship.
Remarkably lacking in the literature surveyed are any practical measures to address the failure to meet the parental responsibility of maintaining contact by the sizeable minority of non-residential parents who lose contact altogether, even where the child concerned positively desires contact and this would be in the child's best interests.
Mechanisms addressing contact issues: the general approach
There are a variety of mechanisms that span legal and social services in addressing residence and contact issues following separation. Typically there is a mixed methods approach combining information, advice and private ordering to support parents in making arrangements, with an assortment of social services and family support services to help with disputes or with changing arrangements, and finally, with legal and court interventions for the more intractable, conflicted or complex cases. The graded approach addresses in their respective tiers the contexts of contact dispute prevention, resolution and enforcement. The approach is mainly based on the principles that the best interests of the child remains the most important issue; that following separation, shared parental responsibility should be encouraged; and children should continue to be able to spend time regularly with the parent with whom they are not living. In many jurisdictions, parents are encouraged to develop parenting plans and to try to resolve contact and residence issues privately, perhaps with the help of family services, before recourse to the courts.
Australia
Australia has a federal family law and family court system in which individual states comprise separate legal jurisdictions, with the common legal principles since 1996 of shared parental responsibility and the child's best interests to govern post-separation parenting and child contact. Recent major reforms introduced a highly integrated set of family and legal services, mainly through a network of community-based government funded Family Relationship Centres acting as a single entry point to the family law and family support system. The system also includes Early Intervention Services such as family relationship counselling, mediation, education and skills training, on-line information services for parents and family violence services and Post Separation Services, including contact centres, a Contact Orders Program, Children's Contact Services and Family Dispute Resolution Services. Lawyers and courts are intended as a last resort.
Canada
The 1998 report, For the Sake of the Children, rejected a formulaic approach to dealing with contact, recognizing the diversity of family life and arguing that individualized, informal agreements made by parents were more likely to be in the child's best interests. A 2002 study, of Canadian mechanisms for contact dispute prevention, resolution and enforcement, observes that 'most separating or divorcing couples appear to resolve their access arrangements without high conflict or extensive use of the courts'. Services to support separating and divorcing couples are delivered at provincial levels, although some receive federal support. There are different and wide mixes across provinces of counseling, mediation and information, parenting plans and parenting education services available. Dispute resolution services include counseling, mediation and arbitration for access enforcement. Contact centres offer supervised or supported access. Sanctions available to the courts for access enforcement also vary, and can include civil contempt, fines, imprisonment and compensatory access.
United States
Each state in the United States comprises a separate legal jurisdiction, and, like Canada, there is a varied mix of mechanisms used to address contact issues, with very uneven levels of provision. Innovative educational and mediation programmes have been introduced in some states, although most have not been evaluated by research. Some of the mechanisms available to deal with contact issues include parenting plans, parenting education programmes, parenting coordinators who help parents to contain conflict and make joint decisions, mandatory and voluntary mediation, and programmes to address non-compliance with contact orders.
Sweden
In Sweden, contact operates with a graded mix of private ordering, social services and family courts. The presumption is for both parents to have automatic joint custody of (i.e. legal responsibility for) their child, if they are married, that remains so after separation when the child might live with one parent. Child contact is seen primarily as a child welfare issue, and there is no specialist family court within the Swedish legal system. Agreement and cooperation is encouraged between separated parents on custody, residence and access, supported and facilitated by local social services first, followed by court intervention afterwards if necessary. Law reform in 2006 was based on the two principles: the best interests of the child and the right of the child to be heard. There is a child-centred approach to contact decisions, and a presumption that a child needs a good and close relationship with both of its parents. Regard must be given to the risk of any harm to a child or another family member, and to the child's wishes.
New Zealand
The New Zealand family court system that governs residence and access emphasizes children's rights, consulting children about decisions that affect them, parental responsibilities (rather than rights), ongoing joint parental responsibility after separation, and cooperative parenting after separation. The welfare of the child is paramount and children are entitled to have independent legal representation. Parenting orders have replaced custody and access orders, with an emphasis on parents cooperating with each other and reaching agreement about the care of their children (possibly recorded in a parenting agreement or confirmed in a court order). If parents cannot agree, the Family Court can intervene, drawing on services such as professional counseling, mediation conferences, and a formal court hearing; parenting orders are seen as a last resort.
France
Mediation was introduced in 1996 and has been further integrated since into the civil code governing divorce and family matters. The legal process focuses on achieving informal agreement. When a divorce action is raised, a civil judge meets each of the parties separately and without lawyers at least once, emphasizing the benefits of reaching agreement with regard to the children. Supporting family services include mediation and contact centres, which have been extensively developed since the late 1980s as a 'neutral' space for facilitating contact in difficult cases.
Denmark
In Denmark, divorce is dealt with as an administrative matter and there are three types of measures that aim to support children and parents in relation to child custody and/or contact: 1) The Regional Government administration deals with decisions on child custody and contact and offers free, professional, voluntary and confidential counselling to parents who disagree over custody or contact; 2) Mediation is offered free of charge to parents who disagree about custody or contact. Both parents must agree to attend and there are two mediators, one lawyer and one person with experience in child cases; and 3) meetings for children whose parents live apart, so that they can meet with other children of the same age and with similar problems. Counsellors with experience in child cases attend these meetings.
England and Wales
Responsibility for family justice (and child contact) rests with the Ministry of Justice, which aims to improve information and advice to parents, promote alternative ways to resolve disputes, such as in-court conciliation, and mediation, and to give the courts more flexible powers in contact cases through the Children and Adoption Act 2006. The great majority of families involved in parental divorce make their own arrangements for residence and contact without recourse to the courts. There are no explicit guidelines or norms about contact, although parenting plans are thought by practitioners to be a useful framework for working with parents. No evaluation or research to assess their value has been carried out. A Family Resolutions Pilot Project began in 2004 as an innovative court-based intervention to help parents manage conflict and develop more cooperative post-separation parenting. It has three stages. Parents who have raised a contact action can be referred by the courts. First, a video is presented about the effects of conflict on children, followed by a discussion. Next, parents are seen separately to focus on managing conflict. Finally both parents meet together with a CAFCASS adviser to plan post-separation parenting.
Conclusion
A selection of mechanisms for dealing with contact issues across a range of jurisdictions was presented. Almost all regard the best interests of the child as paramount. The mechanisms have a variety of purposes along a continuum of contact dispute prevention, resolution and enforcement and are usually part of a mix that spans legal, social and family services. They encompass advice, information and education (including parenting plans or parenting agreements, and parenting education), legislative, court-based and civil law mechanisms, and relationship support and social welfare support and service mechanisms, both those linked to the courts and independent of them.
The value of research evidence is stressed, and for this highly controversial area of family law in particular, the need to ground policy in solid evidence is repeatedly emphasised as a means of assessing claims by various stakeholder groups. It was relatively rare to encounter systematic and robust research evaluations of the services under review and much of the literature was of a descriptive rather than analytic nature.
A typical model for jurisdictions that have reformed their approaches recently is a graded mixed approach, almost pyramid-like, ordered by the level of conflict being addressed. This model combines information, advice and private ordering at the first tier to support parents in making arrangements, followed by a mix of social services and family support services to address disputes or the need to change arrangements to reflect children's or parents changing needs and availability, backed up by legal and court interventions (and specialist services) for the more intractable, conflicted or complex cases such as cases involving violence, child neglect, breaches of contact agreements or orders or denial of contact.
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