In his address to the Nagalro Spring Conference, in March 2018, and in his subsequent keynote speech to the Families Need Fathers Conference 2018, Sir Andrew McFarlane expressed his support for Dr Hamish Cameron’s Early Intervention Project. Part of that package is the use of Standing Temporary Orders in family cases. With Sir Andrew now installed as the President of the Family Division, these comments demand serious consideration.
Whilst Sir Andrew acknowledges that for the initiative to be developed it would have to be developed and supported by all levels of the family judiciary, it is something which (for the most part) could be accomplished without legislation or government involvement. With Westminster’s attention focussed elsewhere, this is a positive advantage. You need only look at the Government’s failure to implement a very simple change, to prevent victims of domestic abuse being cross-examined by their abusers, to see the force of this argument.
What then is a ‘Standing Temporary Order’? In some parts of the United States, particularly Florida, when a divorce petition is filed, or other family application made, the court automatically issues an order which is designed to preserve the status quo, as far as possible, and to set out the way in which the parents are expected to conduct themselves. The order deals both with children and financial issues.
The Hillsborough County Circuit Court uses an order which begins by explaining what the law (in Florida) says about contact/shared parenting following separation: ‘It is the law that, in general, contact with both parents is in the children’s best interest, and that children are entitled to “frequent and continuing contact with both parents when the parents separate or divorce.” Further, the parent who is or wants to be the “parent with majority time-sharing” has an “affirmative obligation to encourage and nurture a relationship between the children and the alternative residential parent.”
A parent who restricts access of the children to the other parent and does not encourage a relationship between the children and the other parent, for no good reason, perhaps should not be designated the “majority time-sharing parent.” Such a parent is not acting in the children’s best interest and is not following the law. In nearly all cases, the judge will order “shared parenting” of the children by the parents. This means the parents must confer with each other and agree upon all parenting decisions. Therefore, both parents must participate in all parenting decisions and immediately work out their own time-sharing schedules. If the parents cannot agree on any issue, then the judge will decide.’
The order goes on to require both parents to attend a mandatory parenting class. Attendance at such a class, comparable to our own PIP, is required even where the application is uncontested. The parents must attend the course within 60 days of the commencement of proceedings and without certificates that both have attended, no final order may be made.
Both parents are prohibited from relocating the child outside the county where they currently reside without the agreement of the other parent, or permission from the court.
The fourth paragraph of the standard order then sets out ‘guidelines’ about how the court expects the parents to behave towards their children and towards each other in relation to their arrangements for those children. After setting out that ‘the law expects parents to put aside their feelings and cooperate on all decisions involving children, the following provisions appear:
‘A. Children have a right to a loving, open and continuing relationship with both parents. They have the right to express love, affection and respect for one parent in the presence of the other parent.
B. Neither parent may alienate a child’s affection for the other parent.
C. Parents must separate any bad feelings for one another from their duties as parents. Their duty is to share the children’s time and share in making parenting decisions. Children must be free to draw their own conclusions about each parent, without the prejudicial influences of the other parent.
D. Children have the right to never hear a parent, or a relative or a friend of a parent, belittle or degrade the other parent.
E. Children have the right to be free of guilt because the parents have decided to separate. They are entitled to honest answers to questions about changes taking place in the family makeup. However, information regarding the divorce case should not be discussed with the children.
F. Parents should never be so preoccupied with their own problems that they fail to meet the children’s needs. Separation of the parents usually has a worse impact on the children than on the parents, a fact both parents should never forget.
G. Each parent should openly, honestly, respectfully and regularly communicate with the other parent to avoid misunderstandings. Parents should never argue about the children in front of them.
H. Parents should discuss all differences between them regarding their separation, financial issues and parenting decisions out of the presence of the children. Both parents shall always try to present a united front in handling any problems with the children.
I. Children have the right to regular and continuing contact with both parents. Parents should arrange all visitation and exchanges between themselves and not through the children. The children should never be the messenger between the parents.
J. Visitation plans should be kept and never cancelled unless absolutely necessary. If plans change, children should be given an explanation, preferably in advance and by the parent causing the cancellation.
K. Common courtesies (politeness, promptness, readiness, calling to notify if one is going to be late) should always be observed when picking up and dropping off children. These times can be very stressful on children, so it is imperative that parents always behave as responsible adults.
L. Between visits, children should be encouraged to contact the absent parent by letter and phone, frequently and continuously.
M. A parent’s access to a child and child support, while they may be emotionally connected, are separate and distinct under the law. Accordingly, a child’s right to access to his or her parent does not depend upon the payment of child support.
N. A child should never be the delivery person for support payments or other communication between the parents.
O. Both parents are entitled to participate in and attend all special activities in which their children are engaged, such as religious activities, school programs, sports events and other extracurricular activities and programs.
P. Parents should share information concerning children’s activities and school information.’
In the majority of cases, I would suggest that there is little, if anything, in those guidelines which either lawyers or children’s social workers would take issue with.
Undoubtedly, such orders could be made in this jurisdiction. It would not require a change in the law; although a standard form of order would be desirable and an amendment to Part 12 of the Family Procedure Rules 2010 would help to ensure the consistent application of the initiative. If it were done, what effect if any, might it have on the children and their lives, following the separation of their parents?
The first point is that it just might begin to educate people away from the tabloid ‘custody battle’ misconceptions and towards an understanding of what is really in the best interests of their children. I cannot be the only solicitor to have been faced with a client wanting ‘full custody’ of the children, only to be shocked when I explained that the concept of custody, full or otherwise, was abolished before they were born. A brief search of Google shows that the concept of proving the other parent ‘unfit’, is alive and well in popular belief. The problem with which we have to wrestle, is that calm and child-centred compromises do not sell newspapers and do not attract viewers to soap operas. The family warmongers have better circulation and viewing figures than the Children Act.
In its favour, the Standing Temporary Order comes at the start of the proceedings, hopefully before positions have become too entrenched. It does, however, depend on an application actually being issued and so there will always be parents who, through lack of access to legal advice, never bring matters to court and so never see what the court would have said. That is not to say that such orders should not be made. Personally, I think that they should, but they will not be a universal panacea and their success should not be judged against such a high standard.
The lawyer immediately looks at the wording of the order and asks, ‘how can I enforce something like that?’ The answer, I think, is that, in most cases, you cannot. What you can do, is to then ask the court to make a bespoke order for these parents and for their situation, with that application being made against the backdrop of the standards of behaviour set out in the Standing Temporary Order. It sets the tone for what follows.
The other legitimate concern, is for those cases where the terms of the order are quite inappropriate, because of issues of domestic or substance abuse. Essentially where PD12J applies. What the use of the Standing Temporary Order may do, is to force these issues to be resolved at a much earlier stage, because it would put the onus on the parent saying that these ‘standard’ arrangements should not apply, to show, by evidence, why that was the case. What we so often see in cases of alienated children is that the fact-finding exercise has been continuously avoided so that the allegations remain hung in the air, unresolved, but tainting everything.
An early resolution of these issues is to the advantage of both parents and in the best interests of the children. For the parent raising the allegations of abuse, the sooner they are resolved, the sooner the court can protect them from further harm and they can be safe from any suggestion that the children are being ‘poisoned’ against the absent parent. With the facts set out in a judgment, it should be clear that a reluctant child’s reticence to visit their parent has a perfectly rational basis. For the accused parent, if the allegations are without foundation, the sooner they are dismissed the better for them. For the child, certainty and stability are more likely to follow.
With the present structure of our legal aid system, it also makes sense to put the burden of driving forward the issue of whether there should be a departure from ‘the norm’ on the parent who alleges they are the victims of abuse, as they are likely to have access to legal representation to conduct the proceedings. At present, the burden of driving forward a fact-finding exercise too often falls on the alleged perpetrator who may not be able to afford the costs of being represented, especially at a lengthy hearing and so is encouraged to delay and fudge the issue.
The Florida scheme makes it compulsory for everyone who is involved in divorce proceedings, where there are children, to attend the equivalent of the Separated Parents Information Programme; even if the proceedings are not contested. The rationale appears to be that the information is of value to every separating parent and so it should be received by all. This approach also avoids parents feeling resentful, because they have been told to go on a course when they are the victims of their former partner’s irrational and vindictive behaviour. If everyone has to attend, there can be no stigma and no one can be missed out.
There are, as the Treasury may put it ‘resource implications’ for this. That is true, but there are much greater resource implications from cases which run on for five years and more, sucking in ever more judicial and publicly-funded lawyers’ time. ‘A stitch in time …’ may be the appropriate response.
I have not been able to find any evidence that these orders have caused harm in the courts where they have been in operation for a number of years. Information from the Florida courts seems to suggest a positive effect on cases. My only concern would be to ensure that victims of abuse are not prevented from protecting children by the careless application of a ‘one-size-fits-all’ solution. That is not a reason to avoid these orders. Those risks are something which all levels of the family courts must be alert to and which I would wish to see reflected in the wording of any form of Standing Temporary Order which may be adopted. There would need to be something in plain English which says ‘if you think that these arrangements are not in the best interests of your children, you must tell the court as soon as possible so that the judge/magistrates can look carefully at this. Above all else, the court must do what is in the best interests of each individual child’.
We need to change mindsets when parents separate. The law and the professional’s understanding of what is best for children has changed immensely over the last half-century. There are still too many parents who have been left behind by these changes and a scheme which aims to educate and to bring that education and some basic rules to bear before the parties’ positions have become intractable, has to be worth the investment of our time and resources.