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Intractable hostility cases: effective remedies or sticking plaster? 6th World Congress of Family Law and Children’s Rights Sydney, 18 March 2013 Caroline.

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Presentation on theme: "Intractable hostility cases: effective remedies or sticking plaster? 6th World Congress of Family Law and Children’s Rights Sydney, 18 March 2013 Caroline."— Presentation transcript:

1 Intractable hostility cases: effective remedies or sticking plaster? 6th World Congress of Family Law and Children’s Rights Sydney, 18 March 2013 Caroline Willbourne and Rachel Chisholm Barristers, London, UK © Caroline Willbourne and Rachel Chisholm 2013

2 Agenda Definition Approaches to intractable cases in England & Wales Shared parenting Effective case management Use of experts Child’s Guardian Enforcement Methods of last resort Problems in the family justice system

3 Definition Dr Richard Gardner, US: ‘Parental Alienation Syndrome’, not approved by the English courts. In UK, ‘intractable contact cases’ are those where one parent (usually the mother) tries to prevent the child from having contact with the other parent (the father) or in severe cases, any relationship with the paternal side of the family. The UK definition, adopted by the English court adopting Drs Sturge & Glaser in their work Contact and Domestic Violence: -“the alienation of the child from the non-resident parent in these contact disputes can be the result of many different causational factors and not just the resident parent’s deliberate & malicious attempts to turn their child against the other parent”.

4 Approaches to intractable cases Early intervention; Public education: - ‘sorting out separation’ web app - Parenting Information Programmes (‘PIPs’); Mediation; Parenting agreements.

5 Shared parenting The Government is to amend the Children Act 1989 (sec 1 (2A) to provide for a presumption of shared parenting: - “The court... as respects each parent within ss (6 )(a), to presume, unless the contrary is shown, that involvement of that parent in the life of the child concerned will further the child’s welfare”. 2 exceptions: - (a) only if the parent can be involved in the child’s life in a way that does not put the child at risk of suffering harm; and - (b) the parent is to be treated as falling under (a) unless there is evidence before the court to suggest that involvement in the child’s life would put the child at risk of suffering harm, whatever the involvement.

6 Effective case management Per Hedley J in Re E [2011], early identification of hostility or difficulty is crucial in curtailing intractable disputes. Ask: is opposition to contact on part of mother deliberate or malicious manipulation or unintended? If the latter, note opposition can arise from child absorbing mother’s views about the risk of contact: therapy for mother? The judge gave case management guidelines: -Courts should identify early on cases which have a ‘hallmark of difficulty’; -Parties to be able to give evidence early on, not against each other, but focussing on the child’s welfare; -Judicial continuity important.

7 Use of experts They are needed to identify the extent and depth of animosity and to advise the court on how best to deal with it. Can be psychiatrist, psychologist or a very experienced guardian or social worker: in UK, will be Cafcass or NYAS. Experts can be called on behalf of one or other parent or (much better) on behalf of the child. In UK, mostly Single Joint Experts (“SJE”) so as to limit the ambit of cross-examination. SJE will usually be agreed as expert for child.

8 Child’s Guardian In intractable cases, important to hear the voice of the child. A Guardian relays child’s views to the court, even if they will not dictate the outcome. A complex issue as child’s views unlikely to be determinative unless child old enough for his views to prevail. Judge will listen to child’s views and can reassure him that he has been heard, even if the outcome is not what child wants. Should Judge meet the child?

9 Enforcement Contact activity directions Contact activity conditions Fines/compensation for financial loss Unpaid work requirement Imprisonment Are any of these enough? Do any of them work?

10 Methods of last resort Terminating or suspending contact Transfer of residence Approaches to transferring residence –Interim Residence Order –Suspended transfer of residence –Immediate transfer of residence Removal and Local Authority involvement

11 Problems in the Family Justice System Delay Lack of judicial continuity Lack of effective penalties

12 The way forward? More mediation Remove from the adversarial system Do not allow parents to litigate until they have exhausted all conciliatory remedies Is it done better in other jurisdictions? E.g. Canadian provinces

13 THE CANADIAN APROACH Rachel Chisholm Ontario, Manitoba and Quebec

14 COMPARISON WITH THE UK A high level of contact cases litigated in court: Ontario Family Courts: 70% of cases involve access and custody No ‘one size fits all’ solution to high conflict cases: SGB v SLJ 2009 CanLII 24230 Increasing concerns over delays and shortfalls in the court systems Focus on public education, mediation and alternative dispute resolution, using similar resources such as PIP and mediation Key differences: Therapeutic resources and therapeutic mediation Focus on research

15 INITIATIVES The Divorce Act 1985 Federal Minister of Justice’s response to the Special Joint Committee on Child Custody and Access (2001) The Supporting Families Experiencing Separation and Divorce Initiative: –$122 million between 2009 and 2014

16 What is High Conflict? The Federal Minister of Justice’s response to the Special Joint Committee on Child Custody and Access (2001): –Further research to develop an accurate measure of ‘high conflict.’ –Identifiable features include: High degree of mistrust Rigid/inflexible thinking Competitiveness/poor sense of boundaries –Conclusion: divorce conflict better seen as a continuum

17 EARLY INTERVENTION The Supporting Families Initiative Resources: Parenting Information Programmes Dispute Resolution Officers Mediation (on-site/off-site) Family Law Information Centres Services to assist with Parenting Plans Most common way of streaming ‘conflict’ types Resources for children

18 EARLY INTERVENTION: PROVINCES Ontario: Law Commission of Ontario Family Law Justice Interim Report ‘Front Door Policy’ Mandatory Parenting Information Programmes Manitoba: ‘First Choice’: combines assessment, mediation and counselling. Purpose: helps families reach agreement on family and parenting issues without going to court. ‘Caught in the Middle’ Family conciliation counsellors assist children in working through their questions about separation.

19 Prioritising Children Initiative: Seven Pathways To Success Multi-disciplinary strategy combining the efforts of: 1.The Superior Court of Justice 2.The Courts 3.The Ministry of the Attorney General 4.The Legal Resource Justice Partners 5.The Legal Profession 6.The Law Schools and Academia 7.The Medical and Mental Health Profession

20 HIGH CONFLICT CASES JUDICIAL INTERVENTION Use of a Parenting Co-Ordinator and detailed Parenting Plans Therapy and therapeutic resources: S.G.B v S.J.L 2010 ONSC 3717/ Matos v Driesman 2009 CanLII 74651 Court assessments Penalties Compensation Fines: Cooper v Cooper [2004] O.J. No5096 SCJ Imprisonment for contempt Transfer of Custody: Reeves v Reeves [2001] O.J. No 308 Ont SCJ Declaration of Alienation: C.C. v M.S. [2005] CanLII 17274 Streaming High Conflict Cases

21 PARENTING PLANS: CONFLICTS AND RESOURCES High Conflict: Key Elements of Parenting Plan Minimal contact between parents Detailed and precise A ‘primary parent’ for decision making Communication book Neutral place for handover Referral to Community Resources Counselling and therapy Supervised contact centres Referral to child protection agencies if necessary

22 PARENTING PLANS: CONFLICTS AND RESOURCES Low Conflict: Key Elements of Parenting Plan Possible joint and shared decision making Flexibility between parents within the plan Focus on contentious issues within the plan Referral to Community Resources Mediation Parenting Information Programmes Group or individual support counselling

23 Thank you! Caroline Willbourne Rachel Chisholm

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