So, how is this going to work? A look at policy in the ‘real world’ by Hayley Crossman

Divorce|Family|Family Law|May 2nd 2013

Conference room 2Whilst working in the public sector, I was able to see children and families going through the pain of family separation in both the public and private law arenas. At the Children’s Workforce Development Council, a quango set up to ensure those working with children and young people across England were able to do the best job they could, I was amazed at the heartache that some of our most vulnerable youngsters go through. The simple message which they wanted to give to policy makers was this: they needed a degree of continuity with people who knew and understood them. They also wanted to be considered and consulted in matters which concerned them.

Later I took on a support role to policy makers working with the family justice reforms and that gave me a real insight into problems with the existing system. There are too many cases in the family court system and Cafcass workers are trying desperately to tackle an increasing number of cases put before them. Children are waiting too long to be settled with an adoptive family – but those working in private law also wrestle with backlogs and the need to support families too. How can legislation improve outcomes for children going through family breakdown?

Recent changes to legal aid have generated a great deal of discussion.  These were set to flow in the same direction as the government’s reforms to private law – getting as many cases away from the family courts and into mediation or finalised through out-of-court settlements. Legal aid will remain for those cases where domestic violence has been reported. But there is a real danger that cases where domestic violence has not been reported –due to fear or associated stigma –  will still slip through this net. Would it be right for these people to attend mediation?

Plans for cooperative parenting – formerly known as ‘shared parenting’ – tried to address a supposed bias within the family courts and send the message that in cases of divorce and separation, the courts will consider both parents jointly responsible for any children.  Unfortunately, the term ‘shared parenting’ meant that many parents feared the time children spend with each parent would have to be split  50/50. This is not the case. For those parents representing themselves in court, there is a real danger that reports by the media suggesting this new legislation will provide parents with ‘equal rights’ will lead to one parent feeling cheated. It was a sensible decision to change the name of this clause to avoid this misconception – but has this change come too late for some?

The cooperative parenting clause which was included in the Children and Families Bill 2013 currently working its way through parliament, did not of course detract from the principles set out in Section 1 of the Children Act 1989. This requires that the welfare of the children be the court’s paramount consideration.

The results of pre-legislative scrutiny and a public consultation on the clause can be found on the Department for Education website. These both raised concerns and now, after sitting in front of parents with similar worries, I have started to wonder if these reforms will actually work. Whilst supporting the progression of the policy through Parliament, liaising and negotiating with numerous government bodies, I could see the reasoning behind the reforms but there is a big difference between policy ideals and the actual effects of policy ‘on the streets’.

The government  is also encouraging the use of mediation, supported by information programmes for separating parents. They are also encouraging the use of parenting agreements to formulate plans for children. Unfortunately, I feel that any benefit from will not be felt within this generation. These reforms are not a quick fix and that is probably what the family justice system needs.

Before the results of any research into the effects of these reforms reach the policy makers, the effects will of course be felt by those working on the front line. Law clinics offering free advice over lunch are going to be the first point of call for many. Websites offering advice to litigants in person are going to see an increase in hits as people look to represent themselves, while community ventures aiming to give advice will be inundated. But the people who will feel the effects of those reforms most keenly will be the families actually going through the system.


Hayley studied Spanish at the University of Leeds, spending a year abroad in Hayley CrossmanAlcalá de Henares on the outskirts of Madrid where she studied Spanish language and literature and modules in Spanish law. Hayley then went on to complete her Graduate Diploma in Law at the College of Law in York and is currently studying for her Masters in Childcare Law and Practice at Keele University.

Hayley gained an interest in family law whilst working for the Children’s Workforce Development Council and more recently with the Department for Education within their private family law team. Whilst at the Department, she supported work on the Children and Families Bill 2013, with a specific focus on the parental involvement clause.

Hayley has a keen interest in baking and craft and when she’s not doing that she run marathons, running four within the space of a year and a day.

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