LANDMARK CASE ENDS BAN ON SECRECY

Clayton v Clayton [2006] EWCA Civ 878 - LANDMARK CASE

A successful appeal against injunctions preventing a parent from publishing matters concerning his daughter.

This landmark case clarifies the issues surrounding privacy in Court Proceedings under the Children Act, Administration of Justice Act 1960 and the Human Rights Act. The President of the Family Division, Sir Mark Potter, reiterates the underlying law and reviews the appropriate cases. The key passage is paragraphs 77-78 which sets out new guidance on the restriction that can be placed on reporting after the conclusion of proceedings.

Download the Judgment - click here

MEDIA COVERAGE BELOW

The Times
June 28, 2006
Children's right to anonymity ended for family courts
http://www.timesonline.co.uk/article/0,,2-2246764,00.html
By Frances Gibb, Legal Editor

A LANDMARK Court of Appeal ruling yesterday ended the automatic ban on identifying children involved in family court cases, even after proceedings have ended. The blanket of silence that prevents public discussion of decisions to take children from their families, or to reunite them, was lifted.

The Court of Appeal ruled that Simon Clayton, who spent more than three years in dispute with his former wife Aneta over contact with their daughter, Estelle, 10, should have the right to talk openly about his case.

Judges will balance in each case whether any entitlement to anonymity should outweigh the right to freedom of expression. Publicity will not be allowed in any case where it could in any way harm or cause distress to a child. The judgment is expected to extend beyond parental contact disputes and affect all cases involving children, including those of young people being taken into care or adoption decisions.

It comes after an assurance from Harriet Harman, the Minister for Constitutional Affairs, that she will consult this year on opening up the family courts to greater scrutiny, a move supported by growing numbers of both senior family judges and politicians. They believe that greater openness would help to boost public confidence in the family courts and dispel the impression of decisions taken behind closed doors by unaccountable judges.
Judges called it “a small step towards greater transparency” that would help to “rebut the slur inherent in the charge that the family courts administer ‘secret justice’”.

The victory for Mr Clayton came after he reached a novel “shared care” agreement with his former wife.

A campaigner for fathers’ rights and a volunteer adviser to other divorced and separated men, he had wanted to show the parenting plan to others as an example of good practice that can work in the interests of all parties, even in cases that had previously been marked by conflict.
But he had been prevented by the usual blanket injunction in such cases, which would have remained until his daughter’s 18th birthday. Fathers’ rights campaigners said that the ruling would shed a powerful light into the darkness of the family courts, making them accountable for their actions for the first time.

Jim Parton, of Families Need Fathers, said: “Until now people could not see what was going on and how the system was failing families. They could not see the bias against fathers, the general incompetence and the inappropriateness of the whole adversarial system for dealing with cases involving children, which have the potential to mess up children’s lives for good.”

Sir Mark Potter, President of the Family Division who headed the panel of three judges hearing the appeal, said that Mr Clayton had wanted to be able “to debate issues about the family justice system in public by reference to his own case”.

Mr Clayton, from Hay-on-Wye, Herefordshire, had also wanted to campaign for better and more open family justice, including the sharing of tax credits and child benefit when there are shared parenting arrangements.

He had also wanted to put photographs of the child on his website, recording ordinary family happenings. But Mr Clayton was barred by the High Court from using any family names or discussing matters relating to education, maintenance and finance or any of the matters heard in court. But the appeal judges said that Mr Justice Hedley had been wrong to continue the injunction after the end of the case.

In a summary, Sir Mark said the ruling “may well have widespread repercussions for parents and children in relation to the identification of children”. He added: “Essentially, the decision concerns the balance between children’s right to privacy and their parents’ right to freedom of expression under the European Convention on Human Rights.”

He said that the father should be allowed to debate issues about the family justice system with reference to his child’s case. “These are all acceptable activities which should not be restrained by an order preventing identification of the child,” he said.

DOWNLOAD THE CLAYTON JUDGMENT

Children and Adoption Act doomed to failure!

The Children and Adoption Bill has now been turned into an Act.

Download the new Act

Unfortunately it fails to introduce anything that will solve the problem of children losing contact with their parents for no good reason after divorce and separation. It is therefore doomed to failure!

FAMILY COURTS GET WORSE!

EQUAL PARENTING COUNCIL (EPC) notes from the news today that Bank of England Governor, Mervyn King, has criticized the court system - this is in the wake of the Bank's 13-year legal battle to fight off a negligence claim after lender, BCCI, collapsed in 1991 owing more than nine billion pounds.

He called the claim against the Bank, the "most expensive fishing expedition in history" and he said the case gave rise to serious questions about the legal system.

I agree wholeheartedly with Mr King when he says that a legal framework for enforcing contracts and resolving disputes is “not just an arcane process which allows professionals to earn vast fees, but should be an integral part of the infrastructure of a successful market economy”. I agree with him that we need simple, clear and timely ways of resolving disputes.

As Mr Justice Lightman has said, the public sees the English legal system as a profitable monopoly for lawyers.

The same is truer of our family court system. At least in this case the Bank has recently been awarded £73 million in costs after the collapse of the claim against it. And at least this dispute was only about money! Our arcane family court system ruins people's lives every day, especially the lives of the children involved in family breakdown.

Mr King concluded his remarks by saying, "I very much hope that the Government will look carefully at this case, learn the lessons, and take steps to ensure that such an outcome can never occur again" I doubt very much that this Government will do any such thing!

We’ve had umpteen consultations and reviews of the family court system. Over many years, EPC has spoon-fed the Government with proven strategies from Best Practice jurisdictions that would swiftly improve outcomes for children and families. Yet the Government has failed to do anything meaningful. In fact the system is getting worse rather than better. The same, depressing familiar complaints still flood into EPC on a daily basis.

Common-sense is a very uncommon commodity in this Government!

Please send feedback to info@EqualParenting.org

Parent Alienation Syndrome, the video!

Much harm comes to all when one parent brain washes a child against the other parent. These represent some of the toughest cases in child custody disputes.

View this video about Parent Alienation Syndrome:
http://www.yoursocialworker.com/videos/PAS.wmv

F4J raising their ugly heads again?

PROTEST FATHERS STILL HAVE LOTTO TO LEARN

Equal Parenting Council agrees wholeheartedly with Eamonn Holmes's views about the destructive comeback stunt by F4J that disrupted the National Lottery - read Eamonn's column at:
http://www.people.co.uk/news/eammonholmes/

It's a great pity that F4J have raised their ugly heads again. Eamonn is right – their Cause is a just one; but they don’t go about their campaign in a way that engenders publicly sympathy – quite the reverse!

They do a great disservice to the legions of decent parents who have lost their children simply because our system of family justice does not work. Why? Because these protesters make people believe through their loutish conduct that courts are excluding parents for good reasons!

In terms of doing something positive, we urge YOU to make sure their MP supports Early Day Motion 128, which now has substantial support in Parliament. It calls for a change in the law that will install a legal presumption that all decent parents should be entitled, after separation, to spend a reasonable amount of PARENTING TIME (so called "contact") with their children.

The wording and progress of this EDM can be tracked online at:
http://edmi.parliament.uk/EDMi/EDMDetails.aspx?EDMID=28316&SESSION=875

Please check that your MP has signed it. If they've not, please get on to them immediately, if not sooner!!!

Is Shared Parenting the best option for kids?

New York (which lags behind the rest of USA in terms of shared parenting) is soon to consider a family law bill to bring it up to date with other USA jurisdictions.

It takes the common-sense approach that fit parents would have joint custody (shared residence in UK parlence) of their children. The Bill hopes to "reduce post-divorce conflict" and make joint custody the norm rather than the exception.

Click here for more info on this Bill - also for a number of findings of US studies which support joint custody/shared residence for children after their parents separate - and in order to post your own thoughts on the EQUAL PARENTING COUNCIL FORUMS.

Australian Reforms way ahead of UK

The Family First amendment put forward to strengthen the Family Law Amendment Bill in the Australian Senate in support of a presumption of Equal Parenting Time looks like it may have the numbers to pass!

Click here to learn more

VIRTUAL PARENTING ORDERS IN USA

USA - Divorce put David List and his 2-year-old daughter on opposite sides of the Atlantic Ocean, and he worried that she would soon forget him.

She hasn't, though. List secured an order allowing him "virtual contact" -- the chance to talk with his daughter via a webcam over the internet– they now usually connect at least twice a week.

However, it is feared that USA judges might use the option of virtual visitation as justification for ordering fewer real contact - as UK judges do with contact-centre visitation.

Another divorced dad, Michael Gough, who fought in the courts to eventually win a virtual contact order after his daughter moved away, said "I saw her first loose tooth. I saw her haircut, new outfits -- things you want to see on a daily basis but you can't in person because you're a divorced parent".

GIVE YOUR VIEWS ON THIS SUBJECT - Click here for more info

Fathers4Justice terminated!

It comes as a huge relief to me that Fathers4Justice (F4J) have folded their tent. I don’t agree that they advanced the campaign for reform of our appalling family justice system. Quite the reverse! Their antics alienated the very people whose hearts and minds we needed to win over; their conduct made people say, “No wonder they’re not being allowed to see their kids!”

Mainstream organizations like EQUAL PARENTING COUNCIL, FNF, MATCH and JUMP have been lobbying for years and we’ve made considerable progress in getting across what is quite a sophisticated case. We have, for example, in recent years persuaded those at the top of the Conservative Party of the rightness of our grievances and our reform programme for solving the problem. We have networked around the globe with judges, family law practitioners, mediators, mental health professionals, MPs and garnered their support. It has been (and continues to be) a long hard slog. I regret that we’ve not yet achieved any meaningful change in the law. Neither did F4J.

I believe F4J hurt our cause. They were successful in grabbing the headlines, but I think the publicity had a negative impact. The feedback we’ve received globally is that they are perceived as irresponsible – and as lunatics and women-haters. F4J Founder, Matt O’Connor, seems to have reached that conclusion himself and uses it to justify the closing down of his pressure group.

The fact is, when ordinary, decent parents are prevented from seeing their children, they become incensed and outraged. Some of them become bitter and twisted, which is to be expected. We have had our fair share of them, as have the other main organizations. They are unmanageable. The most extreme of them gravitated to F4J with predictable results. The fact is, most of these extremists can’t even get on with each other!

However, whilst I don’t like them or their works, I recognize that the vast majority ended up the way they are because they and their children were badly wronged by our family courts and a justice system that doesn’t deliver justice. It delivers injustice and misery to children, parents and grandparents. This can be fixed by implementing changes that have been tried and tested abroad. We are 30 years behind!

These changes will be won by reasonable argument and respectful persuasion, not by obnoxious and offensive conduct.

Tony Coe, President
EQUAL PARENTING COUNCIL
tony.coe@EqualParenting.org
www.EqualParenting.org

CLICK HERE to post comment on the EPC FORUMS

Parental Alienation - unrecognised emotional abuse

Spanish forensic psychologist Jose Manuel Aguilar Cuenca believes that parents who are guilty of alienating their children from the other parent during the separation process are committing a very harmful act.

In a recent article in the Magazine Lex Nova, Cuenca argues that this type of emotional abuse by the alienating parents “passes almost unrecognized at a technical level by legal professionals.”

Click here to read the article

EPC President's New Year Message for 2006

A NEW YEAR MESSAGE FROM THE PRESIDENT OF EQUAL PARENTING COUNCIL (EPC)

There is one Family Law Reform in 2006 that could end misery for so many children, parents & grandparents! It would also save the country a fortune and lead to children being better supported financially, as well as emotionally by their parents!

As for the CSA, we need sensible reform based on tried & tested measures that work before we impose electronic tagging & curfews on parents who are being wrongly excluded from their children's lives!

While I was in Kensington High Street doing some shopping with my daughter, Toni-Amanda, just before Christmas, I bumped into the second wife (Pamela) of a long standing supporter (George) of EPC. George's first wife (Sue) has been obstructing his contact with his young daughter (Mandy) for many years.

George is a softly spoken, gentle, professional man. The idiots at CAFCASS, as is all too typical of them, would not lift a finger to discourage Sue from obstructing the relationship between Mandy and her dad. In fact, they encouraged it! They once wrote an unhelpful report referring to George as "too cerebral" - as though his impressive intellect could somehow be used to diminish his status as a parent to Mandy.

Pamela told me during our brief Xmas-shopping encounter at Marks & Spencers that, after a long, fruitless struggle, George decided to give up the fight to be a parent to Mandy. As so often occurs in these cases, Mandy eventually said she no longer wished to see her dad. CAFCASS would therefore do nothing further - not that they had ever done anything useful in the case anyway! Therefore Mandy has lost a wonderful dad, needlessly, and George is devastated.

George and Mandy's case is all too familiar to EPC. Sue was able to destroy the parent-child bond between this good father and his daughter, perhaps forever, aided and abetted by CAFCASS and our useless family justice system. Such circumstances cause, in our experience, so many good parents either to give up on trying to see their children, or to accept paltry crumbs of "contact" with their kids!

As we start 2006, let's remember the millions of children that were denied their right to spend any part of the Christmas/New Year holiday with one of their parents. Millions of children of separated parents were also denied the right to see grandparents over the holiday. Too many fit parents and grandparents are denied the right ever to see their children.

Why is it that children are being denied access to fit parents and grandparents when it is patently contrary to their best interests? There is a simple, two-part answer to that question, which is this: -

1. The parent with de facto custody of the children does not want to allow access
2. Our family court system doesn't work for these children and their excluded parents/grandparents

It is tragic for all the children, parents and grandparents who fall victim to our useless system. Yet it is a needless tragedy.

EPC has long been saying that there is a fundamental flaw in our family law - namely, it lacks a legal presumption (rebuttable for cause) that all fit parents should be legally entitled to substantial parenting time (our preferred term over "contact" or "access") following separation from the other parent.

In other words, parenting should be shared between the two parents unless a parent poses a safety risk. As I understand it, this is also the position of the Labour Government, yet Labour refuses to correct our flawed family court system to make shared parenting a reality for children, parents and grandparents.

Government argues that to provide excluded fit parents with a legal right (rebuttable for cause) to see their children would expose more children to violence. In fact the reverse is the case. Shared parenting is safer for children. Unfortunately, Government continues to suffer from a blind spot over this issue, which means children continue to suffer needlessly.

As we've demonstrated to Government numerous times, Best Practice jurisdictions across the USA are light years ahead of UK. Now Australia, after much research, is radically amending its Family Law Act to help children keep both parents. The concept of parental equality is being introduced. Under the reformed law, Australian judges will have to consider EQUAL TIME-SHARING in the first instance. They will have to give WRITTEN REASONS for any departure from equality. At the very least, contact will have to be FREQUENT, SIGNIFICANT and RECURRING.

Here at EPC, it is our hope that in 2006 the UK Government will take similar steps towards securing our children's right to be raised by both their parents. Our children are this country's future. Good, balanced parenting gives children the best chance of a successful life. It is therefore crucial to the success of our country that we make this simple reform to our family law system so that fit parents start to be treated equally by our legal system.

It would also mean that the fundamental Human Right of children and parents, like Mandy and George, to enjoy a family life together will have the beginnings of some sort of protection under UK law.

EQUAL TREATMENT of fit parents will also lead to better financial support for children because, as a matter of common-sense, we would not need to spend billions of pounds beating parents over the head to financially support their children! As the authorities learnt long ago in USA, parents who are being allowed to be fully involved in their children's lives are far more likely to support them financially, as well as emotionally.

And there's still more good news on the financial side too (unless you are a family lawyer)! The country can save a fortune in money wasted on senseless legal battles over children's arrangements.

To learn more, please visit www.EqualParenting.org Please support our campaign in 2006.

I wish everyone a very Happy 2006!

Tony Coe, President, EQUAL PARENTING COUNCIL

www.EqualParenting.org

Children have a Right to Both Parents
UK Branch of Children's Rights Council

NSPCC – correcting their misfacts!

Veteran Equal Parenting campaigner, Robert Whiston, has written to the National Society for the Prevention of Cruelty to Children (NSPCC) in an effort to correct misfacts broadcasted on several NSPCC television ads.

Whiston argues that the NSPCC has played a destructive role in preventing greater contact between children and their fathers.

CLICK HERE TO READ WHISTON'S LETTER & TO EXPRESS YOUR OPINION

Australian Bill pushes equal custody

Media coverage of Australian Family Law Reforms that promote EQUAL PARENTING.

These reforms are similar to those that we've been asking the UK Government to implement for years!

CLICK HERE TO READ IT

CLICK HERE TO GO TO THIS TOPIC ON EPC DISCUSSION FORUMS

Family Law Reforms - good progress in Australia

The new Australian Family Law Amendment (Shared Parental Responsibility) Bill 2005 was introduced into the Australian Parliament this morning, 8 December 2005.

Edward Dabrowski, Federal Director of Shared Parenting Council of Australia when commenting on the bill said:

"Today is a really big turning point in Family law in this country. Though the reforms are not perfect in all ways and the Bill will not be enacted until February 2006, we now have a good foundation stone on which to build.”

Click here to download the Bill and Explanatory Memorandum.

FOR EPC's SIMPLE SUMMARY OF THESE REFORMS & TO POST YOUR OWN COMMENTS
CLICK HERE

CAFCASS REFORMING ITSELF FOR BETTER?

EVERY DAY MATTERS - CAFCASS new approach?

Anthony Douglas, Chief Executive of CAFCASS, has outlined new directions for the organization. The major objectives are:

*to guarantee an intensive early intervention service;
*to extend dispute resolution work;
*to minimize reporting and maximise direct work with children and families.

The new plan highlights the need to triage every case, with an emphasis on shared parenting in cases where safety isn't an issue.

On the face of it, Douglas appears to be going substantially in the direction that EPC has been pushing for.

For more info and to post your own comments:
Click here

MAKE FAMILY COURTS OPEN TO PUBLIC?

The Guardian Newspaper's Legal Editor, Clare Dyer, has reported that the “curtain of secrecy hiding what goes on in the family courts of England and Wales is to be lifted”. In order to quell 'festering' doubts over the justice system Judges may let public and media into hearings.

Mr Justice Munby, a leading advocate of greater openness in the family courts, in a recent lecture made a strong plea for more transparency, suggesting that the current restrictions may even breach the European convention on human rights and concluding: "It really is time that something was done about all this."

A move to greater openness is supported by many senior judges.

For more info and to post your own comments:
CLICK HERE TO ACCESS THIS TOPIC ON EPC FORUMS

Kim Basinger a Parental Alienator?

Baldwin: Basinger turning kid against me

Kim Basinger and ex-husband Alec Baldwin are involved in a custody battle.

Alec Baldwin and ex-wife Kim Basinger traded personal jabs through their lawyers Monday, with each claiming that the other has serious emotional problems.

In court papers, Baldwin claimed Basinger "has a pathological need" to turn their daughter against him, and he is asking for a psychological evaluation of the actress.

Baldwin lawyer Vicki Greene argued in a court hearing Monday that Basinger had tainted 10-year-old Ireland's view of her father.

Basinger's attorney, Neal Hersh, dismissed the claim and said Baldwin was the problem.

"We believe that Mr. Baldwin has severe emotional problems," Hersh said. "Mr. Baldwin's lawyers attempted to cast terrible aspersions toward Kim rather than focusing on the main issue, which is his daughter."

Baldwin was not at the hearing, which discussed his telephone time with his daughter and whether Baldwin should get an extra weekend with her when a holiday is interrupted by a court-ordered custody hearing.

Los Angeles Superior Court Commissioner Maren Nelson said she found no reason to alter the custody agreement. She did not rule on the psychological evaluation request.

The acting duo married August 19, 1993. They separated in 2000 and divorced in 2002.

Basinger declined to comment outside the courtroom. She and Baldwin are scheduled to return to court December 13.

CLICK HERE TO DISCUSS THIS TOPIC ON THE EPC FORUMS

www.EqualParenting.org

Anthony Douglas dupes F4J!

In a just-released memo, F4J admit that they decided to suspend hostilities against CAFCASS in the expectation of receiving a document confirming assurances made by Douglas to F4J founder Matt O'Connor. Douglas and O'Connor have been having talks for some months. No such document ever materialized - surprise, surprise!

The F4J memo goes on to state:

"Matt has invested a huge amount of time and energy in these talks, and has risked his personal integrity and authority. I think it is clear that he has been given the run-around in order to keep us off CAFCASS' back."

EPC could have told Matt that CAFCASS never keeps its word!

More info:

CLICK HERE TO POST COMMENTS ON EPC FORUMS

CAFCASS BOARD PROTECTS BAD STAFF

Former CAFCASS Chair, Anthony Hewson OBE said that, in his opinion, CAFCASS's complaints procedure was designed to protect its staff from accountability, rather than to protect the consumer. Anthony resigned when his attempts to reform it were sabotaged.

The FAMILY X CASE, which EPC has been complaining to CAFCASS's Board about for years, demonstrates just how badly CAFCASS fails children and families. It shows that some people at the top of CAFCASS were not not fit to be in their jobs.

Finally CAFCASS has apologized for its failures in that case. But it has so far failed to hold anyone accountable. The fact is, CAFCASS's attitude in that case is typical. It was by no means a "one-off".

The new Chief Executive, Anthony Douglas, has indicated that he will reform the complaints procedure. EPC will be watching and hopes to be able to report positive progress.

Douglas has promised to come back to us soon on what CAFCASS intends to do about holding people accountable for their abject performance in the FAMILY X CASE.

CLICK HERE TO LEARN MORE ABOUT FAMILY X AND TO ADD YOUR OWN VIEWS

CAFCASS's CHIEF EXEC RESPONDS

STATEMENT FROM ANTHONY DOUGLAS FOLLOWING TIMES ARTICLE:

The views I expressed in the Times article were distorted by the headline, 'let 7 year olds choose.................'.

But I did say that children had a right to be consulted, and that it is impossible to arrive at a view about what is best for them without finding out how they're thinking or feeling.

That basic human right to be consulted will I think become more enshrined in case law in future years, as it is now for older children. However, stating that, which few would disagree with, is not the same as 'letting 7 year olds choose'. Unchecked freedom of choice for young children would clearly be absurd. Young children have conceptual limitations, change their minds, and are prone to influence. Well, I should say they're more conceptually limited, change their minds more and more prone to influence than adults!

Adults have some of these limitations too! For me, the key point is that children will have formed their attachments, strong or weak, to both their parents at a very young age. By 7 they're well down the road, and if communicated with properly, will discuss how they feel and what they want,

as underlying convictions for them, not anyone else.

What I was expressing was my view that our work in CAFCASS should be attachment-led. In other words, what matters is to promote and strengthen the attachment between a child and both her or his parents after a separation.

Children can grow up with multiple attachments and can cope with parallel parenting.

Assuming a child has decent attachments to both parents, both parents then need substantial parenting time over the years in order to maintain and build those attachments. If a child has no attachment, a disrupted attachment or a poor attachment to one parent, then from that child's point of view, the prospect of shared residence or substantial parenting time is less appealing. The issue then becomes whether substantial parenting time is right for the non-resident parent in those circumstances in order to repair a damaged attachment or to build it up from scratch in a different way. If it can be repaired, that is invariably best for a child and we need far stronger family support services to facilitate that.

From a fathers perspective, I believe that a focus on a child's attachments will demonstrate that shared residence approaches are usually best, and that where one parent excludes the other for good reason or bad, a focus on the child's separate relationships with each of his or her parents will show that even if one adult wants nothing more to do with the other, the child does want the relationship to continue. Our role is to support that and try to make it happen.

The family justice system does need to be more assertive on behalf of a child to make sure that is achieved. Equally in the far fewer cases where a child is petrified of one parent, it's irresponsible of us to pursue 'the presumption of contact' to such a length that we put a child in a situation of continuing harm of one sort or another.

I agree with the comments made by some FNF members that our staff need continuing core training in dispute resolution and communicating with children if this vision is to be achieved. We are reviewing our training strategy at the moment, and will let you have a copy of that when it is drafted in the usual way. I would point out that our dispute resolution services in different parts of the country are achieving very high success rates. Dispute resolution is our top priority.

Finally I want to say something about parental alienation syndrome.....

......If a parent coaches a child in this way, it clearly puts the child in an impossible position, with split loyalties that often become too uncomfortable to live with. In my view that is subjecting the child to long-term emotional harm. We have often recommended transfers of residence in these cases, although each case needs a careful assessment.

I do hope the matters raised can generate a healthy and productive debate.

CAFCASS is aiming to publish a new professional strategy in draft on 20 September, after it has been to the CAFCASS Board, with a 3 month consultation period to follow. We will set out our strategy on all these issues in that document, which will cover our work in public and private law cases. Your views matter to us.

Best wishes

Anthony Douglas

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