Children Act: Is the tug of love becoming less of a painful struggle?: The Children Act, with its emphasis on mediation after a family break-up, has been in force for a year. Leonie Jameson assesses its impact

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FRANCES HUGHES, a London solicitor who specialises in family law, thinks that she and her partner - they are not married - were the first couple in the country to register joint parental responsibility for their two children when the Children Act came into force a year ago.

'My articled clerk was there with the forms when the doors of Somerset House opened in the morning. Before, there was no easy way for unmarried fathers to acquire legal status. Now my partner can make unilateral decisions about our children - if, for example, they were in an accident and I wasn't around. In the event of unmarried couples parting, fathers who have registered under the Children Act will find it easier to have a say in their children's upbringing.'

The Children Act recognises that family life in Britain has changed: nearly one-third of children are born to parents who are not married; one child in four under 16 will experience parents divorcing; and more than 40 per cent of absent parents (usually fathers) lose contact with their children within two years of divorce.

Blazing with good intentions, and aiming to put children first, the Act was welcomed by legal practitioners and those concerned with the welfare of children. A key concept is parents' joint responsibility for their children even if their relationship has ended.

The Act stresses mutual agreement - couples are strongly encouraged to make arrangements for their children without having decisions imposed by the courts, which will now make orders in favour of one party only if it is in the interests of the children. The old words 'custody', 'access', 'care' and 'control', which have the ring of a prison sentence, have been replaced by 'parental responsibility', 'residence' and 'contact'.

Central to the Act's new thinking is the role of mediation as a way of helping couples to reach agreements out of court. Sitting down together with a mediator is cheaper than slogging it out through solicitors' letters, and considerably less expensive than going to court.

The two main independent organisations in the field are the Family Mediators' Association, which trains mediators, and the National Family Conciliation Council (NFFC), which puts couples in touch with them. While 67 per cent of the NFFC's clients come directly or are referred by solicitors, referrals from courts have been on the increase since the Children Act came into force.

It is not clear yet what level of disagreement between parents the courts will tolerate before making an order. Chris Richards, who works for the Children's Society and is also a mediator, says: 'I've asked three judges in our area this question. One said he would make an order if the parents simply couldn't agree and the other two said they didn't know.

'My view is that in discussing their children's futures, parents still need an enormous amount of re-educating. The Act talks of parental responsibility but some parents interpret this as parental rights. In mediation we stress that parental responsibility means acting responsibly - for example, not turning up unannounced at your children's school and removing them.'

Unfortunately, with or without the Children Act, some people will never reach agreement with former partners, and a number have already gone to court to seek orders. Several of these are supported by the organisation Families Need Fathers, which campaigns on behalf of men who are separated from their children. It welcomed the Act, but the feedback from its members is mixed. Several complain that the courts are still biased towards the mother's claims, with judges unwilling to make residence orders in favour of fathers.

Ms Hughes feels that courts prefer to maintain the status quo if children are happy and safe where they are living, and like them to have the security of one main home. In most cases, this is likely to be with the mother as she is usually the prime carer at the time of separation. 'In my experience, divorced or separated women more usually find men won't stay in touch with their children, particularly if they want a clean break with the mother.'

Zelda West-Meads, spokeswoman for the marriage guidance service Relate and a keen supporter of the Act, says: 'Under the old system, in 90 per cent of cases the mother had custody and the father wasn't consulted on decisions affecting the children. It wasn't surprising he didn't feel involved. On the whole, children are always better off seeing their absent parent, otherwise they can feel very abandoned. But the area where there may be problems is if there's a lot of acrimony between the parents and one side may feel that joint decision-making may be disruptive for the child.' In such cases judges may decide that despite the desire of a father to be involved, making an order in his favour would not be in the interests of the children.

Ms Hughes favours the removal of the concept of fault in divorce. This proposal, backed by the Law Society, is still being considered by the Lord Chancellor's Department. At the moment, couples who wish to divorce quickly have to cite adultery or unreasonable behaviour - which makes some divorces unnecessarily acrimonious and sits uncomfortably with the aim of encouraging couples to co-operate in making arrangements for their children.

A change in the divorce law may make separation less adversarial, but Jane Herne, of the Law Society, warns: 'We say that divorce separates only the parents, not the children, but has anyone told the parents? It may take several generations to change attitudes.'

Legislation can create a climate in which it is easier for couples who can work together to do so, but it cannot force compromises out of couples who will never agree.

In the case histories below the names of the interviewees have been changed.

Family Mediators Association, 081-954 6383; National Family Conciliation Council, 0793 514055.

THE MAN IS STILL LESS THAN EQUAL

TWO YEARS ago Tim's wife left him, taking their two children with her. They divorced and, under the old system, he was given generous access: last year his children were spending about 50 per cent of their time with him. Tim applied for a shared residence order on the day the Act came into force.

Tim says: 'The Act's concept of joint responsibility seemed the best hope for me of securing equality of time with my children.' He felt he had a strong case: while his ex-wife went out to work and an au pair looked after the children, he worked from home and had always been involved with them. However, his children said they did not want to spend any more time with him. The judge granted a shared residence order, but stipulated that Tim should have the children for only five nights a fortnight.

Tim feels let down. 'The Act seems to recognise that parents should have equal status. But if residency is to be shared, it should mean equality of time. This would negate any sense of grievance. Unfortunately, you are dealing with an establishment which still sees the mother as the principal carer. It seems to me that the onus is still on the man to show he's a more than perfect parent.'

Tim's appeal against the judge's decision was rejected.

BILL, an unmarried father, had high hopes that under the terms of the Act he would be given the same rights as a married father.

'As an unmarried father I had no rights,' he says. 'I couldn't even authorise a blood transfusion for my daughter if she needed one when she was with me. However, I accepted the ad hoc access I had.

'But on the day the Children Act came in I applied for a parental responsibility order, which would have given me an equal say in important decisions affecting my daughter, such as education; and I appplied for a contact order. Both were contested by the mother, so the court welfare officer visited each of us twice, and saw my daughter once on her own. She said she didn't want more contact with me, so the court rubber-stamped the existing arrangements whereby I see my daughter twice a fortnight.

'If a court welfare officer feels unable to support a parental responsibility order because of acrimony between the mother and father, it seems to me something of a catch-22 situation. If the relationship with the mother is OK, you don't need a court order.'

IT'S BEEN GREAT EVER SINCE

JULIE and her ex-husband, Peter, found mediation helpful when they were deadlocked over Peter's visits to his son. When he hadn't seen the boy for several months he decided to go to court for a contact order, but his solicitor suggested trying mediation first. Solicitors observe that couples experience particular difficulty in making arrangements when one side has found a new partner.

'THINGS weren't working because we couldn't talk, and also Julie's boyfriend was always around, which bothered me,' Peter says. 'Mediation was fantastic. The mediator saw us separately and then together and after the first session I saw my son the following Sunday and it's been great ever since. We had four sessions and agreed we'd discuss the pick-up times after each visit, and Julie will be around when I come and her boyfriend will keep in the background. We've written down what we've agreed and it's much cheaper than going to court.'

Julie says: 'The arguments came up mainly, I think, because of my boyfriend, who lives with me. But Peter wouldn't bring our son back on time and my boyfriend got involved, saying it spoilt my plans if I didn't know when he was coming back. Now we've agreed that Peter and I will discuss the next week's arrangements every time he drops our son off.'

WE GOT ON TO THE BIG ISSUES

THE day before the Children Act came into force, a judge told Les and his wife, Susan, to go to an independent mediator to see if they could decide where their sons should live. They have just reached an agreement.

'LAST year we finally decided on a financial settlement, after everyone had seemed to think I was worth more than I am,' says Les. 'But arguments about money had clouded all the other issues, and we couldn't agree about custody, care and control of the boys.

'My wife and I weren't speaking to one another, although she lives six inches away from where I work, and one weekend I was denied access to my sons. We were in a real pickle: arguments about petty details were stopping us getting on to the big issues.

'I found the mediation very positive because they stressed that there was no point in going over the past - we had to move towards the future. We could decide what we wanted to discuss and they put no pressure on us.

'First of all we got over the small but important hurdle of how I was to see the boys - my wife would deliver them to my office and I would bring them back, so there was a bit of give and take.

'Then we sorted out an outstanding disagreement about a car my wife wanted, and got on to discussing where the children should live. I was considering going to court for a custody battle but my solicitor said that it would be very expensive and I wouldn't stand much chance. But in conciliation I felt that we could discuss the pros and cons, and my views on residence came out in a way that wouldn't have been heard in court.

'At the last meeting I decided not to go for a residence order as I felt my wife, who is a strong- minded woman and is planning to move 140 miles away, would go and put the boys in a different school, which would make it very difficult for them. So I've compromised and they are to live with her, but I'm to have them for half their school holidays and half- terms and see them at weekends if I can.

'We have to show the agreement we've reached to the judge for his approval, but I'm now glad we're not going to court for an order as I want to see how these arrangements will work out with my wife living so far away.

'I found the conciliation fees ( pounds 21 for three discussions) very reasonable compared with solicitors' costs. Solicitors write inflammatory letters on your behalf. I suppose we can't go out with lumps of wood and beat each other, so we hire two prize-fighters to do it for us. The divorce process is very undignified, especially when children come into it, but going to conciliation seems less so and things are now better between my wife and me. We can have a reasonable conversation - before, we couldn't have agreed on the colour of the sky.'

Les's wife, Susan, found some aspects of the mediation frustrating. 'They don't let you talk about the past, but sometimes that's important in order to understand what's happening now, how we'd reached this stalemate. At one stage I wanted to stop going to the mediation because I felt I couldn't talk to someone who walked away when I tried to speak to him and had never wanted to discuss our relationship in the past.

'But I'm very relieved it isn't going to court, particularly as I already have a solicitor's bill of more than pounds 6,000.'

However, Susan is anxious because the agreement she and Les have reached is not yet legally binding. Some women seem to fear, unjustifiably, that under the Children Act it will be easier for former husbands or partners to take their children from them.

Chris Richards, who works for the Children's Society and acted as mediator for Les and Susan, says: 'I can understand mothers' natural anxieties, and from my experience I think mothers may miss the security of a court order. Fathers may tend to like the new system because it means they won't be cut out. But Les and Susan reaching an agreement without the judge making an order is a classic example of the Children Act's philosophy in practice.'

(Photograph omitted)

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