Modernising the Children Act; let’s get it right for our children this time.

Today’s news from the Telegraph is that a Ministerial Group to review the Children Act 1989 is about to be announced. Coming ahead of the response to the Norgrove Review of Family Law, expected to be released early next week, this news signals a long awaited potential for change, at least amongst groups supporting fathers.

The Government is rumoured to be ready to reject Norgrove’s Review, or at least the part of it which omits the inclusion of the phrase ‘children have a right to a meaningful relationship with both parents’. The rumours suggest that Iain Duncan Smith and Nick Clegg are both supporters of the inclusion of the phrase. Watching Iain Duncan Smith on Andrew Marr’s programme last week, it was very clear that this man, at least, ‘gets’ what has been missing from the UK support for separated families in the past four decades. His sensitive use of language – never calling fathers ‘non resident parents’ throughout the whole of the interview, for example -and his ability to debate the reality that parents too often get pushed apart by our legislation, rather than helped to work together, tells me that if there are others like him in government, change is indeed on its way.

The Children Act 1989 has been sacrosanct since its introduction. Whilst many have debated the need for change, others have felt that the key phrase contained within the act that ‘children’s needs are paramount’ (also called the paramountcy principle), is sufficient to safeguard the well being of children affected by private as well as public law. Those who have criticised the Act are largely fathers, who have felt that the ‘paramountcy principle’ does not go far enough and that a rebuttable presumption of shared care should be included in the Act. Resisted massively by the single parent lobby groups, this review is almost certain to be fiercely debated and it will, without doubt, polarise each side of the argument.
 
In the weeks and months to come, we can no doubt look forward to a monumental fight between those representing mothers and those representing fathers, with dirty linen being washed, allegations being hurled and a furore surrounding what is best for children. A bit like the scenario of the separated couple I suppose, but writ large and played out on the public stage. Those of us who work with family separation should get our seat belts buckled now, this will, without doubt, be nasty.
But why is it going to be so nasty and why does it matter so much to each side of the argument? For fathers, the need for change within the Children Act comes because of their disadvantage at the point of family separation and beyond. For mothers, what matters is that they retain the control, the choice and their relationship with their children. The Children Act 1989 was a piece of legislation that further enshrined the notion that children need their mothers after separation, whilst fathers are more disposable. The Act itself does not say that, but the way in which it is translated into action, by those who must refer to it, CAFCASS for example, effectively means that mothers come first.

The problem with the Children Act 1989 is that the way in which it is worded means that it can be interpreted to mean pretty much anything. The principle that the child’s welfare is paramount can mean that a child must a) have a primary relationship with a mother and a secondary relationship with a father, or it can mean that a child must be protected from a dangerous father (rarely a dangerous mother) or it can simply mean that a child must have a relationship with both parents. Lawyers and others have argued that the presumption that a child will have contact with a ‘non resident’ parent is also played out in the principle and there, for me, the problem lies.

The Children Act 1989 is gender neutral, which is generally held up as a good thing as it is supposed to work for either mother or father. A gender neutral piece of legislation however is particularly useless when it comes to delivering equality of opportunity and equality of outcome. For the past decade, the Centre for Separated Families has been saying that all family separation legislation should be underpinned by Gender Mainstreaming, which means that all laws should be analysed for the way that they impact differently on mothers and fathers and the way in which they interact with a largely gender biased society.  

The Children Act 1989 is a typical example of a gender neutral piece of legislation delivering a gender biased outcome. It is no accident that 90% of ‘parents with care’ in our society are women. The law was designed to deliver that outcome through the Child Benefit system which is used to denote the status and paid overwhelmingly to mothers. This already biased outcome is further deepened when the separated family interacts with other agencies, such as social workers or CAFCASS officers. No strangers to gender biased opinions, these people assume that family separation means that mums have been left holding the baby and dad has run off (and is avoiding his child maintenance payments alongside abandoning his family). Implement the Paramountcy principle with these assumptions, as so many CAFCASS people do (adding a dash of ‘dads are not safe’ just to make sure) and its easy to see why so many fathers end up short changed in terms of their relationships with children after family separation.

But now we come to the crux of the matter and when we review and make changes to the Children Act 1989 we have to get it right. There is no point now throwing the baby out with the bath water so to speak, if we are going to change, lets get it right for our children this time.

Fathers’ groups are going to go all out at this point to get a rebuttable presumption of shared care written into the legislation. Mothers groups are going to oppose it. With my mediator hat on I am looking at it from the children’s perspective. What has been done so far since 1989 has not worked, the massive loss of fathers in children’s lives attests to that. Something has to change,  but what? What is there between one side and the other that could bring about better outcomes for children in terms of their ongoing relationships with both parents after separation?

It seems to me that the starting point for legislation has to be a gender analysis of how it is enacted in the everyday lives of separated families. The myth that dads run off and leave mothers to cope alone has to be challenged. Our work, with early years staff in Children’s Centres tells us that, on the ground at least, this myth is very much understood. Children’s Centre staff know exactly how many mothers as well as fathers end relationships and exactly how horrible each can be to the other. This myth, though, is alive and well in other areas and the single parent lobby groups are happy to promote it wholesale in order to keep the status quo. The Lords fell for the myth hook line and sinker last week, when they voted against the charges to use the new Statutory Maintenance Scheme, whilst parents and on the ground family practitioners know the difference, we still have a lot of people in power who do not.

Gender analysis of legislation is not a difficult task. It is simply a matter of understanding how a law impacts upon men and women differently. From there it is possible to identify gender biased practice and put it right. A gender analysis of the Children Act would point directly to the people who use it to make decisions, namely the Judiciary and CAFCASS and it would be there that we would start by improving gender awareness and increasing the understanding of the importance to children of both parents. Basically, what I am advocating here, is the rewriting of our understanding of family separation to show that men and women are equally capable of ending relationships, equally capable of being horrible to each other and equally important in their children’s lives. When that is understood, putting into practice the paramountcy principle becomes a matter of practical arrangements and ensuring that parents know how to operate an effective parenting agreement that works for children.

But the rewriting of the story is going to be difficult in the coming weeks and months as we witness the best and the worst of what mum and dad have to offer. Mums’ groups are going to play out the victim role for all they are worth and we will hear tales of men as ‘annihilators’ and other such terrors. On the other side of the fight we are likely to hear fathers’ desperation being played out and then interpreted as being examples of the dangerous behaviour that men can display. In short, mum will cry and dad will shout and we, in the middle of this, will have our sympathies played upon and our anxieties raised until we no longer know which side we are on.

But we are on BOTH sides, we should all be on both sides. Every man and every woman in the land should be on both sides of this fence because this is not a gender war, it is a debate about how to change the law so that children have meaningful relationships with both parents. That way, we will begin to unpick the generational problem of family separation and our children will have balanced lives and will look forward to balanced relationships of their own. One of the biggest losses of my generation is, in my view, the understanding that as men and women we are interdependent and, as a result, missing out on the satisfaction of working TOGETHER as parents instead of believing that we have to do it all on our own.

The news in the Telegraph brings the winds of change to family separation. The debates in the Lords on the charging system for the use of the Statutory Maintenance Scheme and the interview with Iain Duncan Smith, make these winds a breath of fresh air. There is a battle ahead of us and it won’t be pleasant, but the possibilities of finally starting to unpick the rigidity of legislation that has delivered fatherlessness in generation after generation are here. We can get it right and whilst I am certain that Batman and Robin are readying for the fight and Superwoman is dusting off her lasso of ‘truth’, I firmly believe that the time is right for change. At stake is the future of all of our children, a new generation in urgent need of a new way forward. The Ministerial group in charge of this process has a big responsibility. I hope that when the dust settles and the details of a modernised Children Act are announced, the balance we need will have been restored.

12 comments

  1. Paul Manning · February 3, 2012

    On regularly reading Karen’s posts I always find myself agreeing with her common sense and balanced views. I agree entirely that there should be a presumption of equal access to children no matter what the gender. However, while this is the obvious reasonable conclusion that any wise thinking person would reach, the powers that be, (Cafcass, SS etc) seem to be made up mostly of women, which always makes me feel that they are probably going to be biased on the mothers side, this has been my experience anyway. The mere fact of writing this may suggest to you that I myself am biased, that’s a catch 22 situation for me then. And yet one can only reach informed conclusions based on what one sees, and experiencing the torture of fighting to see one’s own child, yes fathers ‘fight’, mothers don’t have to! The present awful system is adversarial and the lawyers love it that way, the more they can prolong the process and encourage more muck throwing the better for them. I am not the most educated person in the world, but if I can see what is going on, why the hell can’t those who purport to be in the know see it? It is no good saying that there is no gender bias, the figures and facts of child custody are out there for all to see, and mum is on top by leagues. Ask yourself why this is so, and is it just a coincidence? yes, you say, pull the other one its got bells on! Until our MP’s get to grips with the truth we fathers will remain at the bottom of the heap, but you know what I really wish there were no HEAP at all! I wish that mums and dads were equal, I have no real desire to be on top, I just want to see my son and that’s it in a nut shell. If our children were genuinely considered paramount, (the truth is they are not) If that were so then why doesn’t Cafcass listen them? My son is screaming out to see me, and yet the bias of a corrupt Cafcass comes before his wishes. In a sense the people who come first are not the children at all, not even the parents, but the wishes of egotistical Cafcass workers who usuallly are female. Yes Im bitter, if you had seen and heard what I have, you’d know the truth, but that truth is certainly not setting ME free. God bless you son, I shall have to fight on until the day I die.

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  2. William B Hammond · February 3, 2012

    “The powers that be, (Cafcass, SS etc) seem to be made up mostly of women, which always makes me feel that they are probably going to be biased on the mothers side.”

    Paul, to say that Cafcass and SS are probably biased may be true, but even so this is only a part of the problem. Some may have become saturated in the faulty notion that men pose a potential danger to their children and act accordingly. But my belief, which is based on my own research and personal experience, is that many social service staff, especially CPS workers, are left wing political creatures with an agenda. This assertion is not so easy to prove because they are unlikely to ever admit subscribing, for example, to Marxist doctrine – that families are the problem and should be broken up. Having said that, we should should judge a tree by the fruit it bears, and judge people by what they do rather than what they say. On that note, there have been too many reported cases in the news about the activities of CPS and their over enthusiastic removal of children from loving parents. Why would they behave any differently in the family courts when a parent seeks contact with their own child? Personally I would not eat an apple hanging from a CPS tree!

    Parents are not perfect, so obviously if you look hard enough you are going to find something wrong. When CPS find something wrong they often put spin on a minor incident and refer to it as “significant harm” There are several other nebulous phrases in the child welfare check list which need to be purged completely and replaced with more concrete lanaguage.

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  3. Stu G · February 3, 2012

    From top to bottom and back, CAFCASS is utterly rotten and incapable of change. Fraud, perverting the course of justice, perjury, malfeasance, nonfeasance and prejudice reign. They have absolutely no training in requisite contact levels – despite this question forming most of their work – such is their commitment to the very issue they are supposed to be expert upon. There is no indication that this deliberate, ideologically driven shortcoming will be addressed any time soon – change in law or not.

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    • William Hammond · February 10, 2012

      I agree Stu. From my perspective this is an ideological battle, therefore the destruction of our families will continue until such times as the lefties are driven from the battlefield altogether. Making changes to legislation is hardly likely to improve the situation unless the actual wording is specified so precisely that it cannot possibly be twisted by those with a personal agenda. Is that likely to happen? Not if those with the agenda are the same people who draw up the legislation.

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    • Paul Manning · February 10, 2012

      Stu. You might have read my comments here about Cafcass, I can agree whole heartedly with you about their inate corruption. How can we expect honesty and integrity from its staff when the man at the top, Anthony Douglas, is a cheating, lying evidence fabricating low life, how’s that you might ask? Recently he was a complainant in a court case and alleged that a father had harrassed him by visiting his home to try and present the truth of his case to the top man, Douglas. Douglas invited him in and they discussed his case, Douglas said he would look into it and put it right. Instead of that he took the poor guy to court for harrasement and Douglas watched an innocent man go to jail. While at court, once douglas realised that the father had taped thier conversation, he then refused to take the stand because he knew he would be exposed. The tape was not allowed to be played at court, so the poor father went to prison. The father appealed his case to the high court recently where the judges have access to that tape, and his appeal was upheld. My Anthony Douglas is now going to face the truth in another court battle, this time the lying cheating bastard may face real justice. This is how rotten Cafcass is, from top down to bottom! I tell you the truth here Stu, look out for this case hitting the news, that’s if Douglas doesn’t lie and cheat his way out again, Dougals is a piece of excrement, like all at Cafcass.

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  4. Bruno D'Itri · February 4, 2012

    An excellent, well-considered article, Karen.

    In my opinion, it is the way in which the judiciary has INTERPRETED the paramountcy principle of the Children Act that has been the root of the problem.

    In its judge-made laws following the CA, it considered that the paramount interests of a child, post-separation/divorce, are best served by appointing a ‘primary carer’ (usually the mother) and bestowing upon her a disproportionate degree of power and control over the child, viz-a-viz the de-facto ‘secondary carer’ (usually the father). The relative importance of a father in the successful development of a child went largely relegated by the judiciary.

    As we all know, in acrimonious cases, the primary carer has used that power to exclude the secondary carer from the life of the child, ‘using the children as weapons’ to coin a phrase adopted by Sir Nicholas Wall, President of the Family Division.

    Sir Nicholas, however, sought to blame the parents for these unfortunate situations, rather than accepting that it is the legal framework itself which permits, and even encourages, such abhorent behaviour.

    This bias against ‘secondary carers’ has been very evident in Relocation law. In the well-reported case of Re D (Children) (2010) EWCA Civ 50, Sir Nicholas was presented with 15 contemporary scientific reports (collated by ‘The Custody Minefield’) which confirmed that the well-being of a child was served by its maintaining meaningful relationships with both its parents.

    Sadly, that evidence was effectively ignored by Sir Nicholas. Instead, he followed a legal precedent, set in 1970, which said that, in effect, the best interests of a child are served by ensuring the happiness of the mother.

    If the Children Act had been correctly interpreted by the judiciary, then perhaps the last twenty years would have been much different.

    New legislation is urgently required which makes it very EXPLICIT to the judiciary that the paramount interests of a child are served by ensuring children are permitted to remain in meaningful contact with both of their parents. Of course, in cases where there is proven child abuse by either parent – and not just allegation – contact can and should be restricted.

    Bruno D’Itri

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  5. karenwoodall · February 4, 2012

    Watching the interview on Sky with Julie Bindel of the Guardian underlines for me the fight we have on our hands. Whatever one thinks of Matt O Conner from F4J, during that interview he was composed, coherent and congruent about the issue of fathers being pushed out of their childrens lives. Julie on the other hand made wild allegations about the family courts, asserted that 4 million children had lost their fathers because all those fathers were mad, bad or dangerous and relied upon subjective evidence from mothers she had known whonwere forced to take children to see their abusive fathers. When she ran out of argument, she began to attack Matt O Conner, calling him aggressive and accusing him of making things up. In that kind of scenario, fathers are in a double bind, they are called aggressive if they assert themselves and abandoning if they dont. This fight is not going to be pleasant and we are going to have to make sure that the facts and the reality are heard in the middle of the panic and fury. I actually felt that Julie Bindel was bordering on committing hate crime in that interview, if she had been talking about race or disability it would have been incitement of hatred for certain.

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  6. mark dewison · February 6, 2012

    The Govt’s expected response to the Norgrove Review, that it will put a phrase into law to the effect that the child has a right to a meaningful relationship with both parents, is welcome. It is also encouraging that there is to be a review of the Children Act 1989. What is not adressed, though, is the structure of the benefits system and how maintenance is calculated.
    It is essential that child benefits and family tax credits are awarded to both parents comensurate to the amount of time the children spend with each. It is also important that the income of both parents is taken into account when calculating maintenance. To indulge in wild optimism, I’m hoping this may in time follow on from the dropping of the terms “resident” and “contact” parent.
    I have had experience of Family Courts and CAFCASS both professionally and in my own case. I have found judges to be as fallible as anyone else, but I must say that whereas I have experienced some male judges as quite rigid and dim, I have always felt I have been given a better hearing from female judges. Working professionally with CAFCASS has mostly been satisfactory, so I was very shocked by one or two things in the CAFCASS report in my own case. Without going into details, I have very good reason to believe that the opinions of one of my sons were misrepresented, and she also attributed comments to me concerning the conduct of my ex which had actually been made by her.

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    • Paul Manning · February 6, 2012

      When youv’e dealt with these monsters at Cafcass as long as I have you will come to realise that they are a bunch of fabricating female biased liars. You mention that they have mischaracterized you Mark, well it’s a thing they always do and opinions are put forward as facts to the court.There is little point in complaining as you will not be listened to and even though you prove matters, that they were wrong about any given point, they will give you that intransigent stare of, “we don’t care mate!”I proved lots of things that Cafcass said about me were untruthful, but the Judge didn’t give a hoot about establishing facts, what Cafcass says goes.The whole point of Cafcass is to tire you out, to take as long as they can, and to anger you so that they can say you have some personality disorder, all this is par for the course with them. Fathers should not expect a change in the law as in reality nothing will change at all and I’ll tell you why. I listened to Ken Clarke today on radio 4, he was asked what should be done if a mother continued to disobeycontact orders. An actual case was mentioned of a father who went to court many times to get his contact enforced. The judge decided not to allow any contact and said that it was going to cause problems and unsettle the child in its present routine with the mother.This, even though the same judge had made the previous contact orders! To me this showed that they consider mothers as having more rights than fathers, as long as there is that bias in the mentality of judges we do not stand a chance. Clarke went on to trot out the same old mantra of “The childs interests are paramount”, what that means in effect is that if mothers say they are unhappy about contact taking place that such a situation will not be good for that child and the child will see an unhappy mother in the home. I assure you nothing will change in this new law, because if mothers still lie the courts and Cafcass will believe mum more than dad. It is not a matter of changing the law, but what it should be about is cahnging the mentality of the courts, Nothing will change I can assure you of that. Mark my words my friend.

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  7. Dadzarmy · February 9, 2012

    “The problem with the Children Act 1989 is that the way in which it is worded means that it can be interpreted to mean pretty much anything.” That and is Family Procedure Rules and Practice Directions which are also massively open to disgression make it the Family Courts so open to abuse by the practitioners who work within it.

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  8. Bruno D'Itri · May 19, 2012

    With the announcement in the Queen’s Speech recently, Mr Cameron and his Government finally appear to have got the message.
    They plan to strengthen the legal right of a father to have meaningful access to his children, post separation/divorce.
    They finally recognise that family law, as it stands, fails to serve children’s best interests in this extremely important respect.
    Let us hope that any resulting modification to the Children Act (1989) will be robust enough to effectively safeguard children’s rights to be parented by both parents.
    Shared Parenting does NOT, as many critics would have us believe, necessitate an exact split of parenting time. This would be highly impractical in most cases. Rather, it is expected to range upwards from 20%. Another objection from the critics is that it will endanger children. Plainly, Shared Parenting will ONLY be available to parents who are NOT a proven risk to their children (mere allegation from disgruntled ex-partners should not be enough!).
    My personal interest concerns Relocation law, which, despite some slight improvement last July (Re K), still far too easily acts to separate children from one of their parents (in practice, usually their father) by thousands of miles.
    Plainly, a father cannot hope to enact any semblance of a Shared Parenting Plan when his children are residing on the other side of the planet!
    I, and many others, have campaigned vigorously on the issue. A significant turning-point was achieved in the case of Re D (Children) [2010] EWCA Civ 50 in 2010. In this particular case, the President of the Family Division, Sir Nicholas Wall, publicly conceded there was a significant risk that Relocation law – in the form of Payne v Payne (2001) – relegated the harm done to children by significantly and irrevocably damaging the child’s meaningful relationship with the left-behind parent. The case was widely reported in legal circles.
    Despite this concession, however, Sir Nicholas did nothing to rectify the problem, and, sadly, later resiled from his own criticism of Payne v Payne. We had expected more from the President. When there existed a significant risk of harm to hundreds of children, the Precautionary Principle appeared to mean nothing to him.
    My current hope is that, with the expected introduction of a legal presumption of shared parenting, Payne v Payne will finally be overturned.
    I have already made my views known to Mr Loughton, the Children’s Minister. Perhaps others will join in!
    Best wishes
    Bruno D’Itri

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  9. Bruno D'Itri · June 24, 2012

    An open letter to Tim Loughton MP, Parliamentary Under Secretary of State for Children and Families, 24 June 2012:

    The Government now recognises that the paramount interests of a child are served by facilitating and safeguarding its close and meaningful relationship with both its parents, post separation/divorce. In reaching this conclusion, the Government has taken into full and careful account the wishes of its electorate, the realities of 21st century family life, and a plethora of irrefragable psychological and sociological evidence and research, collated over the last decade or so, which plainly demonstrates the emotional, developmental and educational benefits for those children who are permitted to enjoy a shared parenting regime. In short, ‘paramount interests’ equates to ‘shared parenting’ (except, of course, in cases where there is a proven risk of harm).

    The will of our elected Government is clear. It considers that the Children Act (1989) – as well, perhaps, as some judge-made laws which followed in its wake – does not serve the paramount interests of the child in its current form and therefore requires modification and improvement.

    However, regardless of whatever modification the Government makes to the CA, it will be the eventual application of the law by the judiciary which will determine whether or not the will of the Government is enacted in practice.

    What, then, is the best way to ensure that the will of the Government is enacted in practice by the judiciary? In my view, the Government should tap unashamedly into the vast legal knowledge and experience of Sir Nicholas Wall, the President of the Family Division, and of his colleagues in the Family Division of the High Court. The Government should, I would suggest, posit the following very specific question to Sir Nicholas: “In order for the will of the Government to be enacted in practice, what modification to the CA can you suggest?”

    Of course, it may well be the case that the judiciary actually opposes the proposed change! Sir Nicholas has, in the past, voiced his personal objections to a number of Government proposals. Nevertheless, it is imperative that Sir Nicholas provides a comprehensive and constructive reply to the specific question above, rather than simply expressing his personal opinion as to whether or not the CA should be modified in order to promote Shared Parenting. Plainly, it is not for the judiciary to make that decision. That legislative power is for our democratically-elected Government. The duty of the judiciary, I would venture to suggest, is to apply the will of our elected Government – to obey Government – to the best of its ability. For it to do otherwise, either proactively or by omission, would be very wrong.

    Sir Nicholas is fully aware of the scientific evidence in favour of shared parenting. He is fully aware of the benefits to a child of maintaining a close and meaningful relationship with both its parents. We know this because, in the case of Re D (Children) [2010] EWCA Civ 50, Sir Nicholas was presented with a plethora of contemporary scientific evidence and research, which demonstrated, beyond all reasonable doubt, the veritable benefits for children of maintaining a close and meaningful relationship with both their parents.

    To his credit, Sir Nicholas reserved judgment in Re D and gave himself three weeks in which to carefully read and digest this very extensive scientific evidence, running to several hundred pages.

    To his further credit, in his eventual written judgement Sir Nicholas accepted the argument put forward by the litigant-in-person that current family law potentially relegates the harm done to children by giving insufficient weight to the importance of maintaining a close and meaningful relationship between children and both their parents.

    In summary, the judiciary is very aware of the serious harm which can be inflicted upon children when they are denied the right to maintain an on-going, close and meaningful relationship with both their parents.

    However, as was shown in Re D, the judiciary was hand-tied and constrained to apply current law. It could not, itself, introduce the new legal principle of Shared Parenting into the CA. Sir Nicholas has made it very clear that only Parliament has the power to do so.

    Those of us who have lost meaningful contact with our children due to current family law – and who live, day by day, in the soul-destroying knowledge that, according to the science, our children’s futures will be significantly blighted as a direct consequence – very much welcome our Government’s initiative on Shared Parenting.

    However, crucially, the Government should do all that it can to ensure that any modification to the CA will be robust enough to be effective in practice. The best person who can advise the Government on this specific point is Sir Nicholas Wall.

    I respectfully request that you advise me whether or not the Government will be seeking the input of Sir Nicholas on this very specific point.

    Yours Sincerely
    Bruno D’Itri

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