As One Door Closes…

As the consultation on same sex marriage closes another opens : shared parenting. We just can’t agree about anything to do with the shape of families, can we?

Thankfully, @suesspiciousmin has been swift in summarising the consultation on shared parenting in his post (Co-op (Good with Kids) on the Suesspicious Minds blog – say it in a Scottish accent for it to make sense) and he is, I think it is fair to say, not mad keen on any of the four proposed draft provisions. Nor am I*. I have yet to make up my mind about shared parenting (I have promised a detailed post but have failed so far to produce it), although my fairly strong instinct is that the idea of introducing a shared parenting presumption will add little and may make matters worse. But I agree with @suesspiciousmin – these draft provisions are a bit rubbish:

If I were a lobbyist for any father’s rights group, I’d be mighty disappointed with what’s on offer. It looks to me like nothing more than a placatory gesture.  I’m not, by the way, advocating one way or the other on whether there should be a presumption or starting point of broadly equal time, but I can’t see how you can have a consultation about shared parenting without at least one of the options being that.

We already know that F4J don’t like the proposals (quel surprise). And to me they either add nothing or add confusion. It’s a shame that @suesspiciousmin’s own draft is not on the table:

When the Court decides where a child should live, or how much contact a child should have with a parent, the Court should strive to make an order that allows the child to have a meaningful relationship with each parent wherever possible and where the order made results in one parent spending a significantly greater proportion of time with the child than the other, the Court must have good reasons for doing so, and set them out in a judgment, and gender should never be a reason for that”

or, even shorter –  “There is a rebuttable presumption that a child should spend significant periods of time with each parent, and the Court must consider in each case whether a broadly equivalent amount of time would be the correct outcome.

As he says – if there is to be a provision it might as well say what it means. Since I can’t vote for @suesspiciousmin’s option 5 I think it’ll have to be None of the above.

*Confession : I am relying on @suesspiciousmin’s summary at present, having yet to read the consultation doc myself.

18 thoughts on “As One Door Closes…

  1. Philip Measures

    Option 1 is the best because it is the only one that openly states the issue of safety:

    Option 1 requires the court to work on the presumption that a child’s welfare is likely to be furthered through safe involvement with both parents – unless the evidence shows this not to be safe or in the child’s best interests

    This is, of course, what the current position is! – or should be – as legally promoted by CAFCASS and Local Authorities.

  2. The ‘new’ proposals regarding enforcement are rather vague. Will these apply equally to resident and non-resident parents who do not follow the contact order to the letter? Interestingly, the most vocal speaker in the parliamentary debates on the enforcement provisions in the 2006 Act was Mr Loughton.

  3. It’s indeed no surprise that F4J like none of the proposals, and Lucy is absolutely right that none of the four options add anything.

    Systemic changes are needed first: child maintenance needs reforming so that it does not render women parasitical on men; the courts need to be open to public scrutiny rather than operating in a fascist manner; the gender discriminatory language of RP and NRP needs to be abolished; child benefit needs to be split between parents; parents who make allegations need to be immediately transferred to the criminal courts and dealt with there; false allegations and other forms of domestic violence need to land the parent with a custodial sentence; health and education officials need to be re-educated so that they understand all the research that points to the crucial emotional and developmental role of fathers in the lives of their children; judges need to be replaced by younger people in tune with the 21st century; and lawyers need to move in the direction of collaborative divorce, break with their adversarial, dishonest and unethical practices, and owe their first allegiance to the children rather than implacably hostile clients.

    This list certainly does not exhaust all the things that need to be done, but it is a start.

  4. Philip – I know how much lawyers love the “where it is safe” clause. I don’t blame you. From the public point of view, it sounds quite logical too. But as anyone who knows anything about family law knows, this is one of the most abusive clauses in family law.

    It plays on societal assumptions about a ‘weaker sex’ and a ‘dominant sex’ which are outmoded (if they ever had any relevance to begin with), and rigs the game for abuse by mothers and their solicitors.

    I’m afraid the ‘where it is safe’ clause also needs to be jettisoned, and quite urgently by the looks of it, now that legal aid is being taken away from all those except those who claim there are safety issues.

    • Guy, what has safety got to do with sex or gender? Children need to be kept safe from abusive adults of both sexes. You can’t just ditch that notion because it is susceptible to abuse. Whatever else is true children are abused by both male and female adults and the court must strive to keep them safe from that harm.

  5. I’m a bit surprised that you raise this question, but yes, in an ideal world, there should be nothing wrong with the “where it is safe,” clause on the face of it.

    The problem that fathers encounter with this clause has been dealt with very lucidly by the gender analyst Karen Woodall:

    http://karenwoodall.wordpress.com/2012/05/11/where-it-is-safe-to-do-so-unpicking-prejudice-one-stitch-at-a-time-2/

    Here is another question though:

    If it’s an issue of safety, why is it being discussed in the family courts? It should have been transferred to the criminal courts, and the parent who is unsafe or undesirable should be dealt with there.

    Family law should now be strictly for mediating shared parenting arrangements and sorting out the finer details of those arrangements. A much more humane system would ensue, don’t you think?

    • because parliament has tasked criminal courts with dealing with criminality, with punishment and rehabilitation, and family courts with child welfare.

  6. A parent who falsely alleges that the other parent (or the other parent’s spouse) has been violent to or sexually or otherwise abused a child with a view to preventing that parent from having contact with that child is himself/herself an abuser of children and unfit to look after them.

    If anyone disagrees I would love to know why.

  7. right, but that still does not account for why cases of false allegations, perjury, violence, harassment, assault, parental alienation, child abuse, violation of court orders (which I trust you too will see as crimes), are not then dealt with in criminal courts?

    It just does not make sense, and it is a major flaw in the law – a flaw of catastrophic proportions given that children are the victims.

    • Most of those things can be and are dealt with in criminal courts where appropriate. I think its difficult to see how parental alienation could convert into a criminal offence, given that it is a psychological condition of a child which many experts do not accept exists. Violation of court orders is not a criminal matter except in specific circumstances where Parliament has legislated (e.g. breach of a non-mol), although the family courts have quasi-criminal powers of imprisonment.

  8. Parental alienation is child abuse and domestic violence; it is therefore a crime.

    It is an undeniable reality. Those who don’t accept it are not blind, but motivated by malice and politics

    • I’m not sure how it is domestic violence but for sure it is abusive. Whether or not it fits easily into a category of criminal offence I don’t know, but I would suspect it would be very difficult to prove any such offence to the criminal standard.

      I don’t deny it is a reality at all – my point was that parental alienation syndrome has a particular medical meaning, and that is something which is not universally accepted by psychologists and psychiatrists.

  9. Philip Measures

    I am far from convinced that PAS has any ‘medical’ validation other than if you include psychological within the Medical Model.

    That is why I feel that in Private Law Proceedings the same criteria for ‘harm’ or ‘likelihood’ of such should be exactly as that applied within Public Law (i.e. Care Proceedings) and should be clearly able to be evidenced and assessed as such.

    There has to be a presumption of Contact with both parents and significant extended family members unless it can be demonstrated that such would be harmful to the child and CAFCASS and Local Authorities (the former who will probably be far more au fait with that concept than CAFCASS) should ensure that any witholding of Contact is evidence-based.

    • I agree, but the thing is in other fora where campaigners are criticising the system they are focusing on criticising the intangible notion of “emotional harm”, which I think would be the category that parental alienation would have to fall into. It IS very difficult to evidence and assess, because so much of it relies upon the subjective and the unseen.

  10. I did not say anything about a syndrome.

    You are not sure how it is domestic violence? This is probably about the worst form of mental torture you could submit someone to, and you are not sure???

    It is domestic violence because it is expressly intended to injure a relationship beyond repair. It is emotional homicide at the very least.

    It is easily proved. Anyone who necessitates the other party going to court is committing parental alienation (unless they have concerns about safety that can be proven beyond a doubt), and very likely to engage in it until she has succeeded in bullying dad out of the picture.

    If only the courts would wake from their stupor, parental alienation would be among the most easily identified crimes.

    • It is easy to spot if you are the other parent because you know with certainty what part you have played in a refusal of contact. what is more difficult is for professionals to identify the lies and the truth and to distinguish between alienation / manipulation and genuine concern or justified reluctance to attend contact. There is not always clear independent evidence available to show what is really going on. This would be even more of a problem in criminal courts than in family courts because of the raised standard of proof (You could not make someone subject to criminal sanction by adopting a default position that a refusal to go to contact is due to culpable criminal conduct in the form of alienation. If as you suggest, these matters were to be dealt with in criminal courts the prosecution would have to prove alienation beyond reasonable doubt. I hope we can agree that would be a tall order even in cases where this was true).

      Let’s not argue about whether or not alienation falls within the definition of domestic violence – we both agree it’s abusive and harmful and damaging.

  11. “Let’s not argue about whether or not alienation falls within the definition of domestic violence – we both agree it’s abusive and harmful and damaging.”

    Yes, but this injunction not to argue is very curious in itself.

    As you know, the definition of domestic violence has expanded to include all sorts of emotional things including making someone a coffee in the morning when that coffee is not welcome.

    And yet, for very bizarre reasons, you still want to leave “parental alienation” – something very real, which you yourself confess to, off the list of things that constitute domestic violence?

    Who is this protecting? The children? Certainly not. The mothers who engage in parental alienation? Yes.

    I rest my case.

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