Are you sure about this shared parenting malarky?

So Alan Beith, Chair of the Justice Select Committee and government advisor, has written to David Cameron asking him to reconsider government policy on shared parenting. The letter, sent last week to the PM, the Secretary of State for Justice, the Minister of State for Children and Families, and to the Parliamentary-Under Secretaries of State for Justice and Education, in essence asks the government to think again about its plans to implement a shared parenting provision, raising concerns with all of the four proposed legislative provisions set out in the current consultation.

I think that it is pretty significant that the Justice Select Committee has taken this action at a point where the Government has announced it plans to implement this policy in some shape or form and is now consulting on how best to go about it. It is a direct challenge to government policy and comes in the same week as the All Party Parliamentary Group on Child Protection launched its own enquiry into the proposed family justice reforms, including safety issues around shared parenting (see here also).

I have not forgotten that I have promised to set out my own views on shared parenting, and on a separate but related point, to respond to Stephen Twist’s own innovative proposals for restructuring private law disputes. It’s a question of prioritising other more pressing issues. It’s on the to do list…

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22 thoughts on “Are you sure about this shared parenting malarky?

  1. I say ask the child what they want, we all think we know the best, I have know few broken marriages, and to be hones more than half of them do not work as split, as the child always wants to live with the other parent seems the courts think that the child is better off with a women and not the man, yet there are 100′s of MALE’s who have the children because the mother had passed away, nothing is said about those and the children are happy, ASK THE CHILD and look with eyes open at the situation and do not wear rosy colord glasses.

  2. Why not just amend the Children Act to a presumption that is in a child’s best interests to live with mummy, and that daddy should be relegated to a contact parent with reduced parental rights and responsibilities? For that seems to be the way CAFCASS and the Family Courts operate in my very limited experience.

    I have been involved in my own proceedings for only 7 months, but I am starting to wonder whether it might be best for my mental health if I walk away from my child and her demented mother who seems determined to control my relationship with our daughter. Is it worth all the hassle and aggravation?

    My ex is not a British national and seeks ‘residence’ so that she may take our daughter abroad without my permission. I believe she will use a residence order to get leave to remove at some point in the near or distant future and there does not seem to be a damn thing I can do about it.

    Cafcass told me that my daughter should have ‘one home’ and ‘one primary caregiver’ before they had even spoken to me. What is the point of a 2-and-a-half hour interview and observing my interact with our daughter if these people have already made their mind up?

    I believe that my ex partner is attempting to alienate me from our daughter, and she is seemingly aided and abetted in this process by CAFCASS and the Family Court system.

    We have been waiting a long time for your views on shared parenting. Please let them be known.

    • My broad views are already set out in various places on the blog, but what I haven’t been able to achieve due to other commitments is a thorough review of the material available about the pros and cons of shared parenting in order to form a view on the specific proposals now being floated.

  3. Nick Langford

    Well he would say that, wouldn’t he? Norgrove got very upset when the Government rejected his panel’s findings and wrote a snotty article too. I’ve just been looking at the witness list for the Justice Committee and there isn’t a single unequivocal supporter of shared parenting on it. The same criticism could be levelled at the Justice Committee which was made by Professor Patrick Parkinson of the Norgrove Report, ‘Almost none of the claims made by the Norgrove Committee, or which were made to it and relied upon by the Committee, can be sustained’. This is the problem when committees rely on witnesses and not on evidence.

    When we (F4J) appeared before his panel David Norgrove commented that no one else was saying what we were saying; our reply was simply that no one else who was saying what we were saying was on his guest list.

    Beith makes it clear that it is shared parenting per se to which he objects and not the Government’s proposals; he says ‘The Committee remains strongly opposed to this policy’ of promoting shared parenting. He repeats a concern raised by F4J which is that the Government has not explained its rejection of Norgrove.

    Beith claims- in common with other opponents of shared parenting – that to promote shared parenting through legislation would undermine the paramount principle of the welfare of the child, but there is no evidence for this, and in jurisdictions which have adopted shared parenting legislation the welfare principle has remained paramount. I should point out that F4J doesn’t share in the slavish adoration of the welfare principle; it doesn’t do what it says on the tin, and we recognise that it was originally introduced out of political expediency to deny mothers equality of parental rights.

    Beith repeats the conventional wisdom that the majority of applications resulting in no contact are abandoned by the applicant parent. This is dishonest: since there is no monitoring of outcomes it cannot be known how many cases end in no contact; there is more than one way to skin a cat, and a variety of ways to deny a parent contact. Having a contact order does not guarantee contact, and the courts’ definition of contact can be very far from that of the man on the Clapham omnibus. Generally when an application has ended without contact there is no need to make a further application to withdraw it.

    Beith objects that a legislative statement which inserts concepts for furthering “involvement”, will be equated in the minds of warring parents as a right to equality of time. Where’s the evidence for this? Many of Beith’s claims are merely prejudices. Most disputes over contact concern the division of parenting time between parents; it is only natural that parents should expect reformed legislation to take account of this. For the Government to shun any discussion of the division of time is to avoid the issue, it shows confused and incomplete thinking.

    Confusion could be avoided by addressing this issue courageously, by careful drafting, and by appropriate presentation to the public, perhaps by utilising the shared parenting groups to present the new legislation to their memberships.

    Beith claims that the Australian evidence showed that cases where the child’s or parent’s safety was at risk were not being effectively filtered out of the shared parenting scheme by the courts. This depends on interpretation of the evidence and on whether you read the official report or McIntosh’s, but the claim doesn’t seem to be supported. What had happened was that parents had been given a false perception that the new legislation would protect their right to have equal time with their children. Judges said they were having to explain to parents in the courtroom what the new legislation meant, so as to refocus their attention on their children’s interests. It is clear that these were problems, not with the concept of shared parenting itself, but with its presentation, and equally clear that they were limited to the courtroom: there is no suggestion in the report that they had any impact on the outcomes for children.

    Beith repeats the common claim that 90% of separating parents do not use the courts, and that the remaining 10% of cases that do reach court are frequently those with multiple problems. F4J have repeatedly challenged these figures but have been unable to provoke proper discussion. The opponents of shared parenting want to persuade the public that only a minority of very conflicted, violent, drug-abusing and mentally unstable parents go to court, and that shared parenting is not an appropriate solution for them. While this applies to a percentage of litigating parents, it is only a minority of 10 or 15 percent; that’s why any presumption must be rebuttable. The Australian evidence is that shared parenting worked well in the majority of cases.

    Contrary to the repeated claim that litigation increased in Australia following the reforms, applications actually fell by about a third and kept falling – something lawyers in this country would obviously not want replicated.

    The opponents of shared parenting would have you believe that it is not compatible with the child’s welfare; supporters believe that the child’s welfare depends upon it. These seem to be irreconcilable ideological positions. The only way to maintain a position against shared parenting is to hold that the evidence and arguments in favour of shared parenting simply don’t exist. There is on the contrary a huge body of evidence and a very strong argument, put forward over and over again. It simply isn’t good enough to deny this and refuse to engage. The Norgrove and Justice Committee reports rely on a very small range of studies from a handful of inter-related academics in a single jurisdiction. If these were student theses and not an official government reports, they would be thrown back at the students.

  4. To suggest that” promoting shared parenting through legislation undermines the paramount principle of the welfare of the child” is simply ridiculous and shows no recognition that shared parenting is inextricably linked with the welfare of the child.

    To claim that “There was no evidence to suggest that Judges were not starting from a position in favour of contact being maintained with both parents” is simply disingenuous.

    Unfortunately there is very little evidence of any outcomes in the family court. Whatever evidence there is that shows that fathers have secured ‘contact’, will not show that it has generally amounted to no more than 2 days in 14. Nor the fact that it all too often breaks down in the face of persistent non-compliance and failure of the courts to enforce the orders they make.

    To claim that “The majority of applications resulting in no contact were abandoned by the applicant parent” – is once again a pretty meaningless claim without context. These are the sort of cases in my experience where a father has been in court for up to a year and more where in the face of persistent allegations by the Mother he gets nowhere with progressing his application, the children become alienated and Cafcass and the Court adopt the wishes and feelings approach without taking that into account, thereby minimising the prospects of ever securing ‘contact’, whilst seeing children distressed by their exposure to all the conflict the process generates.

    To suggest that “It would be wrong, by a change in the law, to imply that parents have rights over children rather than responsibilities for children” is a further ridiculous assertion; how would a legislative presumption that children should have a meaningful relationship with both parents imply that parents have rights over children (and some may see nothing wrong with that anyway).

    What basis is there to suggest that “A legislative statement, however drafted, which inserts concepts for furthering “involvement”, will be equated in the minds of warring parents as a right to equality of time”?

    Even were the claim true that “The Australian evidence showed that cases where the child’s or parent’s safety was at risk were not being effectively filtered out of the shared parenting scheme by the courts” is hardly an argument against shared parenting, simply one for more effective ‘filtering”.

    What evidence is there to support the statistic cited that “The proposal takes little account of the fact that 90% of separating parents do not use the courts, and that the remaining 10% of cases that do reach court are frequently those with multiple problems. Attempting to further parental involvement in this 10% of cases by changing legislation is to fundamentally misunderstand the nature of the issues in these cases” – I understand the statistics used are largely based on divorce records, ignoring the fact that many parents in contact and residence proceedings are not married. Apart from that, even if it were anywhere near true, the 10% would amount to significant number of children whose interests need to be protected. And what is meant by the suggestion that these cases “are frequently those with multiple problems”? What is the basis of that assertion and what evidence is there to support it? It does not reflect my own experience over 10 years in the family court where in general the only problem has been the hostility of the mother to the father’s contact.

    It is pure speculation not based on any evidence to claim that “Contrary to the stated aim of reducing the number of Court cases, the Australian experience showed that the insertion of a legislative statement was “likely” to lead to some parents being less willing to negotiate and resolve arguments over child contact outside court.”

    The reality is that there will be an understanding that one parent does not have the upper hand over the other and there will be an incentive to cooperate.

    Same applies to the suggestion that ” Extensive litigation seems likely to result from parties litigating to reconcile two competing principles – the welfare of the child and the duty to promote shared parenting” and why on earth is it considered that “the welfare of the child” and “the duty to promote shared parenting” are “two competing principles? The two clearly support each other. What a load of disappointing tosh.

  5. familoo,

    I think we are all aware of you being anti the proposed shared parenting legislation.

    I’m sure many of us can hardly contain ourselves waiting for your long promised review and conclusions stating why the Children Act 89 will suffice very nicely thank you.

    Nick Langford, good points.

    The ‘Justice Committee’ and Alan Beith are a complete joke in the quarters that matter, his and others misrepresentation of the actual facts speaks for itself.

    No-one can expect the bulk of family lawyers to welcome shared parenting laws, we can expect them to fight tooth and nail against them, simply because litigation fell 30% in Australia after their reforms. How scary is that for your average lawyer – the rest of the hot air spouted by the anti’s is bunkum.

  6. Very well argued, Nick (July 19th above).

    It would be marvellous to see Mr Beith reply, point-by-point, to your reasoned analysis.

    Mr Beith’s claim that Mr Cameron has ignored his views is very strange. Mr Cameron may have opted to disagree with Mr Beith’s views, but there is no evidence to suggest that he completely ignored them.

    Mr Beith claims: “there was no evidence to suggest that judges were not starting from a position in favour of contact being maintained with both parents”.

    However, in cases of overseas relocation, there is very plain evidence to suggest that, rather than to maintain meaningful contact with both parents, the starting point is to cater to the wishes of the so-called ‘primary carer’. In Re D (Children) [2010] EWCA Civ 50, Sir Nicholas Wall, the President of the Family Division, publicly conceded that family law “placed too great an emphasis on the wishes and feelings of the relocating parent and relegated the harm done to children by a permanent breach of the relationship which children have with the left-behind parent”.

    That family law – in the form of Payne v Payne (2001) – is STILL in place, riding rough-shod over any notion of shared parenting by placing thousands of miles and oceans between children and their so-called ‘non-primary parent’.

    Perhaps someone should tell Mr Beith about it.

    Bruno D’Itri

  7. You can only be opposed to shared parenting if you have some ulterior motive.

    That goes for economists, employers, lawyers, implacably hostile mothers and other petty criminals.

    There is just no other explanation for why you would want to deny a child the benefit of two rather than one parent – one parent whose opposition to shared parenting can only be a measure of their un-fitness as a parent and their inclination toward destroying the relationship between a father and his son.

    Those who bring up the case of Australia are either malicious falsifiers or incompetent researchers. Those who raise the question of child protection are committing gender hatred in their inane assumptions. Those who worry about the costs of litigation to the public purse or the trapped-kid-in-the-middle phenomenon should be reassured that if one parent seeks to damage the relationship between the children and the other parent, then they will receive custodial sentences and that things will revert to the barbaric Resident/Non-Resident dichotomy.

  8. Who is this Alan Beith, and why has he not already been removed from his office?

    The question right now is not about shared parenting or not, but about how best to ensure that it is implemented in a way that does not make the same mistake as the Children Act 1989, by leaving sufficient loopholes for judicial discretion to nullify its meaning.

  9. Mr Beith’s position on shared parenting is, perhaps, best viewed in its full historical and cultural context.

    In the 18th and 19th centuries, British family laws were such that, if the father so wished it, separated mothers were likely to lose all contact with their children.
    Development of the law occurred very slowly indeed. Some change came with the Child Custody Act of 1839 and the Matrimonial Causes Act of 1857, but it was not until 1925 that the welfare of the child became paramount. At every stage, there were numerous ‘Mr Beiths’ who resisted any development in family law.

    Even today, in certain Middle Eastern cultures, separated mothers are treated despicably and are often denied access to their children. Here, too, there are ‘Mr Beiths’ resisting change.
    The injustices experienced by British women in the past are, sadly, being visited upon British fathers in 21st Century Britain.

    A father can be fully involved in the day-to-day care of his children. And yet, following separation, he can find himself completely excluded from their lives. How can this possibly occur, when the Children Act of 1989 so clearly dictates that the paramount interests of the children should be served by the courts?

    Following separation, the family courts automatically seek to anoint one parent with the status of ‘Primary Carer’. This will usually be the parent who, prior to separation, undertook 51% or more of childcare duties. As we know, in most cases, this is the mother. The law then bestows upon that Primary Carer a grossly disproportional degree of power over the children, vis-à-vis the Non-Primary Carer (the father).

    In most cases, separated parents are able to focus upon the well-being of their children and can come to a mutually agreed childcare arrangement. However, in many acrimonious cases, the Primary Carer can ‘use the children as weapons’ – to coin a phrase adopted by Sir Nicholas Wall, the President of the Family Division. The children are used as a means of punishing a former partner by restricting contact. Such abhorrent behaviour currently goes unpunished by the family courts, the rational being that to punish the children’s Primary Carer is tantamount to punishing the children themselves. With no effective deterrent, it is likely that such behaviour will continue.

    There now exists a plethora of contemporary scientific evidence which demonstrates, beyond all reasonable doubt, the significant emotional, developmental and educational benefits for children of their being permitted to remain in a close and meaningful relationship with both their parents, post separation/divorce. Indeed, fifteen such scientific reports were presented to Sir Nicholas Wall in the case of Re D (Children) [2010] EWCA Civ 50. Sir Nicholas reserved his judgment for three weeks in order to read this very extensive evidence. He concluded that family laws potentially relegated the harm done to children by irrevocably damaging their meaningful relationship with the Non-Primary Carer.

    Mr Cameron – to whose Government the scientific evidence was also presented – understands the need for family law to develop in line with contemporary scientific evidence and the realities of 21st Century parenting. We need only to look at last Summer’s riots to see where fatherlessness can lead.

    I am one such Non-Primary Carer. Before separation, I was actively involved in the lives of my two sons. Post separation, I was excluded. Despite numerous court appearances, including three at the Court of Appeal, and despite being found by the courts to be an entirely loving, caring and responsible father, I have lost meaningful contact with my sons. I fought for years in a legal system which simply could not understand and/or give due weight to the importance of a father (or ‘Non-Primary Carer’) in the optimal development of a child.

    As I see it, the problem lies in the fact that the judiciary has opted to interpret the Paramountcy Principle of the Children Act of 1989 using the ‘Single Parent-Primary Carer’ paradigm. Relocation law, in the form of Payne v Payne (2001), is a prime example: it rides rough-shod over any possibility of shared parenting by placing thousands of miles and any number of oceans between children and their Non-Primary Carer.

    What Mr Cameron seeks to do is to rectify this error by making it very explicit indeed to the judiciary that the full and meaningful involvement of a good and loving father is vitally important in serving the paramount interests of a child. In reality, there is no substantial conflict between the Paramountcy Principle and the Principle of a Presumption of Shared Parenting.

    Regards
    Bruno D’Itri

  10. Professor Parkinson’s views on the Norgrove’s interpretation of the Australian “evidence” can be found here:

    http://www.separatedfamilies.info/policy-makers/family-justice-review/australian-experience/

    Worth Reading I think.

    • it really is. Thanks Brian. I was aware of some of this but it’s very useful. I’ve had to put it down before finishing it but thanks.

  11. Yes, thanks Brian, that really does undermine Mr. Norgrove’s research skills and ethics in one stroke, doesn’t it?

    The frightening thing though is that there are still some out there who keep parroting it, simply because it fits their preconceived ideas about things.

    Thanks to Bruno to for his enlightening post. There have indeed been several little “Mr Beith’s” throughout Britain’s gruesome history of family law.

  12. It strikes me that before separation, couples generally work together for their children’s benefit, as happens in most families. Post separation, one parent is placed in the position of dictating what happens, and they often have a desire to hurt the other parent, and will use the children to hurt them, regardless of the consequences. That is what is wrong with the current system, and no legislation can ever be put in place which will deal with all of the different types of situations which arise, so arguing against something because it wont always work, or may be misconstrued is a mistake in my view.

    It seems having read the report that Brian pointed to, which is worth a read, is that, as with many things in law, you can argue from both sides and neither side is completely right, or wrong.

    It also seems to me that the ‘Fathers Rights’ element have created a situation where movement in their direction is being resisted, more because of the perception that will be created that they have ‘won’. (Just a feeling I got when reading it)

    I was particularly struck by these comments:

    One practical expression of the requirement to consider the benefit to the child of a meaningful relationship with both parents is that when deciding cases in which it is appropriate to make an order for equal shared
    parental responsibility, judges must consider making an order for equal time or “substantial and significant” time if this is in the best interests of the child and reasonably practicable.

    “Substantial and significant” time means periods not only at weekends and school holidays but also during the school week, giving the parent an opportunity to be involved in the child’s daily routine and occasions and events that are of particular significance to the child or the parent. Thus while an order for equal shared parental responsibility says nothing, per se, about how time is allocated
    between parents, what follows from it is a duty imposed on judges to consider whether some kind of shared care arrangement might be appropriate in the circumstances of the case.

    All most non resident parents want, is to be as fully involved in their children’s lives, just as they were while the relationship with their ex subsisted. They end up in a position of weakness where maintaining a relationship with their child is a battle, and one they carry out with both hands tied behind their backs.

    The current system does not work for everyone. The new system will not work for everyone. But that doesn’t mean change should be resisted because it won’t be the perfect solution.

    Simon

  13. Excellent points from Nick Langford and Bruno D’Itri. Speaking as a person who successfully defended against a leave to remove and won shared residence, I can say that the expense involved was mind blowing. This is not any idea of justice. This is a money spinner.

    It is my view that for a lawyer, it is easier to misinterpret the legislation to his favour using abuse, allegations and other methods of distraction, than it is to defend against these misinterpretations which requires in depth examination of the principles and evidence. It is easier to break something than to mend it. Most legal aid lawyers are unqualified to do so unless they are supported with better legislation. The objective of this amendment to the children’s act is to avoid confusion about what is best for a child, which many judges lose sight of.

    Case law is specific to the circumstances of the case. The children’s act is not and that is exactly what the problem with it is. I don’t see how having a more specific and continually updated children’s act is a bad thing. It is after all a measure of a child’s constitutional rights. If this is the approach towards legislation in Criminal Law, where it is constantly evolving, then why should it be different for children’s rights?

    Don’t they deserve an updated bill of rights based on current research, current legislation?

    What is most shocking is that Alan Beith has not come up with any solution himself! This is indeed telling. He intends to sweep the problem under the carpet of the “Divorce capital of the world.” This really is the mark that he has an agenda to protect and his defensive lash out on behalf of the justice system proves that he has no intention to take into consideration all the facts or indeed come up with any viable alternatives. It is a mark of dishonesty. So pressured is he to defend this highly powerful lobby that he exposes himself for the pawn that he is. If he was genuine, he would have come up with a balanced argument involving solutions!

    The evidence Beith and Norgrove relied upon is incredulously weak to base such an important decision on. Frankly it is gross incompetence. How powerful do they believe themselves to be that they have provided conclusions that any Alevel maths student can take apart. Though Professor Parkinson did so with considerably more grace.

    The inability for so called professionals to interpret simple scientific evidence is a offence where they must be deemed to be unfit to do the job they are assigned to.

    Nick and Bruno are not politicians. They are human rights campaigners. What do they have to gain from achieving their goals? Time with their kids? Survival from bankruptcy? We certainly know what the lobby groups against shared residence have to lose.

    The hate campaign towards fathers in this country is as dated and as barbaric as forced marriages and labour laws in Third world countries. They all involve control over a peer group where the consequences lead to poverty, depression and suicide. One way or the other it is life destroying. Frankly I would prefer to be raped and beaten rather than to lose contact with my child and it is not just a figure of speech.

    Both sexes are as vulnerable as each other and as strong as each other and as possible of good parenting as each other.

    My last point is that, if Norgrove wants to save money, then STOP creating a welfare state that promotes anyone being OUT OF WORK. He then proceeds to give said unemployed people legal aid to continue making allegations of abuse. Its like a double hit to taxpayer non resident parents. Child maintenance, spousal support, then tax…which will be used to create allegations against you…and then to pay for your defence you have to hire lawyers….its a downward spiral. Why cant people see this?

    The resident parent (non gender specific) is literally incentivised to remain a burden on the economy. Shared care allows both parents to work, rather than leaving the burden of work on one parent, and the burden of childcare on the other. It is funny that when couples remain together, alot of the time the so called primary carer returns to work once kids get to school (for which there are free options) and many even with childcare (also free options available). Why then when they separate does this not happen? Its all about the legal aid.

    Shared residence will remove this financial imbalance as well.

    Will things ever be addresses? Not without some form of revolution. Historically, people have always had to fight for their rights before their kids can enjoy the product of their work.

  14. At least some members of the judiciary appear to be listening to our arguments…

    http://www.telegraph.co.uk/news/uknews/law-and-order/9424060/Fathers-rights-breached-by-mother-too-upset-to-let-him-see-children.html

    Had the trial judge in this case had the guidance of a revised Children Act, stressing the crucial importance for the children of a shared parenting regime, perhaps she would have ruled differently, and perhaps these children would not have had to suffer the loss of their father for so long. Onward with the improvement to the Children Act, Mr Cameron!

    Of some concern in this case, however, is the focus placed upon the father’s rights, rather than upon the children’s.

    The paramount concern for the judiciary must always be the children’s rights and, specifically, their right to have a close and meaningful relationship with both their parents. The rights of a mother or father ought to be a far minor concern for the judiciary.

    Nevertheless, this is a very good outcome for the children in this particular case.

    Unfortunately, however, this is still not true for many other children caught up in the family justice system.

    The so-called ‘distress argument’ of the ‘Primary Carer’ still takes precedence over the rights of children in other areas of family law.

    In Relocation law, for example, hundreds of children continue to be removed overseas each year, in order to pander to the demands of the Primary Carer and to her claims of ‘distress’ if permission to relocate is refused. The need for children to maintain a meaningful relationship with both parents is relegated.

    Children are forced to leave behind their ‘Non-Primary Carer’ (dad), their extended family, their home, their school, their friends and their general way of life. The meaningful relationship they once enjoyed with their Non-Primary Carer is decimated. I speak from personal experience.

    Sir Nicholas Wall needs finally to act upon the concerns he publicly raised two and a half years ago, in the case of Re D (Children) [2010] EWCA Civ 50.

    Sir Nicholas: the time for procrastination is over.

    Regards
    Bruno D’Itri

  15. What ever the “rights or wrongs” of disputes over children it is worth reading the recent case on contact of Re W [2012] EWCA Civ 999 reported both on the Judiciary site and on Bailii -

    http://www.judiciary.gov.uk/Resources/JCO/Documents/Judgments/w-children-judgment-24072012.pdf

    http://www.bailii.org/ew/cases/EWCA/Civ/2012/999.html

    The post-script is repeated here:

    72. Having determined the issues in this appeal, I return briefly to the concept of parental responsibility and the potential for it to be given greater prominence in the resolution of private law disputes as to the arrangements for the welfare of children.

    73. The observations that I now make are part of a wider context in which the family courts seek to encourage parents to see the bigger picture in terms of the harmful impact upon their children of sustained disputes over the contact which is most neatly encapsulated in the words of Black LJ in T v T [2010] EWCA Civ 1366: “[The parents] must put aside their differences … if the adults do not manage to resolve things by communicating with each other, the children inevitably suffer and the adults may also pay the price when the children are old enough to be aware of what has been going on. … It is a tremendous privilege to be involved in bringing up a child. Childhood is over all too quickly and, whilst I appreciate that both sides think that they are motivated only by concern for the children, it is still very sad to see it being allowed to slip away whilst energy is devoted to adult wrangles and to litigation. What is particularly unfair is that the legacy of a childhood tainted in that way is likely to remain with the children into their own adult lives.”
    74. In describing the statutory legal context within which decisions as to the private law arrangements for a child are to be made, I have stressed that it is the parents, rather than the court or more generally the state, who are the primary decision makers and actors for determining and delivering the upbringing that the welfare of their child requires. I have stressed that, along with the rights, powers and authority of a parent, come duties and responsibilities which must be discharged in a manner which respects similarly held rights, powers, duties and responsibilities of the other parent where parental responsibility is shared.

    75. All aspects of life, whilst some duties and responsibilities may be a pleasure to discharge, others may well be unwelcome and a burden. Whilst parenting in many respects brings joy, even in families where life is comparatively harmonious, the responsibility of being a parent can be tough. Where parents separate the burden for each and every member of the family group can be, and probably will be, heavy. It is not easy, indeed it is tough, to be a single parent with the care of a child. Equally, it is tough to be the parent of a child for whom you no longer have the day to day care and with whom you no longer enjoy the ordinary stuff of everyday life because you only spend limited time with your child. Where all contact between a parent and a child is prevented, the burden on that parent will be of the highest order. Equally, for the parent who has the primary care of a child, to send that child off to spend time with the other parent may, in some cases, be itself a significant burden; it may, to use modern parlance, be “a very big ask”. Where, however, it is plainly in the best interests of a child to spend time with the other parent then, tough or not, part of the responsibility of the parent with care must be the duty and responsibility to deliver what the child needs, hard though that may be.

    76. Where parental responsibility is shared by a child’s parents, the statute is plain (CA 1989, s 3) that each of those parents, and both of them, share ‘duties’ and ‘responsibilities’ in relation to the child, as well as ‘rights … powers … and authority’. Where all are agreed, as in the present case, that it is in the best interests of a child to have a meaningful relationship with both parents, the courts are entitled to look to each parent to use their best endeavours to deliver what their child needs, hard or burdensome or downright tough that may be. The statute places the primary responsibility for delivering a good outcome for a child upon each of his or her parents, rather than upon the courts or some other agency.
    77. Where there are significant difficulties in the way of establishing safe and beneficial contact, the parents share the primary responsibility of addressing those difficulties so that, in time, and maybe with outside help, the child can benefit from being in a full relationship with each parent. In the present case the emotional and psychological make up of the two parents, both separately and in combination, prevented easy contact taking place. Dr G advised that both parents needed to access support or therapy to enable them to approach matters in a different way. F engaged in the necessary work, but M declined to. It may have been in F’s interests to do so, and M may have taken a contrary view; be that as it may, the only interests that either parent should have had in mind were those of each of their two children.
    78. Parents, both those who have primary care and those who seek to spend time with their child, have a responsibility to do their best to meet their child’s needs in relation to the provision of contact, just as they do in every other regard. It is not, at face value, acceptable for a parent to shirk that responsibility and simply to say ‘no’ to reasonable strategies designed to improve the situation in this regard.
    79. The observations that I have made will be, I suspect, very familiar thoughts to family judges, lawyers, mediators and others. My intention in setting them out in this judgment is to give them a degree of prominence so that they may be brought to the attention of parents who have separated at an early stage in the discussion of the arrangements for their child.
    80. Whether or not a parent has parental responsibility is not simply a matter that achieves the ticking of a box on a form. It is a significant matter of status as between parent and child and, just as important, as between each of the parents. By stressing the ‘responsibility’ which is so clearly given prominence in CA 1989, s 3 and the likely circumstance that that responsibility is shared with the other parent, it is to be hoped that some parents may be encouraged more readily to engage with the difficulties that undoubtedly arise when contemplating post-separation contact than may have hitherto been the case.

    Lord Justice Tomlinson Judgment Approved by the court for handing down. Re: W (Children)
    81. I entirely agree.
    Lord Justice Rix
    82. I also agree. I would in particular like to underline my agreement with what Lord Justice McFarlane has said about the duties and responsibilities of parents.

  16. Dear all

    I wanted you to see this, its both shocking and hilarious (if you dont laugh about it – you will cry) –

    http://www.lawgazette.co.uk/news/legislative-presumption-shared-parenting-flawed

    Please read the comments below from their members which quite unequivocally voice support for the presumption of shared parenting – yet the society sees fit to voice opposition to it???

    There is a wonderful post actually raising this very point. If they are not listening to their own members (who i presume are practising law) then on whose behalf are they voicing opposition? Whose agenda are they acting on?

    In this day and age to see such an undemocratic sanction by an organisation opposing the government (no doubt following the political agenda of alan beith) is quite disgraceful. You must read the prime ministers response to his beiths letter as it did for a moment make me feel proud to be both British and a father.

    I really thought it enlightening to demonstrate how the public are the real casualties in this wholly undemocratic war being waged by the law society on children’s rights. I now conclusively believe their interests are obviously monetary and political.

  17. When parents separate or divorce, the court automatically seeks to anoint one parent (usually the mother) with the legal status of ‘primary carer/resident parent’. It then bestows upon that parent a grossly disproportionate degree of power and control over the children vis-à-vis the ‘secondary carer/non-resident parent’ (dad).

    In many acrimonious cases an embittered resident parent uses this power to exclude the second parent from the lives of the children. The courts are reluctant to punish this abhorrent behaviour, their rationale being that to punish the primary carer is tantamount to punishing the children. With no deterrence, this behaviour is set to continue.

    Quite naturally, an unjustly excluded parent will employ the very costly (£200 plus per hour) services of solicitors and barristers in a desperate effort to regain contact with his children. Truly obscene sums of money begin to flow from broken families into the coffers of the law firms. The Family Justice Industry feeds upon the love an excluded parent has for his children.

    A presumption of Shared Parenting would permit a loving parent to be fully involved in the parenting of his children, post separation or divorce, without the need for costly and lengthy litigation. In Australia, for example, litigation reduced by circa 30% following the introduction of Shared Parenting legislation. Of course, in those relatively few cases where there is a serious and proven risk of harm, contact can and should be restricted.

    Plainly, a similar reduction of circa 30% in British family court litigation would prove extremely damaging to the Family Justice Industry. It is little wonder, then, that the Law Society is vehemently against a presumption of Shared Parenting. Family lawyers are not saints; we should not naively assume that their leaders would place genuine justice for parents and children ahead of their desire to maintain their income stream.

    The judiciary is no better. Sir Nicholas Wall – the former President of the Family Division – sought to blame parents for “using their children as weapons”, without accepting in the least that it is the System itself which facilitates, encourages and fails to deter such abhorrent behaviour.

    The real scandal is that the Law Society and the judiciary appear to have succeeded in persuading our Government to dilute its original Shared Parenting proposals. There is now a very serious risk that the unsatisfactory status quo is set to continue.

    Shame on the Law Society.
    Shame on the judiciary.
    Shame on the Government.

    Bruno D’Itri

  18. Retired President of the Family Division, Baroness Butler-Sloss has recently expressed her strong objections to Shared Parenting legislation:

    http://www.express.co.uk/posts/view/370559/No-50-50-sharing-of-children-in-new-divorce-law-says-top-judge

    There are three major flaws in the views of the Baroness.

    Firstly, she makes the erroneous and very misleading presumption that those calling for Shared Parenting legislation want a rigid 50/50 split of parenting time.

    Most reasonable voices who have campaigned for Shared Parenting (such as Families Need Fathers and The Custody Minefield) have acknowledged for years that a rigid 50/50 split of parenting time would be impractical in many cases.

    Instead, they have called for the significant and meaningful involvement of both parents, in order that the child may benefit from being properly parented by both its parents. Theirs has always been a qualitative approach.

    Of course, in order for a child to have a significant and meaningful relationship with both its parents, it will need to spend some minimum quantum of time with both parents, but this need NOT be 50%.

    Many who are vehemently against Shared Parenting legislation are finding it extremely difficult to counter the widespread and powerful scientific evidence in favour of Shared Parenting. They have commissioned a couple of academics in an effort to discredit Shared Parenting, but the evidence in favour of Shared Parenting is overwhelming. The general consensus among social scientists is that Shared Parenting is beneficial to children. There are parallels with Oil Companies who commission selected academics to try to discredit the evidence for Global Warming.

    Instead, opponents of Shared Parenting are rather desperately (and mischievously) attempting to shift both the debate and their attack upon the notion of 50/50. The Baroness succeeded in getting the Express Newspaper to headline this 50/50 notion!

    Secondly, whilst the Baroness concedes that children benefit from Shared Parenting when their parents are behaving “sensibly”, she states that the children of parents who are not behaving “sensibly” cannot benefit from Shared Parenting, as this would be harmful.

    In the very common scenario in which the court-appointed Primary Carer (usually mum) is upset and aggrieved with any aspect of the separation or divorce, and refuses (or is emotionally incapable) to behave “sensibly” and refuses to facilitate contact , the Baroness suggests that the Secondary Carer (usually dad) should NOT be involved in the parenting of the child. The Baroness appears quite unable to perceive firstly, the injustice of her argument and, secondly, the long-term damage to the child in losing one of its parents. The Baroness gives paramountcy to the wishes and feelings of the Primary Carer mother.

    Thirdly, the Baroness appears completely out of touch with the current Zeitgeist concerning 21st century parenting. She is firmly wedded to the ideology of the 1960′s and 70′s which strongly held that children needed the nurturing of their mothers and the financial support of their fathers. In no other of the Baroness’s judgments is this out-of-date ideology so stark as in the judgment of Payne v Payne (2001).

    Regards
    Bruno D’Itri

  19. In continuation of the last post,

    The Baroness claims:

    “I’ve heard one father who went into court saying, ‘Once this law is enforced, I will get half of the child”.

    Is she claiming to have heard this father in a case over which she was presiding? It seems so.

    However, the Baroness retired from the Bench many years ago, and well before the Shared Parenting Bill was aired.

    How, then. was she able to hear this father’s comments on the Shared Parenting Bill?

    In fairness, she may have intended to say that she had heard of the father’s comments from a third party, or that she had heard the father as he went into a court room whilst she was hanging around outside it.

    Of greater interest is the Baroness’s undying faith in the belief that “a child has to live in one place”.

    But is that really so?

    Should we start worrying about middle-class children who spend months each year living in their parents’ second holiday home? And should we be closing down their boarding schools?

    Should we remove all children from divorced parents who have happily agreed upon a Shared Parenting routine?

    There are many children who benefit from having one bedroom at their mum’s and a second bedroom at their dad’s, and who positively thrive from having a meaningful relationship with both of their parents.

    Confusingly, the Baroness declares that Shared Parenting is fine when parents are behaving ‘sensibly’. How does she reconcile this with her other declaration that a ‘child has to live in one place’???

    The Baroness comes across as a confused old lady with very old-fashioned and ill-conceived ideas.

    I rather think the anti-Shared Parenting lobby shoots itself in the foot whenever it wheels her out.

    Bruno D’Itri

  20. http://www.theage.com.au/national/empty-days-lonely-nights-20140428-37e3e.html

    Dear Familoo

    Sorry to return to this old post but i JUST COULD NOT resist the opportunity to say “i was right.” This kind of intellectual corruption IS happening. People are making money at the expense of the abuse of children. What sentences are these disgustingly morally bankrupt pseudo academics facing? How many children have been turned into criminals due to having their fathers removed from their lives? The damage done by her and the family courts is so vast that its effectively UNQUANTIFIABLE! This is the same disgusting …. that was quoted in the Norgrove report. Its outrageous!

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