FJR Response Considered – at last

I’ve said nothing so far about the Government response to the FJR, partly due to lack of time and partly due to lack of motivation. But it matters little because so much has been said by others whilst I’ve been pfaffing. So I thought what would be most useful is to review some of the comment that has caught my eye since the Government Response to the FJR was published, and perhaps to add a few thoughts of my own at the end.

So, in no particular order:

Liz Trinder in the Guardian: The Children Act is an act of kindness (There’s no systematic bias against fathers in family courts, so no need for ministers to tinker). This drew fierce criticism in the horrendously lengthy comments thread, much of it criticising Trinder for a lack of evidential foundation, apparently oblivious to the fact that she has carried out much of the research in this field (which understandably perhaps was not set out in a comment article in a newspaper).

The Guardian’s general summary was contained in a piece entitled Government backs “shared parenting” legislation after separation. Note the complete failure to distinguish between private law and public law. *Sigh* Expect better of the Guardian.

The Families Need Fathers press release says “Government proposals on family law have the potential to dramatically improve outcomes for children in the UK. Statement of importance of both parents in law will complement the welfare needs of children; improvement of enforcement will increase public confidence in system.” No surprises there, but the pedant in me cringes at the use of complimentary for complementary (sorry).

Meanwhile, others are still engaged in complaining about the responses to the initial FJR consultation, which seem like distant memories now. Odd to think that the FJR was the brainchild of the old labour government.

NAPO comments on the Government’s response here. It’s a short press release and it’s worth setting out the bulk of it here I think:

Family Court professionals have operated on the principle of promoting a child’s ongoing relationship with both parents after family separation (where this is safe and in the child’s best interests) since the 1989 Children Act.  Napo is relieved that the Government intends only to make a legislative statement along these lines and is not intending to legislate for automatic shared parenting after parental separation, which, given the prevalence of domestic abuse in family breakdown, could put children at risk of harm.

Napo is however disappointed that the Government only seems to appreciate Cafcass in terms of quantitative production and has ignored all the submissions to the Family Justice Review that exposed the unsustainably heavy and increasing workloads that Cafcass practitioners are carrying and the bureaucratic, oppressive and counter-productive performance management regime that Cafcass has imposed on its staff.  If the Government genuinely wishes to reduce the length of care cases from 55 weeks to six months, then it must ensure that Cafcass practitioners are properly resourced and are managed in accordance with the principles set out by Eileen Munro in her review of Child Protection, May 2011.

A marker then that all is not well and that legislative reform will not produce the desired results without resource. Change is not complimentary.

Nagalro and the Law Society Children’s committee flesh out this concern – not specifically a response to the Government’s FJR proposals, but addressing the elephant in the room scarcely even whispered by the Government in it’s response document: the legal aid cuts: Legal cuts threaten family court cases warn Guardians (Community Care).

Purple Dervish

Purple Dervish thanks to the.joberg on Flickr

F4J went into overdrive and practically into orbit when the Government response came out, with Nadine O’Connor hotfooting it from one local radio station to another like a whirling dervish, leaving behind her a trail of tweets, status updates, videos, open letters and other assorted purple PR accoutrement. The frenzied excitement of F4J was dampened only by the suspension of both their Facebook and Twitter accounts simultaneously. In fact this only made them more self righteous and indignant, because The Man was out to get them (or possibly The Woman). F4J used the Government’s response as a springboard for the launch of a promotional video, apparently [unintentional drafting / syntax error – not quibbling over whether they are real children or real family breakdowns!] of real children involved in real family breakdowns and who express on film their grievance at having been prevented from having a relationship with their dad against their wishes. These children, say F4J are seeking compensation from CAFCASS for failing to heed their wishes. For my part putting children who have survived family breakdown and protracted high conflict cases under studio lights and encouraging them to air their grievances for worldwide consumption in this way (one imagines without the consent of the allegedly hostile parent) may be a great way of making a point, but is strikingly oblivious to the likely repercussions for the children filmed, who may well now find themselves in the midst of even more heightened conflict (and possibly with their parents back in court as a result?). The irony of children so litigated over now proposing to somehow seek redress through the initiation of their own law suits (against CAFCASS) makes me feel a little bit queasy. I wondered if the account suspensions may be related to legal action taken by aggrieved parents who found their children featured in the videos, but that is speculation. The video seems still to be out there on the interweb, but oddly not on the F4J website (as far as I can tell).

Norgrove weren’t ‘appy at the proposals on shared parenting.

Sally Gore of 14 Gray’s Inn Square on Family Law Week.

Family Law Week did their own roundup, setting out the reactions of a number of key organisations.

Ken Clarke explains the Government’s approach to the proposed legislative reform in terms that are about as clear as mud.

The FLBA responded in a joint press release with the Bar Council.

So. There you have it. A lot of people have said some stuff about what the Government has said about the Family Justice Review. For my part I was rather surprised, having read what’s been said about what’s been said about what’s been said to find just how little the Government’s response actually says and in how many words it manages to say it. If you get me. Let me round it up for the lazy reader:

SS Great Britain in Dry Dock

SS Great Britain in Dry Dock - thanks Steven Hughes on Flickr

  • The courts must do stuff quicker. With the same number of judges, more cases, more litigants in person and less resource. And they should stop griping about minor things like robust evidence and thorough assessment. We’ll set a ridiculously unattainable target so everyone knows we are dead serious. And we’ll make sure courts stop tinkering with detail that is the province of the social workers (Oh! You mean we’re going to get rid of the starred care plan? No….Hang on….). And there must be judicial continuity. With the same number of judges, more cases and less resources…We’ll get those children into “permanence” before you can say “adoptiontsar”.
  • Both parents should be involved in a child’s life, but no presumption of equality of time. No change there then. But we’ll consult about saying something to persuade everyone that we really mean what the courts have been saying for years. And telling parents that they are entitled to a presumption of shared parenting will reduce litgation. (Er…Or alternatively will increase it. Particularly if no-one has a lawyer to explain the new “legislative statement” to them.)
  • We’ll ditch residence and contact orders in favour of child arrangement orders – this is for me substantive reform which may have legs, although it has a number of knock on effects which require – er, consultation.
  • We’ll enforce orders a bit better (not quite sure how but that’s a mere detail – we’ll consult).
  • There is a lot of “accept subject to further work” and in respect of proposed legislative reform much use of the phrase “we will consult on”, many statements of general intent which are notably sketchy on detail.
  • Oh and there will be some online hub type things so that nobody really needs a lawyer any more.
  • And anyway nobody will be going to court the completely unregulated mediation sector will fix all where everyone else has failed. Hurrah!

Super. I’ve missed a few tiny bits out, but I think you can see that the Government have got it pretty much all sorted as far as Family Justice goes. It’ll be ship shape and Bristol Fashion in no time at all. Just as long as it doesn’t get holed below the water line by a LASPO torpedo.

 

12 thoughts on “FJR Response Considered – at last

  1. […] Earlier today I posted an item about the Family Justice Review that referred to F4J. […]

  2. I’m sorry you feel a bit queasy about having to learn new interpretations, instructions, and to consider an opposite point of view, I thought that was your job? Men do suffer more in court, fact, they are considered guilty of any petty accusation from the mother until proven otherwise months of anguished separation later, cafcass are ineffectual and obviously under strain from interfering, why bother getting them involved if they are not capable of their duty? My third different case worker over a two year period was an 18 year old trainee,who tho sympathised , by her very inexperience carried no weight in court! Why put the children through a half cocked procedure?
    After not seeing my kids for nearly two years after cutting their cords, attending every sports day and nativity, I can tell you I’m not a bit queasy, I’m heartbroken to the core,and let down by a legal system I trusted, and the consequence to the kids, research isn’t promising either.

  3. In regard to the wonderful article written by Karen Woodhall, in opposition the the slime that is Lucy Reed, I posted the following on Karens site:
    [deleted for ease of reading because its the same as your previous comment here. Yours, slimy]

  4. I’m aware that there has been an exhustive, and exhusting, debate on the subject of the FJR, much of it shedding more heat than light. However I would like to add my own comment.
    Id like to focus in particular on Liz Trinder’s contribution and your comment on it, Lucy.
    To recap, Ms Trinder’s article in The Guardian indicated that there was no systematic bias against fathers in Family Courts, and there was no need to tinker. This drew a welter of criticism, based on an alleged lack of evidential basis for this assertion. You made the point that Ms Trinder has conducted numerous research projects on post separation family issues.
    Indeed she has, and one paper of hers I found particularly fascinating; Maternal Gate Closing and Gate Opening in Postdivorce Families. (Journal of Family Issues Oct.2008)
    One paragraph is worth quoting:
    “Although mothers in the sample varied in teir attitudes to gate work, they all all presumed a distinctive and central maternal role rather than a position of parental equivalence and interchangibility. Mothers positioned themselves as child care experts and family managers…Similarly, whereas the maternal bond was considered to be unbreakable, father- child relationships appeared contingent.”
    It is my experience, and I know this is only anecdotal evidence, that there is a parallel process to that described in Ms Trinder’s paper above, in the way family law has been framed (resident parent, contact parent) and the way that is is practised in family courts. In other words, those same assumptions about maternal centrality are played out there. It may be said that this is status specific (resident parent)rather than gender specific, but since the vast majority of resident parents are mothers I think that’s a hard one to argue.

    • Without wishing to reopen the discussion on my previous post here, I think there is an element of truth in what you say about that notion of maternal role being unbreakable and the father’s being seen as contingent – sometimes. In my experience that most often comes from the parents themselves (mainly mothers but also sometimes by fathers too – there are some dads who view their parental responsibilities as contingent upon mother agreeing to their demands) and is often corrected by the court. I accept that sometimes judges and no doubt advocates may slip into that way of approaching matters but I think that is because of how society and the family continues to be structured by and large, and our own childhood experiences. I can think of a client very recently who asserted her entitlement to Christmas day in part because she was “the mother” not a “weekend dad”, although I have to say that rather stark example is not representative of the views bulk of mums I speak to.

  5. I agree with much of what you say. Law operates in a cultural context and often reflects cultural assumptions. Where these concern the relative importance of motherhood and fatherhood, is where I think family courts can be very difficult arenas for men to be in.

  6. We may also wish to consider the position of the Children’s Commissioner, published very recently:

    http://www.childrenscommissioner.gov.uk/content/publications/content_651

    Important extracts from this report include:

    “The UK Government ratified the United Nations Convention on the Rights of the Child (UNCRC) in 1991. This is the most widely ratified international human rights treaty, setting out what all children and young people need to be happy and healthy… it has the status of a binding international treaty. By agreeing to the UNCRC the Government has committed itself to promoting and protecting children’s rights by all means available to it.”

    – and –

    “The legislation governing the operation of the Office of the Children’s Commissioner requires us to have regard to the Convention in all our activities.”

    – and –

    “The most important of children’s UNCRC rights engaged by these proposals are:

    Article 3: the best interests of the child must be a primary consideration

    Article 7: the child’s right to know and be cared for by their parents

    Article 9: the right of a child not to be separated from their parents except where such separation is necessary for the best interests of the child”

    – and –

    “Article 8 of ECHR provides for the rights of children [and] birth parents… to respect for their… family life.”

    Given the Commissioner’s plain duty to abide by these International Articles, one might reasonably assume that she would be in agreement with the Government’s proposed legislation to uphold the meaningful involvement of both natural parents in the life of a child (subject, of course, to the absence of harm).

    Not so!

    Instead, the Commissioner states that…

    “If the provisions are widely (mis)interpreted as a presumption of equally ‘shared time’, there is a risk of greater conflict and litigation focused on parents’ wishes rather than the child’s needs and interests. A number of stakeholders have suggested that a belief that there is a presumption of shared time would lead parents (largely women) to believe that it was pointless to report domestic violence or child abuse. Careful monitoring would be required to ensure the meaning of ‘involvement’ has been effectively communicated to the public and understood, and that neither of these unintended, but very serious consequences resulted from the provision.”

    The Children’s Commissioner somehow seems oblivious to the widely-report fact that, in Britain today, many thousands of children suffer tremendously due to a lack of a meaningful relationship with their non-resident parents. Surely, any legislation which makes it easier for a good parent to remain in contact with their children is desirable?

    Her stance is of little surprise.

    The Children’s Commissioner was petitioned repeatedly in 2009/2010/2011 by campaigners calling for a reform of relocation law. They asked her to intervene because relocation law, in the form of Payne v Payne, relegated a child’s UN and ECHR rights.

    http://www.mckenziefriend.com/2010/04/27/your-numbers-up-payne-v-payne-time-for-change/

    It appears that the Children’s Commissioner opted to ignore the needs of thousands of children who were benefiting from ‘shared care arrangements’ with both their parents, but who were, nevertheless, removed overseas by one parent. As a consequence, the children lost their meaningful relationship with the left-behind parent.

    It should be well noted that, despite the refusal of the Commissioner to involve herself, the Court of Appeal eventually accepted the campaigners’ arguments and ‘reviewed’ relocation law in 2011.

    In conclusion, the Children’s Commissioner fails to recognise the tremendous importance for children of maintaining meaningful relationships with two good and caring parents.

    She fails in her duty to defend and uphold the UN and ECHR Rights of children, specifically:

    UN Article 7: the child’s right to know and be cared for by THEIR parents

    UN Article 9: the right of a child not to be separated from THEIR parents except where such separation is necessary for the best interests of the child

    ECHR Article 8: the rights of children [and] birth parents… to respect for THEIR… family life.

    Regards
    Bruno D’Itri

  7. I’ve just been fiddling with the zoom function of the SatNav on my new Audi (yes ladies… a new Audi!).

    I zoomed right out and managed to get the whole of Western Europe on the screen. This wasn’t particularly helpful in assisting me with my 1 mile journey to the local shops!

    Incidently, as a man, I feel compelled to use the SatNav for each and every journey, even short, familiar routes I could probably drive blind-folded!

    Anyway, while I was fiddling, it made me think about the Children and Families Bill, and about the need to ‘zoom out’ for perspective.

    There has always been a direct link between societal norms and legislation.

    Most significant shifts in societal norms have led to changes in legislation, but this has usually involved a tough struggle!

    Anti-discrimination legislation for people of different race, gender and sexual orientation all eventually followed in the wake of changes in society.

    However, in each case, the resistance from what I shall call ‘the forces of conservatism’ was powerful. There were significant vested interests in the status quo, and those who stood to lose out were not going to accept change without a fight!

    In each case, honourable campaigners for justice and reform were discredited, undermined, attacked and even murdered.

    Martin Luther King Jr’s letter from Birmingham Gaol touches my heart each and every time I read it. It is the quintessential call of any person facing discrimination and demanding justice.

    http://www.africa.upenn.edu/Articles_Gen/Letter_Birmingham.html

    Now, I perfectly accept that Matt O’Connor of ‘Fathers 4 Justice’ is NO Martin Luther King Jr!

    However, his argument for justice for children is, in my view, Righteous. It is Good. It is Honourable.

    A child surely deserves to enjoy the love, care and guidance of two good and responsible natural parents.

    The ideology of parenthood of the 1960?s and 70?s saw the mother as the ‘natural’ carer and the father as the ‘natural’ financial provider. Family legislation reflected this ideology.

    Of course, societal norms have now changed. In 21st century Britain, BOTH genders are now viewed as natural carers and financial providers.

    Has legislation fully caught up with this societal change? No.

    Do fathers face systematic gender discrimination? Yes.

    Is this discrimination indirectly perpetrated via the legal constructs of ‘primary carer’ and ‘non-primary carer’? Yes.

    I am a good, responsible and conscientious parent. I know I am, because a judge found me to be so!

    And yet I was forced to endure two periods of separation from my beautiful children: firstly for 8 months and subsequently for 1.5 years.

    I now see my children once a month in a motel room in Eastern Europe.

    Any genuine ‘meaningful involvement’ in my children’s lives has been significantly undermined.

    I am not alone in my experience.

    There are thousands of perfectly good and caring British parents (mainly fathers) who face similar discrimination.

    To the “discrimination deniers”, to those who seek to preserve their vested interests in the status quo, and to those who are simply unaware of the discrimination, I say, think of that child, think of what he is missing, think of what you might say to him if he asked you why he couldn’t see his dad.

    Let us open our hearts and our minds.

    Let family legislation reflect modern parenthood.

    Let us support Tim Loughton MP and his shared parenting legislation in the Children and Families Bill.

    Regards
    Bruno D’Itri

    • Approved for publication notwithstanding the entirely random nauseating automotive flirting with unspecified “ladies”. Do you have much success with the “I have an audi (rarr) but am in touch with my feminine side as demonstrated by my dependence on a satnav” line of chat up lines? No. Don’t answer that…

  8. For my part putting children who have survived family breakdown and protracted high conflict cases under studio lights and encouraging them to air their grievances for worldwide consumption in this way (one imagines without the consent of the allegedly hostile parent) may be a great way of making a point, but is strikingly oblivious to the likely repercussions for the children filmed, who may well now find themselves in the midst of even more heightened conflict (and possibly with their parents back in court as a result?).

    For my part, putting blacks who have survived kidnapping, slavery and abuse under studio lights and encouraging them to air their grievances for worldwide consumption (one imagines without the consent of their alleged oppressor) may be a great way of making a point, but is strikingly oblivious to the likely repercussions for those blacks filmed, who may now find well now find themselves in a more abusive circumstance and even whipped to death (and possibly causing us greater trouble as a result).

  9. I’m sure he has lots of success in the world that we lawyers and other miscellaneous schemers inhabit. After all, an Audi with SatNav is a good indication that alimony might be pretty decent once one has had enough of its driver.

  10. Not as much success as I had hoped. I’m now trying my luck as a MAMIL on a bike …perhaps I should update my avatar picture.

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