This is a guest blog post by Melanie Barnes. Melanie is qualified as a Solicitor Advocate and is trained as a mediator. She has a specialism in child support law and currently sits on the Resolution National Committee for Child Maintenance. She has a particular interest in international child maintenance and has been actively involved in policy discussions on this issue. She has also been commissioned to write a book dealing with this area of law. You can find her at @MelCVBarnes.
Shared parenting: reciprocity and Colin
The point is, relationships are difficult enough to manage even where there is a degree of understanding, but when that balance is challenged upon separation, the resolution of conflict can become undeniably hard. It is therefore no surprise that various governments have tried to address the balance in order to help parents in the transition from parenting together to parenting apart without (a) costing the government money (b) costing them even more money and (c) costing lots and lots of money. Oh, and stuff about welfare.
On Tuesday, the most recent attempt at achieving parental harmony was announced in the form of amendments to the Children Act 1989 which are assumed to relate to section 1 with a statement to be inserted that it is in a child’s best interest to have a ‘meaningful relationship’ with both parents. To those who aren’t in the know, any challenge to the sacrosanct principle that the welfare of children is paramount is equivalent to the Catholic Church announcing that they aim to modernise the bible by renaming the son of God ‘Colin’ and support gay marriage. Yes, it’s that astonishing. No doubt though, the consultation itself will cause a huge storm and we will once again see a fresh attack by partisan groups who will hurl statistics and rhetoric across the muddy trenches of gender debate whilst each trying to win an inch more of philosophical support through the barren wastelands of academia.
Rather unhelpfully, the press has also paraded the usual headlines relating to domestic violence and ‘custody battles’ even though that term disbanded about the same time as Duran Duran. Clearly it helps the media to promote the idea that either men are denied rights or that women are victims but it’s disappointing that despite all the positive focus by solicitors, mediators, collaborators and counsellors, the issue is defined as gender specific. In my own household, as with many others, my relationship is not defined by traditional roles. At Christmas for example, my husband gave me a Bosche Cordless 18V Hammer Drill (mmmmm hammer drill) and I spent an absolute fortune buying him a Le Creuset frying pan. Consequently, I put on loads of weight eating nothing but fried food and we now have 218 unwanted shelves around the house…..though it does show that even people who are fundamentally different can find ways to communicate and achieve reciprocity.
Bearing in mind that society does present the traditional view, and this is encouraged by ‘influencers’ at separation, it is easy for parents to become positional, especially with the value achieved by the label of ‘main carer’. Promoting a ‘single parent model’ in society can also leave the other parent feeling that his or her contribution to the family is no longer valid and struggling to understand why a parental relationship is now redefined as ‘having contact’. In many ways, it’s not dissimilar to the couple who can’t even agree on how to have an argument, with one parent left outside in the cold without feeling that they are being heard. It can also difficult for one person to feel that they are left with the financial burden simply because this represents the status quo. Frankly, I would feel the same as if I divorced, my husband would have sole residence of our Labrador, I would need to maintain him each month and would no doubt spend the rest of my left resenting him bitterly whilst surrounded by unwashed dishes, empty bottles of wine and a life-size cardboard cut out of David Tennant (mmmm David Tennant).
It was clear from the government’s response to the Family Justice Review that they recognise parents need meaningful and holistic support upon separation and in my view, any attempt to address imbalance that may prevent negotiation and trust should be welcomed in order to reduce the risk of conflict. Whilst this may be perceived as blue-sky thinking, the starting point should surely be this: in these circumstances and within this family, what is the best emotional, practical and financial contribution that these parents can make to achieve the best possible outcome for the children?
It is not an issue of presumption and time. It is not an issue of one parent having more rights than the other. It is an issue of equality, a commitment to welfare and a solid foundation to enable a reciprocal relationship to continue despite the pain and upheaval of relationship breakdown. In times of stress, where collaboration appears impossible, take a deep breath and ask yourself this. What Would Colin Do?
Plenty of excellent points made, thank you Melanie.
Well put Melanie, the slightly cynical side of me thinks that there are too many vested interests in keeping things as they are for any government to have the nerve to pout up something as simple as the starting point in separation should be equal shared care.
Ken, that’s not what they are proposing over here. Although precisely what they are proposing has yet to be revealed – words like “shared role” and “meaningful relationship” have been used but we don’t know yet how they will define that in legislation so that everyone can understand what it means.
Thanks Melanie. Your point about it being a good place to have an “argument” or a good place to come to an agreement is when there is a level playing field is an important one. My understanding from talking to people in Government is that they want to level the family justice playing field through the introduction of a presumption of shared parenting. With this in place before negotiations or mediation even begin to take place both sides will know what is the given precedent i.e. That where it’s safe to do so both parents will be involved in the ongoing welfare of their children. This would make any attempt by one parent to demonise or exclude the other from their children’s lives futile and untenable.
This really would be levelling the playing field and would, in my opinion, make mediated agreements more usable and cut down dramatically on the use of courts as the way to resolve issues except in the real problem cases where there is absolutely no other way!
Ken,
You say that the new law “would make any attempt by one parent to demonise or exclude the other from their children’s lives futile and untenable.” I think that’s probably right, or at any rate it would make it more difficult, and in time might make that behaviour be seen as less socially acceptable. One of the concerns raised I think in the Australian scenario was the side effect that the law made it difficult for vulnerable parents who had been the victim of domestic abuse to maintain a genuinely welfare based resistance to (more) contact – that is, not just those parents determined to demonise or exclude. And of course any law which has a caveat (except where there is violence / safety risk etc) has to be interpreted by people who see things very differently.
I do hope it works. I’m just think we might be a bit disappointed a few years down the line.
yoy have a fair point and one that I totally agree with. If there is a record of either parent being guilty of abuse or violence then they quite rightly should be excluded from any care arrangements for their children. The thing is that this abuse or violence has to be factual and proven and not just an allegation put forward to make life difficult for the other parent.
I hope that the changes proposed can lead to changes in social attitudes. One of the social attitude changes we need to encourage is the belief that domestic abuse is perpetrated by skinhead, fat men on poor vulnerable wives and girlfriends. Domestic abuse is not a gender issue it’s a power issue and recent Home Office stats show that it is women that commit acts of domestic abuse in over 40% of cases. I’m not a male crusader just in case anybody wonders 🙂
Ken,
Agree.
And I didn’t think you were! 🙂
Is the government’s strategy to change the culture and expectations of parenting, especially when parents separate as so often is inevitable? The ‘Main carer’ concept needs to go, as does the possibility of one parent ‘owning’ the children and controlling their outlook and future. That a separated parent cannot demonstrate a proven history of parenting skill should not determine court outcomes. All parents learn on the job. For me, the proposals are a good thing; as indeed is Melanie’s excellent guest blog.
Awww…. look at you too getting along all reasonable like. Brings tears to me eyes!
It is true enough that the Children Act 1989 did a good job of submerging gendered language, but saying that family law is not an issue of gender is just plain wrong, I’m afraid.
What I’ve seen over and again is the ease with which courts remove dad at the merest excuse to do so (that is, if the dads have not already been bullied into complete submission by highly controlling mothers), whilst mothers can be brutal in a 1001 different ways, whilst funded by public money, and still come away from court hearings fully involved with the children.
Any presumption of shared parenting is going to be meaningless unless it is accompanied by an acknowledgment of this gender inequality, which is the starting point, and which is the very thing that fuels litigation in the first place.
There is a misguided presumption by you (familoo) that the vulnerable parent who has been the victim of domestic abuse is generally the parent who has the children, you are not alone in the system to presume this.
Vulnerable parents who have been the victims of domestic abuse are as likely or even more likely to have been separated from their children by the domestic abuser who may also have made false allegations of abuse.
Lets not have base prejudice stop progress for children.
Well done Mel on a very erudite article.
Chambers,
Fair point.
interesting reading thanks everyone.
Andy.
Meant to say earlier Familoo, thanks for hosting Melanie’s blog post.
“Where it is safe to do so: unpicking prejudice one stitch at a time”
http://karenwoodall.wordpress.com/2012/05/11/where-it-is-safe-to-do-so-unpicking-prejudice-one-stitch-at-a-time-2/
“Empty bottles of wine”
If you were the father, that would guarantee you no access to the dog without hours spent in cognitive behavioural therapy and hundreds of pounds spent on blood tests and hair strand analysis. Having cleared counselling and tests, you would then get to see your dog for two hours a week at a kennels with memebers of the RSPCA present.
I think this hits the nail on the head. The challenge inherent in private law children cases is how to get two people whose relationship has broken down—dealing with all the associated emotions that come with that—to between themselves come to an agreement as to how they’re going to care for their kids going forward. Or, rather, as most ex-couples seem to manage this without going to the law, how to get the parents who can’t currently manage this to succeed.
My feeling is that there are broadly two types of “problem parents” that wind up in the courts. Those that lack the communication skills to cut through the anger, fear, resentment etc and broker an arrangement. And those who have personality disorders prevent them from sufficiently focusing on anyone but themselves. And, of course, a small group who have one foot in each camp…
The solution for the first group is simply sensitive, well resourced mediation: the majority of those who lack the communication skills to deal with their ex-partner face-to-face are (as demonstrated by negotiations through counsel) able work things out via neutral third parties. Although I don’t really see the need for those third parties to be members of the Bar.
The solution for the second group will have at least one foot in therapy—even if not overtly or in such a formal setting. The irony, of course, is that a well timed intervention would reduce the extent to which parents pass their neuroses to their children and set up the next generation for failure…
At the present time, however, it does seem like such suggestions are unlikely to be popular with government—or be acted upon—as they cost money (potentially an awful lot of money). It is, of course, substantially cheaper simply to stuff a clause or two into a statute and pray like hell. Particularly if one first ensures there isn’t any legal aid available to help deal with any fall-out.
What we have to realise when we talk about the problem “few” couples that end up in court is that definitely doesn’t mean that the overwhelming majority are satisfied. Norgrove made the grave error of assuming that because only 10% or so end up in court, 90% are satisfied with things! This just isn’t so, of the 90% that don’t end up in court a big proportion of them give up because the stress or the cost of the process is so very great that they just give up, whimper and melt into the background and David Norgrove makes the incredibly niave conclusion that they are happy because they don’t end up in court.
Ken,
I am one of those dad’s about to whimper out of court.
I don’t want to fight with my ex, although she seems to relish it.
I would rather eat than throw money at a solicitor.
Trouble is, my ex has no leave to remain and could end up buggering off with my kid. I enjoy the stereotypical alternative weekends for now, but who knows what comes later down the line.
But with the Court their to uphold the mother’s wishes, it seems pointless to lose sleep over it. I have come to believe that life is too short and I will just have to accept being controlled by Baby Mother.
I wonder whether I will become one of the 40% of dads who lose contact with their kids within 2 years of parental separation?
Good debate by all, as usual there are more questions than answers, ooh where are the “nutshell” books when you need them
The problem, Jim Nately, is that the courts do not and will not enforce therapy for mom, even when something very nasty has been diagnosed.
So what we end up with is the all-too-common situation where mom makes allegations that dad is not mentally fit to care for the kids, in the hope that this will give the court the excuse it is so desperately looking for to cut him out and make its own job easier; but lo and behold, the experts actually find dad to be in good shape and mom to be mentally unfit, which unfortunately creates a bit more work for the court, though it disregards this in the end and (as always) hands the main care-giving reins to mom and obliges dad to settle with his alternate Saturdays.
Therapy is rarely successful where enforced.
What a court is more likely to do in the scenario described by “Guy” is to switch residence.
Just to clarify, I certainly was not suggesting enforced therapy.
All I was thinking was a forum where intransigent parents (of, God help us, both sexes) whose personality disorders render them unable to focus on child-centred outcomes can spend time with people who have professional expertise in working with people whose personality disorders render them incapable of really understanding other people.
The reason I say this is that I’ve seen counsel struggling on having a crack at this in the conference rooms pre-hearing and thought, “why the hell isn’t this being done by someone with some actual training in psychology, a month ago?”
Not a clue if it would work mind you—not least because I don’t have any actual (or, for that matter, even pretend) training in psychology…
Familoo: You know as well as I do that transferring residency to dad is the last thing any court in the land would do. Let’s be honest, please.
Jim, quite rightly, you say “of, God help us, both sexes.” But your attempt to elide the blatant gender discrimination in family law with gender neutral language does not quite cut it.
What would you say to the proposal that mom should be excluded from all decisions, only see the kids twice a month, and pay child maintenance for the privilege of all that? Have a think about that….
Our profession is one that depends on that gender imbalance (which manifests itself in the language of Residency and Non-Residency), and it is a big lie to try and deny this.
Guy, I have seen changes of residence to dad. I have acted for dads with residence and Mum’s shut out completely, struggling against resident dads in exactly the way many on this thread are suggesting is a male only problem. Granted it happens the other way round far more, but it does happen.
Yes, I concede, it happens very rarely and in extreme cases, after about a decade, and because mom has shot herself in the foot every step of the way, or done something criminal (not that perjury isn’t already criminal).
More unfortunately, it happens in those rare cases where mom is the main breadwinner and dad the main caregiver, and where dad (like so many moms) brutally exploits that fact after separation. It also happens in those very rare cases where the above-described regime is agreed after separation, and again dad (goaded on by his solicitors, no doubt) chooses to abuse that (again, like so many mothers). In these latter cases, it is almost as if mom is being punished for wanting a career, and that is hardly fair. For the sake of moms, too, then, it is imperative that the brutal social-engineering terminology of Residency/Non-Residency is shoveled away (in all but extreme circumstances where there is proven abuse of whatever kind, including parental alienation), and a 50/50 starting point put in its place. There are two parents, after all, so it is somewhat baffling that common sense has not yet prevailed.
It would seem that one of the problems here, though, is that Britain is just too much of a smug Imperialist backwater to even entertain the thought of adopting the more progressive and child-centered systems used in its former colonies. Or is it just that the cost of a child-centered system is just too high a price?
Guy, you are correct. The family law system is similar to the Police of 30 years ago or the military where the discrimination against females and those from an ethnic background was so ingrained that the bulk of the Police/military simply could not understand or believe there was any or much discrimination at all..
Even then they were citing the one or two examples of good practice or those very few who had risen through the ranks etc as evidence there was not a problem.
Many who work in institutionally discriminatory organisations are the last to recognise it or will continue to minimise it because they simply don’t see it as a problem.
It takes a long time to change prejudices and persuade the bulk that first there is a real problem in how they go about their daily business and then to get them to change their discriminatory practices.
In the situation Guy has described a very few times is residence switched.
More often than not the dad is told nothing more can be done and the court process has been going on too long and the children are being damaged by the litigation etc If the children and he are lucky he leaves the process with alternate weekends, if unlucky he sends cards a couple of times a year.
Agree it doesn’t happen often Chambers. If the delay could be tackled more of these applications would be able to succeed.
Delay is certainly a colossal problem.
Our elected Government plans to bolster the legal right of a child to have a meaningful and on-going relationship with both its parents, post separation/divorce. It recognises that family law, as it currently stands, all too often fails to serve a child’s best interests in this extremely important respect.
The Children Act (1989) rightly instructed the judiciary to serve the child’s paramount interests. However, the judiciary has singularly failed to understand or accept that a child’s paramount interests are, in the vast majority of cases, actually best served by facilitating and enforcing its meaningful relationship with both its parents. Instead, the judiciary has remained wedded to the archaic ‘single parent’, ‘primary carer’ model; an approach which has, sadly, led to a generation of fatherless children. The judiciary’s approach is out of date and simply does not reflect the modern-day realities of 21st Century shared parenting.
The aim of our Government’s proposed legislative changes is to make it very explicit to the judiciary that, for most children in litigated cases, ‘best interests’ equates to ‘shared parenting’.
Let us hope that any amendment to the Children Act (1989) will be robust enough to safeguard a child’s right to be parented by both its parents. Let us also remember that this issue is not about parents’ rights: it is entirely about childrens’ rights.
Furthermore, let us be absolutely clear that Shared Parenting does NOT, as many critics would have us believe, necessitate a precise 50/50 split of parenting time. This would be highly impractical in most cases. Rather, it is expected to range upwards from 20/80. Another objection from the critics is that it will endanger children. Very plainly, Shared Parenting will only be granted to parents who are not a proven risk to their children. Unsubstantiated allegations made by bitter and disgruntled ex-partners – intent on using ‘their children as weapons’, to coin Sir Nicholas Wall’s expression – ought not to be enough!
It is a very great pity that the judiciary has failed to be proactive on Shared Parenting. For example, in the case of Re D (Children) [2010] EWCA Civ 50, Sir Nicholas Wall, the President of the Family Division, was presented with no less than 15 contemporary scientific psychological and sociological research reports which demonstrated, beyond all reasonable doubt, the verifiable benefits for children of maintaining close and meaningful relationships with both parents. This irrefragable scientific evidence went ignored or relegated by him. The Government, to whom the scientific evidence was also sent, is taking full heed. This is precisely why our Government – our elected representatives – needs to legislate. Child welfare is far too important to leave in the hands of a few un-elected High Court judges, who often appear to be out of touch with modern society and family life, and who appear to have little understanding of the importance of scientific evidence.
Best regards
Bruno D’Itri
Letter from Alan Beith, Chair of the Justice Select Committee to the PM concerning shared parenting proposals.
http://www.parliament.uk/business/committees/committees-a-z/commons-select/justice-committee/news/the-operation-of-the-family-courts/
Thanks Stephen, I have tweeted this as it seems significant whether or not you agree with it.
It makes me really angry when those with a real vested interest in maintaining the staus quo and protecting the “old boys” come up with really empty arguments to support their case for no chasnge.
From what Alan Beith says,
1. There are absolutely no problems at all in family courts. Everyone is happy and nobody ever thinks that there is any injustice.
2.Just look at Australia because that has been a real problem and led to many more problems.
3. If we change any part of the Children Act to clarify what the “normal” starting point should be then we will bedoing away with the principle that the child’s best interests come first
What absolute and utter nonsense! The aim of the 1989 Act before Butler-Sloss got her hands on it was to promote the best interests of the child by having a meaningful ongoing relationship with both parents UNLESS it wasn’t safe to do so.
The proposed changes in one of the four options or more likely in a fifth option that is a combination of two or more of those shown in the consultation, will be to clarify for judges, CAFCASS and others involved, what the private law part ofthe 1989 Act was actually put in place to do.
Taking each of the three points above;
1. Nobody could ever believe that this is the case unless you have been asleep for the last 20 or so years!
2. In Australia the number of private law cases involving children and care has fallen by almost 30% since their laws were changed. Is this really an indication of all being wrong in Australia? I think not, it must be seen as a step forward for justice and a massive saving in cost for the Government and for individuals!
3.Any clarification of what is meant by the Act and clear guidance for those that will be applying the Act will only be seen as a step forward surely. The paramountcy principle can only be enhanced by having clear guidance on such issues such as when its unsafe to have a shared parenting agreement and from what I hears Sir Paul Coleridge say at our recent seminar in the Commons, their job is difficult enough and judges should welcome any clarification and guidance. They should always have the independence they have but they clearly need all of the help and guidance they can get so they act less like psychiatrists and social workers and more like officials who administer justice according to the country’s laws!
It really is about time that this country acted in a way that actually shows that the UK was a signatory to the UNCRC in 1991. You certainkly wouldn’t think we had even heard of Article 9!
Good rebuttal Ken. Doubt the zombies are listening, but it is nonetheless always good to see truth stand up to power.