Book Review : Ideas and Debates in Family Law

Book Review : Ideas and Debates in Family Law, by Rob George  (Hart Publishing, 2012)

Rob George’s book is a slender book with Lassie* inexplicably on the cover. My first question was “Why Lassie?” but as I read on I discovered that the inside was choc full of other questions. At first I begrudged it’s lack of answers, muttered to myself that it was like being back in english literature / cultural studies lectures – but then I realized I was approaching it like I would approach a practitioner textbook. And I used to love my eng lit / cult studs lectures. Once I stepped back into the critical thinking mode of undergrad days long since past it was a joy. As someone who came to law via the conversion route (7 core subjects and no messin’), with no time for “optional” subjects like family law I found it particularly valuable. When I converted I was a law student fed up with academia, running from the theoretical and the hypothetical to the pragmatic and the real (this is the legacy of a Masters wherein I was force fed Kant). Neither then nor in the decade since have I had much time to stop and apply much critical thinking to my field of law. Nor do most of us. So, this book has not helped me with my usual “what is the law?” queries, but has reminded me of the importance of asking “why is the law?” from time to time. And particularly at this juncture, when there is so much change ongoing and on the horizon.

It is pretty rangy, leaping from international family law to marriage and on to  finances on separation. Unsurprisingly, given that it is my area, I found the chapters on children law most useful and engaging.  There are fascinating discussions relating to the welfare principle and the origins and evolution of concepts like custody, PR, residence and contact. In the former the author considers the pros and cons of a broad discretionary based legislative structure – flexible and tending to focus minds on the children not the adults, but yet demonstrably subjective and variable depending on the cultural and ideological filters applied to it. To give you a flavour, a highly selective extract is set out below:

“There are also compelling arguments that the welfare principle allows for opaque decision-making because of the inherent indeterminacy of the best interests standard, and allows patriarchal values to be imposed by the court on mothers and children. Similarly…the welfare principle allows paternalistic outcomes to be imposed on children and families in the name of their interests, where those outcomes promote a particular vision of the socially desirable family. The point here is not to dispute these criticisms, but simply to say that those who want to criticise the welfare principle need to be careful to criticise its reality and not a caricature which fails to do justice to its subtlety….the very indeterminacy which is criticised enables judges to take into account whatever peculiarities a case throws up.” (p119)

“However, whilst this flexibility may account for the welfare principle’s survival through time, it may also create difficulties in an increasingly global family law world. Just as conceptions of welfare change over time, so too they vary between nations. (p121)”

There then follows an interesting section illustrating the drastically differing approaches between jurisdictions on the question of applications for leave to remove a child abroad : New Zealand and English legal professionals were given the same factual scenario and came up with 2 wholly different outcomes (New Zealand – leave given, England – leave refused).

This book’s aim is really a starting point or springboard for further study and thought – the book is comprehensively referenced and I’m left with a long list of other academic writing I want to read: still hoping there will be an answer at the end of the rainbow…

* It isn’t ACTUALLY Lassie, but it is a Lassie lookylikie who looks perturbed at the apparent marital weariness of her probable owners.

59 thoughts on “Book Review : Ideas and Debates in Family Law

  1. A happy return to substantive posting!

    It would be good to make this the centre of a study / workshop day (with CPD…)

  2. The extract you have provided merely shows the author of the book is primarily concerned with ‘mothers and children’ as if they were one being.

    British social services and the courts already are pervaded by the destructive sexism that is support mother and you support the children. Which translates on the ground to put mother first and the children come second, fathers a poor third.

    Until children are put first and foremost rather than the mother, children will continue to be seen as mere extensions of their mother and their needs will remain a distant second to the mothers.

    The likes of this books thinking is slowly being consigned to the waste bin by the more progressive in the system thankfully.

    Children’s needs to have an equal as possible relationship with both of their parents rather than automatically picking one parent simply on gender to be a so-called primary carer is coming to the fore at last.

    This ‘mothers and children’ agenda that seeps through the system and in the old days ‘father and children’ equally destructive thinking has no place in the modern western family court system.

    ‘Children, mothers and fathers’ is where we should be and are heading.

    • Oh Chambers! As I said, the extract is highly selective. The book looks at a range of different perspectives and does not take any single position. In fact it does caution against criticising the existing legal framework on the basis of assumption rather than fact, and I think you should take the same approach with the book. You might be pleasantly surprised. This is a book encouraging debate and discussion and considered thought rather than the trotting out of the same old stuff.
      Lucy

  3. Well, the missus has ordered a copy, so we’ll see.

    I don’t have much time for George and his cronies at Oxflap (who seem to have provided the glowing reviews). I think he regards family law as a fascinating academic and abstract subject but has no conception of real people with their real problems and their real criticisms of family law. And that includes litigants and professionals.

    I also think his use of words like patriarchy and paternalistic rather supports what Chambers said.

    • Nick,
      As with Chambers, I suggest you read it.
      As for the remainder of your comment – you seem to be criticising academics for doing what academics do. There is a lack of public discussion about the abstract aspect of family law and I think its a valuable thing to start trying to look at the issue from that angle, although the pragmatic and the lived experience is also important. You have to be able to look at things in the abstract because anecdote can only take you so far when you are designing a system to try and cater for a whole nation, and for all eventualities.
      As for patriarchy and paternalistic – what’s your objection? Don’t you think we live in a patriarchal society, or at least that the remnants of one still exist and influence our day to day lives? The idea of a patriarchal society is not incompatible with the idea that men may be disadvantaged by aspects of that society’s laws and systems.

  4. “The idea of a patriarchal society is not incompatible with the idea that men may be disadvantaged by aspects of that society’s laws and systems.”

    That’s right, but that’s precisely why Rob George’s book is an environmental catastrophe (i.e., waste of beautiful trees), for what he seems to be perfectly ignorant about is that you could not have a more patriarchal family justice system than you already have. The family justice system that you have turns women into maintenance/benefits parasites and men into slave labor. Not the best role models for children, unless you have a financial interest in this setup.

  5. familoo,
    I appreciate the lesson regarding insight and facts.

    These are the facts that matter imho:

    http://www.youtube.com/watch?v=o3kZSiJtq6I

    40% of applications do NOT end with ‘staying contact’.

    In the worst court, 33% of applications end with NO contact.

    In the same court only 28% end with ‘staying contact’.

    Most fathers realise it is futile to make applications to court and simply accept whatever they are allowed by the mother, often no contact whatsoever for children with their father.

    The government and those within the system then try to convince us all that 90% of parents sort it out without courts. Sorting out in reality is very often no contact with no ‘working’ family law system in place to turn to for help.

    There are millions of children out there being failed by the family court system while Rob George and other ‘academics’ tinker about at the margins.

    http://www.guardian.co.uk/society/2004/apr/02/childrensservices.uknews

    Lord Justice Munby – 2004

    Judge backs angry fathers over contact with children – Call for sweeping changes to family justice system after ‘shameful’ court failures
    A high court judge yesterday launched an extraordinary attack on the family justice system for failing separated fathers and their children.
    Mr Justice Munby, a respected judge of the Family Division, said he was going public with a judgment following a private hearing, while keeping the parties anonymous, because judges needed to “face up honestly” to the failings of the system so as not to forfeit public confidence.
    He called for sweeping changes to the system after a father had to abandon his five-year battle for contact with his seven-year-old daughter following 43 court hearings in front of 16 judges. The “wholly deserving father”, who last saw his daughter in December 2001, had left court “in tears, having been driven to abandon his battle for contact”.
    The delays in the case were scandalous, added the judge, who said he felt desperately sorry for the father, whose case was “far from unique”.

    http://business.timesonline.co.uk/tol/business/law/article3850658.ece

    Lord Justice Ward – 2008

    Vengeful mothers leave good fathers powerless to see child, says judge
    A senior judge spoke out against child access law yesterday, saying that the courts were powerless to help decent fathers to see their children if vengeful mothers stood in the way.
    “The father complains bitterly, passionately and with every justification that the law is sterile, impotent and utterly useless – we have to acknowledge there is a degree of force in what he says,” the judge told the Court of Appeal Civil Division.
    “But the question is what can this court do? The answer is nothing. This is a truly distressing case. It may not be untypical of many, but in some ways it borders on the scandalous. It certainly is tragic.”

    • Chambers,
      That youtube clip gives no clue at all what “research” it is referencing AND as made clear on the custody minefield’s website (who produce the clip) 70% of contact applications are successful. (see here)
      I don’t know what you or the youtube video mean when they say “In the worst court, 33% of applications end with NO contact. In the same court only 28% end with ‘staying contact’.” In one court somewhere in the jurisdiction from an undisclosed sample size? Which might or might not be representative (since it is “the worst” one assumes all others do better than this). I’m not saying everything is hunky dory but I don’t really see that an unreferenced clip with some hokey music makes the argument.

  6. I read this post and saw that you came to law via the conversion route.

    This is something I’m looking into but I was concerned about the lack of family law in the GDL/CPE course.

    I’m curious how you came to family law from that route? I’ve tried getting information from universities offering the GDL/CPE course but no one seems to know!

    • Matw2 In short and based on my experience 10-12 yrs ago you don’t do much of anything other than the 7 core subjects if you are converting (land, equity, tort, contract, crime, eu, jurisprudence). No time for options. On the BVC (now BPTC) you do some short options but they were worse than useless in my experience.
      If you go conversion route you go into family law cold, save for any experience you can get via mini-pupillage, pupillage or other work experience. Family law is one area where you really do learn the subject on your feet and from observation not text books.
      I came to family law through serendipity – had a pupillage in a broad set, found out shortly before beginning that they had become a family only set, was mortified but carried on, found it then very difficult to obtain third six / tenancy in other areas of work. Happily I am very well suited to it, but it was not my plan. I would sadly never advise anyone to follow me into family law now. 🙁 If you are determined I suggest you do lots of mini-pupillages or apply for work experience in family sols firms.

  7. Northern Lights

    Has anyone who has responded to this post actually read the bloody book?
    I haven’t yet (just ordered a copy) so can’t comment on the contents but find it difficult to see how what appears to be an exploration of themes and ideas that inform different approaches to family law is a cue for a dodgy youtube clip advertising a pseudo-legal website.

  8. Northern Lights,
    I know from your past posts that you are particularly dim but let me explain again for you.

    My first post says “The extract you have provided” which might indicate to many that I am basing my post on that extract only and have not read the book. Nick Langford has said he has not read it, that might help you.

    I won’t be ordering the book and I won’t be ordering ‘Fifty Shades of Grey’, ‘Feminist Judgments’ or ‘Moranthology’ thanks….

    However, that does not mean I cannot comment on a review of a book such as this. Hope that helps.

    familoo,
    the figures quoted on the youtube video are official government figures, shocking even in the utterly incompetent and wholly complacent world of family law practitioners.

    • Chambers, can you tone it down a little please? Your tone is pretty aggressive. I know you can make your points politely, so can you try that please?

      I think the point is that even though you state you are referring to the extract I quoted you are attaching a whole lot of weight to that extract, which is taken out of context – I would say, and I think Northern Lights was suggesting as much, too much weight. You are of course entitled to comment on a review of a book, the question is how valuable your comment will be if you insist on relying on an isolated quote to condemn the entire book, without informing yourself properly first.

      I’m not sure if you think there is some connection between fifty shades, feminist judgments and moranthology. Having not read fifty shades I can’t say definitively, but I’m willing to bet it doesn’t have much in common with the other 2.

      I don’t doubt you if you say that the figures on the video are official government figures, but they are pretty meaningless if quoted in isolation (sense a theme here?). The video quotes, amongst other things, stats from “the worst court” – how are viewers to ascertain whether the worst court is even close to being representative or if the stats as a whole demonstrate a wider problem if you selectively use data without referencing it? What happens in the worst court might be the tip of a bigger iceberg or it might be a stat arising from a rogue judge which is skewing the other figures. I note you don’t even provide a link in your reply to my comment so I still don’t know which data set the “official” figures come from.

      I think it should be self evident that even for complacent, incompetent dimwits like myself, the figures for the worst court in the whole land should be shocking since they represent something worse than that which we are used to seeing.

  9. Dear Lucy,

    I hope life’s treating you well! I heard a rubbling over the internet that you were after sources for statistics.

    They date from 2008, but this was the only study that I’m aware of which looks at actual outcomes in the family courts. The study referred to is ‘Outcomes of applications to court for contact orders after parental separation or divorce’ Joan Hunt and Alison Macleod. Oxford Centre for Family Law and Policy. Department of Social Policy and Social Work University of Oxford. Family Law and Justice Division. September 2008

    The cover slide on the youtube video includes the text ‘Quoted statistics are available from our blog which can be accessed from our site’. People may have to hunt about a bit, but they’re there, and they also get a bit of a tour this way.

    That youtube item was intended to stimulate a little debate regarding the need for further family law reform. My view is that the Government’s proposed family law reforms are naive. The problem has been interpretation of statute and the wide ambit of discretion afforded to the judiciary, and judicial failure. There’s an article out only this week linking knife crime to fatherlessness. It’s because of judicial inconsistency and individual ideology being out-of-step with mainstream society that more detailed legislation is needed.

    I believe the judiciary have played a fundamental role in creating a fatherless society. Munby’s honesty that ‘the judiciary are impotent when faced with broken contact orders’ (or the like) belies the fact that some judges actually are quite forceful, while others hold up their hands and say ‘What can I do’. Butler-Sloss said 60% of fathers lose contact after 2 years in the Paul Seighert Memorial Lecture (? from memory)… but what did she do about it? Failure!

    Sir Nicholas Wall is incorrect when he says that judgments are fact specific. In my view, cases are decided upon an individual ideology of family life rather than evidence… and that ideology is wildly inconsistent due to the rather wobbly foundation of judicial discretion.

    What is normal family life… one night a fortnight… 2 hours at McDonalds, or involvement in day-to-day care? Personally, I was surprised by the statistics in the Hunt and McLeod research.

    I think children and society deserve better, and this Government’s naivety is set to fail another generation of children, and society as a whole.

    Expanded upon here: http://www.thecustodyminefield.blogspot.co.uk/2012/09/does-child-have-right-to-meaningful.html

    Kind regards,

    Michael Robinson
    The Custody Minefield
    http://www.thecustodyminefield.com

    • Hi Michael,
      Thanks so much for that – that’s really helpful. I have read the Mcleod / Hunt research before, but not recently. I confess I had not noticed the reference to the source of the stats on the coverslide of the video. I agree with much of what you say in your message – judges do have a difficult job and cannot always succeed but it is possible for them to do better and to do it more consistently than presently happens. Or it should be if the resources were made available to allow judges to robustly case manage.
      Thanks for taking the time to respond.
      Lucy

  10. Pleasure Lucy, and thanks again for stimulating debate and allowing debate too. It’s appreciated.

    Michael

  11. familoo,

    the extract you provided is what I have read of the book and that is what I commented on. The language of ‘mothers and children’ is enough to tell me where this book is coming from.

    If I turn out to be wrong then I’ll just to have to live with my ignorance of the wider arguments within the text.

    The only connection between 50 SOG, FJ and M (books) is that you recently mentioned them in a blog.

    Glad the figures have now been sorted.

    I said the ‘world’ of family law practitioners. Not all accountants are ‘boring’ or football players ‘ill informed’ or politicians ‘in it for themselves’ but sweeping views are made for effect at times, not usually meant to be taken literally.

  12. Well, Rob George flopped through the letterbox this morning and I shall read in due course, though I shall have to wait my turn.

    From what I’ve seen so far – based on a quick flick through – there are some interesting questions raised but his answers seem to miss the point – for example on the welfare principle and on the shift in terminology from custody, through residence to child arrangements.

    The other half has read more than I have and has spotted some glaring errors; she also notes that he has very little idea (and some very odd ideas) about human relationships and marriage. She suggests it should not be used as a reliable resource for students.

    I’d say on balance, though, that the book is worth reading, if only to pick holes in.

  13. “…would be interested to hear your considered thoughts when you have read it (and your other half’s).”

    Something I was considering tonight after a discussion with a mum, who happens to be a non-resident parent facing parental alienation. We get so caught up on the minor differences between the sexes, that we seem to forget how much we have in common.

    I know for instance, that both sexes can be equally caring parents, and equally malicious ex-partners.

    Michael

  14. “I know for instance, that both sexes can be equally caring parents, and equally malicious ex-partners.”

    No great revelation there, I’m afraid, but I suppose it might be for the law industry, ….

    No wait, surely those who work in this industry have lived and thought about things a bit….

    Sadly, thought, its only interest is in polarizing men and women into idiotic binarisms so as to maintain the power imbalance that guarantees adversity (and profit).

    It’s high time that family law was de-privatized.

    • However, No great revelation for the law industry either. De-privatise the family law system? I thought that the idea was to decimate legal aid (public funding of family law)?? Which is it? State funded lawyers or no state funded lawyers? Or just no lawyers?

  15. re comments 9 and 12 above and the question from Matw2 – the BPTC at Cardiff has options in family law and child law which get good feedback from students. I’m not trying to plug them (and I don’t teach them myself) but I would think there are also good courses at other law schools. I hope not all aspiring barristers are discouraged from studying family and child law. They’re so interesting and important.

    • Thanks Julie – from my recollection (when it was still the BVC not BTPC) there is little time for anything approaching “in depth” on the BPTC options. Not a criticism, but its a taster rather than a preparation if anything like my experience?

  16. “I know for instance, that both sexes can be equally caring parents, and equally malicious ex-partners.”

    Exactly.

    Of course it should not need to be said. How sad that many see the care and responsibilities of children only through the prism of their own gender and personal experiences.

  17. “Or just no lawyers?”

    There could not be a more excellent idea.

    Surely you’ll know that Thomas More banned them from Utopia, and that there were very good reasons for that.

    The only ethical use for lawyers is in holding power to account. When they are working to uphold a vile and abusive status quo, they are not contributing to betterment, and should have their practitioner’s license removed immediately.

    • I think you’ll find many family lawyers consider the holding of power to account is a significant part of their role (parents v state).

  18. Even then, though, you are being collusive, no? I mean, most of these cases are manufactured by local authorities for the benefits of both sides, or so is my impression anyway.

    Good try though.

    I was thinking about all the cases that you cannot take on because they are off limits unless you are career-suicidal, eg., Baltasar Garzon, or unless you want to invite death threats from thugs hired by politicians, CEOs and other assorted criminals.

    • No. Local Authorities don’t “benefit” from bringing care cases. It costs them vast amounts of money and effort. But quite apart from that I don’t see (or practice) collusive behaviour when I am representing parents. I fight for them. I think my direct experience probably trumps your “impression” of what happens. And incidentally, don’t think threatening and dangerous behaviour is exclusive to criminal cases.

  19. Northern Lights

    Ignoring the insult(has he mentioned Australia yet?), I’m still waiting to see if anyone has read the book- or is intending to, other than Nick Langford and his OH.
    My copy still hasn’t arrived so I’ll check the thread again in a week or so; hopefully it won’t be completely spammed up with lawyer bashers and conspiracy theorists.

  20. “I fight for them”.

    Wouldn’t you rather be fighting for the poor souls whose lives are being ruined by the selfish, lying and cheating monsters that you represent?

    Or do you continue to support the anti-shared parenting mafia, whose research is gobbledygook colored by misandry, and whose position is tantamount to an apology for child neglect, and indeed child abuse?

    • However, you are beginning to sound like a troll.
      I thought that supporting parents was considered positive? It begins to sound a little bit like you might disagree with absolutely anything I said. I often do act for children as it happens. And not all my clients are selfish, lying and cheating monsters.
      I won’t respond to any further baiting and probably won’t publish it.
      L

  21. Northern Lights

    Lucy,

    Don’t you represent parents fighting for contact/shared residence too or have you sidestepped the cab rank rule and found a niche market representing monsters?

    • I give a 20% discount to monsters. But I do represent non-monsters too. As long as they promise to go “Grr” convincingly in the witness box.

  22. Haven’t had a chance to read George’s book so far, but the view from the other side of the bed is that if you want an interesting, intelligent, thought-provoking book about family law, Kenneth Norrie is your man.

  23. Where to begin?

    After managing to retrieve Rob George from the bottom of Nick’s work-bag, I settled down at the weekend with a cuppa and a dry bit of cake to read this book.

    I had hoped for great things from this book, I expected to be challenged in my thinking and understanding of family law, and to learn from it. I was disappointed to say the least. It was deathly dull, repetitive, the author was rather selective in his citations (which mainly came from his fellow OXFLAP colleagues and the Didcot/Kaganas feminist book – Family Law, Gender and the State). I certainly wasn’t challenged whilst reading this book – at one point I fell asleep.

    If the book’s aim is as a “Springboard for further study and discussion”, then I feel it didn’t meet that aim – it would probably deter those with a loose interest in family law from reading any further books in this area, and it certainly shouldn’t be used as a discussion tool due to the author’s complete lack of understanding about human and family relationships, and his rather odd ideas about marriage (citing a ranting John Cleese from an interview he did shortly after being shafted in his divorce is not a reliable source, I feel).

    In short, the slab of dry cake I ate while reading this book was far easier to swallow than George’s ideology…

    And if anyone would like to read family law articles or books that do provoke discussion/debate and be challenged, then I highly recommend Professor Kenneth Mck Norrie – although he writes about Scots family law (my area), his books are excellent, and leave George’s attempt on the bargain shelves….

  24. Not surprised. It has received very bad reviews, and he has been discredited as an academic. I don’t think it is just poor research. It strikes me as a rather deliberate attempt to falsify information. The sad thing is that the government bodies are actually reading this trash and quoting from it.

    • However, I have not seen any other reviews of it. Do you have any links? Are you saying that he has been discredited as an academic by virtue of the comments on this review, by virtue of the other reviews or in some other way? Do you have links? What information is it that you think he has deliberately falsified? Which government bodies are quoting from his book? Do you have links? I think if you are going to make allegations of this kind you need to be more specific and back them up, otherwise they don’t hold water and sound like bombast.

  25. Russell Armstrong

    Hello Lucy and all
    I’ve been in litigattion for 4 years now and have also helped fellow LIP’s, where I have a hole in my knowledge I always seek guidance from more experienced ppl.
    One thing strikes me with the issue of the “vernacular” that the system gives to certain people and how the meaning of these words can then be quite conviniently hijacked by anyone who cares to.
    How I wish we could use simple and non devisive labels, lables that identify the party and what part they play without creating gender biase.
    Why cant we call the main carer either the “mother” or “father” then the other parent the “mother” or “father”
    Why do we have to given them lables? such as main carer? or non resident carer?
    Why are these labels important to the person who remains at the centre of the dispute the children.
    With regard to the origins of the origins and evolutions of concepts such as custody, PR, residence and contact that is what many LIP’s, I think, struggle to get to terms with.
    The origial thinking that creates the framework of the decision making process called the family law system.
    Why does it think the way it does?
    Why do so many male parents feel that most of the decisions go in favour of the way mother would want them to go? Is that a fair comment or do many women parent feel the same way. Do we know? Do we want to know? Is the system failing in its most important task of creating outcomes for children than any other method.
    Given the vast swathe of opinion read in the press, blogs, forums one gets the impression that no-one is happy, are the children? have we asked them, who after all, are at the blunt end of this very litigous system?
    For simple child quantum disputes, when you cut through all the BS you can distill it down to one simple truth.
    Where you have a parent, who has the control of the decision making process on behalf of the child(ren), who is (for whatever reason) not willing to “allow” the child(ren) sufficient time with the other parent that they would deem reasonable and the other parent is motivated enough to take court action, then they are the only, I repeat THE ONLY people who end up in court.
    Any other conditions do not create the correct dispute conditions.
    I.E. if parent in control allows sufficient time and the other parent is satisfied, there is no dispute.
    If the parent not in control does not care, does not care enough, does not have the will, cash or resorces to fight, there is no COURT dispute.
    That then would lead me to a question that I wish to ask. I believe that Nick Langford knows the ethos behind the start of the whole process, but I cant remember the names he gave.
    The question is this
    Who on earth created the notion that one parent could control to status quo by force or will after a relationship ended?
    And as a suppliment, where on earth is it written down in LAW that the main carer has the “right” to control this situation and if the other parent dare contend with that notion (say by taking the children home with them for tea one evening without the main carer’s “consent” then they are looked upon with great condemnation in the eventual court process?
    Can we have a debate about how all this shoit started and why it has to be this way?
    Thank you

    • Hello Russell,
      Thanks for your very long comment. Of course control is a big driver for these disputes. But where parties have lost the ability to cooperate there still has to be a mechanism for making decisions about children’s lives. The court can’t make all the day to day decisions, although it can decide the “big” or overarching issues. It can’t micromanage, so it has to find a way of allocating control between the parents. To use a phrase that a judge recently used to describe his powers to my client – “whatever the court does is clunky. I’ve got big feet.” Someone may have to exercise control and I’m not sure that taking back control against the will of the other parent is necessarily child focused or helpful. I suppose my point is this – it may grate for the main carer to be able to call the shots but to an extent that is necessary to make life work. If it weren’t necessary the parties would probably not be in court. A judge can’t order the parties to agree something, but he can attempt to allocate control and responsibility fairly and according to the child’s needs.

  26. russell Armstrong

    Hi Lucy
    Thx for the reply
    My point I was so lengthily (apologies)trying to make was where is it wrtten down in LAW that one parent can usurp the parental responsibility of the other and simply refuse/limit contact on the basis that they have the power to do so by virtue of being the main carer?
    Shouldn’t the main carer once (by default) being given the power and control now have a responsibility and duty to excercise that power with due diligence and care?
    Thereafter, if a dispute subsiquently arises, shouldn’t the court first look to see if the power so invested has been used wisely? Has the parent with power got reasonable grounds to restrict or limit the contact with the other parent?
    Does the court ask as a matter of principle first ask “why has this dispute arisen? Mother you are the main carer it is your duty because you have effective power and control to use that wisely and you may have not done as this matter is before this court. Father is asking for this level of contact, it is less than 50/50 it does not seem unreasonable for him to ask, so what are your grounds for refusing his request? Oh and may I ask that your reasons must be child focused……..”
    I wonder how many main carers would be able to offer genuine and evidenced backed sensible and reasonable grounds for their refusal
    The lawyers who reprepresented my ex made no attempt to answer the question they said “mother states that to give more would not be in the childs best interest” they refused to answer the question WHY????? and how???????
    4 years of litigation has followed
    You tell me why the courts are filled with such cases
    PS I do like your style and blog, its up there with Marylin Stowe, different to hers but good
    And if the paret excercises their “power” in inappropriate ways

    • Hi Russell,
      Broadly speaking a residence order has the effect you describe. Whilst both parents retain PR (assuming dad has PR) and must therefore be consulted or agree to major life decisions, day to day matters are within the control of the holder of a residence order, subject to any other s8 order the court might make (for contact or determining some other specific issue concerning the child’s upbringing). In my experience the courts do expect the primary carer (and indeed both parents where there is a more shared arrangement) to exercise their parental responsibility and control with appropriate care, and in particular to justify any refusal of contact. Of course it is not for the state through the court or Local Authority to intervene in the running of families and the minutaie of parental decisions unless it is through public law proceedings (only where the child is at risk of significant harm), or through dealing with a private law application (for contact or residence or the like). But where an application is before the court there is a well established expectation that both parents should have contact with the child unless there is a good reason connected to the child’s welfare. So, in answer to your question – yes the court does ask why has the dispute arisen, and it does expect Mother’s to facilitate / allow contact unless there is a good reason. I can’t comment on your specific case, which I am sure you will understand, although I can say that there is no rule of law that says that 50:50 is necessarily the best outcome from the child’s perspective, and some research which suggests otherwise (although it may be right in individual cases).
      Lucy

  27. Russell armstrong

    Hi Lucy
    Thanks for the reply
    So where is it written, in law, that, before a residence order is in force the main carer has effective control of the children?

    • It’s not. It’s common sense isn’t it? As is the proposition that where that becomes contentious the court may step in and regulate the position. Someone has to manage “stuff” – that is what being the main carer involves. If parents can share that care equally or otherwise fine (and the no order principle applies), but if not orders may need to regulate it – to confirm the de facto position or to impose a different regime upon the main carer to a greater or lesser extent.

  28. Russell Armstrong

    I agree that its common sense, and if we are to believe the figures, 80% of all parents going through separation manage to come to some sort of accomodation (even if it means that the non main carer doesn’t like it but does not take court action).
    The 20% that are left by definition cant come to that compromise so in effect it is those ppl who end up in court.
    Now can you please tell me, if you know or can summise, what proportion of the 20% are main carers who start court proceedings?
    The next point I am trying to make is that it must be almost 100% of applications that are started by the non main carer, does that not strike you as a bit out of balance?
    Therefore, at the outset, (in a simple quantum of contact dispute) the status quo, as you admit because it is common sense, is allowed to be set by the main carer, before the non main carer thinks that is wrong and makes the court application.
    Now because this happens after the event, a machavellian main carer can set the status quo as low as they can (no contact) without any real rhyme or reason.
    A main carer who has genuine resons to want to restrict contact, I would have thought, would be able to bring to the table some kind of evidentual based proof as to what they are saying, the machavellian will not
    so why do the courts so routinely simply accept what a female main carer is saying on the face of her testomony?
    Russ
    PS I thank you for entering the debate and although I may sound “clipped” I do not intend to be, I hold your views and thoughts in high regard

    • Russ I don’t know what proportion of applicants are main carers, although there may be statistics out there I don’t have time to look them up. Based on my experience a reasonable proportion of applicants are main carers, who are seeking residence orders to confirm the status quo, or some other order. A few are seeking contact orders in order to formalise or regularise an unsatisfactory ad hoc arrangement. I’m not sure why you would expect resident parents to make applications in the absence of the other parent having done so – its really up to a non resident parent to commit him / herself to regular contact if agreed or to make an application if not. I appreciate the consequence is that a parent who is not the main carer has less control than the main carer but I think that’s life as they say. I’ve already said that a main carer who wants to restrict contact will be expected to evidence or reason any objection to the proposals put forward. I don’t think that the courts routinely accept what female main carers say – they are likely to accept it where her position is child focused and gives appropriate weight to the child’s need to see his father – but courts often reject overly restrictive contact proposals put forward by mums. The system is far from perfect but I do think that courts assess both sides of the argument before reaching a decision.

      • russell armstrong

        But where a non main carer cannot articulate his/her proper concerns as an lip and the main carer alleges (falsely) DV to get legal funding , what say you then?

        • Well I’d say he ought to have legal aid to defend against allegations of DV. I said that in my response to the green paper that led to LASPO Act and in blog posts since (along with most of the rest of the legal profession). That is a gross unfairness that arises from a flawed government policy.

          The courts are attempting to alter the way that they work so that the process is more inquisitorial and less adversarial and this is likely to mean judges can be more interventionist. This will help but it won’t solve the problem.

  29. Russell Armstrong

    Lucy,
    Would you agree that without there being anything put in LAW (just common sense) that we have a presumption that the main carer has the effective power and control to do whatever they (I choose plural to avoid gender) think is in the best interest of the child?
    Also post separation, as the main carer, they are free to “set” the status quo in whatever way they deem is “suitable”
    If the non main carer (NMC) does not think that this is reasonable then the NMC has some choices.
    1/ Take matters into thier own hands (i.e. not co-operating with said MC and taking child/not returning child)and potentially, forever, irrecovably damaging their future prospects of a court looking towards them with good graces
    2/ Mediate and give the MC a chance to further entrench their prefferred status quo
    3/ Take court action.
    Now in order to take the MC’s ability to set the status quo in an unfair manner, why dont the court simply take as the start point the conditions of contact that the children enjoyed prior to the point of separation, i.e. when the family were intact?
    If there is a presumption that the family is the best unit (i.e. no welfare concerns) then surely there should be a presumption that the children would fair best with a similar level of contact post separation.
    Of course the starting points are numerous, so in order to rationalse that position why not start with the “PRESUMPTION” that unless the MC can show that there are grounds for having a different starting point then the starting point shall be 50/50 shared care?
    After all its only a starting point and why should the single parenting groups object to a middle ground?
    So an unwritten presumption in favour of the MC (care and control) is “balanced” against a reasonable objection from the NMC to a default 50/50 start point
    I.E. the MC’s machavaellian reason (if they have one) for setting a low status quo is irrellevant, so thier motivation to pull such a stunt is reduced = less conflict and more discussion about the way forward.

    • 2 things:
      You can’t operate from a starting point that both parents have the same amount of contact because there aren’t twice as many hours in a week. Something has to give because the parties aren’t living together. If each parent was spending most of their time with a child together then each parent when separate may have to accept a reduction of contact with the child unless they are willing to continue having that time simultaneously. Not many pre-separation families operate on a shift system where the time they spend with a child never overlaps with the other parents “time”.

      s2(7) Children Act covers your scenario of the main carer having de facto control – “where more than one person has pr for a child, each of them may act alone and without the other (or others) in meeting that responsibility”. the Children Act is essentially pragmatic. A parent with care can do what they need to do. As said previously, if another holder of PR is unhappy with how that power is exercised they may apply to court – far better if they don’t need to but that is an available remedy.

  30. Russell Armstrong

    Bingo
    So who sets up the initial status quo when there is a conflict of opinion?
    The main carer and sod what the second class non main carer thinks
    So NMC makes application for a defined contact order
    And whole system is full of parents fighting over what the system thinks are “trivial” contact matters
    So the system sets it up to have dispute heard by the system and then it complains because there are too many applications!
    Duh!
    So as the matter of quantum of contact is not an issue in law, then we don’t need lawyers to argue the points
    The quicker we get to inquisitorial judge led hearings the better, per your comment
    The quicker judges learn their craft, the sooner we can have child focused outcomes, oh and can we get away from the concept that if the order has the effect of making the MC unhappy tell them to grow up and get on with it. You couldn’t come to a compromise before so now you have to accept my judgement!
    Final thing, I didn’t say you need 48 hours in a day I said 50/50 as a start point to make it not worth a controlling parents time to set up a status quo massively in their favour and hang it out to “set” the quo
    How about this, at point of application the assumption is that the child loves both parents equally and would want to spend as much time with each parent as they can?
    If circumstances support the application then its an easy step to make based upon discretionary judicial reasoning

    • I think Russell that you are reading into my words what you want them to say.
      I think that a “controlling parent setting up a status quo” is on a par with a parent seeking to wrest control back again and establish a new status quo if you are looking for a great way of losing focus on how the whole tug of war may feel to a child.
      I don’t take issue with your assumption about how the court should approach things at the point of issue. I think that is what happens. I don’t think by the way that an inquisitorial system will necessary assist those who want to make the kinds of arguments you are deploying in this comment thread.
      By the way, I don’t think you can corner me into changing my views about shared parenting through tortured logic or making some kind of concession through this comments thread, which is something I am well used to. Logic only takes you so far in understanding family law. The rest is not law at all.

      I agree with much of what you say but its where you go “AND THEREFORE everything would be fine as long as we had 50:50 parenting” (or arguments to that effect) that you lose me.

      Best
      Lucy

  31. Russell Armstrong

    Hiya Lucy
    Last first
    I am not a proponent of 50/50 care per se. In many instances it will not work for logistical reasons, if nothing else. I take my example, I live just close enough to make school runs possible but too far to do them every day. If I lived closer maybe I would have a different view but I dont so I take a pragmatic approach of what I can facilitate and what does not become too onerous for my young boy.
    Therefore I do not see 50/50 as a panecea and an ultimate goal.
    First next
    A controlling MC is as bad as a NMC trying to wrest back the status quo.
    How can you say that
    First the MC makes their choices unilaterally, be it in the best or worst interest of the child or somewhere in between
    Second the NMC has to go through a judicial process to see if what they are suggesting is sensible and reasonable. If they argue well and make a good point, i.e. child focused then by definition the court has deemed that the MC is not acting in the childs best interest, else there would be no order made to change the status quo would there?????
    Next
    Its the system that allows the MC to unilaterally alter the status quo without recourse to any judicial process that make the whole thing lop sided.
    Maybe we need a system that recognises an unfairly set status quo (i.e. not in the best interest of the child set by the MC) and factor in some kind of deterrant. How about awarding the cost of the application (£200) against the MC? Or something else, you choose.
    Its all about setting up checks and balances to stop machavellian MC’s from using the system for their own nafarious ways (please excuse spelling, no spell check here)
    I am all for the system protecting children from harm, but please dont tell me that there arnt many MC’s out there who are machavellian in intent.
    There are and they need to be delt with fairly but firmly
    And machavellian parents do not stop to think about what damage it does to the children, they just think of themselves, oh and throw in the boarderline personality types as well and those are the ppl who I’m talking about, they are many.
    PS thank you for letting me discuss these points with you, after all we are merely shooting the breeze as I do not for one moment think that even if either you or I or anyone else makes a humdinger of a point that it will make one jot of difference to the system.
    Or am I just being too pessamistic?
    Russ

    • Russell,
      What is the alternative to allowing a main carer to make day to day decisions that you are proposing? That the other parent has a right of veto? How would that work?

      I don’t think that I have said that there aren’t carers out there with malign intent (I can’t spell machiavellian either). There are lots. Of both genders. And yes they do need to think of the children but the reality is that it is hard to find a sanction against such parents that doesn’t have a knock on effect on the child. £200 fine? No DS for Xmas. etc (not that I am equating a relationship with a parent to a toy in terms of value – its just an illustration on a small level).

      Anyway, regardless of what either of us think the govt has just confirmed it will introduce a presumption of shared parenting so we’ll find out soon enough whether that works. Lets hope it does. See here: http://media.education.gov.uk/assets/files/pdf/g/government%20response%20to%20the%20shared%20parenting%20consultation.pdf

  32. Russell Armstrong

    Damn Lucy
    Your lack of ability to spell machiavellian trumps mine lol
    I compartmentalise my arguments
    The issue as I see it is not trying to control what the other parent is doing in thier time (the day to day decisions) That is for them to make and as a non main carer, I would trust the MC to make sensible decisions.
    The argument is about how much time the MC and NMC get with the children.
    The original pre-court action status quo of quantum is set by the MC yes? regardless and inspite of what the NMC may wish, for is it not true that if the MC set the quantum at a level that the NMC could live with there would be no conflict would there?
    It only becomes a dispute when the level is set below that which the NMC is not happy with to the extent that they make a court application to “re-set” the status quo at a fairer level
    This is heard by way of a judicial process who then weighs the evidence seeks cafcass guidance and makes a judgement. More contact means MC was wrong (according to the judge) in the first place (by definition)
    Dont you think?
    I will have a look at the link you give
    PS cant find a link to purchase your book on LIP’s I’m sure it will be well worth a read, can you signpost an old duffer like me to it please?
    Cheers

    • Hi Russell,
      Don’t forget that we’ve been using shorthand of main carer / resident parent – which presupposes that there is a main carer – there are lots of separated families with much more fluid arrangements, whether or not there is 50% care to each. Those families work out things between them, through cooperation. We are only talking about those where for whatever reason a child is primarily in the day to day care of one parent – perhaps through distance or some other reason – where it is necessary for one parent to make decisions, and where arrangements for contact will, to some extent, be dictated by practicality and the child’s need (routine, other committments, travel, tiredeness etc). That works fine in most cases. In some it works less well but is tolerable for the parent who is getting less contact than s/he would like. In a few its bad enough for the parent to seek help from another agency. You are of course right that one parent has to then displace the status quo by enlisting the support of the court, but I don’t think you can design the status quo to cater for the minority – and it is a minority – who are part of an arrangement which is really not working.
      Book link – http://www.nofamilylawyer.co.uk or Amazon (amongst others).

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