Musings on new fangled equality

Just a thought. I'm not trying to be controversial or nuffing. But it did occur to me today that whilst the clamour for a presumption of equal parenting is all well and good (I agree its a solution that should be given serious consideration in most cases, but not that this should be elevated to a presumption) its something which is really completely novel as far as the history of the family is concerned. And I began to think about what equality really means in the context of parenting.

I'm all for equality of opportunity as far as parenting is concerned. It doesn't matter to me whether its Mr Mom or Lady Cab Driver. Or a shared arrangement that defies the traditional homemaker / breadwinner paradigm.

However, whilst I'm no historian, I can't think of any time in history or any culture where the role of primary carer is or has been generally  split equally between both parents. Aside from cultural norms and historical societal organisation into very gendered roles, there remain all sorts of practical and financial reasons why one parent most often carries out the bulk of the care of the children. It's still most often the mother who performs this role, but there is no reason why it needs to be her as opposed to him.

I pause here to observe that even for topsy turvy families like mine where there is a gender role reversal from the traditional female carer : male breadwinner, it is quite often very hard for both of us to shed our guilt for not providing (him) or not being there to kiss it better (me): gendered expectations about our roles as parents are deeply ingrained in us all whatever our philosophy or intellectual belief. I go out to work: I feel like a bad mother, even though I know better. But there is no reason why the carer has to be the mother. And courts must ensure no prejudice in that respect.

But I want to draw out a distinction between avoiding discrimination in our attitudes to who should provide primary care and the quite distinct proposal that the primary care should be split equally between the two parents on separation. When families are together shared care and equal divisions of time are far from the norm, and I'm not sure why they should be the norm when they aren't together.

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Fathers seek equality in matters of family justice. Equality to me means that each parent should have equal treatment from the courts, equal status as a parent, equal importance in the life of a child. It's not a mathematical equation and it can't be expressed in binary. What is legitimate to ask for is that the court, when faced with applications for residence from two parents, does not make its decision based on prejudice or gender stereotype. What is not legitimate is to prioritise a parent's desire for recognition or affirmation over what is right for the child in any given case.

The complaint is often made that the overwhelming majority of residence orders are made to mothers, ergo discrimination. Well I don't agree that this equals discrimination, because I don't think you can tease out from that that brute fact that, in spite of big changes in society over recent decades, the way in which most families still continue to organise themselves is with mum as main carer, and that when most disputes come to court it is from the starting point that the children are used to being cared for by her. Which is not to say there isn't discrimination in individual cases, but only that the statistics reflect the general trends in society that persist.

In private law disputes the title and status of 'primary carer' can become a much sought after prize, the symbol of victory in the battle for equality. The goal of 50% of a child's time I think is often a symptom of competitiveness between parents, determined on securing a victory in their own conflict. Parents who count up how many nights a year they have and demand an extra 3 nights per annum to balance it out have really lost the wood for the trees - their kids aren't counting. They are wondering why daddy / mummy is so angry all the time. The 50:50 approach fundamentally misunderstands the way in which our children see us as important figures in their lives. A breadwinner is no less of a parent than a homemaker / carer. My dad worked hard, he didn't get home to put us to bed often and the patterns and nature of my relationship with him as a child was very different from that I had with my mother. But my parents are equally important to me, regardless of who bandaged my knee or made my sandwiches or who stumped up the pocket money. It is only adults who need to quantify their relationships in hours. Insistence on shared residence can be to impose the judgment of Solomon on children, if not tearing them limb from limb forcing them to be constantly moving from pillar to post in order to share themselves equally between their parents.

Shared parenting works well for some. Equal splits of time also for some. There are any number of combinations or arrangements. But, when there are two homes the practical and geographical problems can often make shared care stressful or impractical. For the bulk of families, whether separated or together the only practical solution is to take different but equal roles. Children understand that in their own way and think no less of us for it. Sometimes I think that the more parents try to demonstrate their equality through carving up the weeks into 50:50 shares, the more they force children to choose between them.

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I know that fathers rights / equality campaigners don't think that the welfare checklist / best interests test achieves a non-discriminatory result, but I think a presumption of shared care would subjugate the welfare of the child to the straitjacket of dogma. But what if instead we were to legislate to remove any perceived discrimination by identifying what is impermissible for the court to take into account: a codification of the principle of non-discrimination by, say, a provision that the court must not make decisions about the care or residence of a child on grounds of gender.

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These are just my Friday night musings and I've had half a glass of wine (baby related abstinence means even this results in mild squiffiness). But I do think there are more creative ways to think about how we promote equality for mums and dads and I think that the debate about this needs to be both more rigorous and more innovative.

Harman v Prescott – Below the belt

Political commentary is not really my thing on this blog, but I just cannot let the very public online spat between Harriet Harman and John Prescott go unremarked. Let me say at the outset that I'm not a member of any political party, although you may discern from this blog that I am generally leftish. I generally have quite a deal of respect for John Prescott and his determination but I am afraid he is not in my good books.

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This begins with Harriet Harman's interview in The Times on Sunday (also here) . I take the point that Harriet's turn of phrase that 'men cannot be left to run things on their own' sounds pejorative and is foolishly sexist. She does know how to put her foot in her mouth. But let's look at the bigger picture. It is a fact that the business of politics and governance remains overwhelmingly male dominated and that HAS to change as a matter of urgency. As Harriet says - and this is plainly the thrust of what she says rather than the detail that detractors are homing in on - 'it's thoroughly bad to have  a men-only leadership'. The idea is that, even if women in government are outnumbered by men, things are still run in accordance with the principles of equality. To use the lingo this government is 'striving to be' an equal opportunities government (aka work in progress).

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So I ask you, does John Prescott's response on his blog smack of committment to and deep understanding of the importance of substantive equality of opportunity both in government and in the country as a whole? Does it 'eck. Harriet Harman has stated an obvious and uncomfortable truth, and one which would be a significant vote loser amongst the female electorate were it not for the fact that all the other main parties are similarly terrible at getting women elected. And Prescott reacts by criticising her for doing damage to the party. Prescott's clumsy attack on the only person prepared to put her head above the parapet on this is extremely unattractive and as a female voter a massive turn off.

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What Prescott completely misses is that Harman is promoting a long needed public debate about this - and one which if embraced could be a positive campaigning line. Male and female members of Parliament alike should be engaging with this constructively to work out how we can redress the balance, how we can eliminate actual and perceived imbalance and male centred policy making, how they can win the trust and votes of women.

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But, says Prescott, the all boys team have been successful, have done important stuff (and by implication this women's issue is no more than a distraction). Waving your sporting trophies and sneering at what the girls want to talk about by reducing it to pink fluff is schoolyard stuff. It is unsophisticated and unconvincing.

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And to attempt to undermine a woman's own success by saying she got to the top by being a woman is utterly unimaginative (I am referring here to the significant phrase 'in theory you were selected on merit not on gender' which I am disappointed to report my other half finds completely unobjectionable - he is mystified at my wrath). What's more, it fundamentally misses the point: lets assume that Harriet Harman was in part elected as a result of her committment to equality or to what Prescott may view as 'women's issues' - that is not the same as getting elected because of your gender. A male candidate who was equally able to demonstrate his committment to the same 'women's issues would compete on a level playing field. That one remark from Prescott, rather emphasises the reason why we need more women in government. The John Prescott's of this world don't even get why there is a problem - he doesn't understand what Harriet or the rest of us birds are whineing on about. 'The system works fine' says Prescott. If the system worked fine John, there would be a representative proportion of women in government. What's your problem with that?

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John Prescott should take a long hard look at himself and the effect upon the female voter of publicly attacking female colleagues for raising legitimate equality issues, and consider who it is that is damaging the party's prospects of retaining power at the next election. He may have attracted some unpleasantly misogynistic comments on his blog post (which one rather suspects may reflect his views in rather rawer form than appear on a carefully crafted blog post which produces an uncharacteristically polished result in contrast with the off the cuff Prescott we are used to seeing on telly), but I can tell him that there are more women voters, than misogynists out there, more voters who want to see representative government and true equality than there are voters who want to keep everything as it is or fill a cabinet full of Prescotts.

Sharia Courts Criticised by Civitas

The Times reports on a recently published Civitas report which is critical of Sharia Courts and in particular the tensions between Sharia and human rights and the law in this jurisdiction. Of particular note for family lawyers or those interested in it is of course the community pressure which can bear upon muslim women, and their relative powerlessness within the context of community justice fora like Sharia Courts, both in terms of divorce rights and in relation to the upbringing of children.