Judge Dread – The Future

The Family Justice Review is calling for written evidence by the end of September (see here). Anyone who is considering submitting a response should consider this: at the recent oral evidence session I attended with other lawyers, the panel were asking serious and reaching questions about the extent to which the courts needed to be involved in decisions about care planning. Suggestions were made that in our search efficiency we need to seriously scrutinise whether or not there is a need for judicial sanction along the whole process we currently know as 'care proceedings'. Although there seemed to be an acceptance that court involvement could not be avoided insofar as there were disputes of fact, the need for judicial scrutiny of Local Authority decision making was not necessarily approached as immutable: the implication being that once threshold is proven to have been crossed decisions to removal of children from their families could become decisions of social services alone (or possibly of some yet to be created tribunal?).

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Take a deep breath and wait for the significance of that to dawn upon you. Yes. They are really considering leaving these decisions to The Man, without the safeguard of The Judge. The full horror of it may be evident to you and I, but it evidently raises crucially important questions that do not appear on the call for evidence list of questions - but which need to be answered explicitly, directly and forcefully. Those of us who believe in a Family Justice System clearly need to make the case at base level for judicial scrutiny of state intervention into families. It will be vitally important for those responding to the call for evidence to give their views about this very specific and fundamental issue rather than just answering the questions as posed. To get you thinking I will post something shortly on the question of 'Why do we need care proceedings?' which you will be at liberty to plagiarise, develop or denounce as you see fit. But I'm afraid that now is too late in the evening for me to contemplate embarking on that little beauty. It will have to wait...

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.

Lightning Fast Lawyers

40 minutes apparently. That's the time it takes to get to and from Bath County Court from chambers in Bristol. Or at least my clerks tell me (to snorts of derision from me) that this is all the LSC say I can claim. There is a list that tells them so.

Lets assume that we ignore the 10 minute fast paced walk between chambers and Bristol Templemeads. Let's say for the sake of argument that this is not something I should be able to bill for. The train journey itself is between 11 and 15 minutes depending on which service you catch. The walk from the station to the court is 10 minutes at a fairly fast clip. I make the total time to and from Templemeads no less than 42 minutes. This does not allow for the time it takes to buy a ticket, the inevitable wait at the station on the return leg for a train to arrive (often 10-20 mins) and the 20 minutes to and from the starting station. And of course it does not factor in delays and cancellations. The reality is that this journey usually takes up around an hour and a half of my day. It is simply not possible to complete this journey in 40 minutes even if services run smoothly, and the LSC must know this.

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It may seem like pedantry to quibble over a few minutes of travel time, but it does add up. And I sort of feel that if a payment for travel time doesn't actually relate to the time spent travelling it would be better to add a fixed amount to the fee and ditch the travel claim altogether so we all know where we are.

If the LSC expects counsel to jog to and from court perhaps it could circulate a memo to that effect, and whilst they are at it they could amend the SIP form to include a claim for the cost of running shoes. It brings a new meaning to 'fitness to practice'.