How charming: Tomorrow on Radio 4 at 8pm Edward Stourton chairs a live debate in which Professor David Marsland defends his view that the mentally and morally unfit should be sterilised. Part of the Iconoclasts Programme.
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.
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.
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.
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.
Contact Activity Directions – remember them? Yes, the little used Contact Activity provisions have received a bit of a boost as of 1 April: they are now provided free of charge to any parent ordered to attend such an activity.
Previously, you will recall (or perhaps not): parents who were eligible for public funding or who would suffer hardship if they had to pay were paid for via funds devolve to CAFCASS. CAFCASS would pay providers of Parenting Information Programmes (PIPs) directly to provide services to the publicly funded or poor. And the rest just had to pay for themselves. But as it turned out this was a bit too complicated for anyone to be bothered to disentangle and so the courts were not making Contact Activity Directions. Hence the new arrangement: step 1 the court orders a party / parties to attend, step 2 the DCSF pays (or DofE or Michael Gove himself for all I know or care) no questions asked. Easy peasy, no excuses.
I must admit to feeling quite pleased when I worked this out. Not least because I only found out about the changes to the rules when I came across the SI that revokes the power of the Secretary of State to fund these courses. Gaaa!! Reading the new SI in isolation one could be forgiven for thinking (please forgive me) that the Government had simply decided to make all Contact Activities self funding, which would really have rendered sections 11A to 1ZZZZZZ gloriously pointless. However, being a thorough sort of legal researcher I did not stop there. I lawtelled and lexised (are these verbs? or trademarks?) furiously but without joy. I sifted through the ‘always seems to be ever so slightly out of date’ CAFCASS website which did say that all courses were free as of 1 April. But (bless them) the CAFCASS website is not always 100% reliable, and so I sought more evidence… The DCSF / DofE frankenstein of a website was less than useless, I was confronted with pictures of a glowering Gove at every click. And in the end, as is so often the way, it was not my paid-for-through-the-nose subscription service but the power of Google that came to my aid and revealed the explanatory memo to snappily titled ‘THE CHILDREN ACT 1989 (CONTACT ACTIVITY DIRECTIONS AND CONDITIONS: FINANCIAL ASSISTANCE) (REVOCATION AND TRANSITIONAL PROVISION) (ENGLAND) REGULATIONS 2010’ which really tells you all you need to know.
That memo promises legal practitioners will be provided with updating information but I’m darned if I can remember being told this was changing and there is certainly no evidence of any press release by the DCSF on their website.
Do we think that once awareness of the changes trickles into the general consciousness there will be an enormous clamour for places on the PIPs and DVPPs? Probably not, there are still 100 other reasons why these orders are not often made, but at least it is no longer 101 reasons.
P.S. Mediation will I think continue to be funded by the LSC as before.