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.


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.

Down at Heel

WhatsApp from my dad yesterday :

Hi Luce, I expect you’ve seen Baroness Hale’s views on compulsory high heels for women. She wants equality, high heels for men as well! 

It was followed by a cheeky nerdy face emoji so I think it was intended as a joke. Difficult to tell with my dad.

I was perplexed. I had not seen the interview. I’m still perplexed. Nobody has ever told me I *must* wear high heels. My now far more infrequent wearing of high heels is entirely self imposed (self imposed shackles borne of my conditioning since birth by the patriarchal system, natch). I am short. I prefer to be a bit taller. I think high heels look smart. That I’ve reached the age where the trade off is no longer worth the discomfort and irritation of constant reheeling (I wear boots to work and switch shoes only whilst at court), does not change the fact that I chose to wear high heels for much of my professional life, although I could never manage or carry off the full on six inch stilettos. Maybe I saw everyone else doing so and thought I ought to in order to look the part; maybe putting on the heels gave me that bit of confidence to stand up and be tall in court. And maybe my perspective has changed now I’m older and I realise my strength is not in my stilettos. But…

The idea that someone would TELL ME to wear heels is flipping outrageous. I wondered what on earth Baroness Hale was on about. But I am assured via twitter that there are solicitors’ firms where this is a THING.

I have no reason to doubt that is so, but it is really shocking. Moreover apparently it isn’t limited to heels, but also extends to overt instructions regarding nail colour, and the colour of clothing. I had no idea this went on. I like to think I’d spit the dummy if anyone attempted to impose this on me, but who am I to say how difficult it would be for someone just trying to make their way as a junior employee in a competitive field?

I am confident that I would not last a moment in such an organisation, as much because of my basic level personal grooming skills as my feminist principles. By all means instruct me to attend court without a coating of dog hair, with vaguely clean nails, with the mud wet wiped efficiently from my boots and with my hair at least smoothed down to some sort of momentary calm, if not brushed and styled into submission. But ask me to waste my valuable time giving myself a flipping manicure when I should be thinking through my cross examination and there may well be a shoe throwing incident. And believe me, you don’t want to be on the wrong end of my shoes. They are flat but smelly.

I don’t know what support we boot wearing established women can offer to those in a more tricky / vulnerable position but I do hope this is called out. And that any firm (or chambers) who recognises that they do this is squirming. Take a look at yourselves! And stop it before you get caught out.

Got Data Protection Rage (GDPR)

No. I won’t be sending you a stupid GDPR email.

No. I won’t be sending you a stupid GDPR email even though you have not heard from me for over a decade and are pretty sure you never bought anything from me in the first place.

No. I won’t be sending you several reminders to check if you’re really sure about the withdrawal of consent I’ve just pointlessly procured from you.

No. I won’t be doing any of that (You’re welcome).

I have (finally) added a damned cookie thing on the blog, but I hope that’s a minor irritation amidst a sea of GDPR lemmingitis. I’m not completely convinced it is really necessary, but hey. Click it and it will go away for ever, I promise.

In fact I’ve been told off this week for NOT sending out my Monday morning emails. So Rebecca, this is your fault.

In other ‘what is the world coming to’ news, HMCTS security continues to delight and entertain us with it’s popular confiscation roulette. Confiscation of ipad stands is last week’s special – this week’s was the confiscation of an advocate’s high heels (and somewhat more unsually a septagenarian’s cake slice). Back in the West Country however, my opponent trotted back from the coffee run in high heels with a massive borrowed metal roasting tin full of half a dozen lattes, unhindered by security staff. Neither the heels, nor the tin were confiscated as potential weapons, and nor was she required to sip or prod the froth on any of those coffees. For lawyers, who value consistency and predictability above much else, this is a cruel and unusual punishment indeed. We wince when our shoes are confiscated. We wince when they are not. These small daily trials of pointless arbitrariness and caprice have us lovers of logic and rules unhelpfully tense and ruffled before we’ve even crossed the threshold. The CEO of HMCTS is still gamely promising ID cards for us.

It doesn’t get any better once you’re in. The MoJ has put together some excellent public information materials for the unsuspecting litigant in person (pics thanks to @itsdavegreen). Of course, when I say excellent I mean utterly daft. And just plain wrong. Who knew that barristers give evidence on behalf of their clients? And who recognises the depiction of a courtroom populated with barristers AND solicitors and entirely devoid of mckenzie friends or litigants in person… Admittedly everyone is slightly green looking, but I don’t think that is meant to be a visual pun…

Other obvious flaws in the poster (apart from the fact it clearly doesn’t describe the shape of many family court hearings where there are more than two parties and a bench) are :

  • the fact that anyone is physically in a courtroom at all – wot no video links?
  • litigants in person will be unable to identify from the poster which of the lawyers are barefoot
  • although the posters probably meant to show equality of arms in action, there is a notable absence of any limbs at all. An armless omission perhaps…
  • I’m hoping that the fact there seems to be  single advocate for both parties is not portentous…

I wonder how many green lawyers at how many hearings the money spent on those posters could have paid for?

Anyway, in acknowledgment of the fact that this is a somewhat lacklustre blog post, do feel free to click unsubscribe if on its arrival in your bank holiday inbox you feel the need to cut me out of your life… *sniffs*

And if you have just arrived her under your own steam and think ‘Meh’ – well, you know… Maybe don’t subscribe to my Monday mailshot.