Children & Families Bill

‘Twas Queen’s Speech day yesterday – incase you didn’t notice. Cue much criticism of the Government for not announcing the “Economic Miracle Bill” or the “Job creation Bill”. As if legislation were no more than a fortune cookie. Anyhoo…as anticipated there was a lot of family law stuff in there (not gay marriage tho – sadly). So, thought y’all might like to read the following email from the Ministry of Justice. You can find a bit more info on the Dept of Education website here.

No time to blog properly but 2 thoughts :

1 The email makes no mention of a consultation about the wording of the shared parenting provision, although they are going to consult on the adoption aspects of the bill.

2 The DoE material suggests that “Ministers intend to strengthen the law to ensure children have a relationship with both their parents after family separation, where that is safe and in the child’s best interests.” and thatThe Government believes that this will encourage more separated parents to resolve their disputes out of court and agree care arrangements that fully involve both parents.” It may be a daft question, but isn’t there a risk that for every parent encouraged to resolve their dispute out of court (by which I think we mainly mean mums who might decide it’s hopeless to resist contact where otherwise they may have stood firm), there is another parent encouraged to pursue litigation in order to enforce the “right” granted by the legislation (by which I think we mean mainly dad’s who think they are now on a winner)? Just a question.

Now, that email:

As someone with an interest in family justice, we are writing to give you more detail on the Children and Families Bill which was announced in the Queen’s speech yesterday.

This Bill would intend to make it easier for parents to share their caring responsibilities; give families of children and young people with special educational needs or disabilities more choice and control; and support some of the most vulnerable children, including those in care or whose parents have separated.

Content of the Bill
We are determined to provide a simpler system for the provision of education, health and social care for children and young people with special educational needs and disabilities. We recognise that parents continue to face many challenges when their child needs extra support in their education, and even more so when their child has social care and health needs. The proposed legislation would ensure that education; health and social care services are jointly planned and commissioned by local authorities and health services working together. We would also include proposals for local authorities to set out a local offer of all services available to support children or young people who are disabled or who have SEN, and their families across education, health and social care.

The adoption clauses would reduce the time children have to wait for an adoptive placement. It would also see more children placed in stable, loving homes with less delay and disruption and improve their chances of leading full and happy lives. The legislation would prevent local authorities from delaying an adoption by searching for a “perfect match” for a child, particularly a perfect or partial match based on the child’s ethnicity.

With regard to family law, although going to court to resolve disputes about children should be the last resort, the proposed legislative changes in this Bill make clear that parents should work together to reach agreements about their child’s care when they separate. It would also set out that, where it is safe and in the best interests of the child, both parents should be involved with their child’s upbringing as fully as possible. We will consult shortly on how the legislation can be framed to ensure that a meaningful relationship is not about an equal division of time but the quality of time that a child spends with each parent.  The changes we are planning on public law will mean a care proceedings system in which delay is no longer acceptable and where there is a much clearer focus on the child and their needs.

Through proposals on flexible parental leave we aim to give parents more choice and flexibility about how they share the care of their child in the first year, enabling both parents to retain a strong link with the labour market. Extending the right to request flexible working will give all employees the confidence to ask their employer for flexible working without fear of detrimental treatment.

John Dunford’s review of the Office of the Children’s Commissioner stated that there was a continuing need for an independent advocate for children and young people, but that the existing legislative framework was limiting the Commissioner from fulfilling that role effectively. We propose to change the function of the Children’s Commissioner to one of “promoting and protecting children’s rights”, enabling the UK to meet better its obligations as a signatory to the UN Convention on the Rights of the Child.

Timing
We hope the Bill will be scheduled for introduction in the second session in the Commons, early in 2013. It would then be carried over into the third session for Royal Assent.

Consultation
All of the proposals in the Bill have already been informed by the views and experience of families and those who work with them. We would like to take this opportunity to thank all those who took the time to respond to consultations and calls for evidence over the last year, including the special educational needs and disability green paper, the consultation on the Family Justice Review proposals and the Dunford Review.

There will be a full public consultation on our proposals on adoption, and calls for evidence as part of the pre-legislative scrutiny process for the proposals in the Bill.

We wanted you to see the main proposals that would be in the Bill now, so that you are aware of what is being proposed. We would like to invite you to continue engaging with us on these matters, and please do get in touch if you have any queries.

 

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130 thoughts on “Children & Families Bill

  1. Yours is a daft question and its only from one perspective, mothers.

    It also works from the starting point that mothers are the automatic gatekeepers for children and are superior to fathers as parents, implying mothers automatically decide if they want to stand firm and stop the children’s relationship with their father or not and that is acceptable.

    Hopefully we will see more fathers becoming involved with their children as they begin to believe that they will not be treated as optional extra’s by the system. Certainly children will benefit.

    Hopefully this will be without an increase in litigation as parents are guided by the new legislation into agreeing more equitable arrangements. Certainly in Australia after the reforms applications to the Courts fell, parents were happier, judges were happier and family workers were happier. Lawyers were not.

    Strange that a mother’s ‘right’ to being an involved parent is not queried by you but a fathers ‘right’ is portrayed as a negative.

    The only ‘right’ that counts is the right of children to have a strong relationship with both of their parents. If this legislation improves the prospects of this happening then it will be a big move forward in child welfare.

    • Chambers,

      I’m not talking of oughts or shoulds – just asking what IS likely to happen on the ground? Most respondents to contact applications are mums, most applicants dads. I think that a presumption of shared parenting *might* encourage more litigation for some, although in some cases it may effectively steer families away from it.

      I share your hope for what a presumption of shared parenting could achieve, I’m just asking if that is realistic. I’m worried that what presumption won’t do what it is hoping to do.

      I’m not sure you are accurately representing what happened in Australia, but I’m still mid way through my trawl of that research (when I say mid-way I’m on pause due to work commitments).

      Incidentally I’m not querying father’s rights any more than mother’s rights, it’s just that fathers are more prone (for understandable reasons) to articulate their case in terms of rights. I think a “rights” based approach can be unhelpful, whether it is the rights of a mum or a dad. A presumption of shared parenting is likely to promote a parental rights based mentality in general, which from your comment I think you would agree is unhelpful.

  2. debbie spencer

    Do you have children? Why do you think that it is best for children not to have contact with one of their parents after seperation? Why do think that the Mother is always right? What makes you believe that the mother is always the better parent?
    have you ever experienced any of the situations you talk about?
    Have you been stopped from having a relationship with your Father or any other member of your family?

    • Debbie
      Yes
      I don’t
      I don’t
      I don’t
      I experience them daily when I represent clients both Mums and Dads (and kids) – but not personally except through extended family members
      No
      Your questions suggest you misunderstand what I am saying.

  3. Your question has another question attached to it and it is,

    Why is there another parent encouraged to pursue litigation in order to enforce the “right” granted by the legislation.

    This should not have to happen it should not be persued it should be there automatically if it best for the child/ren.

    If this is to kept out of the courts to free up the justice system then a whole new support network has to be set up in order to determine what and who is best for the child/ren.

    This bill also invloves the DoE and I am sure that the schools are already over-stretched in order to provide the time and support needed to facilitate a means of mediatiotion.

    • Wayne, I’ve said previously that I’m not talking about what should happen but what I think might happen.

  4. Debbie Spencer

    Sorry if I am misunderstanding what you are trying to say……I do believe(from the implication of your bloggs) that if you ever seperated from your husband you would believe that you were the better parent no matter what the consequences for your children in the future.
    I am a great believer in not preaching to the masses on something you have not experienced yourself……….

    • Debbie I think my husband is a great parent and I don’t know where you would have got the idea that I think I’m better than him. He is after all the main day to day carer for my children. I’m not planning on separating from my husband though (fingers crossed).

  5. Barrister equals what really? I will leave that for others to decide. I have my own opinion. Don’t we have a human rights law? So do fathers rights not fall under that law? I am a little confused as to why you ask such a question?
    It is about children’s rights to have a relationship with both of their parents and why are fathers rights any less important than mothers rights? It is quite simple. I cherish my young daughter. I have so much love to give her and I am a hard working law abiding citizen. She loves me equally as she does her mother. Her mum relocates with our daughter. Is this right without my consent or without consulting me just because she has moved on with her new partner. Why is it more important for the mother to have so much more time than the father with OUR daughter? I am trying to be polite but I am beginning to think that some people are just wired differently and can’t see the wood for the trees…

    • Yes I’m familiar with human rights Scott, and I don’t think that one parent’s rights are any more important than the other’s – I do think that the child’s rights / welfare is more important than either.

  6. Good grief, you talk about rights, you say the problem is fathers think it’s about rights, but you don’t mention the children’s rights. The children have a right to contact with both parents, provided that doesn’t put them at risk. If the parents were still together, the state wouldn’t normally interfere to exclude one parent or the other unless they posed a risk to the child and that risk threshold is pretty high.

    Suddently when the parent’s separate, the children’s rights are thrown out the window and one parent, yes usually the mother, gets to decide if the other parent should have contact. If the other parent disagrees and mediation fails, their only recourse is the courts, where the only winners are the legal profession.

    With a rebuttal presumption of shared care (note the word rebuttal) unless you can show this poses a risk to the child, both parents should, if they wish and it’s pratical, be perfectly able to share care.

    If you can’t show a risk to the child, why would the state intervene to prevent one parent from caring for their child just because the parents are separated?

    • Brian – see previous response just posted – the problem is not FATHERS rights per se, but the constant battle between fathers and mothers. Often, because fathers are refused contact they find themselves articulating that fight in terms of rights. I’m not criticising them for that but I do think that one side effect of the proposed legislation may be to encourage us all to talk about parental rights a lot more and one of the reasons that is not such a great thing is because it can be a distractino from what is right for the kids. I’m sorry if I didn’t articulate this well previously – I haven’t forgotten children’s rights at all, but ironically I had not made clear that the focus on children’s rights was the reason that a parental rights based approach may be unhelpful.

      I agree that both parents should have shared care in the absence of a risk – where we differ is as to whether the spelling out of that aspiration through a piece of law will achieve that in practice. I’m not sure that it will – but I might be wrong. We will have to see exactly what it says and how it works in practice.

      Finally, in general the state does not intervene to prevent contact – most often it is the inaction or toothlessness of the courts which is criticised in this kind of case. It is most often a parent who is intervening to prevent contact. But that is a slightly different discussion.

  7. Unfortunately your response to Debbie simply confirms that you do not understand this issue…..or what is best for children…which is to have healthy relationships with both children…….however…I do fully appreciate that if equality is the start point……it will affect the profits made out these sad situations by your profession!!!!!

    • Yaz I do understand it and I agree with it (i.e. the healthy relationships with both parents point).

      And they say that every law is worth 10 years of litigation. So I’m not worried this will put us lawyers out of business just yet, and that certainly isn’t the driver behind my concerns.

  8. debbie spencer

    Good luck with your fight to see your daughter Scott, (I do understand that you are also fighting for her right to see you) unfortunately people like Lucy Reed are never going to have any understanding of what you are going through unless it happens to them……as for your comment cant see the wood for the trees, I guess she lives in a forest…….

  9. The only measure of success that is worthwhile considering, is how many children are benefiting from the love and care of both parents.

    I couldn’t give a hoot for the ‘floodgates’ of litigation scaremongering that is being raised by some as that merely puts the judiciary’s work schedule before children’s general well-being.

    The reality is that applications fell (AIFS 2009) in Australia after the reforms.

    If you recognise that fathers are for understandable reasons prone to talking about rights (mothers don’t need to) then you should recognise that when they get them, then as mothers it will become a non-issue. A little like gay marriage, equal pay for women or ethnic minorities in the Police.

    We have a parental rights based mentality already, problem is it is mother only parental rights generally and children’s rights fall some way behind mothers rights for the most part.

    If we want to move towards children’s rights then we must move them away from being automatically aligned with mothers rights, which trumps children’s rights usually.

    The single parent model after separation used by the authorities is unhelpful and puts children’s rights secondary to mothers, with fathers way behind.

    • Chambers

      I think in Australia the legislative reforms were coupled with a massive education / services programme which no doubt helped to change mindsets. Sadly I don’t think the government is planning to support the reforms with the same kind of resources over here.

  10. Apologies….typo….I of course meant to say a healthy relationship with both parents.

    But since I am making another comment….you say that with this new legislation dads will think they are ‘on a winner’.

    Well, I ask you…..how many of those dads, after being condemned by the courts to be second class alternate weekend parents by the courts….have been taunted by the mothers of their children….’I won, you lost’…..when it was only ever a question of trying to achieve the equitable arrangements that are considered to be in the best interests of children.

    Under the existing system….the only real winners are the legal professionals…..the losers are the children!!!

    • Yaz,
      My choice of words was poor, but you are right parents often taunt one another with “winning”.

  11. Lucy,

    As usual it does not take long for a member of the legal profession to clearly indicate why they are entirely unfit for purpose in family law by manufacturing specious angles designed to undermine the spirit of any step forward that may endanger the endless flow of private and public cash into the legal profession’s pockets. Will it cause more litigation? The answer, frankly is yes and no. Initially yes, fathers will flock to the law once it is perceived to be no longer discriminatory towards them. They won’t bother with mediation because they have tried it before. They will take note of the legal principal that delay harms children and go straight to court. maybe thousands of fathers will be reunited with their kids after being disengaged from them by nothing other than the kind of weasel words you think you are so skilled at producing. In time, so long as the intent of the statutory changes flow through to practice (this time), intransigent mothers will settle out of court. Then litigation levels will die dow, as happened in Australia. No doubt when litigation initially peaks you and your scoundrel colleagues will say’I told you so, litigation is bad for children. shared parenting legislation increases litigation, shared parenting is bad for children.’ The usual old insane syllogisms. The usual fraud. You have probably the chance to put some cash away during the initial period, then hopefully you, and many like you, will disappear and no longer poison our society.

    • So Stu I think you are agreeing with me that it might increase litigation. That was all I was pondering. I hope it does ultimately have the impact you suggest it might i.e. more dads successfully getting more contact.

  12. something needs to change in law as the family courts are not protecting children’s rights or that of the fathers. that is my experience in over 2 years trying to have meaningful contact with my daughter. it is also my experience and of hearing others that when a mother is against any contact at all and will go to any lengths ie making false allegations and new ones as you go along the court process. the family courts are gutless and sexist against the father. This means it can take years of heartbreak and money for the father, and a child growing up not knowing their father for some years, this can have a detrimental affect on all involved. time to get real and protect children and fathers.

  13. If there is a danger that a statement inserted into the Children Act to the effect that children benefit from maintaining a meaningful relationship with both parents after separation will lead to more litigation (and I’m not persuaded that there is), and if this was the problem in Australia (I don’t think it was) then surely the question is how we should word the UK legislation to avoid that confusion.

    The problem in Australia seems to have been more that the publicity surrounding the 2006 reforms gave parents the wrong impression about the legal changes made. The debate in this country has been confused by the profound misrepresentation of what happened in Australia by the Norgrove reports. The Australian academic Professor Patrick Parkinson said recently, ‘Almost none of the claims made by the Norgrove Committee, or which were made to it and relied upon by the Committee, can be sustained’. That is a very serious allegation, but one Parkinson can substantiate. None of Norgrove’s claims can be supported by the evidence. Litigation levels in Australia fell (by 32% by 2010/11), they did not rise as some claim.

    Norgrove also behaved as if Australia was the only jurisdiction on the planet which had tried shared parenting and he ignored entirely a huge body of evidence and research which contradicts his position. That inevitably leads supporters of shared parenting to conclude that Norgrove was leant on between his two reports and that his final recommendation was imposed on him.

    If parenting disputes end up as battles between conflicting ‘rights’ there are some simple reasons for that: firstly it is parents who tend to be the applicants and respondents, not their children. Secondly, it is the views of parents (and other adults like CAFCASS officers and experts) which are presented to the court, not those of children (contentious, but just ask the children). Thirdly, it is the court which tends to present things in terms of rights and promotes those of the child above those of everyone else.

    One solution might be to start thinking in terms of families rather than individuals. I think it was the Morton Report (the last time anyone took a serious look at some of these issues) which lamented the modern tendency to concentrate on the needs of the individual rather than on those of society.

    • Nick I entirely agree with the proposition in your first paragraph – the wording is crucial.

      And to commenters more generally, since I seem to have p***ed everybody off – calm down. I was just asking a question. I may be wrong and I would be quite happy to be proved wrong. I’m not against shared parenting, but the law already that allows for it – and courts are increasingly using shared residence as a tool to achieve what this law reform is aiming to achieve. They need to be more ready to use it in my view, shared residence is still misunderstood by courts, lawyers and parents. I’ve just finished a pro bono case this week fighting for a dad to get shared residence and had the court agreed with me (it didn’t) shared residence would have worked fine thank you very much (not polishing my own halo but everyone seems to think lawyers incapable of doing anything that is contrary to their financial interests). I’m not against finding ways to make things better for dads and for kids (and mums of course), but I think it’s a legitimate to ask a question about whether this particular idea will work as intended without being accused of being the devil incarnate. People, you are entitled to disagree – but lay off the bad mouthing of Lucy Reed a little will you? Twas just a question.

      Lucy

  14. Chris Hopkinson

    “but isn’t there a risk that for every parent encouraged to resolve their dispute out of court (by which I think we mainly mean mums who might decide it’s hopeless to resist contact where otherwise they may have stood firm)”
    The above is your quote. My question is why should a mother resist contact in the first place? In the vast majority of cases there is no risk from the father to either the children or the mother, indeed there has often been a positive relationship between children and father prior to the marriage breakup. One possible reason would be to deny the father what he wants most, (vindictive?), time with his children. This of course denies the children what they NEED most, a relationship with their father. When a child does not have a positive father figure in their lifes, generally teenage pregnancy rates rise, juvinile drug and alcahol abuse increases, youth knife crime goes up. Somethings do go down – academic achievement especially among girls. And please don’t ignore these statements, I can back them up! Why do you insist that the mothers WANTS, have priority over a childs rights and needs?

    • Chris, the quote above is of me highlighting one of the possible up sides of the proposed changes. I don’t insist mothers’ wants should have priority over childrens’ rights and needs but that sometimes mothers put their own wants before their childrens’ needs. I think that in some cases, but probably not all, the proposed change will make this kind of mum think twice. It might also have some unforeseen or unwanted consequences.

  15. Northern Lights

    Strange and rather revealing that the simple act of posing a rhetorical question should provoke such vitriol…

  16. Lucy,

    I see from the above you have done what you and your venal legal colleagues always do…..fraudulently represent what others have said, re-interpret and twist their meaning into something that suits your own trajectory. I said the Aussie experience was that initially litigation went up, then plummeted as the message that resident parent chancers were no longer welcome was driven home. Legal firms in Australia now generally do not entertain malicious mothers. That has clearly not permeated through to the UK. Please, try, harder, when you quote me in future, do it in full.

  17. Nick Langford

    Where does the idea come from that any move towards shared parenting will increase litigation? All the evidence, from Australia and elsewhere, is that litigation levels will fall.

    The number of parents litigating isn’t necessarily an indicator that legislation is working well. After all, the removal of legal aid may cause fewer couples to litigate, but not necessarily for the right reasons.

    There need to be other measures taken of the effect of legislation.

    (You should propably plug your pro bono work a bit more!)

    • Nick, It comes from my own experience of what drives those cases that end up fighting. I’m not putting it forward as necessarily the right answer. And as I’ve already said the Australian experience may have been successful (to the extent that it was successful) partly as a result of the resources pumped in to support the law and a general change of attitude. We don’t have that here and the prognosis therefore for the law to magic away the problem is less good IMHO.

      I don’t dare plug pro bono more – I can’t afford to do any more of it without sending my husband out on the streets!

  18. I have to say, I was astonished that so much extraneous (and controversial) stuff was bundled up into this bill. As you can see from the brief discussion above, just the concept of how you frame a presumption of both parents playing a full role in their child’s life post separation is going to be complex and difficult.

    I can almost guarantee that the final formulation will be a fudge that pleases neither of the sides in this debate, and almost inevitably leads to litigation to unpick the precise meaning of every single word; which always happens when you have an Act which essentially provides for a lot of judicial discretion within a certain framework.

    So, that’s controversial and difficult. The 26 weeks cap for care proceedings is controversial and difficult. The adoption provisions are controversial and difficult.

    And then the Government have decided that this piece of legislation will also include changes to maternity/paternity pay (which will drag in employment lawyers, unions and big business into a family law debate), and Special Educational Needs assessments (and if there’s one topic of local government law which is more acrimonious than care proceedings, it is special needs)

    I don’t see this Bill getting the time and attention it needs to avoid all the provisions being watered down to the point of being bland, inoffensive and useless.

  19. Firstly you’re asking the wrong question first. You should be asking – why are so many mothers able to “stand firm” against contact when there is no justification? The answer is because the current system doesn’t work. Everybody knows this.

    If the father disagrees, the mother (and legal profession) raise the temperature and simply say there’s conflict, we can’t agree to shared parenting when there’s conflict.

    You say the courts don’t intervene when parent’s separate, but if my ex refuses to let me see my child would you advise I just go and take the child? Should I keep the child away from their mother the way she has kept them away from me?

    It’s time for equality, that’s the one thing which people can’t get upset about.

    • Brian,

      Case law says that conflict is not a bar to shared parenting / shared residence. Case law says that shared residence can be an effective tool to dampen conflict and to send a message to both parents that they are of equal status even where time is not divided equally. If that case law were more consistently understood, argued and applied we would not need a legislative amendment. It’s not the law that is wrong it is attitudes. By which I mean not just parents but also professionals of all sorts. The law might help engender a shift in mindset, let’s hope so.

  20. Good point made by Andrew Pack. There’s also a risk of an Act being rushed through with no evidence base nor rigorous scrutiny, ending up being useless but offending everyone! viz the Children & Adoption Act 2006 and Part II Children Schools Families Act 2010. They were both supposed to magic away the problems of family courts. Neither a great (or even a slight)success.

  21. Familoo,

    Parents, particularly those who are possessive and controlling and incapable of accepting a dad in the life of their children, will behave in the way that the laws and the courts allow them to behave.

    At present, we have a situation where mothers who are litigious and abusive are just a thorn in the backside, for which there is nothing to be done – hence, non-stop litigation. Fathers who exhibit similar behavior are, on the other hand, immediately give the courts the excuse they are looking for to make their job easier, and hence removed.

    To say that the fault lies with the parents is unfair; it suggests that the fault lies with both parents. The fault lies with one parent rather, and especially the courts, precisely for being incapable of handing out custodial sentences and transferring residency to dad.

  22. Interesting comments, mainly (yet again) because it demonstrates that personal abuse stands in for argument. I suppose it proves that if you stir up a hornets’ nest then what you get is…

  23. There is a very substantial body of case law to support the transfer of residence from obdurate mothers to fathers. To that extent, there is no need for any presumption to be introduced.

    My issue is that courts are notoriously slow to implement this step. Courts can be absurdly charitable towards hostile mothers, giving them unmerited chance after chance after chance to change their ways. I find it offensive as a professional that it should be legal dictum that the change of residence to a committed father is only to be the last resort. For heavens sake why?

    As a result, it often becomes the case that by the time the court grasps the nettle, it’s simply too late. The children have been too alienated from their father for the relationship to be repaired. Where this happens, frankly the system has comprehensively failed and needs to offer a grovelling apology to the father for its incompetence.

  24. I’ve seen the word “equality” bandied about here rather a lot. It got me thinking—what does equality actually mean? Is it something to do with time?

    50:50 shared (total) time? Equal division of ‘leisure’ time? Equal division of weekends? Does it change depending on the circumstances—is equality where parents live a couple of streets away different to equality when the parents live on the opposite sides of town? How much “equality” for the parents is good for children—is it good for children to spend all of their childhood being shuffled between two homes? How is this going to be dealt with in terms of finances where now both parents need to rehouse at a level that the family can live in? What about the income? To what extent, if any, does this matter? There will still have to be financial separation—do we need a change in ancillary relief law (thinking particularly of income and mortgage capacity)?

    Or is “equality” something to do with responsibility? If so, how much conflict can you have before shared parenting becomes impossible? To what extent does it need to reflect the fact that if, for example, a marriage has broken down due to infidelity, one parent is substantially less likely to trust the other? Should some powers be reserved to just one parent? How do you deal with conflicts? Should it take into account a foreign element—and if there is one should this discourage equal responsibility?

    In my opinion, these are (some) of the issues that need to be dealt with before I could become convinced that an amendment to the Children Act is both necessary and desirable.

    Anyone fancy a crack at answering those questions? Or am I right to fear that nobody has really thought it that far through yet?

    (N.B. That does not mean simply attacking me or going off on some rant about father’s rights, children’s rights, Australia or whatever. No matter how tempting it is.)

  25. So there’s case law for shared parenting, there’s case law for transferring residence when the mother won’t co-operate, there’s open admission the courts aren’t working and still there’s a reluctance the make a clear statement in legislation? Given all the evidence 1) that it’s in the best interest of children, and 2) that the current system isn’t working, why on earch shouldn’t you make a rebuttal presumption for shared parenting in the legislation?

    The message should be that unless you have a very good reason to object to shared parenting, going to court over residency/contact will result in an order promoting shared parenting. People wouldn’t slug it out in court if there was nothing to fight over.

    By the was the majority of allegations of abuse made by one party against the other in the family courts turn out to be false, and subsequently the false accuser goes unpunished for make the false allegations.

  26. inflagrantedilecto

    Jim….much food for thought…at the risk of getting another battering, (verbal), can I mention Noah Buambach’s film The Squid and the Whale, whilst fictional and dramatised it shows a potential downside to shared care arrangements. If the degree of parental collaboration is only limited to the division of time and does not take into account the social and emotional consequences for children as they move from one household to another where they still see and feel the hostility of one loved parent to another, then children can become further damaged,as in the film.

    2 things….one when I went to work for cafcass I asked my grown up children…..who still live with me…about their experiences of the shared care arrangements we parents made for them following our separation and divorce and both my children said moving between 2 households on a regular basis was a pain for them. having to cart treasured possessions and school stuff caused them difficulties as did their social arrangements.

    My children were 7 and 8 when the marriage broke up…and it was 50-50 at first…. based around my work shifts but within 5 years they were practically living with me full time because I had maintained the family home…. their attendance at local schools continued and their mother lived 30 miles away.

    Point 2 is that in my work with some parents, I would have liked to get them to watch the Squid and the Whale as shock therapy…and I still feel that it should be a back up to the SPIP’s if the trainers encounter a need for it to be deployed and discussed.

    A digression I know but thank you for your indulgence.

  27. Jim Nately – let me ask you this question – what is discrimination? Is discrimination when you favour one gender over the other? When, in 90% of cases Residency is awarded to one parent on the basis of gender stereotypes, is that discrimination?

    I was born male. I did not choose that, and nor did my parents. I myself chose to be a parent. I liked it and I was good at it. I was the primary carer for my children when I was at home, my wife used to hand them over as soon as I walked in the door so she could go and watch the soaps she had recorded that day.

    I was working to support my family because I earned more than my wife at the time.

    Should I be discriminated against just because I’m a male parent? Should I be discriminated against because I earn more money? Should I be discriminated against because of my race, religion, disability or any other characteristic which I possess?

    Equality is not discriminating against people for being different.

  28. Brian,

    Now you see that was precisely the kind of answer I thought I made very clear I did not want. It doesn’t answer any of the questions I said are important to me. It’s rhetoric—and rhetoric is cheap.

    Let me put this another way. I would like some suggestion as to how this presumption will work in practice so I can form of more nuanced view of it.

    Not unreasonable, no?

    Inflagrantedilecto,
    Indeed, the issues over shuttling children around is one of the issues where I’m really sceptical that the benefit from the balance of time spent with the each parent outweighs the cost of all the movement.

    I’m not an expert in child development though, so I can’t say when it does more harm than good or otherwise. It would be interesting to hear from the experts.

  29. Jim,

    I can put down some rules, which may or may not be right, but it’s better than what we have where each Judge makes up their own.

    Shared Parenting with a significant amount of the child’s time spent in each home should be the presumption if:

    1) The child is not at risk of abuse from either parent.

    2) That’s it really.

    If a parent lives within 30 minutes of a child’s school, then they should easily be able to do the school run more frequently than every other weekend.

    Case law indicates that a shared residence order does not require a certain percentage of time in each home.

    Questions of fidelity, income etc. are irrelevant during a relationship, why should they diminish the importance of a parent after separation? The child’s relationship with the parent should not be coloured by the views of the other parent, they have a right to an unhindered relationship with both parents.

    If you have an intractable dispute about something, let’s have a completely fair method of resolving it. Simplest solution would be to flip a coin. Nobody can complain that’s unfair.

    “NO” I hear you cry, “we have to consider the best interest of the child!” Well that would be nice, but if the parents haven’t separated, do we examine every decision they make? If one parent is in control, do we examine every decision they make? No we don’t, so why not provide a completely blind and unbiassed resolution mechanism? You can always take the issue to mediation and the courts if you really feel that strongly about it, but make sure your being reasonable.

    • Brian,
      That’s the problem isn’t it? Easy to write down a principle in a mere few words, harder to apply in practice. The problem is that whatever the law says there are (At least) two subjective and competing viewpoints that answer x is the right answer to the question – one parent may believe or assert the child is at risk, the other may deny it – regardless of whether or not one or both is mistaken the court has to find a way to work out what is really happening and whether or not the exception should be applied. Only the parents know whether they or their ex is telling the truth, and very often each may well believe they are describing the situation as it is – the court can only do its best to discern the “truth” from the material presented to it by them or by any other agency (eg CAFCASS). The court cannot, like the righteous parent, get to truth through first hand knowledge – it can do so only through the medium of evidence. This problem is the same whether you are talking about the application of s1 Children Act or a presumption of shared parenting. And you can’t just flip a coin where there are serious allegations of violence or risk, because to do that is to gamble with children’s lives and safety.

  30. Northern Lights

    Jim Nately,

    I think you have posed questions that need answering but will probably be ignored by those so vociferous in their support of this rebuttable presumption in legislation.
    I would say that there does need to be some redress of the single parent/primary carer model that informs our approach to AR; similarly Child Benefit and other benefits to which it is a gateway needs to be reformed.
    But the issue goes much further than that. If we are to reform our approach to family law, we must accept that there are attitudes that need changing from an early stage. It seems incredible to me that RE is compulsory in our schools whilst no provision is made for preparing children for the single most important role most will undertake in adulthood- that of parenthood. Let’s start from the bottom up and encourage a paradigm shift in expectations.
    Similarly, we need Health Visitors and Midwives to be more pro-active in engaging with both parents, whether together or separated. One of the complaints of fathers is that they have to jump through hoops while the mother does not. This is not strictly true- a pregnant or new mother is monitored by professionals and, if there are concerns, she will have S.S. all over her like a rash.
    You raised the issue of therapy in some cases and this is valid. Unfortunately, therapy cannot be imposed (it has to be accepted) and we are left with the issue of enforcement of orders in the face of what is often implacable hostility. My view is that the lower courts are much too slow to act. This needs to be addressed.
    On the issue of children shuttling between two homes, I have noticed over the years how reasonable parents who put their differences behind them can make this arrangement work (even when it is week about) and their children are fine with it.
    I am not convinced that the Australian model offers the way forward or indeed that separated fathers there fare much better but I do think there would be value in looking at other countries where parenting is shared more “equally” not simply by virtue of their law, but by what is probably a more forward thinking view of family- and one that is probably learnt from an early age. There must be lessons to be learnt there.
    .
    The simple fact is that, if we want to change attitudes to and outcomes for children and families, we need to educate young and invest massively in services for parents, including specialist family court judges. Given such an approach, I see no reason why the current legislation is in any way wanting.
    Sadly, I see little hope of the slightest improvement in any of these areas from a government hellbent on saving money, regardless of human cost and I wonder if the fathers rights activists who place so much store by this legislative statement are really just salivating over a pig in a poke.

    • Northern Lights, I think it would be fantastic if we educated our kids in PHSE about what it means to be a dad, a mum, a parent (I suspect a bit of that goes on but no doubt not enough – when I was at school it was called PSE and involved mainly attempts to stop us getting knocked up before we sat our GCSEs – I am still scarred by a graphic demonstration of the female reproductive organs by a male teacher who raised each arm to represent a fallopian tube and said in his best Are you being served voice “I’m a womb” – and to stop us sniffing aerosols. I think we need something more than that.). I think you are right – law schmaw. It’s about attitudes and education.

  31. Northern Lights

    Familoo,

    I remember a similarly graphic description of the female reproductive organs, although, like most other boys, it just made me snigger but that’s males for you.
    That isn’t what I’m referring to in my post, though (although I’m in favour of compulsory sex education delivered in an age appropriate way as early as possible) I believe that the issue of parenting itself should be taught and discussed in schools. There is obviously an issue as to how it could be delivered without hurting the children of single parents but I refuse to believe we cannot do better than we do now or that we would not be better off for trying.
    It has to be better than waiting until the dies have been cast and expecting the courts to mend the problem from the top down.
    The advertising industry has a lot to answer for too in perpetuating stereotypical gender roles. I’m a man; I(like many others) do all my own washing, ironing and can plait my daughter’s hair when she asks me. Strangely, I don’t see too many male protagonists in ads for the products I have to buy.

    • Northern Lights,
      Sorry I wasn’t suggesting it was just about sex education, just that that was about the limit of the education I got in PSE.
      And as for the advertising industry – feminists have been saying it for years – ditch the stereotypes. It seems to me that those fathers campaigners who subscribe to the notion that there is a feminist bias in the family courts and more broadly (not all of them obviously), would do well to remember that this work against gender stereotypes is for the general good, not just for the benefit of women over men. None of us wants to be stereotyped whether its in terms of washing powder, or our parenting capacity and role.

  32. Northern Lights

    Lucy, I know you weren’t suggesting that- I was just being a tad facetious. I know that feminists have been arguing against gender stereotyping for years and I don’t believe many understand the role it has played in pigeon-holing both sexes, let alone how difficult it is to overturn the results in one arena (contested contact/residence cases) with a re-wording of an already gender neutral piece of legislation. It is society that needs to catch up, not the law.
    There is a particularly vocal lobby of womens’ rights campaigners who have successfully created the perception that the rights of one gender and children are inextricably linked and it is hard to avoid the perception that they have influenced public perception (on the issue of DV) as an entirely gender specific issue. I believe that is what some fathers mean when they refer erroneously to a “feminist conspiracy” The protagonists in that area are not necessarily feminists in the sense that I understand the word. They are the flipside of the angry dads lobby- they have just been more successful. I never knew feminism to be a euphemism for a single issue victimhood, but a struggle for equality for both sexes and it is an equality that starts long before parents separate and go to court. Much of the protest from fathers’ rights activists about inequality seems to me to come very late in the day. How many of them complained about their roles before separation and divorce?
    Change has to come from the bottom up and attitudes need to be changed long before the children come along.

    • Northern Lights – yes agree entirely about the perception that dv is a male on female issue. which of course it is not.

  33. Why do you keep coming back to abuse? Most parents separated from their children are decent loving people. Most parents applying to the family courts to be allowed to parent their children are not hell bent on abusing them, they are dedicated and capable parents.

    In the absence of any abuse, there is no reason these parents should not be treated equally by the courts. There is no reason the children should be denied their right to know their parents, to have a meaningful relationship with their parents and to be brought up by them.

    Tarring these parents with the stigma of abuse should be unacceptable. The majority of allegations of abuse made in family proceedings are at best unfounded, and often plainly false. However there is no consequence for those who make false allegations and who arguably have perpetrated abuse by denying the children their rights. I would not separate a child from a loving, capable parent without good reason, would you?

    I’m pretty sure that none of the proposals I have heard so far for modifying the legislation suggest in the slightest that we should promote shared parenting where there is abuse. Maybe you can enlighten me as to any proposal which does?

    • Brian, I agree in the absence of abuse parents should be treated equally. But I come back to it because of the cases which do end up in court allegations of abuse (including of dv) are very very common. Some of course are true, some are exaggerated and some are just plain old malicious. But the allegations are very common and the courts have to take a view on them.
      As far as I am aware you are correct in saying that the proposals are not proposals to promote shared parenting in cases of abuse, but my point is that saying “shared residence unless there is abuse” doesn’t remove the problem of working out which cases involve abuse.

  34. So I come back to the question in your original post, namely:

    “… isn’t there a risk that for every parent encouraged to resolve their dispute out of court (by which I think we mainly mean mums who might decide it’s hopeless to resist contact where otherwise they may have stood firm), there is another parent encouraged to pursue litigation in order to enforce the “right” granted by the legislation (by which I think we mean mainly dad’s who think they are now on a winner)?”

    We have established that none of the proposed changes to legislation suggest putting children at risk of abuse. You also agree that parents should be treated equally.

    So what is the risk that this change to legislation poses? Is it the risk that parents who could prevent contact before because the legislation wasn’t explicit about the rights and benefits to the children of a meaningful relationship with both parents, that those parents will now get a clear message about what is in the best interets of the children and not seek to deny them their rights?

    The Children Act 1989 was made over 20 years ago. Why has it taken this long for the message to be heard? The time for this change is long overdue.

    • No Brian, it’s the risk that some (not all) non resident parents will see and use a presumption as a way to threaten or bully a vulnerable resident parent into agreement, or will institute and persist with litigation in order to achieve their notion of equality where otherwise matters may have resolved.

  35. So a parent who has been relegated to the status of a mere “Contact” parent who then makes an application to the court for a more meaningful relationship with their child where:

    * There is no risk of abuse
    * That applicaiton is consistent with the UN Convention on the Rights of the Child
    * It is in the best interest of the child

    is probably doing it to bully the parent who is hostile to more contact? Next you’ll be telling me that the act of making an application to court is bullying behaviour.

    It’s a nonsense to imply that using the proper legal procedure to resolve a dispute over parenting is bullying.

    It’s a nonsense to suggest that the legislation should not be changed because parents may use it to the benefit of their children.

    It’s a nonsense to claim that the majority of parents who are hostile to contact are vulnerable.

    It’s a nonsense to argue that the needs of the parent should trump the needs of the child.

    It’s a nonsense to claim that any of the proposals to change the legislation are not in the best interest of the children.

    • Brian,
      No. That is not what I am saying at all. If it were it would be nonsense. I suggest you go back and read what I said. Litigation CAN be used as a tool to bully in some cases but I am not suggesting that the mere pursuit of contact through the courts is bullying.

  36. Familoo: The fact of the matter is, though, that fathers are almost immediately branded as vindictive when they initiate litigation. The presumption is then made that they are bullies, and this conveniently meshes with what the solicitors and barristers have already convinced mothers to say about their ex-husbands.

    When fathers complain of their unfair treatment, this is then seen as further proof that they are vexatious. At this point, they submit a complaint to the SRA for all manner of blatant misconduct on the part of mother’s counsel, and begin to write letters to authorities inquiring why things are the way they are, and are for the most part ignored. They quickly learn that those very organizations that are meant to be holding rogue elements to account merely exist to provide the public with the appearance of accountability.

    It is interesting to observe, too, how barristers have most recently initiated something of a campaign against self-representing LIPs. The latter are not only branded as vexatious, but the suggestion was even put forward that they be dealt with heavy-handedly and obliged to pay the LSC so that it can go on funding mom’s campaign of hatred.

    Outrageous, as LIPs are LIPs precisely because they cannot afford representation; but that’s a good index of how desperate certain elements are to represent all men as bullies in the family law arena.

    • Guy, I’m certainly not branding most fathers as vindictive, although I do think that some are (along with some mums). I understand that one of the difficulties of challenging the established position or unthinking prejudice is that one can be seen as inflexible or difficult, and that this can feed into arguments about why control should vest with the other person (the “victim”). Sometimes that is actually what’s happening and sometimes its just prayed in aid of the position of the other party to bolster their case. I understand that.

      I’m not one of the barristers waging a campaign against LiPs (I spent 2 years writing a book for LiPs because I was concerned for how difficult it is to access justice as a LiP). In fact though I’m not sure what you are referring to when you talk about a campaign by the bar against LiPs. I think there used to be a view that most litigants in person were vexatious – but that is changing along with the demographic of LiPs. There probably was in the past a higher proportion of LiPs by choice, who may well have been vexatious, but these days most LiPs are not doing it through choice but through necessity and are reasonable people doing their best. By and large I think the bar appreciate this although no doubt we could do better. Who suggested by the way that LiPs should be dealt with heavy handedly and pay the LSC? Perhaps you are referring to one case and an application for a costs order, but although there would be circumstances where it would be appropriate to order costs in favour of the LSC, costs orders in children matters are pretty rare and rightly so.

  37. Lucy,

    I think Guy was thinking of this article:
    Family Law week http://www.familylawweek.co.uk/site.aspx?i=ed97034
    “Litigants in Person Cases: It Doesn’t Have to Be Like This”
    by Lesley Pendlebury Cox.

    • Brian – ah. Yes, I have read that. She’s not a member of the bar, she’s a solicitor. I don’t agree with what she says about a central fund, but it seems to me her main complaint is about VOLUNTARY LiPs, i.e. that class of LiP who can afford a lawyer but who prefers to plough their own path regardless of advice, and who can be rather difficult to deal with. I don’t think that you can or should restrict the entitlement of LiPs to choose to represent themselves UNLESS they are vexatious in the true sense of the word.

  38. No, she’s explicitly talking about LIPs or SRLs who cannot afford representation. Maybe you know people who can afford the tens of thousands of £’s to pursue contact with their children through the courts, but I don’t. Many parents are bankrupted by the experience.

    Why should any parent have to pay to be allowed to parent their own children? In the vast majority of cases they did nothing wrong.

    • Brian, I’ve just read it again and I don’t think she is talking about those who cannot afford representation. Anyway, agree to differ. As I say I don’t agree with all of her article anyway.

  39. I ask again – Why should any parent have to pay to be allowed to parent their own children?

  40. Northern Lights

    There seems to be one main body of presumption here, with a few variants.

    All LIP’s are fathers. Wrong

    Solicitors and barristers all represent mothers in their “hate campaign.” Wrong.

    Solicitors and barristers have played no part in advancing the canon of case law in support of shared residence. Wrong.

    No parent ever has genuine reasons to oppose contact with the other. Wrong.

    Anyone who questions the validity or merit of a sacred cow is motivated by self interest and greed. Wrong.

    All in all, it is a revealing insight into the skewed perceptions of those who inhabit the goldfish bowl world of FNF and their ilk.

    I don’t know what they are putting in the water but I’m glad I have never had to swim in it.

  41. Northern Lights – Huh? Are you talking about the comments on this blog or the article I’ve given the link to?

  42. Speaking as someone who sits, but not in family, the difficulties with LIPs (a problem for which the government is largely responsible) are these:
    1. They aren’t familiar with the law. As that is the necessary language for deciding a case on previous authorities, that poses problems for a Judge. It creates the problem of not favouring one side or another (depending if both parties are LIPs) as well.
    2. They are their own clients – and a lawyer who represents himself has a fool for a client. That tends to lead to a non-detached approach and personal involvement with a theory. In the end the risk is that they lose the audience.
    3. They are suspicious of the other side, to whom they tend to attribute all sorts of unfairness and underhand tactics. In fact, most lawyers do not behave in such a way and all that this belief does is waste lots of time.
    4. They are not used to backing up propositions with evidence. Being a lawyer is a skill and a large part of the skill is to say “this is what the law is (the easy bit, often) and this is why my case falls into this category (the hard bit)”. In the end decisions have to be made on the evidence and if it isn’t supplied, the party will lose.

    LIPs can do all of this and, having been beaten by them in my time (the shame :() some of them do it really well. But most don’t, because it is a task for which they are untrained an dill equipped. However, the reason that THEY normally attribute to losing is that they were done over by the club. This is understandable but unhelpful. It is why I believe that legal representation is good for a society and that the current cuts (in which I have no personal interest) are stupid.

    But to choose to do it when there is a choice is often to invite a sense of unfairness and victimhood. It may stem from an already prevalent stance of distrust, but it isn’t a good idea.

  43. Nobody is saying “all.” “Most” might be an understatement though.

    The only “goldfish bowl” that I know is the one inhabited by those whose job it is to capitalize off of child abuse, even if they dress it up for themselves in a rhetoric of child welfare.

    There are exceptions of course, and Northern Lights might be one of the better practitioners who refuses to work for morally degenerate parents, and who campaigns against the well-ingrained myth that all dads are the violent paedophiles that they are so often accused of being by those innocent “messengers” acting on behalf of mom.

    • Guy,
      Can you tell me how I should work out whether my client is the morally degenerate violent paedophile his ex says he is please? Because at present I tend to represent them even though the allegations might be true. Should I make a snap judgment instead and leave them without representation?

  44. Well, you’ve sort of twisted it around Familoo.

    The moral degenerates are emphatically not the ones who go into court for no other reason than that they want to be able to be there for their children. (Inasmuch as that is true, it is not your male clients you need to worry about).

    The moral degenerates fall into two categories:

    1) A very small minority of fathers who don’t take responsibility, possibly because they know it is a lost cause, and whom you would not be dealing with anyway.

    2) A very big majority of controlling mothers who are bent on abusing dads (and therefore their own children too) through the usual spurious allegations, the usual delays, and all the usual depressing motions that we are all so tiresomely familiar with…. These are the moral degenerates that you do deal with, but whom should be serving custodial sentences for the pain that they have caused everyone around them.

    • Glad you saw what I did there Guy.
      In fact I prefer not to see it in quite such black and white terms, but you’re forgetting the “moral degenerates” (to use your phrase) who are actually responsible for the violence or abuse they are alleged to have committed, but who deny it.
      You don’t seem to have on your radar that there are some parents who are abusive but who nonetheless pursue contact.

  45. Putting aside the problem with LIPs and abusive parents, because that really isn’t the thrust of the Government’s proposals, I didn’t get an answer to my question:

    Why should any parent have to pay to be allowed to parent their own children?

    Lucy?

    • Brian, Sorry I rather thought it was a rhetorical question. But since you ask, I don’t think they should.

  46. Northern Lights

    Brian,

    I’ll answer your last question. In a society that valued the principle of access to justice for its citizens, legal aid in some form would be available to all, albeit means tested in some form or other.
    Just as hospitals are for doctors and dentist surgeries for dentists, courts are for lawyers and those who need recourse to them should have access to qualified legal representation.
    The current system is unfair in that the cut off point for qualifying is too low and abrupt. The pending “reforms” remove access to justice for all but the rich and all the pro bono work undertaken by lawyers cannot possibly fill that aching gap.
    Again, my understanding is that organisations like FNF welcomed the legal aid cuts, again based on their skewed view that only mothers hostile to contact availed of it and that all the problems they saw in the family justice system could be attributed to lawyers.
    So, in answer to your question, no parent who needs to seek a remedy in the court should have to pay beyond their means for proper representation.

  47. OK, so in your originally blog you ask:

    “It may be a daft question, but isn’t there a risk that for every parent encouraged to resolve their dispute out of court (by which I think we mainly mean mums who might decide it’s hopeless to resist contact where otherwise they may have stood firm), there is another parent encouraged to pursue litigation in order to enforce the “right” granted by the legislation (by which I think we mean mainly dad’s who think they are now on a winner)?”

    To summarise:

    * None of the proposals risks abuse to children.
    * Both parents should have shared care in the absence of abuse
    * Parents should be treated equally by the courts.
    * Simply making an application for contact cannot be seen as an act of bullying
    * Most allegations of abuse made in contact cases are unfounded or false
    * There is a significant body of case law supporting shared parenting

    And yet in 90% of cases residence is decided in favour of the mother. These are the ones where the non-resident parent has had the courage or the financial means to go to court.

    After 20 years of the Children Act 1989, the system is still failing, why on earth would we think no change is required? Nobody, particularly not children, is being put at risk by the proposals. The real research from Australia has indicated a reduction in litigation and parents in shared care arrangements being happier.

    What is there to be worried about?

  48. Brian,

    I think you’re at risk of diving head-first into a plethora of logical fallacies. Ms Pendlebury-Cox’s views are her own, and you can’t just blithely ascribe them to anyone else who happens to disagree with you on any other matter. Similarly, it would be possible to share Ms Pendlebury-Cox’s concerns about voluntary LiPs—and perhaps even support her views on remedies—without necessarily supporting or agreeing with the extent of her argument.

    I you do want my view, LiPs do pose a number of problems. If LiPs who could afford representation chose not to have it and cause their opponent a significant uplift in legal expenses, costs orders are the obvious solution. Particularly so when the LiP brings the application—if the LiP brings a manifestly unfounded application as an LiP which causes the represented party to spend a lot in legal fees the answer quite simply is indemnity costs. Going forward, prophylactic section 91(14) orders seem wise for trigger happy LiPs.

    Put another way, why should one parent have to decide whether to pay the bills or fend off an unreasonable application? Particularly if the other does it at no financial risk to themselves?

    Having said all that, the onus is on the MoJ and courts to come up with something, sharpish. My gut feeling is that a simplified “FPR-lite” is called for: an FPR for LiPs. Court rules aren’t particularly conceptually complex (ooh, can’t believe I just said that :-) ), but formally they’re baffling without an up-to-date copy of the red book to hand.

    Put another way, if late service of documents is causing hassle, or late disclosure, or attempts to shoehorn evidence into submissions, don’t quietly sigh and let LiPs crack on. Get pro-active, and make sure support is provided to LiPs so the courts can turn around and say “sorry, that isn’t admissible/allowed etc,” having first ensured the LiP has had a fair opportunity to conduct the proceedings properly.

    I think there’s a solid argument that an FPR-LiP could be presented as a Code of Conduct that LiPs are required to sign up to before using the courts. The big issue is how to balance the need to cut LiPs a little slack agains the need to have procedural rules to enable the court process to work reasonably smoothly.

    Having started a discussion of what the word “equality” means a while back I probably ought to have returned to it instead of getting stuck into LiP issues…ah well.

    Guy,

    You mentioned above complaining to the SRA about other people’s representation. The short answer is that your opponent’s lawyers don’t really owe you any duty—they owe one to the court (first), then their client. Things like late disclosure etc are more likely to be a question for the court than the regulator.

    It is perhaps a trifle unfair that the regulator is likely to see you as a bit of a crank for making such a complaint—but unfortunately it does seem to be a common misunderstanding.

  49. The main problem the family courts have with litigants in person is that they actually want to fight social services and regain their children !Unlike most legal aid family lawyers who inevitably advise “go along with social services”!It is very difficult to get back a child that has been taken by the “ss” as the court is so prejudiced against the parents;Don’t take my word for it ,listen to L.J Thorpe !
    [edited because am not sure if the case you refer to is reported or not and don't have time to find out]
    Common sense would indicate that most parents prepared to fight through endless gruelling court proceedings in hopeless attempts to keep their families together must love their kids and should usually win .Alas more than 99% lose !This would not be so if parents had the same rights as murderers,rapists,and paedophiles who all enjoy the protection of the criminal justice system “innocent until proved guilty”,”no punishment without crime”etc

  50. “The real research from Australia has indicated a reduction in litigation and parents in shared care arrangements being happier.”

    Oh, God, not again. It has, but as has repeatedly been pointed out, the Aussies did an awful lot to improve their family justice system and the study on the reforms made it very clear that the presumption of shared parenting was not the catalyst for this. Seriously—enough.

    One of the important issues is to separate out the questions of “contact” (i.e. time with the children) and “residence” (i.e. the bundle of parental rights, powers and responsibilities). They aren’t the same thing, or even directly related.

    Equality of responsibility is perhaps the easier to address. Quite simply, you can only practically give joint and several parental responsibility to two people if they’re willing to at least not oppose each other. If parents A and B both have full parental powers (but are divorced) then both A and B need to be sufficiently ‘together’ not to be worried the other is going to, for example, change a child’s name, school, GP, or even fail to stick to agreements over time spent with the child.

    I’m sure the majority of separated parents are sufficiently mature to amicably split up and trust each other to responsibly use equal powers. But if two parents fundamentally cannot agree on how the parental powers ought to exercised at all, they can’t share them. To do so is, at best, going to perpetuate the problems that beset the marriage, and probably won’t achieve what is best for the children.

    The irony is that parents who spend a lot of time litigating are unlikely to fall into the group of parents who can work together to exercise parental powers jointly…

    The question of equality of time is more complex. First of all, there’s a belief that “alternate weekends” is grossly unequal. I’d rather reject that—while I wouldn’t like to suggest quite what one weekend-day is worth in terms of school-days, it isn’t 1:1 or anything like. At least, not if one looks at it from the perspective of the children

    School-day arrangements are clearly going to be fact specific. But unless both parents are out of work, it seems unlikely that both would be able to deal with getting the children to and from school on half of the school days.

    And, last but not least, one has to consider the issues over the extent to which cost plays a factor. It’s all very well saying to two parents you have “one week on, one week off” with respect of taking the children to school. But this means that you need two houses capable of supporting a the children which, unless the family is wealthy, there isn’t likely to be the money to support. Similarly, if there is a disparity in income capacities, there is likely to be substantially reduced mortgage capacities (and indeed, money for living costs) if the parent with the higher income capacity suddenly slashes their working hours.

    It has to be asked, to what extent are we happy as a state to support people who chose to take this path. Particularly where there’s no money for things like, say, effective legal representation…

    In conclusion, all I’m saying is that the responsibility and time issues are different and the problems inherent in both ought to be addressed. The reason I am sceptical about the proposed legislative amendment is, quite simply, because there is no evidence that they have been.

  51. Northern Lights – I don’t want legal aid for all, I want the rights of the children to be respected. No parent should have to pay to be allowed to parent their child, it’s the child’s right.

    “Just as hospitals are for doctors and dentist surgeries for dentists, courts are for lawyers”

    And car maintenance is for mechanics and fixing computers is for IT professionals, so I can’t change the oil in my car or install software on my computer? I have a complaint with the SRA against my ex-wife’s solicitor because this solicitor advised her to dis-regard a court order. It was the Judge who criticised the solicitor for this, but undeterred, this solicitor has done exactly the same again.

    As for the duty of solicitors and barristers, the court may take precedence over their client, but their moral duty to society comes first. That means the children’s needs trump the court or their client.

    There is no magic to the law, it is there to formalise our social conscience, our sense of justice and fair play. The law is for everybody and should be easy for everybody to understand. If it’s not clear in the legislation, then make it clear. If shared parenting is the intent, then make a statement supporting shared parenting.

    Jim Nately – There are many that will tell you that the majority of parents who apply to court for contact get what they ask for. That prompts a couple of questions:-

    1) Why do they have to apply in the first place, if their requests are found to be reasonable?

    2) If the court can’t spot an unreasonable application and manage it appropriately, what are they doing wrong?

    There is too much concentration here on details and far too little consideration of the big picture. The Family Courts are failing, Cafcass have been found unfit for purpose by Ofsted, a recent report found 60% of psychological assessments in family proceedings were of poor or very poor quality, most allegations of abuse are unfounded or just plain false, but go unpunished and children continue to lose all contact with their non-resident parents at an alarming rate.

    The problem is LIPs? No Sir, the problem is that the Family Justice system fails children on a daily basis.

    Lucy – I take no credit for arguing the case for the children, the only victory can be theirs. It is the duty of all of us to put them first.

    • Brian, I have to correct you. As a matter of law and professional conduct a barrister is required to put aside his morality and opinion and to focus on his dual duties to the court and to the client. To do anything other would place him in the position of judge.

  52. Familoo writes: “You don’t seem to have on your radar that there are some parents who are abusive but who nonetheless pursue contact.”

    No, you are right, I don’t. To me, “abuse” is a word that suddenly appears in children’s proceedings, and is entirely meaningless because it can be defined as almost anything that dad says or does, just so long as it gives the court an excuse to get rid of him.

    I think that for one who sees how easily pathologically abusive false allegations of “abuse” are made on a daily basis in the so-called courts of justice, and even condoned and encouraged, you could almost be forgiven for going so far as to see this phenomenon you call “abuse” as a complete myth. It is a myth that engenders and fuels litigation, to the merriment of the entire industry. It is a myth that bankrolls unhealthy charities, which prey on separating mothers in order to boost their statistics, and thereby attract more government funding. It is a myth that has ruined the lives of hundreds of thousands of children in this great nation.

    I’ve said before that in the majority of situations, the “abuse” begins squarely in the family courts, when one party is made to feel that they need to lie and cheat in order to maintain total control. I’d almost venture that in almost all cases, the abusive party is really the one who uses the courtroom to extend their abusive behavior towards the other party and the children.

    This needs to stop now. Not only does litigation hurt children, but it manufactures pathological single-parent families that end up reproducing sons and daughters that are the spitting image of their “abusive” parents.

    • Gosh Guy, pity the real victims of domestic violence or abuse because you seem to be saying they don’t exist AT ALL. Is that REALLY your position?

  53. And let’s get to the point, shall we:

    when you gender “abuse” as you do so often in family law and in present-day Britain more broadly, you are committing a hate crime.

  54. No, it is not my position. Have a second look at what I wrote, and let’s both save the language games for the courtroom.

    For the record, yes, I do pity those men and women who have suffered abuse, and I pity them doubly because of the mob (which, embarrassingly for your gender, tends to be nearly 100% female) that cheats, lies and ruins it for the poor men and women who have suffered.

    It is verging on a hate crime when certain agencies come up with slogans like “we need to protect women and children from domestic violence”; no attempt is even made to disguise how cheaply calculated this is, and how it makes so shamefully explicit and normalizes the lie that only males are perpetrators. As you know, this “lie” then feeds all too conveniently into family law. It’s not a hate crime, because apparently some out there still find it too subtle to be one; but it might as well be.

    I’m surprised that anyone working in the industry would really need me to clarify this.

    Have a look at Karen Woodall’s WordPress blog; she is about the only person that seems to care about the plight of children manufacture in the courts over the past half-century.

    You know what they say: if you are not a part of the solution, then you are a part of the problem.

    • Well I agree with you Guy about the insistence on referring to DV as a “women and children” issue. Not all us feminists subscribe to that particular generalisation. But to treat all female made allegations of DV as concocted is to commit the same offence in reverse isn’t it?

  55. Feminism is a red herring here, I’m afraid. I’m as much of a feminist or masculinist as anyone, inasmuch as I appreciate that we need to be more vigilant about how patriarchy and gender inequality become manifest.

    Any individual, charity or organization that promotes lies, and uses those lies to present entirely spurious arguments against shared parenting, is not worthy of the name feminist. They may call themselves that and pathologically delude themselves into believing that feminism equals power and control over body, mind, children, etc…

    But that’s not what feminism is about, and in the interests of the public, these people would be better off in therapy rather than in social work, where they can and often cause real violence.

    Feminism is about confronting the structures of patriarchy, which are alive and kicking in family law, and all the more so because we have so many little self-proclaimed feminists running around and frantically trying to preserve a dysfunctional status quo that restricts women to the domestic sphere of child-rearing.

    • Thank you I know what feminism is. I am not suggesting any particular organisation is feminist or not. I was simply saying I define myself as one. I agree that feminism is often misused / misinterpreted.

  56. “As a matter of law and professional conduct a barrister is required to put aside his morality and opinion and to focus on his dual duties to the court and to the client. To do anything other would place him in the position of judge.”

    I am a professional engineer. I am required to do my best for my employer and protect their interests within the law at all times. I could choose to work for an employer who manufactures weapons. I choose not to work for those employers, but instead to use my talents to try to make life better for just a few inhabitants of this world.

    You have a choice as to who you represent, and you make it, with or without your conscience. Please don’t try to tell me it’s your duty to choose clients who are denying the rights of children.

    • You might think they should, but a barrister DOES NOT have a choice as to who she represents. It’s called the cab rank rule and to breach it is professional misconduct. It’s a core tenet of the bar and ensures that noone is denied representation simply because the accusations against them or their position are unpalatable. (There are limited exceptions but they don’t relate to moral judgments.)

  57. In fact of course they DO refuse clients they don’t like by simply saying they are too busy with other cases at the material time.An excuse that can sometimes be true but sometimes not !Another example of the contrast between how things are mean’t to be and indeed said to be ,and how they actually are !

    • Forced Adoption we refuse clients saying we are too busy with other cases because WE ARE! I’m sure it’s used as an excuse sometimes but we often represent clients we don’t much like. The point is that our personal prejudices don’t prevent them from being represented.

  58. The “cab rank rule”, yes of course. Are you a slave, or is your employment some sort of indentured servitude? Are you forced to work as a barrister in family law? Should we be campaigning to free you from this terrible injustice of having to represent parents who are denying their children’s rights?

    It’s a long and difficult road to being a barrister and I’m sure you’ve earned your place. Being born female should be no impediment to achieving that and providing you have the talent and the will only your conscience could, or should keep you from your goal.

    I would support you in your choice and would condemn anyone who discriminated against you because of your gender, race, religion, ethnicity or any other attribute you possess that might differentiate you from others. I would also support you in your decision to be a working mother, and not to stay at home and look after your children full time. You are one of their parents and you should be trusted to be able to make these decisions in their best interest, unless is can be shown otherwise.

    Would you do for others what they would do for you? Would you oppose discrimination where you see it? Would you support the rights of the children?

    • Brian,
      No I’m not forced to work in family law. I choose to do so. I represent clients who need representation, not limited to the ones I like or agree with. Who am I to judge them? We don’t work in a moral vacuum but you have to make a choice as to whether or not you accept the rules that are designed to protect clients and ensure access to representation. If I chose to represent only dads or only mums I would still end up representing some clients I didn’t like much or who I had “issues” with – because every client and every case is different and the point at which one accepts a brief is not the time to judge or to stifle what might be a perfectly valid case. People need to be able to instruct lawyers who they trust will have an obligation to act in their best interests. If we all dropped clients when we felt like it just because they were being foolish or adopting an unpleasant position it would be a pretty poor show.

  59. That’s true, and most understand that barristers need to fight their corner for their client.

    But we are talking about family law, which is differentiated from criminal law, and so the question needs to be asked why the approach of barristers in this different arena is not different.

    You’ve moved us onto another aspect of family law that is completely unfit for purpose – i.e., the fact that it is all still geared up for an idiotic win/lose scenario that gives the lie to any hope that child welfare could be paramount.

    Asking why barristers haven’t campaigned for change on this basis, it is little wonder that they are mocked as money-mongering, and seen as part of the problem rather than the solution.

  60. “You have a choice as to who you represent, and you make it, with or without your conscience.”

    Well said Brian. Very true.

  61. As you yourself say Familoo “I’m sure it’s used as an excuse sometimes”.I REST MY CASE !

    • Well Ian it is inevitable that every rule is broken sometimes. Out of 10,000+ barristers I’m sure there are a few who do this. It doesn’t mean the whole profession is corrupt or degenerate.

  62. Oh Lucy, how could you believe that I would dare to think of your august profession in such degrading terms?? Perish the thought……

    • No doubt even you would concede that out of the 10,000+ rotten barristers there must be a few good apples.

  63. familoo, you are now completely bogged down in a dialogue with the deaf. I’m afraid it’s not going to go anywhere!

  64. “There are aspects of family law where the traditional adversarial approach is still required and appropriate.”

    What do you mean there are “aspects”? There is no part of it that is not adversarial.

    “…dialogue with the deaf…”

    How embarrassing. What amazing arrogance! What kind of privileged cocooned lifestyle allows one to say such things? It seems Jonathan is unaware that family law as it is currently practiced in this country is untenable.

  65. Actually I have always admired barristers except for those who practice in the family courts whose idea of a defense for bereft parents is to tell them to “go along with social services”.I would probably been a barrister myself but for the fact that when I came down from Oxford in 1954 I found that I would have had to pay a large sum to be a pupil for at least two years and would be earning nothing.I therefore seized a business opportunity and went on from there… Conditions are quite different now thank goodness…….

  66. Jonathan James, in your comment at 39 you said:

    “..it often becomes the case that by the time the court grasps the nettle, it’s simply too late. The children have been too alienated from their father for the relationship to be repaired. Where this happens, frankly the system has comprehensively failed and needs to offer a grovelling apology to the father for its incompetence.”

    The real victims here are the children. The legal profession too often view this as a battle between the parents – it’s a battle by one parent to be allowed to abuse the children by cutting out the other. That other parent is simply trying to protect their children’s right to have 2 parents.

    They may not know that’s what they’re doing, but by god that’s what they’re feeling and that’s what drives them, frequently to bankruptcy and sometimes to suicide. Children do not deserve to lose parents this way, offer an apology if you think it’ll help, but don’t forget your apology to the children.

  67. Fair point, Brian. Unfortunately the children won’t understand or appreciate the judicial apology because they have internalised the hostile parent’s anger themselves. Still, no reason why the apology should not be made and perhaps one day the children will understand.

  68. And when they have grown up and look for their lost parent, realising that they have unfairly hurt that parent, wishing to make amends, how do you word the apology then? And if that lost parent is not there, their life taken by accident or illness, how do you word the apology to fill the gaping hole left in their being?

    In my profession, if I make a product which doesn’t work my company doesn’t sell that product, they lose money and people lose their jobs. I make sure the things I make work.

    In the family courts, when the system doesn’t work, the case law and the “experts” can’t fix it for 20 years, do we say there’s no need for change? If you keep doing what you’ve always done you’ll keep getting the same result.

    It is time for change. This change has been coming for a very long time. Embrace it, get behind it and make it work.

    For the children’s sake I would like to think those advocates for change are not “completely bogged down in a dialogue with the deaf”

  69. The change needed to bring back justice to the family courts is really ever so simple ! The family courts must be replaced by criminal courts or amalgamated with them so that parents and children have the same rights as those accused of criminal acts.No punishment without crime,innocent until proved guilty,the right to call witnesses and to cross examine those called by adversaries,the right to see all reports shown to the judge,the right for the accused and friends to protest publicly without fear of arrest,the right to hearings by jury if permanent separation of parent and child is a possibility,etc etc

  70. FA, this means that if children are almost certainly being abused by their parents, you would still leave them in their abusive care? Anything short of certainty would not be good enough? This is, after all, the criminal standard of proof. Do you think the abused children would thank you for that? And do you seriously think that any civilised society should adopt that approach? Sorry, I don’t think that you could be much more wrong about this.

  71. JJ Nothing short of certainty should be good enough to break up a happy loving home?Certainly. Would the children thank me?
    Wel those who were woken up in the middle of the night by around 6 police and a couple of social workers and weredragged off screaming for their mothers might well thank me….

  72. I never said children should be left in abusive homes,just that a judge should be more than 51% sure that those homes are abusive before breaking up families.I get 2 or 3 new calls every single day and the most frequent tale by far is one of domestic abuse by a partner (often only verbal) who has long departed.Often a new non violent partner has taken his/her place but to no avail.
    I get sent the position statement of the local authority confirming the above and to check there are no problems with drugs or alcohol alleged. I usually start from the position that what the LA say is true,but there is even then still no justification for breaking up a family on such flimsy grounds of “risk”.
    Punishing parents who have committed no crime by “confiscating their children” is quite simply wicked.The risk of going into “care” is usually far greater than leaving children with imperfect but loving parent(s),but judges never compare the two risks or even concede that such risks exist before condemning the children to permanent separation from loving families.

    • yes but ian those are not the children i’m talking about as you well know. your proposal would leave those children who are in fact being abused unprotected. Wouldn’t it?

  73. To physically abuse a child is a crime Lucy,to leave a young child unsupervised is a crime,to be in charge of a child while drunk or “drugged up” is a crime,to starve children is a crime,not to send children to school is a crime,to leave a child living in unhygenic conditions is a crime.
    I think the criminal courts would cover all the most serious situations and would at the same time give families the same protection now afforded to the worst criminals.Time and again parents (who have often been cleared by a criminal court) are branded child abusers on a minimum 51% probability,sometimes without being allowed by their own lawyers to speak in their defence or to call experts and character witnesses to help them.
    A lot of things legally have changed for the better in the last 50 years, but it was a bad mistake to take child protection out of the criminal justice system.

  74. I have spent a hectic two months trying to adivse mothers on appeals against Forced Adoption of their children, and getting them to fighting solicitors if they can get funding.

    I am getting too old.

    Then there is the trailing down to the RCJ when they can’t and have to appear as an LIP.

    They mothers are usually close to hysteria.

    Oddly, in no cases has abuse been actually been suggested by the Childrens’ services Dept of whatever council it was.

    In all cases the kids were taken into care for silly reasons, the families are middle class and the mothers have then been condemned by expert witnesses for conditions no NHS psych can find and in which the famous BPD figures prominently. Half of Britain’s women appear to have it.

    However, the good news. There are frequently serious legal errors thaks to the overconfidence of the CS Depts.

    Soory, familoo, funny how the highly paid barristers for the mother failed to spot them and mount a fighting defence.

  75. Dick,

    It would not surprise me in the least to learn that half of all mothers (and fathers too) have BPD. (Fathers don’t count though, do they).

    I’d go further and suggest that this is on account of the fact that either they have been raised by single mothers or watched their mother slaughter their own dads in court.

    Britain has in-bred mental illness for at least two generations now.

  76. …. and who profits from all this. Doesn’t take a genius to answer that one.

  77. “A lot of things legally have changed for the better in the last 50 years, but it was a bad mistake to take child protection out of the criminal justice system.”

    Forced Adoption – This is very optimistic thinking. Just because we have a narrative and progressive model of time does not mean that humans progress. In matters of family law, any future historian will tell you that things got really nasty in the late 70s, and only continue to get nastier.

  78. I am not sure how my advising that criminal courts take over the family court system makes me over optimistic;especially as that is not likely to happen in the near future .
    I believe simply that children should never be taken for “risk” unless the risk is such as to be a crime (leaving a young child alone all day etc). Punishing parents who have never committed any crime by confiscating their children is in itself a crime and those committing it should be punished not revered by judges !

  79. Okay, one thing that has improved is the greater recognition of the legitimacy for children to be raised by homosexual couples – though I do wonder whether that extends to gay men as much as it does gay women.

    Anything else?

    Anyone on the ground will have the knowledge and experience necessary to reinforce my view that the involvement of fathers in families has been under attack since the 1970s.

  80. The ‘Children and Families Bill’ was debated in the House of Commons on 25 February 2013. A transcript of this Parliamentary debate can be found here:

    http://www.publications.parliament.uk/pa/cm201213/cmhansrd/cm130225/debtext/130225-0002.htm#13022511000001

    [edited - see my comment]

    Regards
    Bruno D’Itri

    • Bruno,

      I’ve edited your comment – you frequently attempt to post the identical or very similar comment on a number of posts, often over a series of weeks. I’m more than happy for you to say your piece once, and even for you to make the same point over again – but please stop bombarding the site with duplicate comments. You will have noticed I have stopped publishing the duplicates.

      Thanks

      Lucy

  81. I’m keeping you on your toes, my dear!

    After having posted elsewhere, I stumbled upon this ‘Children and Families Bill’ thread and decided that my comment – concerning the Children and Families Bill – was more suitable here.

    I’m not apologetic in the least, though. My primary concern is to seek to persuade as many people as possible of the merits of shared parenting legislation, so that the best interests of thousands of children can be better served.

    If, in the process, I slightly upset some folk, then that is to be regretted, especially when they are as intelligent and as attractive as you, my dear!

    Bruno x

  82. The debate regarding the Children and Families Bill and Shared Parenting continues…

    http://childrenandfamiliesbill.wordpress.com/

    Regards
    Bruno D’Itri

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