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

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

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

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

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

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

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

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

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

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

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But seriously, although I don’t buy into many of the conspiracy theories about the anti-male agenda of the system, there is a place for campaigns for reform of the family justice system – dads, mums and kids do very often get a raw deal. And although I recognise that for many I’m part of the problem, I like to think I do my bit for justice, even though I do it from within the system.

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As for public campaigns, I’m sure that Matt O’Connor is a fantastic spokesperson and l0bbyist for F4J, and the new web / social media presence is certainly well designed and slick – and importantly very grown up. But how does F4J (the ‘official campaign’ as it has been forced to call itself) deal with the splitters and splinter groups that persistently damage its reputation and undermine the progress it is striving to make? Its the same old problem faced from Northern Ireland to Monty Python and I don’t think there is an easy answer. It damages credibility and its a chronic problem – and judging from correspondence being circulated by New F4J* its a problem that is likely to become acute in coming months.

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* I’m puzzled by this email from New F4J [edited to refer correctly to NEW F4J- oops], which starts off by ‘not condoning’ the vandalism, but by the end rather appears to have turned about face: ‘so be it’ and even to threaten more of the same ‘expect the unexpected’. That doesn’t read to me as a completely wholehearted condemnation of criminal acts in the name of father’s rights.

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Hmmm…I admire the sentiment – it is important that all groups of litigants in the family justice system should feel that their case has been dealt with thoroughly – but is it right as a matter of principle that those that complain the loudest should get special consideration? Unusually in this case there is no public or private expense in the form of legal costs as the appellant father was in person and the mother (as is usual with permission applications) was not involved at that stage. However there IS a not insignificant expense no doubt to Her Majesty’s Court Service and judicial time is being taken from something else when the permission application has already been thoroughly considered. What if the two judge court disagrees with Lord Justice Wall and grants permission? Would not the Mother have cause to complain that the Father had been given two bites of the cherry? Certainly if the boot were on the other foot there would be uproar about discrimination against fathers.

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This judgment makes me uneasy. Thoughts?

Apparently Batman and his specially modified hoover will be visiting the family courts soon to help clean them up. Excellent. I can’t tell you how much I am looking forward to that forthcoming entertainment. I hope he brings his marigolds. It’s messy out there.

I’m particularly intrigued to know how this little piece of performance art will unfold on the ground. Will Batman actually operate his hoover in the waiting area to dramatic effect (I fear this may interfere with his ability to deliver any punchy script)? Will we have to pause mid conference to raise our feet as he gets those hard to reach crumbs under the chairs? Will he have to pause to change bags or unclog his hose? Will he wield his hoover menacingly at the judiciary? And will it set off the metal detector? And will he be visiting the court at Abergavenny to finish cleaning up the F4J graffitti scrawled across the front entrance?

According to Batman’s facebook page he hopes to clean up family law “…who knows, I might suck up a few corrupt judges and the “gravy train, money hungry solicitors””. Batman dear, that sounds rather threatening. You’d better not point that thing at me, I am very lumpy and will most likely damage your nozzle.

Whatever the precise affiliations of those involved this mantle stealing jolly is pointlessly competitive. Juvenile. Egocentric. Unlikely to do the cause any favours. And irrelevant (why an airport for goodness sake?). Plain Stupid.

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This report is a really interesting piece of work, although much of what it says is no surprise: Everyone in the system works really hard to get parents to agree things…. Delay is a big problem…. CAFCASS are overwhelmed…. The majority of cases end up with some contact, a large proportion with staying contact….There are a difficult few that the courts cannot budge…..

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I’m interested in the take that The Times have on this though, namely that the report’s conclusions“conceal key failings with the present system that give credence to the pain and anger felt by parents who cannot amicably agree contact arrangements over their child or children”.  As John Bolch says The Times journalist gives three reasons: ‘firstly that fathers resent having to go to court in the first place to obtain what they feel should be their right; secondly contact orders may be made, but that contact may be “derisory”, and thirdly courts still remain effectively powerless to ensure contact orders are complied with’.

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But I’m not sure really what the criticism is here – this is a 200 odd page report. It is extremely detailed and deals (as far as is possible from the available data) with the three points raised. And one theme which becomes clear from reading the report in full (rather than just skipping through to the summary and conclusions) is this: that the resident parent (usually mother) is in an inherently strong position simply by being the one with day to day custody of the child. The courts work to counter that starting advantage with some but not complete success. In itself this inherent advantage is not the fault of the system although the problems within the system can compound that inequality. Enforcement is one of several problems which limit the court’s effectiveness. No legal presumption (which is what is being argued for) is going to change that. It isn’t going to affect the number of fathers who do have to rely upon the court to help them get the contact they and their children deserve (so you’ve got a legal right – so I’ll see you in court – same as before). And at my guess it probably wouldn’t radically alter the effectiveness of the courts in performing their role – most litigants either already know or are told by their lawyers or the judge at the outset of proceedings that this is effectively the way things work in any event (he’s going to get contact sooner or later, get over it). A legal presumption would just give fathers something to shout about without necessarily effecting any change in how effective the courts were (CAFCASS reports still take six months, Judges still have limited enforcement options, Mums who are prepared to ignore court orders will still do so).

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And yes, in some cases the quantity or frequency of contact is low, but the statistics contained within the report demonstrate that a large portion of non-resident parents are walking away from the courts with good solid weekend contact. Its not 50:50 or shared care for most parents, but given the geographical distance that is often between parents homes and the realities of a school week where most waking hours are spent away from the resident parent – its very often the most that can be practically manageable both for the parents and the kids. Often its all that is asked for because its what fits with people’s lives.

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Two other things I noticed about this report: 

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Judges, Solicitors, Magistrates and CAFCASS officers were interviewed but no counsel. I don’t know why this was but I think its a shame. I’m sure that the bar would have brought a different perspective (one of the things we do well) to the interviews and that’s an opportunity missed.

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The other point of note is this. There is often a lot of slippage between ‘non-resident parent’ and ‘father’ (Frances Gibb says ‘Fathers – take as shorthand for the non-residential parent’). Whilst the vast majority of the sample cases in the study involved male non-resident parents this was not the case across the board and nor is it the case in day to day practice. Oddly, given the fact that the background of the report was the claim of fathers rights groups that dads are subject to discrimination by the family courts, there is no analysis of the treatment of male NRPs as compared with female NRPs. This may have been because there were insufficient numbers of female NRPs to make the results viable but given that the oft repeated criticism of the family justice system is that it is biased in favour of Mothers and against Fathers it would have been interesting to analyse this (and conversely the treatment of Mothers with residence versus Fathers with residence). It is sloppy to suggest that NRP=DAD. Because it doesn’t. And it is sloppy to suggest that a disadvantage experienced by non-resident parents as a group is equivalent to or proof of discrimination on grounds of sex when in fact the correct comparison has not been carried out. Comparison of the situation of non-resident Dads versus Mums with Residence is bound to suggest a disparity because you are not comparing like for like. The report demonstrates that there is very probably an imbalance of power as between non-resident parents seeking contact and their exes, and that the courts can often only partially redress that imbalance. No doubt it affects men disproportionately (which one might I suppose describe as systemic sexism) but that’s not the same thing as the courts favouring mums over dads.

Rather than concealing failings in the system, I’d have thought that this report provides a wealth of material for fathers rights groups (and anyone else wishing to improve the system) with which to argue for change, increased resources. Perhaps not a document which will much help in campaigning for a presumption of contact but certainly one which could be usefully waved about by those wishing to improve things for children, for dads, for families….Why so furious?

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Dadinfo is a really useful and well put together resource for dads – and mums – and its section on relationship breakdown and legal rights gives a refreshingly balanced and plain english explanation of the position for dads who are worried what will happen if their relationship breaks down and they need to go to court. It doesn’t perpetuate the myth of judicial bias but simply acknowledges the obvious reality that cultural assumptions that we are all prone to rely upon about parenting sometimes play a part in judicial decision making. And of course those cultural assumptions about what it is to be a mum or a dad are being broken down every day. It promotes positive communication and attempts to resolve matters out of court – hurrah. I commend this website to you. I am going to add it to my blog roll now…

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One of the authors of dadinfo is a chap called Gavin Evans (he must be alright ‘cos he lectures for Birkbeck) who writes intelligently about the issue of gender and parenting roles on his blog. Posts and comments on that blog have led me to this book, which is now on my list of books to read just as soon as I have a mo (i.e. when I retire).

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It’s been nice to read these bits and pieces, and when I’m just about to go back to work and ‘abandon’ my little one to the one with the beard its particularly nice to hear about dads who have been involved in equal parenting ventures and made a success of it (not that I didn’t know they were already out there) without being bombarded with father’s rights style militancy. Although I don’t have any trouble with abandoning traditional parenting roles and chopping and splicing ‘mum’ and ‘dad’ roles to suit, you’d be surprised how many odd looks we have had when people hear about our plans for childcare.

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By way of example, last week whilst I was doing a half day at work, my other half was looking after the sprog in a coffee shop, and was told by a middle aged woman: ‘Oh you’re so good with him – my husband never did that with my kids’, as if his ability to sit and hold a 2 month old baby without being supervised by me was something to be marvelled at. Whilst it was obviously intended as a compliment about the modern dad, on his behalf I’m a little insulted all the same. Of course he’s good with him – he’s his DAD. Its not a freak show, lady. 

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Anyway, the point is – you might almost believe from dad.info that being a hands on dad was normal….We need more of that positivity about fatherhood. Dads are gRRRRRRRRRRRRREEEAAAAT! (NOT an endorsement of tooth-rotting-Frosties which are not grRRRRRRRRRRRRRRRRREEEEEAAAAT for teeth) RANT ENDS.

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Since 2003 the inclusion of a father’s name on the birth certificate is effective to grant him parental responsibility, and his absence will mean that he must either obtain the mother’s consent or apply to the court for parental responsibility. Often of course the main reason that a mother has failed to name the father on the birth certificate is precisely because she does not want him to play a part in the child’s life, including through parental responsibility and so more often than not the father will have to take the more litigious route. 

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The flip side of the coin is that inclusion on the birth certificate also triggers financial responsibilities to pay child support.

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However under the new proposals there will apparently be an element of compulsion applied to both parents: upon the mother to identify the father and for the father to sign the register. This is likely to have several ramifications as far as I can tell (assuming the requirements to identify and to sign are complied with):

• the grant of parental responsibility will go hand in hand with the responsiility to maintain financially – either both will apply or neither.
• mothers who wish to obtain child support will be unable (theoretically) to avoid the grant of PR by leaving the certificate blank. .

It is unclear how these requirements will be enforced. If a mother is determined not to identify the father or a father is determined not to sign – will the threat of a fine really make a difference? And according to The Times a sole registration will take place where obtaining the fathers details would be ‘impossible, impractical or unreasonable’ – including cases of genuinely unknown fathers or cases of abuse (does this mean in cases of children who were conceived by rape or is it more wide?). That is all well and good but doesn’t this provide a gaping loophole through which any mother who wants to can skip, and that renders the whole reform a waste of time? 

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I wonder how all this will work in practice? A birth certificate is a pre-requisite to an application for child benefit so whilst the registrar is messing about trying to locate the errant father so that she can finally issue a birth certificate – the child benefit payments are delayed. Of course all these things can be ironed out no doubt but this is just one of several ways in which this is a dumber and more complicated idea than it perhaps first appears.  

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And even if it is successful in its own terms – labelling parents as such and giving them theoretical responsibilities, what this law reform plainly will not change is the inability of the child support system to get blood out of a stone, or the difficulties in transforming the tage ‘parental responsibility’ into the ability to play a meaningful part in a child’s life in cases of implacable hostility. An ‘end to fatherless children’ as touted in The Times? I don’t think that’s very likely.

What interests me more is court’s interpretation of the welfare of the child - it is this that perplexes me most about the decision really. I see the point that the context is very different as between a child who has never had any meaningful link with a biological father and a child who has had some form of relationship with him which is better not severed but I’m not sure that renders the biological completely without meaning. For a child it is certainly significant  - although her emotional parenting is clearly more important in many respects than whose sperm made her, its well known that in adolescence adopted children often struggle with questions of identity and seek out (for better or for worse) their biological parents. Lord Justice Thorpe seems to have in part justified the secrecy now with the fact that the child can seek out his parenting in the future, but this seems to me to miss the point, storing up emotional difficulties for later in life, and perhaps more importantly sidestepping the significance of the father as parent rather than a mere locus of identity.

The Court of Appeal has correctly based its decision on the paramount principle of the welfare of the child, saying that the priority in a case like this was the placement of the child in a permanent home as soon as possible, and (suprisingly perhaps given previous authority and received wisdom) that the court should not require a preference to be given as a matter of policy to the natural family of a child.

But who is to say that the father could not able and willing to parent this child admirably? According to the Court of Appeal: the Mother. Her view of this, given her personal circumstances, is likely to be less than impartial, and one might observe that a one night stand hardly disqualifies one from the capacity for good parenting. Its dangerous to try and judge these things in too much detail without knowing the full case details – the court will have had a wealth more information than you or I, but I can’t help thinking that from the outside looking in, this decision looks a little like the court has been swayed by the Mother’s view / interests and the Mother’s account of the likelihood of the father or extended family’s suitability. And without investigating at least to a preliminary level there is no way of knowing whether the Mother’s pessimistic view is correct or coloured by self-interest.

To say that there was no evidence the Father could meet the childs needs and that the prospect of a placement with him was too intangible to warrant a delay, as the Court of Appeal did, is to beg the question – doesn’t this child deserve to have that possibility explored? Agreed: delay is detrimental, and the younger a child is when placed the better. But to discount a father out of hand seems to me to do a disservice to the child.