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

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

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

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

.

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

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

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

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

.

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

.

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

.

It’s concerning in the first instance that the drafts should have been apparently subject to criticism from respected academics, although it’s unclear from the article what the detail of those concerns were. It appears from the article that the academics were not consulted prior to publication, although this is not entirely clear. We are told however that the issues raised are now being addressed with the document being redrafted in a form more closely underpinned by a research base. That seems sensible, but it does leave one a little anxious as to the quality of the work being undertaken on behalf of CAFCASS if, as appears to be the case, research was not properly understood and incorporated from the start. FNF appear to have thought that this material was of sufficiently high quality to warrant publication, and CAFCASS either tacitly agreed or failed to keep an eye on what FNF were doing on their behalf. 

.

It is concerning when a statutory body with one particular set of aims and objectives appears to be allowing a campaigning organisation with a very particular agenda to draft its own practice documents. I find that odd. It is no criticism of FNF, but I’m just not sure that a campaigning body should be tasked with responsibility for work of this kind. FNF along with other organisations, experts and stakeholders could legitimately have an input into these documents, perhaps by way of a working group or committee, but that is quite different from one organisation being able to drive the content of the material that CAFCASS bases its practice upon.

.

The guidance is still posted on the FNF website here (no reference to it on the CAFCASS website at all). It reads very much to me as a document designed to persuade CAFCASS Officers who (the authors appear to assume) is likely to be predisposed not to take fathers seriously, as to the benefits of shared parenting and shared residence. It reads more as a campaigning tool than an impartial guidance document and talks throughout very specifically about Fathers being involved in shared care as if the intended reader (the CAFCASS Officer) will start from the proposition that a Mother will always be involved in day to day care in any event. It says more about the mindset and policy of FNF than it does about the mindset and policy of CAFCASS.

.

Bizarrely, the document wholly fails to set out the statute and case law pertaining in this jurisdiction (which is increasingly pro-shared care / shared residence) but does annexe statute relating to Australia, which is an interesting distraction. Again, I can only guess that this is because it is felt by the authors that the English law is unhelpful to the argument for shared care (which is not so) and that CAFCASS officers might perhaps be usefully enlisted to persuade the (apparently) reluctant English & Welsh judiciary of the error of their ways. In my experience Judges are often far more well disposed to shared residence orders than some CAFCASS officers, and are certainly (in the most part) up to speed with the law in this area. 

.

I do think that guidance for CAFCASS officers is needed: knowledge of the current best practice and higher court authority on shared care is very patchy. CAFCASS officers too often rule out or fail to consider shared care on the basis that the parents don’t get on very well, which is plainly outdated and contrary to authority. Not all Officers labour under such outdated knowledge, but it does happen too often. Clearly CAFCASS officers are busy and anything that helps them keep their knowledge of current guidance up to date is to be welcomed, but it must be a balanced and sound overview: what I’ve seen so far is neither.

.

I don’t know if my concerns match with those raised by Joan Hunt and Liz Trinder, but I would like to think that a project funded by the EHRC would be of a higher standard prior to publication, even in so called ‘draft’ form (EHRC website says that FNF have been awarded c£34k to ‘bring awareness and find solutions of how gender discrimination and / or a breach of human rights creates barriers to shared parenting’). Whilst the funding of FNF to undertake work for the EHRC is to be commended, I’m afraid that at the moment this specific document reflects both poorly on CAFCASS’ control of it’s own policy, and upon the professionalism of FNF. FNF are an organisation with a legitimate interest in this area, and a legitimate desire to have real input in documents of this type, but CAFCASS need to take responsibility for their own policy and for the professional development of their officers.

Children’s Society report (Thanks Teech Liz) – from a 2 second look at the Guardian’s related article it’s a report saying how sad life as a child is ‘these days’. Boo.

.

House of Lords Judgment in Holmes-Moorhouse v LB Richmond. See Family Lore and Nearly Legal who have beaten me to it. This as I understand it basically says you can’t force a LA to treat both parents as priority need for housing by using a shared residence order as a device. Boo.

The long awaited (and long) Court of Appeal Judgment in A (A Child) concerning overseas adoption. 33 pages. Boo.

These latter two are obviously important as they have landed in my inbox today sent to all FLBA members at the request of The Pres (not Obama, Pres of the Family Division). Now I just need to find time to read them.

For those of you who liked the snowman gag and who think the above is all a bit heavy for a Friday check out today’s newsbiscuit.

When made under s11(7) such an order would be prima facie enforceable like any other s8 order, although who can guess how keen a court would be to enforce this kind of order in practice when parliament has deliberately taken most issues of child maintenance out of the hands of the court.

.

Sorry to anyone who is wondering what I’m ranting about, but I DO feel better now. Back to work….

 Re P (A child) [2006] EWCA Civ 1792, [2007] 1 FLR 1820

The child was resident with its mother, who failed to produce the child for contact on 4 consecutive occasions. This was a breach of a court order which had a penal notice attached (a penal notice is a warning to the person who has to comply with the order that they must obey the order or they may be punished including by being sent to prison). There had been a previous history of the Mother failing to attend court or to facilitate contact.

On the Father’s application the court made a committal order against the Mother (a committal order is an order punishing someone who is in contempt of court because they have disobeyed a court order, and this can include a prison sentence) even though the Mother had not been at court on the day the committal order was made. The Mother had failed to attend court, citing childcare difficulties and an application on her behalf for an adjournment had been refused by the Judge who went ahead in her absence and made a suspended committal order (this means that if there was a further breach she would automatically serve a sentence of imprisonment).

When the Mother appealed the Court of Appeal upheld the committal order saying that it was appropriate in some cases to proceed with a committal application even when the Respondent (the Mother) was not present. The key factor here appears to have been the importance of ensuring that the Mother complied with the contact orders and given the Mother’s history of non-attendance the court was entitled to go ahead and deal with the matter. The Court of Appeal held that the Judge was entitled to take the view that the Mother’s reason for not attending court on that day was no more than an excuse. The Court of Appeal noted that it would have been better if the Judge had set out his reasons for the order made, but the order itself was allowed to stand.

Re A (A Child) [2007] EWCA Civ 899

In this case there was a history of attempts by the Mother (with whom the 8 year old child lived) to interfere with and interrupt the Father’s contact with the child. Court proceedings ran over a period of years during which the Judge warned the Mother that if she continued to disrupt contact the court would consider changing the child’s residence to the Father. After findings were made regarding the Mother’s deliberate sabotage of contact the Father chose to proceed not by way of a committal application as in the case above, but by making an application for residence.

The Mother’s behaviour continued. At the final hearing the expert evidence (social worker and psychologist) was that it was in the best interests of the child to live with his Father. The Psychologist’s view was that the Mother had a serious personality disorder and had a total lack of insight into how her behaviour was damaging for the child. The Social Worker’s evidence was that although the child did not want to live with his Father the long term risk of emotional harm were outweighed the short term trauma to him of a change of residence.

The court in this case plainly took the long view. In light of the Mother’s personality disorder (which are usually difficult to treat) there was little prospect of a change in the Mother’s behaviour so the prospects of maintaining a relationship with the Father without causing emotional damage to the child must have been pretty remote. The change of residence was ordered against the recommendation of the child’s headteacher and in spite of the facts that the Mother was acknowledged to provide very good care for the child who was doing well at school, was settled and wished to remain with his Mother. However it is not every case in which there will be a clear diagnosis of a personality disorder – most often the case will be far less clear cut.

One feature of the case is that the social worker involved in his report ruled out termination of contact with the Father as ‘not an option’, leading eventually to the inexorable conclusion that the only way to ensure a relationship with both parents was to change his residence. Unfortunately it is not always the case that social workers / CAFCASS Officers / Judges are prepared to take the same robust view – the professionals do sometimes advocate termination of contact as the least worst option for the child, although I think this is happening far less often, as is evidenced by the increasing frequency of law reports involving cases of a change of residence arising from the resident parent’s implacable hostility.

 In the matter of C (A Child) [2007] EWCA Civ 866

Again a case where a Mother repeatedly failed to cooperate with contact orders and sabotaged contact by making negative comments to the child about the Father. The Court held that the Mother was implacably hostile to contact. In this case the court had to weigh up the two options of committing the Mother to prison or changing residence. The child was c6 yrs old. The Father’s practical parenting ability as a primary carer was untested. The Mother had effectively issued the court with an ultimatum, saying that if residence were changed she would refuse to have any further contact with the child. The Judge took the view that since the Mother had made but not followed through on previous threats in the course of the proceedings this threat too may well not become a reality if residence were changed, although it was a risk. The Judge rejected the Mother’s offer of contact made half way through the hearing as he was not persuaded she would honour her offer.

The Mother had recently had a baby with her new partner and so instead the court ordered an immediate change of residence. The Judge had looked at the Welfare Checklist and struck a balance between the short term distress of a change of residence and the risk of long term harm. The Court of Appeal upheld the order. In the Judgment of the Court of Appeal Lord Justice Ward said: