Co-operative Parenting

Posted on September 22, 2012 by

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The Gov’t issued a Consultation paper in June 2012 related to shared parenting but titled: “Co-operative Parenting Following Family Separation: Proposed Legislation on the Involvement of Both Parents in a Child’s Life.”  It was issued jointly by the Department for Education and Ministry of Justice. The closing date for all submissions was  5th Sept 2012.

The following responses are those of Men’s Aid to the pre-set questions contained in a Questionnaire format.

Shared Parenting

1 . Which legislative approach will be most effective in meeting the Government’s stated objectives? Please explain your reasons, including any preference for / objection to particular phrases in the clauses (or possible variations described in the explanatory notes)?

Option 1 (Presumption)                            Option 2 (Principle)

Option 3 (Starting Point)               Option 4 (Welfare Checklist)

Comments:

None of the above. Not one of the options carries a clear unambiguous message. Instead they are riven with caveats and pre-conditions which can, and will, be interpreted by courts to frustrate the Bill’s intention.

We recall that the CA 1989 was supposed to embrace ‘no order’ orders as well as ‘shared residence’ orders. Official statistics list the ‘no order’ orders but where are the shared residence orders ? No where to be found.

Former minister David Blunkett speaking at the “Speaker’s lectures: Great Offices of State”, (May 15th 2012) conceded that exhausting and complex Bills suited ministers because they could hide a lot of  unpleasant powers within them. This aim is assisted by imprecise and ambiguous wording.

Shared Parenting, based on the rebuttable presumption criterion, is the only post-dissolution child care arrangement acceptable to fathers’ groups after decades of sandbagging by Whitehall and the establishment.

Shared parenting is clear, simple and easy for all to understand. This form of shared parenting provides the only practicable continuity of parental and family relationships (under joint parental authority) embodied in the Best Interests of the Child (BIOC) standard.

The 4 options, we feel, will place the courts in a dilemma and they may, therefore, duck the reform and revert to type. The courts will find themselves trying to promote the child’s “best relationship possible with each parent” irrespective of the amount of contact a child may have with any parent. Far better to give clear guidance as per Belgium 2006, Australia 2006, and Denmark since the 1980s.

Arizona is a recent jurisdiction to join the move to ‘shared parenting time’ (termed PT) and the positive results are contained in a new 2012 paper by W. FABRICIUS et al (see “Parenting Time, Parent Conflict, Parent-Child Relationships, and Children’s Physical Health” by William Fabricius, Karina R. Sokol, Priscilla Diaz, and Sanford L. Braver).

One of the most significant aspects of Australia’s reform was the introduction of a rebuttable presumption of ‘equal shared parental responsibility’. In particular, the concurrent obligation placed on family courts to consider ‘equal time’ and ‘substantial and significant time’ arrangements where the presumption applies.

Research points out (ref William Fabricius), that parenting time with the father is strongly related to the long-term quality of the father-child relationship. Some people advocate ‘quality’ time with the child as a better solution, but this can only be realistically achieved where a sufficient ‘quantity’ of time is first permitted.

2. Will any of these options change the way that courts apply the principle that the welfare of the child is of paramount consideration? Please explain which one(s) you think might do this and why.

Yes                 No                   Not Sure

Comments:

We have responded with a “no”. Opponents to shared parenting, such as Liz Trinder, point to the ‘sacrificing’ of the welfare principles if both parents are to get shared custody, i.e. the father gets more than the merest 14% of time in a year which is the current average. It is therefore a nonsense and dishonest to suggest that raising this proportion to 20% or say 25% will compromise CBI (the child’s best interests), or sacrifice the welfare principles as Trinder and others believe.

If 18% of Britain’s children currently see their father ‘once a week’, why should not this be increased so that more children and fathers can see one another weekly ? https://sharedparenting.wordpress.com/2012/07/22/17/ .

The Children Act 1989 was supposed to draw a line under the old way custody decisions were based and it was supposed to usher in a more enlightened epoch. But the first post-1989 case to come before the High Court was settled on the pre-1989 Act basis. In that regard little changed and history may repeat itself.

Children Act 1989 revoked a parent’s right of sovereignty (father’s guardianship) over his own legitimate children while retaining it for the court. Part 1, Sect 2A, states that; “The rule of law that a father is the natural guardian of his legitimate child is abolished.” If the father is no longer the child’s guardian, then who is ? If the answer is “It has been replaced with ‘parental responsibility” then this is to misunderstand the breadth of guardianship compared to the puny nature of parental responsibility. Why else did courts not embrace parental responsibility (PR) and leave guardianship to parents if PR was as powerful as is claimed ?

The confiscation of this human right (guardian of one’s legitimate child) might have been acceptable prior to the Human Rights Act 1998 but not now in 2012. Reversing the dilemma one might ask: “Has a parent the right to forfeit or surrender voluntarily their right of sovereignty and obligation over their own children ?’ If the State’s reply is ‘no’ then it outlaws the powers and its actions it claims under the 1989 Act.

The state is overreaching itself when it places itself between child and parent for no good reason (acceptable in public law cases). This attitude stems from an era when “the state knew best” and politicians believed the state was the best parent.

Such an attitude is both arrogant and dismissive. It insults voters and impugns cultural heritage, especially among the ethnic minorities. We would remind you that the Law Commission in one of it reports stated that ‘guardianship’ long preceded the invention (yes, invention) of the family, i.e. Report No 91, pub’d 1985, p2.

This secular way of thinking of the 1980s inevitably ends in ‘the state’ giving maximum rights to a child (who does not know what they are or how to use them) while leaving adult parents with less rights and in a second class citizen status. Isn’t this just a little bizarre ? Why give a child such overriding rights when he/she is not even allowed to vote ?

Whatever form of words is finally adopted and however those words are construed government can rest assured that judges can be relied upon to make the welfare of the child the paramount consideration. ? Whether this will torpedo the aims of the reform is very open to speculation.

3. Do you think that any of these options will change the court’s final decision in certain cases? Please explain your answer.

Yes                 No                   Not  Sure

Comments:

No, and the root cause for such a reply is a lack of appropriate training. Judges operate in societal ‘bubble’ and are wholly unaware of current research. Ormrod’s interpretation of the divorce reforms (of 1969) personifies this sterile culture which Lord Justice Dunn brought to light in his book “Sword and Wig.” Ormrod was guided by his own individualistic values which saw women in their traditional role, at home, and viewed fathers who wanted to care as workshy.

Giving judges ‘total discretion’ is a mistake not made by some other countries that place obligations on judges to perform what the law states.

The Judicial Studies Board should be the conduit and repository for ‘education and research’ but it has failed in that task. The Judicial Studies Board’s claims that:

  •       “The JSB purpose is to ensure that judicial officers are equipped with the skills  and knowledge which they need to discharge their duties”

In exchanges with them some years ago it became clear this was observed more in the breach than in the reality. This view is supported by Wall LJ who remarked atPara 8.29 that: “I am not currently aware of the curriculum provided by the JSB to trainees for family tickets. I strongly recommend, however, that no judge should sit for the first time in private law proceedings without having undergone training which includes multi-disciplinary instruction on domestic violence. I also think it imperative that all refresher courses contain updating on domestic violence issues.”

Some years ago the JSB had a budget of over £11 million but it was even then unclear if it was used widely. The content and duration of the course for the ‘family ticket’ is not transparent but appears short (a matter of days) and is rumoured to be skewed in its political outlook. We accept that the above is ‘history’ – water under the bridge given the RyderReport – but it is a lethargy that could infect any future structure.

We long ago (circa 2005), identified the Judicial Studies Board as a problem area. Supposedly  responsible for providing training to judges replies received from the JSB made it clear that regarding education or instructions they had no plans to provide large or small groups of judges with training or education on any legislation in the immediate future. At the time of the Children and Adoption Bill the JSB stated:

  • “We are not at present planning any training for large groups of judges on any legislation that is currently going through parliament.”

The Ryder Report while most welcome, is years overdue and implementation of any of its recommendations will take yet more time, circa 2014. We are, however, pleased that emphasis in the report is placed on research’ and ‘outcomes’ for children. We trust that means the correct use of the term ‘outcomes’ and not immediate results as is often the case.

The fate of the 4 options listed above depend on these people who are not best qualified and in whom the public – once they have gone through the divorce process – quickly learns not to have confidence.

Our answer would have been ‘yes’ to Question 3 if :-

  1. judges received a longer and more balanced education on family matters – which the Ryder Report  appears to address and
  2. if judges did not interpret the new law as they saw fit and
  3. if the danger of perverting the new law could be eliminated (ref. guidance forthcoming from the lead Whitehall Dept as happened in the CA 1989 over shared residence orders which were to be viewed as the exception rather than the rule).

4. Do you think that any of the options proposed give rise to particular risks (other than any you have already mentioned)?

Yes                 No                   Not  Sure

Comments:

The ‘risk’ you have in mind with this question probably relates to violence either towards a parent or a child. We might expect opponents such as Women’s Aid to highlight abuse or deaths at the time of contact visits. This is something they have peddled for over 10 years but has been disproven by LCD staff in 2001 and again by Wall LJ report of 2006 (http://www.dca.gov.uk/judicial/judges/report_childhomicides.pdf ).

The plain fact is playing ‘fast and loose’ with contact visits (gate-keeping) will infuriate some fathers and violence can occur but with shared parenting and a parenting plan this likelihood is diminished.

Another alleged ‘worry’ that can be expected is child abuse levels – but as the Australian and American experiences have shown this actually declines. And we are not talking solely of male violence and abuse but female/maternal abuse. One interesting statistics from the Australian data is how often ‘mental instability’ in mothers is the reason why shared parenting or sole custody is awarded to fathers (who suffer far less levels of mental illness).

On average in the UK, it is estimated (no one knows for certain) that over 100 children are murdered by a parent each year – the majority by mothers. Our current custody regime may be adding to that total but with shared parenting numbers will fall, lives will be saved and abuse prevented.

If there is a risk it is that one of the ‘players’ will frustrate parliament’s intended law reform. The players will not be politicians but government departments, academia and the judiciary (which has misled select committee over the level of custody awards to fathers, e.g. Butler-Sloss’s testimony).

Instances of Whitehall defeating parliament’s intent can be characterised by the CA 1989 where the Dept of Health advised in guidance notes that‘shared parenting’ should be viewed ‘as the exception rather than the rule.‘ it would be charitable to think that either a Mandarin or minion in the D of H had confused public law with private law – which would make some sense of their guidance – but one suspects it could be motivated by other reasons.

Principle among these is the inability of the DWP’s computer to pay Child Benefit to two parents for children in shared parenting arrangements (see Sprawson Report and Sec of State v Hockenjos). (See also Quest. 8 below).

Academia poses a particular risk as can be seen from the belligerent feminist agenda in Australia (2012). Within a year of the 2006 changes a host of surveys were underway to undermine and disprove the positive advantages of the reforms. These ill-motivated moves took no account that ‘outcomes’ would take at least 5 years to properly measure one regime of custody against another.

5. How will this legislation impact on the numbers of separated parents applying for a court order to determine contact arrangements for their child? Please state whether you think there will be an increase in applications, decrease in applications or no change and explain your answer.

       Increase in applications    Decrease in applications     

 No change     Not sure

Comments:

This very much depends on the course of action government chooses. Separating parents include, for these purposes, both married and cohabiting couples (which Whitehall and the ONS persist in aggregating when they are as different as chalk and cheese – one being a stock variable and the other a flow variable).

According to government data only 10% of parents presently go to court. This is difficult to believe given that:-

  • The suspect basis of the 2004 Omnibus series.
  • That there are 120,000 divorces every year which often involve one or more children.
  • The number of custody awards made (contact and residence orders alone of over 60,000).
  • The number of children CAFCASS deals with.

We suspect, as a minimum, that 120,000 parents presently go to court every year (not just 10%, i.e. 12,000). For the government’s stance to make sense the proposition must be that only 10% of cohabiting couples go to court to settle custody matters.

Addendum: April 2013 – At last an academic voice has joined our contention that the 10% figure is a nonsense. In written evidence to the Children and Families bill committee, Prof. Parkinson (author of Australia shared parenting law reform) poured scorn on the claim in child custody matters that “Only 10% choose to come to court over contact arrangements.”  In written evidence put before parliament he shows why it is wrong and unreliable (http://www.publications.parliament.uk/pa/cm201213/cmselect/cmjust/739/739vw09.htm

This 10% figure has been cited extensively over the years and by Prof. Liz Trinder (and her inner circle of Jenn McIntosh), Peacey and Hunt (2008) and as far back as Joan Hunt & Ceridwen Roberts (2004).  For a brief review of its importance and impact see also “Parkinson’s cavalry crushes Norgrove’s big guns” http://equalparenting.wordpress.com/2013/05/05/16-2/.

Married couples: – Currently child custody is determined in court and this can be a protracted affair. Introducing a ‘parenting plan’ and agreeing time allocation before a solicitor or mediator prior to a hearing court will simplify matters and require the court to rubber stamp the agreement (as per Quickie divorces). Court time is cut to a minimum and millions of pounds are saved. Thus, we see no significant diminution in numbers but a faster throughput. This would bring us back to the situation proposed to the LCD (and almost accepted) in 2002.

Perhaps surprisingly, we would not want to see a significant diminution in numbers going to court because it provides important data on marriage and relationships, and also indirectly provides a safety net for children who will not be allocated to unsuitable parents – be they male or female. Children will be less likely to be ‘lost’ in the system as per “Baby P.” Any abuses or difficulties that do occur can be measured by sex of child and gender of perpetrator. Infractions by either parent can be measured against the parenting plan.

We foresee a 30% increase in fathers applying for shared parenting status. There will be a surge above this level in the first ears as older cases are revisited with a view to transforming them into shared parenting orders.

Cohabiting couples: – The state should be more concerned than it presently is with children of cohabiting couples. Cohabitees have no need to go to court to end their personal relationships. They therefore have no need to involve the courts in the allocation of children after their cohabiting has dissolved. It is little wonder then that only 1 in 10 cohabiting couples seek arbitration by the court (DCA, 2004, ONS Omnibus data – and sadly cited by many academics as if this level applies to all couples).

We would like to see parenting plans made compulsory for all cohabitees with children. Whilst cohabitess constitute only 11% of all families in the UK, they represent over 50% of parents complaining about access/custody/contact. The ‘average’ cohabitation lasts little more than 18 months and those with children last anything up to 4 years. This leads to ‘serial monogamy’ and for children a succession of “fathers” or uncles.

‘Re-partnering’ or re-blended families leading to several different fathers for subsequent children can all get very messy and the welfare of the children is not safeguarded. The state has no idea how many children are involved and how they fare. For the effect of this see “Sleepovers in Denmark” which includes Nygaard Christoffersen’s work (1996) re: “Danish children by family type and frequency by age 17” https://sharedparenting.wordpress.com/2012/07/22/17/.

A parenting plan registered with a court would give the vital information needed and could be an arbiter in squabbles/disputes.

The consequence of this would be an increase in the numerical workload for courts which could be absorbed because of the decrease in workload posed by divorcing couples.

Although cohabitess may constitute only 11% of all families their rate of turnover would result in them representing perhaps 25% to 30% of all cases seen by the courts in any one year (if they had to produce a ‘parenting plan’). This we see as a small price to pay if it ensures greater child safety and reduces risk by even a small percentage.

Having initially stated that we foresee a ‘decrease in applications’ this does depend on the final wording of the law and how it is interpreted. As is obvious from our answer, it is possible the same number of applications will occur annually after the 2012-14 legal amendments but application will be shorter and disposed of more quickly.

One also has to bear in mind that many fathers are put off applying for custody or shared residence because their solicitors have advised they will never get it, i.e. it will be a waste of money. Instead, solicitors usually advise clients at present to apply for contact. It is perfectly possible for applications for contact to fall only to be made good by increased shared parenting applications.

If cohabitees are kept out of the child protection and court application loop it will limit any increase in the court’s workload but if they are incorporated (as outlined above), there will be a sizeable increase to keep court staff in employment.

However, having said that, it would appear that the Ryder Report envisages an increase in unrepresented litigants in divorce and custody hearings. Normally this would involve an increase in workloads for courts (and this might still happen). Nevertheless, were a).shared parenting adopted the beauty contest to ‘win’ and look the better parent before a judge will shorten court appearances, and b). adopting a mutually and pre-agreed ‘parenting plan’ would further smooth court proceedings.

Unmarried mothers / fathers:- One last unmentioned category is that of single unmarried mothers or fathers who may never marry and may never cohabit (or rarely). A parenting plan would obviously be inappropriate since no other party is involved. However, should one of their transient partners become semi-permanent it might pose problems (contact, shared time etc) for the child’s other biological parent. Has government considered this minority ?

6. Do you think this legislation will encourage parents to resolve disputes out of court, either of their own accord or through services such as family mediation?

Yes                 No                   Not  Sure

Comments:

If implemented as a proper ‘shared parenting’ model and not a token reform or reduced to widow dressing, it will send the necessary signals to both parents and solicitors advising clients.

All one has to ensure then is that judges abide by the intentions of the Act. Solicitors can be relied upon to comply but a question mark hangs over the sincerity of judges.

At the moment parents have no clear guidance and no ‘parenting plan’ that will focus their attention on anything other than their own immediate concerns. They are too busy competing with one another to be winners in the custody beauty contest.

Before the LCD / DCA showed itself obdurate to reform in 2002, talks with fathers’ groups had lead to an acceptance by Whitehall of parenting plans as the basis of any future changes.

The 2002 dialogue was abortive, ending in a mass walk-out by fathers groups because of the obstinate attitude shown towards shared parenting. Lord Falconer proved a waste of time 2 years later in 2004-05 with his numskull remark that children cannot be divided like a CD collection – such were the limitations of his comprehension of shared parenting.

If government falters yet again, having promised so much to date, then one feels the resulting unrest will be in excess of that experienced by the Blair government.

If introduced in the form most fathers’ groups advocate, shared parenting will encourage parents to resolve disputes out of court. This is clear from other jurisdictions. We foresee a need not only for children of divorced couples having a formal Parenting Plan but one for children of cohabiting couples who presently do not have to go to court or register their agreement.

We see this as formalising an otherwise chaotic state of affairs that does not protect a goodly number of children. It would immediately bring them onto the radar screen and Baby P type tragedies would be lessened.  Parenting Plans can either be agreed by parents in front of a solicitor and then registered with the court or they can be approved in court and then registered. In either of the two scenarios professionals and the services of family mediators etc should be made available.

When a similar proposal was made in 1995 (see FLA), a shortage of mediators hampered matters.

7. How can children’s views be taken into account more fully in the court process in a way that is in keeping with the focus on the best interests of the child?

Comments:

This is always asked as if it will be used to influence events when in actualité it never does. The Politically Correct answer is that children’s views must always be taken into account but sadly the majority of children have no idea what the “best interests of the child” are – they are not always mature enough to respond.

Too often this conundrum it is used as a pretext for reform that never actually helps children. Realistically, one can only be guided by reports and surveys of those children that have lived in a shared parenting environment who seem to rate it more highly than another, save for living in their original intact family. Fabricius’s new 2012 paper cites a number of response surveys spanning 2000 to 2004, 2008 and 2009. College students (young adults) were asked “What is the best living arrangement for children ?” Given the US divorce rate, 33%, one in three must have had direct experience of which is better. “Equal time with both parents” was the response from 70% to 80% of the sample with no difference due to gender or whether their parents were or had divorced. This level of preference was repeated in 2004, 2008 and 2009 studies.

Again the Ryder Report shines a light into the dark corner of ascertaining children’s opinions. Ambitiously the report suggests an engagement with children to facilitate their understanding of the process of proceedings – but this is not always possible – and is an idealistic aim often stated in previous reports but never brought to fruition. The ascertainment of a child’s wishes and feelings and an opportunity to be heard is already standard practice under the CA 1989. Children deserve an explanation, from their parents, as to why a divorce is taking place but we are dubious about the desire – or merit – for an “explanation for every child of the decision of the court” since many adults find such explanations difficult to comprehend.

Judicial proposals for the modernisation of family justice” (July 2012) has made proposals, Para 46, that training materials should be “on messages” from modern research and child development papers and made available to all judges, magistrates and legal advisers. This is to be applauded.

“On messages” rings alarm bells for are we to have dragooned judges like New Labour MPs, following a script supplied by one vested interest (e.g. Liz Trinder below) without the input of other stakeholders, e.g. fathers groups ?

Regrettably for fathers groups, training and communication plans have already been agreed, it would appear, with the implementation group. The Judicial Office will implement it but fathers, who have historically been the most adversely affected group (page 20), are not included.

Our reservation is that the lack of specifics and transparency in this matter will lead only to a reinforcing of old dogmas in the same way that the Children Act 1989 failed to ring in the changes for a new era of allocating children.

Some academics, e.g. Liz Trinder, Mavis Maclean etc, are vehemently opposed to shared parenting and one has to wonder why since it has not been tried in Britain since 1989 when it worked well (see the Law Commission’s ‘Supplement to Working Paper No. 96’ http://robertwhiston.wordpress.com/2008/10/12/12/ ).

Jennifer McIntosh’s anti-shared parenting ‘studies’ have received much publicity of late but her surveys are tiny in size and dismissed by most of her peers as too selective to be of any consequence.

In the 22 years since Britain last had anything approaching shared parenting no one has noticed that the intensive debate is all about being wary of its newness and unpredictability when it fact the proposed legislation brings us closer to where we were in the 1970s and 1980s with joint custody. http://robertwhiston.wordpress.com/2008/02/05/5/ . Trinder, Maclean, McIntosh etc, all talk majestically about children in their work but never actually speak to and measure them.

In such a sensitive and subjective area it is imperative to be objective and measure ‘outcomes’ (not immediate results) over a 10 or 15 year period. Responses from young adults who have been through both types of post-divorce family arrangements, rate shared parenting as the best (ref Oliver James (2011), Christoffersen (1996) and in the US, Fabricius & Braver (see above), Bauserman (2002), Nielson (2011) etc. The picture has been consistent for over a decade

Scandinavia consistently comes out tops in the family friendly stakes but is this such a surprise when all Scandinavian countries long ago adopted shared parenting ? (See http://www.guardian.co.uk/lifeandstyle/2011/jan/01/uk-denmark-children-family-swap 1st Jan 2011).

8. What further non-legislative action should Government take to support the objective of encouraging both parents to remain involved in their child’s life after separation?

Comments:

Ideally there should be a revocation of that part of the CA 1989 which states that a father is no longer the legal guardian of his legitimate child – but technically that involves legislation.

If unemployed single mothers can be made aware by Jobcentre staff that they need not sign-on every week or fortnight then why not unemployed single fathers ?

Frank Field, in a parliamentary question to the then minister, Anne Widdecombe, discovered that there were over 17 state benefits that discriminated against men and fathers (Hansard, Cols at 239-240 May 17th 1993). Excluded from the list were Winter Fuel Payments at 60 for women, free Prescription charges for women at 60 and Home Responsibility Protection which favoured women. Some but not all of the benefits have now been equalised.

Non-legislative action available to Government would include not depicting or writing about “parents” in its publications when actually meaning only mothers. Leaflets designed, for example, on advising on Benefits should contain special references to men so that comparisons can be made with privileges usually afforded women and mothers but not men and fathers (see test case Sec. of State v Hockenjos 2001).

Pertinent to the above court ruling was the revelation contained in the internal Sprawson Report that the DWP’s computer system, first installed in 1975, lacked the “sophistication and flexibility of more modern systems and cannot accommodate complexities…” and as a consequence it could not divide Child Benefit for two children between two parents, i.e. one amount of Child Benefit to each parent. (Was this lack of a modern computer where Falconer and his civil servants came up with the crazy notion of cutting children in half ?).

After decades of denigrating men at every opportunity, government should set the standard in recognising the pivotal role fathers play in socialising the lives of children.

Non-legislative action could include government giving the lead publicly, culturally and legally on the many ways fathers enhance life chances and living standards. It could emphasis – especially in this recession – how men and particularly married men are “the engines of wealth creation.” Government could, in the Budget, reward couples who stay together to raise children by tax code alterations, which would relieve the cost of divorce and attendant state benefits from the Exchequer (a saving of billions of pounds per annum).

Divorces on a national, mass scale don’t just happen, they are encouraged by monetary incentives. The first of these was seen in the post-war years (circa 1947) when ‘Quickies’ were first introduced followed by generous Legal Aid. Currently it is cheaper and more profitable to cohabit than marry. A ‘marriage allowance’ of £4,000 – as a once-only payment upon marriage ought to be considered. This is no more discriminatory than the abolition of the Married Couples Allowance in July 2006 and the introduction of Tax Credits which favoured single mothers over couples (ref. Daily Mail).

How often in official parlance is the word ‘responsibly’ used ? Far too often considering it has only a vague, defuse meaning. There is no rigour about it and it means all things to all men. Abolishing this moveable feast of a term could be accomplished by reverting to words of substance such as; strict, liability obligation. compulsory, mandatory, and binding – words society presently shuns away from.

Giving fathers back their sovereignty over their children would curb any ambitious court from interfering and thus racking up costs to the taxpayer. It would also reignite pride in fathers to live up to their innate instincts to care and be truly “responsible for their children at a liability and obligatory level.

Enforcement

9. Do you agree that the courts should have stronger enforcement powers to enforce decisions they make about how much time a child should spend with a parent (contact)? Please explain your answer.

Yes                 No                   Not  Sure

Comments:

Enforcement is a red herring. Having been on committees since 2001 where this topic has been discussed and where members of the judiciary were present, it is clear from their responses they have no intention of using any such powers. I was there when Labour minister Rosie Winterton MP offered the judges greater enforcement powers (June 2002), but she was told emphatically that they already had sufficient powers which they chose not to use and so any new powers would also languish unused.

Without a will to enforce it there will be little point in expending parliament’s time on what will be ignored. If enforcement is to play a key role in government plans it needs to be beyond the discretion of judges.

Since judges will never (or rarely) use such powers against a woman/mother it is not a matter of stronger enforcement powers but enforcing what already exists. If judges persist in being given ‘wide discretion’ (seen as a mistake by many), parliament should ensure actions will trigger mandatory reactions. For example, failure to comply with contact orders or the frustrating of father-child parenting time will provoke immediate reversal of custody and withdrawal of benefit payments from PWC (the mother) to the father (formerly the non-resident parent).

That said, enforcement powers are in our view only a secondary issue. The primary issue is to introduce shared parenting which in itself would go a long way to negate the need for enforcement. To be considering enforcement powers hints at the new regime being little different from the present one.

To reassure mothers that they will lose nothing from a change to ‘shared parenting’ but will instead gain immensely from it, an educational media campaign should be launched.

10. Paragraph 7.3 of the consultation document discusses possible changes to courts’ powers to enforce orders related to contact, to mirror powers already agreed by Parliament for enforcing child maintenance payments.  Do you agree with this overall approach?

Yes                 No                   Not  Sure

Comments:

We are very pleased that at least a degree of equality is being proposed between men and women who frustrate court orders. Formerly it was overt sexism to penalise fathers (as per Para 7.3 and 7.4) but not mothers. Whether the courts will allow this re: custody matters, to happen in open to speculation.

However, we are not entirely sure that the measures taken against fathers for failure to comply with orders to pay CSA are, a) fair and b) appropriate. Withdrawing a man’s ability to earn a living by confiscating his driving licence (and therefore ability to pay child maintenance contribution) has always appeared self-defeating. Doing the same to mothers might also be seen as self-defeating.

As regards ‘appropriate’, we would remind you that 99% of fathers who can pay CSA do pay. Analysis of those thousands who don’t pay CSA can be found listed in the CSA statistics as ‘disabled’, ‘under-age’, ‘unemployed’ or living on a pension.

The imposition of a curfew order has only limited merit as once again it a). criminalises and b). pits the state against the citizen and his basic rights.

Revoking certain basic rights brings the law into disrespect and the attempt to criminalise fathers some years ago (re: CSA non-payment) is a prime example of the public ‘switching off’. It is also a prime example of an unworkable and unenforceable law.

Well over 50% of those against whom enforcement action is planned are in the C1, C2, D, and E socio-economic status category. The withholding of passports and/or driving licences from mothers and fathers for these separate infractions (CSA payments and contact time), is thus a non-starter. However, the withholding/ suspending of child maintenance and state benefits will be a far more effective deterrent.

At this juncture it is worth mentioning that CSA issues and contact/shared parenting rights have fundamental dissimilarities. With contact/shared parenting both parties know the parameters and each other. The medium of exchange is not money but good communications. With CSA payments money is the quid pro quo, however the father has no control over what, where and how the money is spent, so the parameters set by a contact / parenting order are missing.

We doubt very much if refusal to facilitate court-ordered contact will give rise to the same, or very similar, penalties (Para 7.4). Judges have shown themselves not to be that even-handed. One only has to look at sentencing by gender to see that female offenders get far shorter or more lenient tariffs than men – see “Understanding the sentencing of women”  (1997) HORS 170, http://webarchive.nationalarchives.gov.uk/20110220105210/rds.homeoffice.gov.uk/rds/pdfs/hors170.pdf

Lord Justice Dunn (see ‘Sword and Wig’) encapsulates this mindset. Finding the father in a divorce case was having “clandestine meetings with the boys” contrary to his court order he jailed the father.

In 2001 Judge James Mumby jailed father Mark Harris for waving at his children in a passing car. We are not aware of any mothers being jailed for similar “offences.”

Finally, in relation to CSA payments, it is the DWP planned intention to allow couples to set their own affordable maintenance payments so analogies to punitive CSA action may be short-lived. This might coincide with the plan to allow couples to arrange their own custody format and dovetail well with the  proposed judicial reforms outlined in the Ryder Report which places less reliance on tax-payer funded legal representation in family courts

11. Which of the specific measures discussed do you think would be most effective in making sure that parents comply with court orders relating to how much time a child should spend with a parent?

Comments:

Of all the options available ‘reversal of custody order’ will be the most effective. Penalising the errant parent (male or female) will have the most immediate effect. However, that reply assumes that the ‘sole mother custody’ paradigm remains. Had a regime of reversal of custody been in operation in the last few decades the current situation would look quite different, indeed we might not be looking at shared parenting as a solution since the problem would not be arising.

Most of the court’s clients will statistically be in the socio-economic marketing group C1, C2, D and E (the working and lower working class and unemployed). Economic sanctions (e.g. fines) will work only where there is money to confiscate – these groups do not have money. Altering how much a child should spend with the offending parent (PWC or contact parent) will have an impact, but so too will the withdrawal of benefits associated with having children etc. – and this will possibly be greater.

Certain benefits are termed ‘passport benefits’ because they permit other state welfare benefits to be legitimately claimed. Breaking the link here (by withdrawal of key benefits) would have an impact. Suddenly the offending parent would have to pay bills they were formerly excused, e.g. Council Tax, denial of hardship loans (Social Fund), etc.

12. a) How do you think the various measures discussed would impact on the child? Please identify any positive and negative impacts.

Comments:

This is ‘the blackmail question’ (perennially included) and should be treated as the moral blackmail it is.

The “what about the child” dilemma is often the excuse to introduce the inexcusable. Act after Act has been fronted by the ‘What about the child’ mantra and reform after reform has had a human shield of ‘children’s best interests’ surrounding it. The public is slowly waking up to this feint. When these Acts and reforms are later reviewed no improvements of the kind originally stated are ever found to have reached down as far as children.

It is all to easy to search for a soft, non-offensive option which fudges the edges but eventually this only leads to a total breakdown of a system. Being firm when introducing reform will result, initially, in push back from vested interests. The public may not always be numerically clever, but they are smart (street wise). Initially vested interests will try to force the issue until the regime/Dept feels so embarrassed it is pushed into responding. This is a fatal move and the point at which it loses control permanently of the situation. The bureaucracy operating a regime and which does not buckle under the blackmail must accept bad publicity to begin with in order to set the standard that should other challengers be tempted to follow they know it will be difficult to overcome. By standing firm the trickle of challenges will be stemmed and not become a flood tide.

There is no doubt that shared parenting will help the well-being of all children regardless of economic circumstances but enforcement will adversely impact on them. It may also give shared parenting a bad reputation. However, it is inconceivable that shared parenting could ever have so bad a reputation as the present system.

It would also be true to describe other impacts as negative in the main but that would be to overlook that it is the parent (mother or father) that creates the negative impact. It makes no sense at all in holding up general reform for the intransigence of 5% of separating parents – as some detractors of shared parenting maintain.

Political ideologues and academics – and sometimes they are one and the same thing – never seem to favour of equal parenting, or at least those that do support it are drowned out in the media by opponents to it.  This could be because should change take place their polished reputations could be left in tatters.

It is indisputable that shared parenting is a liberation for women. No longer is she tied, day after day, to the same four walls and domestic routine. It mimics the traditional 2 parent couple inasmuch that it would give the female parent, more ‘down time’, more quality time for her own personal needs, more time to focus on her career and profession, and generally lower her stress levels. When the media is heaving with searches for ‘role models’ for every occasion, a productive, confident work-focused mother is surely an ideal example for children to look up to ?

Comedienne Ruby Wax has done much of late to draw attention to depression and mental illness generally. What is not fully appreciated is that mental illness strikes disproportionately at single women in change of children (be it by divorce or separation). Mental health problems (depression, bipolar etc) in the black and ethnic minority communities exceed that among the general population. Proportionately more single mothers are to be found in these categories. In urban areas 60% of risk families have mental health issues (see for example http://motoristmatters.wordpress.com/2012/04/14/31/ and  http://genderviolence.wordpress.com/2012/04/13/36/ ). Between 1998 and 2008 there were between 38 and 73 deaths per annum of children aged under 10 where the perpetrator had some form of mental illness – and this excludes “Criminal Neglect.” We can predict, using data from other countries, that both child homicides (and unnatural deaths), and child criminal neglect cases will most probably decrease significantly. Over many years we have continually pointed out this uncomfortable fact (see http://www.straightstatistics.org/article/how-many-children-are-murdered-britain-every-year ).

In summary we do not see any change as a result of the enforcement measured outlined. The only improvement we foresee is in the switch to shared parenting (SP) which we predict will lessen conflict levels. For the child the change to SP would see a reduction on the continuum stretching from physical and emotional abuse to homicide which is the most extreme form of child abuse.

The positive aspects of a change to shared parenting would be greater socialisation, children who are more socially aware, empathetic and happier. They would have a sense of identity and heritage that many now are denied. A system change, with or without enforcement sanctions, would remove the sense of oppression some/many children feel when one parent has the monopoly of control over their lives – a problem area that grows as children enter adolescence.

12. b) How do you think the various measures discussed would impact on parents? Please identify any positive and negative impacts.

Comments:

We believe we have adequately outlined the various impacts in our responses above.

13. Do you think there are any other enforcement options that should be considered? Please explain your answer.

Yes                 No                   Not  Sure

Comments:

No. The change to shared parenting and shared residence will be enough to make enforcement options unnecessary –  or at least needed rarely.

This is not to say that there will not be some awkward mothers or fathers who refuse to cooperate but the powers the courts already have are a sufficient a deterrent should judges chose to use them. We would prefer rules aimed to best serve 95% of parents than serve the needs of an awkward 5%.

Some jurisdictions ensure that judges are allotted specific cases. The judge who makes the original order therefore presides over any subsequent complaint/breach. Monitoring, recording and comparing a). judges, b). types of orders and c). breaches are essential to the smooth running in future of a custody regime and has been lamentably absent in the current regime. Statistical data gathering of the kind seen in Australia could be replicated for the UK.

Given our concerns about the wording of the 4 options and the possible misinterpretation by courts perhaps another enforcement option would be for the legislation to include the option that should non-compliance occur (after an order is made) the matter is automatically returned to court. Here, a simple rebuttal presumption test would be applied in an effort to ‘wake up’ the participants to what might happen. This ruling could then be reviewed 3 or 5 years later.

14. Please use this space for any other comments you would like to make.

Comments:

It was a mistake for the Children Act 1989 to destroy guardianship. Whitehall has long organised itself to embrace ‘stakeholder’ groups and ‘joint partnerships’ – the intention being to give a sense of ownership to groups and value their participation (real or imagined) in any deliberations. But where is the father’s stakeholder group in any of the multitude of Whitehall committees ? Where is the father’s stakeholding in the divorce process ?

If Whitehall wants fathers, as a class, to ‘engage’ then they should make the incentives attractive – give them back guardianship rights.

What have fathers to show for being at every turn alternatively ‘responsible’, ‘liable’ and ‘obligated’, and laden with duties towards their children, former wife and society ? They have only duties and no rewards. In 80% of instances (a statistical fact) they never asked for a divorce. Where is the support from the state ?

Put in Land Law terms, the CA 1989 Act can be likened to converting a father’s freehold status into one of a rented tenancy. The rent can be increased at will, the conditions altered without consultation and the entire tenancy terminated on a whim. Why should he be expected to look after the property ?

Depriving mothers and fathers of guardianship of their own children is morally repugnant and comparable to a mentality last seen in the Lebensraum rape of Eastern Europe where children of Germanic appearance disappeared into Germany (adopted by German couples) never to be seen again. What do our courts do today ? They orphan children ‘en masse’ not for 5 years but for over 30. We only fool ourselves if we think we are not as bad.

We have already said we are concerned about the vague wording of the Bill. To declare, at Para 12.2, that “This option makes clear that the court’s starting point is to be that a child benefits from the involvement of both parents” is far from reassuring. What if the court decides the benefits, though real, are not clear in its estimation ?

Where is the redress ?

To follow this by stating that “In practice, it seems likely to have the same effect as creating a presumption. . .” is simply not good enough for so important an issue as a child’s custody. Relying on a ‘seems likely’ benchmark is, in our opinion, a dangerous prospect.

Each of the 4 options listed in the present Consultation Paper is so overgrown with additional wording and conditional caveats that it looks like a house already overgrown with weeds (ref. Paras 12.2 and 12.3).

In our opinion it is self-defeating for the present Consultation Paper to specifically include text that would make it clear “that this should not be interpreted as prescribing any particular level of time.”

If a quantum of time is not to defined (or defended) then we are back to square one and metaphorically left dangling in mid-air with ‘sole mother custody’ as the default and contact hours “to be arranged.”

We have already mentioned the ‘Baby P’ type tragedies above and commend again that children born to mothers out-of-wedlock should not be left to the tender mercies of immature or dangerous parents. Though not a fan of state interference, Men’s Aid believes there is an argument to be made for mandatory basic ‘parenting classes’ for  14 and 15 year olds (in school). The other measures we have suggested (see Question 5), would, we hope, immediately bring many more children and their parents from below the radar screen and tragedies while never being totally avoided could be reduced.

For new mothers we have layers of social services in every Borough but these  services claim they are hamstrung by rules and red tape and are under-staffed. Enforcement in these public law cases – though not within the strict remit of this Green Paper – would be improved by the existence of a Parenting Plan. Social services could sign-up the parent (PWC) from conception. Ratified by a court, it could contain expected standards, and a Habeas Corpus type clause which would insist on social services being able to see and examine the child. Social services, rather than relying on rather woolly case conferences, could point to its specific conditions and hold the mother and her various boyfriends accountable.

Omitted from every ‘parenting’ document produced by government since 2006 is the experience of Belgium’s ‘shared residence’ laws of 2006. Most exchanges about shared parenting have been about Australia’s 2006 legal changes. In the main these have been erroneous and misleading, leaving a distorted picture of the success that Australia is actually enjoying. Omitted too is Minnesota’s Shared Parenting Act.

We can only reiterate W. Fabricius speaking of the Arizona, Wisconsin etc experiences when he states that:

  • “ . . . there appears to be a slow trend toward greater amounts of PT (parenting time) with fathers, especially equal PT.”
  1. “In Wisconsin the percentage of divorced parents with equal PT increased from 15% in 1996-1999 to 24% in 2003-2004 (Brown & Cancian, 2007).” *
  2. In Washington, the percentage of divorced parents with equal PT was approximately 20% in 2008-2009 (George, 2009).
  3. In Arizona the percentage of case files specifying equal PT tripled from 5% in 2002 (Venohr & Griffith, 2003) to 15% in 2007 (Venohr & Kaunelis, 2008).

*  The Arizona case files included both divorced and never-married parents, whereas the other  rates reflected only divorced parents.

Fabricius and Braver’s paper concludes that the above data makes it clear that the practice of equal PT (parenting time) in official circles lags behind the public consensus as to its value.

Regarding the Ryder Report (Para 63), we like the idea of High Court judges in future sitting in on cases heard in the ordinary Family Courts. This will end their dislocation from the mainstream of life and give them a grounding in everyday realities. Although the intent is to give guidance to their less esteemed brethren, it will of course provide an instant ‘feedback’ on the consequences of their decisions made in the higher courts. We applaud the admission that there has been a “paucity of guidance available to family judges” and we would not limit this belated recognition to merely case “management” but to good practice too.

Official circles still fail to realise that as soon as the courtroom doors close in a divorce/custody hearing the ‘secret’ session can be controlled without reference to the written law. Fathers as a whole would not have campaigned for so long had the law been applied as it is written. But so often inconvenient sections are omitted or ignored and a very abbreviated and selective series of clauses used as a basis for judgments. The M.C. Act 1973 is an infamous exemplar and we are pleased to see the Law Commission is thinking of amending its impact.

We share with the Family Justice Review and the Ryder Report the opinion that we should not lose sight of the interests of the child but the harsh reality is that this “concern” has proven in the past to be a smoke screen for doing nothing of significance. Indeed, it has been used by vested interest groups as a ‘blocking’ mechanism.

We must cease looking at what our actions might create in the following weeks or months – we must reject fashions and fads – and focus on the longer term. We must stop asking how we can make the divorce process less painful – some pains can never be eradicated. Instead, we must ask ourselves what do we want the ‘outcomes’ for children of divorcing couples to be in 10 or 15 years and how do we intend to get there ? Do we want to see increasing dysfunctionality, criminality, feral children, adolescent rioters etc ? Only when we know what sort of 15-year-old we want and whatsocial mores we want to see in our 20 year olds, can we be informed as to what we need to do at this point in time to make it happen.

15 Please let us have your views on responding to this consultation (e.g. the number and type of questions, whether it was easy to find, understand, complete etc.).

Comments:

The number and type of questions listed presented no difficulty; however, key questions that would have revealed a better understanding of the issues were not included. For example, in Question 1 (Shared Parenting, options) we were obliged to answer ‘no’ to all 4 options (even though we support the concept of Shared Parenting) since there was no option acceptable to us, nor was there an option or space to write down our preference.

In so doing it has muzzled any new initiatives.

By not referring to other Green Papers and proposals by other Depts., e.g. DWP, Ryder Report etc, this questionnaire has made the liaising of ideas more difficult than it needed be. This subject does not fit neatly into one small box.

On July 31st we sent an email requesting clarification (as per the instructions herein) regarding the claim of “10%” and the “majority of parents do not go to court” to settle custody issues. We were able to suggest, using official judicial statistics, that in fact over 100,000 children per annum (and thereby their parents) sought court approval. We took the view that this was irreconcilable to the alleged ‘10%’ and ‘low number of parents’ advanced by the Dept. and found cited willy-nilly in literature. Kate Lyons (Family Law and Relationship Support Division), replied on Aug 28th that “. . . we do not hold data about the number of relationships which break down” and that it was “ . . difficult to give an accurate estimate of the proportion of separated parents.” If government and Depts are to quote numbers in a policy making environment then they should be able to substantiate them and if they cannot, should prefix them with the word “estimated.”

Without sound numbers policy is being planned either on the back of an envelope or key players are ‘winging it’. (Both of these views can be said to be reinforced by the contents of the April Addendum listed earlier).

We sent an email (14th May) to Alison Plummer (Public Communications Unit, Education Dept), pointing out states and countries that had introduced shared parenting, e.g. information on the Minnesota’s Shared Parenting Act. If, as seems clear from her unsatisfactory and belated reply of July 3rd that, “. . . . the proposed [legislative] statement will not entitle parents to an equal share of the child’s time; [which was not mentioned or requested in our email], or a ‘right’ to contact with the child” there seems little to recommend this Bill or the time spent agreeing to its clauses.

We apologise for occasionally dwelling on the history surrounding this initiative but some of us have been here many times before. To make sense of answers to the questions posed a recounting of parliament’s intention is necessary. We have seen the ship of good intention almost make it into port only to be dashed to pieces on rocks at the harbour mouth.

We have seen the Family Law Act 1996 used to piggy-back domestic violence legislation only to eventually abandon the divorce reform provisions.

We have seen the Matrimonial Proceedings and Property Act 1970 designed to build on the Matrimonial Homes Act 1967 yet made impotent simply because there was not enough matrimonial money and assets to go around. The 1970 Act allowed for orders to vary pre-nuptial and post-nuptial settlements but have pre-nuptial settlements ever been used or upheld ?

For five years following the Appellate Proceedings (Restriction of Publicity) Act 1968 and the Divorce Reform Act 1969 divorce reform slowly began to unravel as it proved to be unworkable.

To break the impasse Lord Justice Roger Ormrod announced in the 1973 case Wachtel v Wachtel that legal niceties were immaterial. Judge who had little enough room for manoeuvre beforehand now found they were able in almost all cases to blame both parties in approximately equal shares. ‘Conduct’ could be disregarded even if it was `both obvious and gross’, e.g. bigamy by one party. This ruling had a dramatic effect and eased subsequent financial proceedings. This was not what parliament had intended.

Nor was it parliament’s intention that the Land Charges Act 1972 should be misconstrued by Messrs Denning and Ormrod to facilitate the above manoeuvring. In the case of registered land, the desired result was achieved by a straightforward rectification of the register, placing a notice in the charges section of the title to the servient land (see Hayton, Registered Land, 3rd Ed., p.171 and ‘the rights of 3rd parties were affected’ – “Divorce Matters”, by J Reynolds and Roger Ormrod, p.62).

This is disinheritance on a scale only replicated by bankers in the aftermath of the 2007 financial collapse.

So we trust you can comprehend our misgivings and inherent mistrust of legislation intended to satisfy a specified demand but then not being incorporated as intended- the more so when one learns of a subsequent ruling by the Court of Appeal (Rogers v Rogers) that overturned Wachtel but which has gone by largely ignored by all lower courts (both cases were heard in 1973 and the Court of Appeal held that its own earlier verdict in Wachtel was “plainly wrong”).

The fatal flaws in the present ‘sole mother custody’ regime have been known about for some 30 years. Lord Justice Dunn in ‘Sword and Wig’ (page 244), points to research undertaken in the Bristol area which concluded that:

  • . ..  the mere opportunity of talking to some informed independent person helped the parties to adopt a more realistic approach to their problems and even to reach agreement on some of them.. . ..  The figures produced by our researchers showed substantial reductions in the costs of legal aid cases where mediators had been used and this might be attractive to the government.”

Men’s Aid has always supported the research conclusion as laid out above by Lord Justice Dunn’s and we believe the current government’s attempt to introduce something along the same lines will have huge benefits.

The construction of ‘welfare state’ by various countries in the post-war era relied upon many assumptions about gender differences (usually by white, educated and middle-class in nature). These assumptions originally placed men in the role of sole breadwinners and women as sole caregivers. Over the decades these states have attempted to rebalance the gender role bias in their programmes – to some success – and the bias against fathers is the last bastion of note.

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