Sunday, March 04, 2007

Best for who?

On Friday I attended a Kent Resolution seminar on child law. The speakers were Sara Staite and Ashley Thain, of the family law team at 1 King's Bench Walk. One of the topics was the recent movement towards the making of shared residence orders, something that I have mentioned here previously.

The former position was that such orders would only be practicable if there was a high level of cooperation between the parents. Now it is clear from the case law that such cooperation is not a prerequisite of a shared residence order (on the contrary, a harmonious relationship between the parents makes it more likely that the court will consider that no order is required). Further, it appears that where the children spend approximately 50% of their time with each parent, good reasons are now required if a shared residence order is not to be made.

Now, I'm not for one moment going to say that this move towards shared orders is a bad thing, but both the case law and my own experiences with my clients does give me one concern about shared residence: parents, particularly fathers, are prepared to go to great lengths to obtain such orders, including fully contested applications, when the practical effect of the order will not necessarily make an awful lot of difference to the children concerned. Are such parents more concerned at achieving equality with the other parent than achieving the best for their children?

9 comments:

  1. Dear John,
    Thank you for your comment on Nearly Legal. I can assure you that I continue to enjoy reading both of your blogs.
    Best wishes,
    BabyBarista

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  2. You're a very astute and resourceful man. Keep up the excellent work.

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  3. I think that some Residence Orders are applied for specifically to enable a parent to get the Local Authority to address their housing problems.

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  4. Hi, As a parent (father) who fought on the advice of my solicitor for a Contact Order, I fully understand the mentality surrounding Shared Residence Orders amongst practitioners. At no stage during my initial chats, and even during the case did the existence of such an order get raised. For over two years I fought a very difficult case of trying to maintain a relationship with our son, based on the Contact Order I has so valiantly fought for and won. Little did I realise at the time of starting that battle that the Contact Order wasn’t worth the paper it was typed on.
    Today I have sole Residence of our son, and mum has a Contact Order, this was after 3 years of litigation and many periods in our sons life without a father through no fault of his or mine. The idea of a Shared Residence Order was approached at the later stages of my case, when it was clear no Contact Order would help maintain my sons relationship with both parents. The Shared Residence Order was rejected as it was at the point clear that mother would not support or adhere to any order that meant she still had parenting power, and the ability to abuse that position. I was granted Residence, and I insisted that mum should have almost equal contact.

    For over 3 years now that situation has existed without incident and my son has two parents, yet one has the power to control the other contact, and the other is sanctioned with the existence of a Contact Order.
    Had my case been approached from a starting point that both parents are able (maybe not willing) to facilitated Shared Residence and that had been pursued fro the start, then I believe my case would have been resolved a lot sooner, with much more change of success at the early stages, saving massive amounts in legal costs and no using up limited resources within the system.

    I have no doubt my ex would have still fought and contested a Shared Residence Order, but had we both been equalised, and the power balance equal, then it would have been a very powerful tool and warning to either parent that should one or the other abuse their equal parenting status to the detriment of the child and the other parents relationship, then it would be them receiving the sanction of Contact Ordered time, and the other parent would be promoted to a Resident Parent with greater autonomy of parental power.
    So rather than blame the litigation on Shared Residence, people in the legal profession should look at the Shared Residence Order as a great leveller, that can neutralise the power plan and place both parents in a very stable or equally precarious position should abuse of their role be proven.

    Regards, DaveT

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  5. Let me rewrite your last paragraph, if I may:

    "parents, particularly mothers, are prepared to go to great lengths to prevent such orders, including fully contested applications, when the practical effect of the order will not necessarily make an awful lot of difference to the children concerned. Are such parents more concerned at preventing equality with the other parent than achieving the best for their children?"

    My ex partner was delighted to contest anything that the legal aid board would pay for.

    Regards
    Its the Hope I cant Stand

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  6. How little you truly understand about the "practical effects" of such an order. I am sure you know the law, and the tools and remedies available with that framework, but what you seem not to grasp is the responsible nature of some fathers to view their role as just as important to the child as the mothers. To accept a secondary class of that role not only undermines it, but also leaves it open to be abuse, unduly interfered with more importantly damaging to the children to witness a parent imbalance in both duty and ability to parent.

    Dads who have got wise to the sanctioning nature of Contact Orders, have realised they do much more than compel the Resident Parent to make the child available, they invoke a legal recognition of the unequal roles the parents can play, and create a clear class system of parents based on the titles and privileges, and controls those titles afford.

    No decent parent would seek out an ASBO for themselves to limit their freedoms to walk the streets, thus likewise they should seek out a parenting ASBO to limit and sanction their ability to parent. Shared Parenting requires that "no order" or Shared Residence is made to maintain equality in the roles.

    Contact Orders should only be promoted for parents who understand and accept the limitations of being a 2nd class parent in law, and those who deserve to be sanctioned due to their ability or not to fulfil a shared care role.

    Contact Orders should not be the starting point for the advice solicitors give clients, they should be the last resort.

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  7. Thanks for the comments.

    Doozy, the last paragraph of my post was not meant as a comment upon the rights and wrongs of 'parental equality' (I can see no good reason for most parents not to have equal rights), merely that some parents may seek shared residence for the wrong reasons.

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  8. Re C (A Child) [2006] EWCA civ 2351 June 2007 at 11:17

    The father. Sorry for the late response, I've just found your site!

    I do enjoy your blogs. However to make such sweeping statements regarding Shared Residence Orders and fathers beggars belief, and only adds to the disrepute that family solicitors have now gained with fathers and their families.

    PR should provide each parent with equal and shared responsibility, however the reality could not be more wrong.

    Shared residence provides each parent with the equal status vis a vis the world. Well unless your asking for child benefit, CTC/WTC and to be treated as a parent with equal care rather than an absent parent by the CSA.

    Shared residence really works by allowing parenting time within the school week, being fully involved. Many non resident fathers do this with alternate pick up on a Friday and drop off on a Monday, say with one mid week staying, and many also have shared residence in the same situation. They both work, in the childs best interests, so what is it specifically that you find issue with?

    How can a child having both parents in their eyes as appropriate caring role models make no difference to the child, rather than one as ‘primary’ carer and the other an ‘absent’ cash point machine.

    If I had listened to my solicitor and barrister I would never have applied for a shared residence order, or the appeal. I feel fathers are far better off as litigants in person at this moment in time. Maybe using a good lawyer for a final hearing, cross examination and advocacy. I believe your position on this matter only confirms my case.

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  9. Thanks for the comment. I obviously didn't make myself sufficiently clear in the last paragraph of my post. What I said was not intended to be a sweeping statement about shared residence in general, but rather a comment on those cases where the children already spend almost half of their time with one parent, yet that parent is prepared to put the family through the trauma of contested court proceedings, just to achieve full equality.

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