Monday, June 07, 2010

Fathers' rights: Some good ideas, but also some bad eggs

Continuing the fathers' rights theme of my last two posts, Lucy Reed at Pink Tape has posted about the relaunch of Fathers 4 Justice, but asks how they, as the 'official campaign' should "deal with the splitters and splinter groups that persistently damage its reputation and undermine the progress it is striving to make". Certainly, the general public is unlikely to differentiate between the various fathers' rights groups when it comes to attributing blame for defacing national monuments and similar 'extremist' activity. However, it would be quite wrong to characterise all fathers' rights campaigners as barely-literate thugs. Indeed, some are extremely well-read, not just in matters of law but also research into the issues - better read than many family lawyers (some seem to have an all-consuming fixation about the injustice that they feel they have suffered, such that they appear to devote their entire lives to the subject), and there is much merit in some of their ideas.

Take, for example, the proposal that there be a starting-point of shared parenting, a rebuttable presumption that it is in the best interests of children that they share their time equally with each parent. Should it not be the right of the child to have an equal relationship with each parent, save where there are good reasons (by reference to the welfare of the child) where this should not be the case? Once such a starting-point became common knowledge, most separating parents would hopefully understand that they must negotiate arrangements for their children from a position of equality with the other parent rather than, as now, one parent so often dictating terms from a position of strength. At a stroke this could substantially increase the number of cases that settle, and therefore reduce the number that go to court. Now, I admit that after full consideration it may transpire that a shared parenting system may not after all be the best way forward, but surely it should at least be given such consideration?

The other great plank of the fathers' rights manifesto is, of course, the opening up of the 'secretive family courts'. I have to say that I am not convinced about this. Even if there were no good reasons not to open the courts, I think that very few cases (save, for example, for those involving celebrities) would be reported by 'independent' journalists, and any such opening is therefore unlikely to make much difference. I note with interest that the former President of the Family Division Sir Mark Potter has said in an interview with The Guardian that he only "reluctantly supported the change to more open courts because it had got to the point of allegations being made of secret justice and injustice taking place behind closed doors". In other words, the making of allegations against the system (by fathers' rights groups and others), rather than the truth of those allegations, had forced the government into action. As one who was until recently a part of that system, I have always taken great exception to the suggestion that there is some anti-fathers conspiracy going on behind closed doors. It may be true that the system sometimes appears to operate in a biased fashion, but I am certain that the vast majority of those working within it are not biased against fathers - why should they be? They are dedicated professionals working hard to achieve the best outcomes for the children caught up within the system. If the system is wrong, blame the system, not those who have to work within it.

By the same token, though, if there are some bad eggs within the fathers' rights basket, blame them, and not those who use legal means to put their views across.

7 comments:

  1. It is the Judges that are the problem, they are very conservative, we should ship them to Afghanistan and get a new lot in. Their views of men going out to work while women bring up the family are shocking and anachronistic avoid these places like the plague they are anti nrp.

    I agree with shared parenting. The problem is of course giving these mad judges discretion, it's like with Ancillary relief, with the staring point being 50:50, it means nothing if you give these Nutters Carte Blanche, you just end up with the same old rubbish from the same old farts.

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  2. Nick Langford8 June 2010 13:26

    That seems to be a very fair comment, John. I think even officialdom has accepted that there is at least a perception of anti-father bias; it is certainly the case that the majority of NRPs are fathers and the majority of parents who lose all contact are fathers. That may be the fault of the system, but there hasn't been much effort made by those in the system to counter that perception. Potter's call for more funding (at a time of national financial crisis) merely confirms our prejudices - if that's what they are - about fat-cat lawyers.

    Anthony Douglas once expressed his view - I paraphrase - that the problem is four-fold: old-fashioned judges who think they are being chivalrous, lawyers who want to protect their employment, a CAFCASS dominated by middle-aged feminists, and a government without any stomach to challenge the status quo.

    The main plank of the F4J manifesto, even before equal parenting and open justice, is the removal of most cases from the courts entirely, with a much wider use of some form of therapeutic mediation. Many others have suggested this, and one of the most recent was (slightly unexpectedly) a series of excellent proposals from Sandra Davies at Mishcon de Reya. Part of her suggestion was that couples could only use the court system if they had a certificate indicating that mediation had been tried and had failed.

    Such mediation would obviously be conducted in private. The point about open justice is the one made endlessly by Jeremy Bentham, Lord Sankey et al. Lord Denning put it best, “Every court should be open to every subject of the Queen. I think it is one of the essentials of justice being done in the community. Every judge, in a sense, is on trial to see that he does his job properly. Reporters are there, representing the public, to see that magistrates and judges behave themselves. Children's courts should also be open. ...the public should know what happens to the child and proceedings should never be conducted behind closed doors.”

    Reporting on in-court conciliation, Liz Trinder et al from East Anglia said, "Rather than concentrating resources within the family justice system an alternative approach would be to develop comprehensive services for families in the community, including relationship-orientated dispute resolution services. Courts could then become very much a last resort when all else has failed or for cases involving allegations of harm."

    This is our position in a nut shell. If that could be achieved, equal parenting and open justice would only apply to a minority of cases.

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  3. Thanks for that, Nick.

    Unfortunately, I was never one of the fat cat lawyers!

    I am, of course, aware of your view that most cases should be removed from the system, but I have always been dubious about the 'ability' of mediation to achieve this, even if it is compulsory. My experience matched the results of the recent LSC pilot scheme, i.e. that mediation had a pretty low success rate. I think that most couples who are likely to succeed in mediation are likely to settle anyway, leaving a similar number of cases for the courts to sort out.

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  4. Sadly, I agree with that John. From my not inconsiderable experience of mediation, it has not worked in any cases I have seen.

    Wrt cafcass, they are ineffectual also. Therefore we get down to rules of thumb which the stupid Judiciary have of every other weekend where people cannot agree.

    I think the pre nups coming in and reduction in divorces will help as I think a lot of this is routed in unresolved (whether court agreement is reached or not) financial disputes and ill feeling because of them between the parents. I am hoping that without all the acrimony of negotiating financial settlements (as per your above post) that these contact problems will reduce.

    Other than that, I would propose the abolition of the CSA, or at least the ability of people to over-write them in pre nups, to stop the rise of the sperm banks and provide nrps with bargaining chips, they have none at the moment. Also pre nups on child contact would be good. Other than that the male pill might be good.

    Other than that we are back to the route of the problem which is the judges, my solutions are based upon by-passing them and governmental intervention in the family which has been an unmittigated disaster with family law as Nick says perceived as a farce in this country now.

    Sadly I also agree with Nick (to coin a phrase) that politicians bottle this issue, even the Tories.

    I did mail the parties and candidates and read the manifestos and there was nothing useful or indeed anything at all.

    The most I got was from the Tories who advised they would try to work towards the Australian system. That sounded like nonsense to me.

    Basically, they were out of ideas, still, as I say, pre nups should help (being optimistic) when they arrive shortly. The idea being that if you split up then you pay to see your children, so, if your ex stops you seeing them (as mine has) you stop paying until you get to see them as much as you like. By doing that you would get a happier society. Rather that then trying to ask the bloody useless courts to enforce a contact order, which usually results in reduced contact or no contact at all, again speaking from a lot of experience of these hiddeous places.

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  5. Government are looking for cost saving measures. Start by closing cafcass. Complete waste of money. Csa also. They may be nice people and mean well, but that doesn't mean they are bad.

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  6. I meant, They may be nice people and mean well, but that doesn't mean they aren't bad.

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  7. Having experienced mediation many years ago I found it did not work due to its current format. When Early Interventions was mooted in this country and noises where made it was to be implemented as it had in Florida, many who had been campaigning for change had felt this was to be the beginning of a new age for fathers and children post divorce and separation. Unfortunately what had been successful in America and observed by our Judiciary was not to be implemented and turned out to be more of the same old procedures with a name change.
    Rearranging the deck chairs on the Titanic was what many had called our version of Early Intervention which was dumped and swapped with the government's family resolutions project.
    Many of the workings of the Florida Model of EI are numerous and subtle in its true form as well as root and branch changes to what is considered the norm here, so I will just stick to a few short points to give a flavour and explain why the pilot scheme failed here (as the government of the time was warned by many):
    Compulsory mediation
    Records kept of the mediation and outcomes of success and failure to be made available to the courts if necessary.
    Guidance and Recommendations to the amount of contact time each parent can achieve with their children.

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