Monday, July 26, 2010

Would a shared parenting presumption actually make a difference?

In her column in Family Law last week Sandra Davis took issue with MP Brian Binley over his Shared Parenting Orders Bill:

"Mr Binley's rationale is that "very often Court Orders are made without the knowledge of the importance of a father's involvement and [his] bill will make sure that neither parent is shut out from a child's life when sadly a relationship breaks down."

I'm afraid Mr Binley is wrong on both counts.
"

On the first count she says: "In over thirty years of practice I cannot recall a single case in which an order was made concerning the upbringing of a child in ignorance of the father's role in that child's life." I agree with her, but in my twenty-five-odd years of practice I also witnessed many cases where at the outset one party - usually the mother - has the children with them and attempts to dictate terms to the other party from what they consider to be a position of strength. From that point on, the other party is fighting an uphill struggle to get what they and, more importantly, the children are entitled to. Many fathers simply give up part way through that struggle. Even the court has its work cut out persuading the mother to give ground, and a 'weak' court may even bow to the wishes of the mother.

On the second count Ms Davis appears to be making the point that I've heard before as an argument against a shared parenting presumption, i.e. that it treats children as if they are their parents' possessions. However, with a shared parenting presumption (and I'm not talking about any new type of shared parenting order here, as seems to be envisaged by the Bill) the end result in a fully contested case, decided as now by the same paramountcy principle and welfare checklist, may not necessarily be very different from the result under the present law. My hope, however, is that far fewer cases would go 'all the way'. If parents understand at the outset that the law will treat them both equally, then surely many more cases will be settled early.

That said, I do also agree with Ms Davis's final paragraph:

"No amount of legislation can enhance the life prospects of the children of parents who can not or will no[t] co-parent effectively. Court orders can do many things, but they can not compel intransigent mothers and fathers to become better parents."

1 comment:

  1. I think that under the assumption of shared parenting approach the resulting contact with father’s would be higher with contact certainly at least once a week, which under the current unwritten laws (rules of thumb in Judges' minds) is more than a Father gets at a contested hearing at the moment (every other weekend).
    I have heard (from my MP and the local County Court) this argument against treating children as possessions; I don’t know what to say to that as I do not understand the point. I think the problem they have is that there is a problem with the child support element and the feminist movement which has enormous political clout.
    Wrt the money element, I have the following query, if both parents have the children 50% of the time, then why is there a child maintenance obligation? This is the same problem as the inability to divide the child benefits and the working and child tax credits equally. Under a shared parenting setup these issues need resolving. The current cliché that the court operates is that the man goes to work to provide for his family and mother and children at home. It is out of date as now Mums and Dads both work and we have a system which is anachronistic. Fathers (including myself) bitterly resent being treated in this way and often we are as good, if not better parents than the children's mothers.
    The other anomaly is what happens if one child stays with one parent and the other with the other parent, who gets the child support and child benefit then?
    Private agreements on contact and money have to be the way forwards and I do think this is part of the reason for a decline in marriage and why other cultures do not have these issues as they operate outside our (messed up) family law in this country. Shared parenting would be a good step towards this as parents could trade time with children for money. It may be that many Fathers would see how hard bringing children up is and rather go to work as they should and do as Sandra Davis says (I doubt it), still it would be fairer to be given the choice.

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