Two lessons for separated fathers
|Autor y su Hijo by Carlos Vergel Frorentti|
Two lessons for separated fathers, neither of which is new, but both of which cropped up this week:
Lesson number 1: The world ain't out to get you
I was reminded of this just this morning, when I read a comment on this post that I wrote on Monday. The commenter, clearly a fathers' rights supporter from his name, repeatedly (mis-)used the word 'misandry' when talking about a poll in the Guardian regarding fathers' contact rights.
I hate to disappoint, but whilst there may be a few misandrists working in the family justice system, there is no conspiracy against fathers. Why should there be? For example, the accusation is often made against family lawyers, but it simply doesn't make sense: family lawyers act for mothers and fathers - why should they discriminate against half of their clientele? When I acted for a father in a residence/contact dispute I did the same job as I did for a mother.
The law, in fact, is gender-neutral (there is nothing in the Children Act that favours mothers over fathers), and it has long been acknowledged by the courts that that the welfare of children is usually best served if they continue to have a proper relationship with both parents (see, for example, Re O (Contact: Imposition of Conditions)  2 FLR 124).
So why, a fathers' rights supporter would say, are the vast majority of residence orders made in favour of mothers, and why are the courts so bad at enforcing contact orders in favour of fathers? As to the former, this simply follows from the fact that, in our society, mothers are usually better placed than fathers to be residential parents - it is simply down to what is best for the welfare of the child, not any conspiracy against fathers. As to the latter, this ultimately (i.e. once it has been established that the mother is entirely at fault, which is actually quite rare) flows from the obvious practical difficulties in taking enforcement action against someone caring for one or more children. If she ignores other methods of enforcement, the ultimate sanction is prison, but then: (a) who then looks after the children and (b) what will be the effect upon the children of such action?
Another aspect of the 'world is against me' paranoia is, of course, a desire by some fathers to blame anyone and everyone for the situation they find themselves in, when they only need to look in the mirror for the source of their troubles. I'm not for one moment saying that all fathers who fail to get contact with their children are to blame for that, but everyone who has worked within the family justice system has seen many examples of fathers who are their own worst enemies. Aggression towards the mother and hostility towards the court (and, when things don't go their way, even towards their own lawyers) are not likely to achieve satisfactory outcomes.
So, my suggestion is that the 'victim mentality' of many fathers is not only wrong, it can be counter-productive, masking the true reasons for some fathers losing contact with their children.
Lesson number 2: You can't solve every problem by changing the law
It is a common theme amongst fathers' rights supporters that the law is to blame for so many fathers losing contact with their parents. Such an argument loses some of its strength when one thinks that in 90% of cases arrangements for children are agreed between the parents without recourse to the courts, and that in 2010 the courts refused only 300 of 95,000 contact applications. Nevertheless, fathers' rights groups call for a change in the law, giving fathers equal 'rights' in respect of their children, usually along the lines of a presumption of shared residence. They seem to think that this is the panacea that will lead them to their parenting nirvana.
You can't blame them; you only have to watch the news or read the Daily Mail any day to see 'experts' and politicians calling for a change in the law to resolve the latest issue of the moment. More often than not though, when one examines the problem in detail one realises that the present law is quite adequate, or that the problem is just not so straightforward that a simple change in the law will cure it.
This issue of shared parenting has, of course, been in the news this week with the publication of the Government's Response to the Family Justice Review. Contrary to the recommendation of the Review, the Government has chosen to give the matter further consideration, believing "that legislation may have a role to play in supporting shared parenting".
Well, I don't want to dash anyone's hopes, but I think it may be somewhat optimistic to expect any such legislation to have any significant impact upon the outcomes of future children cases. Whatever the guidance from parliament, the courts will still be dealing with the same difficult practical problems as before, with the same limited options as to satisfactory outcomes.
In any event, I have news for you: the courts have already for some years been fully conscious of the possibility that some sort of shared residence/parenting arrangement may be in the best interests of the children (see, for example, D v D (Shared Residence Order)  1 FLR 495), and many shared residence orders have been made. Any change in the law is likely to have little effect upon the way the courts already look at things.
* * * * *