Thursday, February 09, 2012

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) [1995] 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) [2001] 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.

*      *      *      *      *

[This post was in part inspired by this excellent Comment is free article in the Guardian on Monday by Liz Trinder, professor of socio-legal studies in the Law School at Exeter University.]

23 comments:

  1. 'The law, in fact, is gender-neutral', rotfpmsl. Got as far as that and stopped reading.

    ReplyDelete
    Replies
    1. Pity. You might have learned something.

      Delete
  2. Having been to (family) court over 40 times, my mind is made up - and you are wrong. When it all started for me and I told the solicitor the respective positions, she didn't fancy the case to start with. As a bloke the dice are loaded against you, in AR and in Children's Act Proceedings. Added to that Cafcass and the family law staff and lawyers are sexist and blind to the problems in the same way as you are. Don't P on my head and tell me it's raining!

    ReplyDelete
    Replies
    1. Of course - how can I have been so stupid - Section 1A of the Children Act: "When considering the welfare of a child the court must at all times discriminate against the father."

      :-)

      David, you prove my point perfectly.

      (Oh, and I have attended 'family court' rather more times.)

      Delete
  3. The point is, it doesn't say anywhere in the children act that the non resident parent has any rights.

    Wrt AR, the law says, if there is any doubt, then the law sides with the resident parent.

    So, if we are going to talk about law, rather than perception, the law discriminates against fathers and the perception (perception is reality) is that if you go to court as a man you will lose is based on these two points.

    You change these two points, then you might be half way to a half decent family law system. If you don't and you have status quo, then you don't and there is indeed the institutional bias (by the type of people who work there) and indeed bias in fact and in law.

    So, we can throw insults at each other, but I know through bitter experience trying to enforce contact or sell a joint property in AR that the 2 points I make above are right and the rest is just BS.

    ReplyDelete
    Replies
    1. The point is, there is nothing in the Children Act that discriminates against either parent. The welfare of the child is paramount, and it is similar in financial claims.

      Some may perceive bias (which is my point), but perception is not necessarily reality - as those who once thought that the Earth was flat found out!

      Please keep your comments coming - with every one you prove my point even more!

      Delete
  4. Lol, I was thinking the same the other way around, perhaps we need an objective Judge (fat chance) ;-).

    Have read the rest of your article, and I'm sorry, but kissing the Woman's backside and relying on her generosity as you suggest isn't what I call fair law.

    ReplyDelete
  5. It's easy to mock poorly educated fathers who can't tell a noun from an adjective (never mind a gerund from a gerundive), but your misrepresenting of the Guardian poll suggests you may have an agenda of your own. ;)

    As a balance to Liz Trinder's predictable and evidence-free article can I recommend Karen Woodall's 'In the best interests of children: how Gingerbread get the rights argument wrong' (http://karenwoodall.wordpress.com/2012/02/08/in-the-best-interests-of-children-how-gingerbread-get-the-rights-argument-wrong/) in which she argues persuasively 'that we should understand how legislation impacts upon men and women differently and how it affects their choices. In the field of family separation, a gender analysis would require us to keep records of the decisions made in the Family Courts about children’s relationships with their parents and how those decisions impact upon children’s lives.' Well worth an open-minded read.

    ReplyDelete
    Replies
    1. Thanks, Nick.

      I don't think I misrepresented the Guardian poll - my post made it quite clear that the result had changed since I took the screenshot, as I expected it would once fathers' rights groups found it.

      Delete
  6. I resent that - and went to a University far better than Reading. Didn't have you down as a Snob Nick. Perhaps a bad day. But you are right, although I do know the difference between a noun and an adjective, I can't tell a gerund from a gerundive. Perhaps that's where I've been going wrong all these years, but somehow I doubt it. I don't know which noun I mistook for an adjective or vice versa anyway Nick, perhaps you could point it out to me please? Perhaps my mistake was in disregarding the 'children's needs as being the same as the father's needs' argument as nonsense. Seriously.

    Wrt engaging with lawyers in their own language, I think telling them to F off and my children not to marry until the laws are fairer works just as well. You won't win an argument with a lawyer, they'll just baffle you with nonsense; you and John seem to be going down that road - along with everyone else in Government. I see that as poor for the families and children, despite John's screenshot and Gingerbread's feminist rantings. Especially this 9 out of 10 cases settle amicably misrepresentation. 9 out of 10 can't afford either emotionally or financially to disagree, strewth, what a load of cobblers.

    Wrt the point, I'm not really sure what it is, I think it may be, who runs the family, the Government or the Family, and I think the Government are a long way on their way to losing that one (except where their is violence involved), I hope they do and expect they will. Not complicated enclish akin to lawyers and barristers speak nonsense, but I think I make my point, cheers.

    ReplyDelete
    Replies
    1. The noun/adjective reference was nothing to do with you, David.

      Delete
  7. There ;-).

    And the Reading Uni wasn't at you (who went to Oxbridge), but the other chap. I do read a lot you see.

    ReplyDelete
  8. It's not always the law that is unfair - more often than not the unfairness stems from the mother. Like it or not, there are a number of mothers who have an agenda of their own. It could be financial, if dad has the children too many nights, the CSA is reduced, it could be anxiety with older children, that they may wish to live with dad, or it could be a new partner has moved in and dad needs to be ejected to the sidelines sos that mum and her new partner can get on with their lives without the bother of dad. If dad is paranoid is such situations, one can hardly blame him.

    Dads often face an uphill struggle to maintain meaningful contact with their children - many are not satisfied with every other weekend and the occasional Big Mac - and why should they be.

    Think of it from dad's point of view - sometimes the live-in boyfriend sees more of the children than he does. If dad wants to be a major influence in the upbringing of his children he needs to know and his contact/shared residence order will enable him to do that.

    ReplyDelete
  9. Sorry about a few spelling errors. Will try harder next time!

    ReplyDelete
  10. Usually the live-in boyfriend sees more of the children than he does.

    ReplyDelete
  11. Sorry John, thought I was being patronized by a politician or member of the press or a banker or a lawyer or Judge or something. If Suarez and Dalgleish can do it, so can I. Still even if these people can tell a gerund from a gerundive, I can spot a bad loan - unlike them and in my mind that puts them at a disadvantage.

    ReplyDelete
  12. Sorry if I offended, David, but the reference wasn't about you, it referred to those in the FRM who allege that the system is 'bias' against fathers and who cannot spell. Rather than being a snob I was criticising John's attitude towards them - poor spelling and grammar don't actually invalidate their argument or make them any less effective parents.

    The difference between a gerund and gerundive was (rather cleverly, I thought) illustrated in the post. But I am still confused about who went to Reading.

    The 9 out of 10 figure is terribly frustrating. It's repeated by just about everyone who opposes family justice reform, but it is based on a misrepresented statistic from the Blackwell/Dawes report (is there a theme emerging here?). Just consider these figures from 2010:

    The parents of 104,364 children were divorced in 2010 (ONS).

    We can estimate a similar number (based on figures from the NSPCC, Gingerbread, etc) of children whose parents separated. My estimate came out at 111,000.

    That gives a total of 215,000 or thereabouts.

    Then there were 122,800 children involved in private law disputes (Judicial Statistics).

    Do the math.

    ReplyDelete
    Replies
    1. Hi Nick. I don't really want to get into an argument about figures - I know how you fathers' rights types love your statistics ;-) - but surely the Judicial Statistics figure includes many disputes where the parents separated in previous years?

      Anyhow, I prefer to go on personal experience, and my experience over 25 years suggests that the 9 out of 10 figure isn't far out - very few clients ended up in court, and certainly nothing like the sort of proportion you are suggesting.

      Delete
  13. P.S. For the 9 out of 10 figure to be true would require about 2 thirds of all cohabiting parents to split up each year. While cohabitation may be unstable, it isn't quite that bad!

    ReplyDelete
  14. Ok - John did :-). Will work on my gerunds and gerundives. Do agree with the rest of what you say - especially about the power of an argument not being in it's grammer (grammar?) or spelling. Thankfully for me, not a languages expert, more history and science, cheers, regards, David.

    ReplyDelete
  15. "...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..."


    Always ask yourself the question, 'who benefits?'


    An official reply on behalf of the 'Union of Family Lawyers' ...

    We vehemently DISAGREE with a rebuttable presumption of Shared Parenting, as being demanded by those loony, hunger-striking, dead-beat, runaway fathers!

    'Shared care arrangements' are only to be bestowed upon a father who has earned it. To earn it, he needs to invest thousands of pounds in 'purchasing' such an arrangement in the courts.

    Those fathers who will not engage with Court System (with our 'help' of course), those who will not invest their money (or that of the Government through legal aid), those who will not play by the clear rules, should NOT and must NOT be given a 'shared care arrangement' automatically! No way, Hose!

    Are we to give the whole shop away????????

    Is a father simply to sit back and expect a 'shared care arrangement', unless it can be proven by others that he is an unfit parent???? If so, how can we possibly extract a penny from him?????

    It won't do....it simply won't do!!

    We Family Lawyers have the close ear of the President of the Family Division. We shall be making our view known to him, very, very persuasively indeed! He won't wish to see our beloved family justice System decimated by such a preposterous idea as an automatic rebuttable presumption of Shared Parenting.

    And what a cheek from the fathers' rights groups!!!! You think that you have a God-given universal Right to parent your own children! Nonsense! Nothing is free in life, dear gentlemen - take out your cheque books if you wish to parent your children! Think of the livelihood of your friendly family lawyer, before you rudely demand things for which you haven't paid in full. That's robbery, if you weren't aware!!!

    Submitted by Bruno D'Itri

    ReplyDelete
    Replies
    1. ...all of which proves my second point!

      :-)

      Enough of this nonsense. Comments closed.

      Delete