Wednesday, May 09, 2012

Press Release: Government support for shared parenting is the right way forward

I have received the following press release from the Centre for Separated Families:

Government support for shared parenting is the right way forward

Family separation charity, the Centre for Separated Families, has welcomed the government's proposals to encourage more shared parenting arrangements after separation.

Commenting on the announcement, Karen Woodall, Director of the Centre for Separated Families said:

'We believe that the government's intention to introduce a legislative statement into the Children Act (1989) is by far the most appropriate way to support children's ongoing relationships with both parents after divorce or separation.'

'All the evidence shows that the children who adjust most successfully after family separation are those who are able to maintain meaningful relationships with both of their parents. In most cases, that has to mean much more than a couple of hours a week.'

'We have never supported an automatic presumption of 50:50 shared care, as some people have called for, because it is artificial and arbitrary and fails to take children's individual needs into consideration. But far too many children are missing out on the input of one parent - usually dad.'

'Over the last 40 years, we've seen huge increases in divorce and separation, fatherlessness and inter generational family breakdown. The lone parent model of support to separated families has failed countless children over that time and we welcome this government's approach of helping parents to work together around children's needs.'

'And this isn't just about parents who use the courts to sort out parenting time after separation. A strong message in the Children Act, that establishes the need for children to have a meaningful relationship with both parents, will set an expectation that all parents will aim towards that goal. In many ways, it's about changing the environment in which parents make choices.'

'But we also think that the government needs to go further. We believe that it is vital that they invest in training all of the services that families come into contact with after separation. Unless family mediators, Cafcass officers, social workers, child support professionals, children’s centre staff and all the other individuals and agencies that parents come into contact with start to work outside the lone parent paradigm, children will continue to miss out on the vital relationships that allow them to grow and develop into psychologically secure and fulfilled adults.'

'We absolutely support the government's drive to encourage more collaboration between parents after separation and ensure that children do maintain meaningful relationships with both parents. But we also need to see services that support that change, services that can offer parents the information and advice they need to make it work.'

17 comments:

  1. It will be interesting indeed to see whether our learned judiciary finally overhauls Relocation law - Payne v Payne (2001) - in the wake of the expected 'Shared Parenting' legislation.
    Let us hope that Sir Nicholas Wall does not attempt to convince us that a Shared Parenting role can be enacted by means of Skype!
    Bruno D'Itri

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  2. Northern Lights10 May 2012 00:05

    I believe the issue of how shared care should be considered in relocation cases was addressed by Hedley J. in Re Y some years ago, although it seems that fathers' rights activists failed to notice. The CK v MK ruling of last year was a review of Payne; how it should be applied and when it should not apply. Next...

    As for the subject of John's post (before it gets derailed any further) I suspect that certain ranks are salivating at the prospect of this weasel worded presumption of what already exists in the CA'89 and case law.

    Karen Woodall is correct in that we need retraining of CAFCASS and SW's. We also need specialist family judges as Wall LJ has stated himself. We need more resources in many areas but that would mean putting more into the pot that they are determined to drain of funds.

    I wonder how long before one of the campaigners realises that the emperor has no clothes.

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    1. Thanks for explaining the current position on relocation to the original commenter, and for bringing things back on track!

      As for your final point, you may well be right...

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    2. I cannot help but feel that this "presumption" is ultimately a cosmetic exercise, and that campaigners are getting excited about something that may not amount to very much in practice.Parents will still disagree about who spends what time with whom. There is not going to be any Golden Ticket issued which will magically cause the child to float across to your home, suitcase packed, half way through the week.

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    3. Yes, this is a point that I have made before, although not quite in such imaginative terms!

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  3. As far as I am aware, and contrary to a previous post, the Children Act of 1989 does not include any specific legal presumption of shared parenting. Instead it states that the best interests of a child should be served. However, what the judiciary has singularly failed to understand or accept is that, except for a relatively small number of cases involving proven child abuse, the best interests of a child are actually best served by facilitating a shared parenting regime. There exists a plethora of scientific evidence demonstrating that children fare significantly better when they are permitted to benefit from the input of both their parents. Payne v Payne (2001) - which, I can assure you, is still firmly in place - is a perfect example. It rides roughshod over any notion of shared parenting as, plainly, one cannot fulfil one's shared parenting role if one's children are residing many thousands of miles away. I speak from personal experience. Our elected Government will, hopefully, introduce the principle of shared parenting into law. The judiciary will then have to apply that law. Bruno D'Itri

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  4. Bruno D'Itri24 June 2012 16:03

    The Government now recognises that the paramount interests of a child are served by facilitating and safeguarding its close and meaningful relationship with both its parents, post separation/divorce. In reaching this conclusion, the Government has taken into full and careful account the wishes of its electorate, the realities of 21st century family life, and a plethora of irrefragable psychological and sociological evidence and research, collated over the last decade or so, which plainly demonstrates the emotional, developmental and educational benefits for those children who are permitted to enjoy a shared parenting regime. In short, ‘paramount interests’ equates to ‘shared parenting’ (except, of course, in cases where there is a proven risk of harm).

    The will of our elected Government is clear. It considers that the Children Act (1989) – as well, perhaps, as some judge-made laws which followed in its wake – does not serve the paramount interests of the child in its current form and therefore requires modification and improvement.

    However, regardless of whatever modification the Government makes to the CA, it will be the eventual application of the law by the judiciary which will determine whether or not the will of the Government is enacted in practice.

    What, then, is the best way to ensure that the will of the Government is enacted in practice by the judiciary? In my view, the Government should tap unashamedly into the vast legal knowledge and experience of Sir Nicholas Wall, the President of the Family Division, and of his colleagues in the Family Division of the High Court. The Government should, I would suggest, posit the following very specific question to Sir Nicholas: “In order for the will of the Government to be enacted in practice, what modification to the CA can you suggest?”

    Of course, it may well be the case that the judiciary actually opposes the proposed change! Sir Nicholas has, in the past, voiced his personal objections to a number of Government proposals. Nevertheless, it is imperative that Sir Nicholas provides a comprehensive and constructive reply to the specific question above, rather than simply expressing his personal opinion as to whether or not the CA should be modified in order to promote Shared Parenting. Plainly, it is not for the judiciary to make that decision. That legislative power is for our democratically-elected Government. The duty of the judiciary, I would venture to suggest, is to apply the will of our elected Government – to obey Government - to the best of its ability. For it to do otherwise, either proactively or by omission, would be very wrong.

    Sir Nicholas is fully aware of the scientific evidence in favour of shared parenting. He is fully aware of the benefits to a child of maintaining a close and meaningful relationship with both its parents. We know this because, in the case of Re D (Children) [2010] EWCA Civ 50, Sir Nicholas was presented with a plethora of contemporary scientific evidence and research, which demonstrated, beyond all reasonable doubt, the veritable benefits for children of maintaining a close and meaningful relationship with both their parents.

    Continued...

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  5. Bruno D'Itri24 June 2012 16:04

    Continued...

    To his credit, Sir Nicholas reserved judgment in Re D and gave himself three weeks in which to carefully read and digest this very extensive scientific evidence, running to several hundred pages.

    To his further credit, in his eventual written judgement Sir Nicholas accepted the argument put forward by the litigant-in-person that current family law potentially relegates the harm done to children by giving insufficient weight to the importance of maintaining a close and meaningful relationship between children and both their parents.

    In summary, the judiciary is very aware of the serious harm which can be inflicted upon children when they are denied the right to maintain an on-going, close and meaningful relationship with both their parents.

    However, as was shown in Re D, the judiciary was hand-tied and constrained to apply current law. It could not, itself, introduce the new legal principle of Shared Parenting into the CA. Sir Nicholas has made it very clear that only Parliament has the power to do so.

    Those of us who have lost meaningful contact with our children due to current family law – and who live, day by day, in the soul-destroying knowledge that, according to the science, our children’s futures will be significantly blighted as a direct consequence – very much welcome our Government’s initiative on Shared Parenting.

    However, crucially, the Government should do all that it can to ensure that any modification to the CA will be robust enough to be effective in practice. The best person who can advise the Government on this specific point is Sir Nicholas Wall.

    Bruno D’Itri

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  6. Bruno D'Itri23 July 2012 21:47

    Alan Beith wrote to Mr Cameron last week, expressing his objections to the promotion of shared parenting:

    http://www.guardian.co.uk/law/2012/jul/18/family-law-confusion-lib-dem

    Mr Beith’s opposition to Shared Parenting legislation is, perhaps, best viewed in some historical and cultural context.

    In the 19th century, British family law was such that, if the father so wished, separated mothers were likely to lose all contact with their children. Development of the law occurred very slowly indeed. Some change came with the Child Custody Act of 1839 and the Matrimonial Causes Act of 1857, but it was not until 1925 that the welfare of the child became paramount. At every stage, there were numerous ‘Mr Beiths’ who resisted any development in family law.

    Even today, in certain Middle Eastern cultures, separated mothers are treated despicably and are often denied access to their children. Here, too, there are ‘Mr Beiths’ resisting change.

    Sadly, the injustices once experienced by British mothers are now being visited upon British fathers in 21st century Britain.

    A father can be fully involved in the day-to-day care of his children. And yet, following separation, he can find himself completely excluded from their lives.

    How can this possibly occur? Following separation, the family courts automatically seek to anoint one parent with the status of ‘Primary Carer’. This will usually be the parent who, prior to separation, undertook 51% or more of childcare duties. In most cases, it is the mother. The law then bestows upon that Primary Carer a grossly disproportionate degree of power and control over the children, vis-à-vis the ‘Non-Primary Carer’ (the father).

    Of course, in most cases, separated parents are able to focus upon the well-being of their children and come to a mutually agreed childcare arrangement.

    However, in many acrimonious cases, the Primary Carer ‘uses the children as weapons’ – to coin a phrase adopted by Sir Nicholas Wall, the President of the Family Division. The children are used as a means of punishing a former partner by restricting contact. Such abhorrent behaviour currently goes unpunished by the family courts, their rationale being that to punish the children’s Primary Carer is tantamount to punishing the children themselves. With no effective deterrent, such behaviour is set to continue. As we know, our Government is looking at ways of introducing such deterrence.
    Continued...

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  7. Bruno D'Itri23 July 2012 21:48

    Continued...
    Single Parent-Primary Carer or Shared Parenting? There now exists a plethora of contemporary scientific evidence which demonstrates, beyond all reasonable doubt, the significant emotional, developmental and educational benefits for children of their being permitted to remain in a close and meaningful relationship with both their parents, post separation/divorce. Indeed, fifteen such scientific reports were presented to Sir Nicholas Wall in the case of Re D (Children) [2010] EWCA Civ 50. Sir Nicholas reserved his judgment for three weeks in order to read this very extensive evidence. He concluded that family laws potentially relegated the harm done to children by irrevocably damaging their meaningful relationship with the Non-Primary Carer.

    Mr Cameron – to whose Government the scientific evidence was also presented – understands the need for family law to develop in line with contemporary scientific evidence and with the realities of 21st century parenting. We need only to look at last Summer’s riots to see where fatherlessness can lead. In contrast, Mr Beith appears to lag behind.

    As I see it, the problem lies in the fact that the judiciary has opted to interpret the Paramountcy Principle of the Children Act (1989) by using the ‘Single Parent-Primary Carer’ paradigm. Relocation law, in the form of Payne v Payne (2001), is a prime example: it rides rough-shod over any possibility of shared parenting by placing thousands of miles and any number of oceans between children and their Non-Primary Carer.

    What Mr Cameron seeks to do is to rectify this judicial error by making it very explicit indeed to the judiciary that the full and meaningful involvement of a good and loving father is vitally important in serving the paramount interests of a child. In reality, there is no material conflict between the Paramountcy Principle and the Principle of a Presumption of Shared Parenting.

    Regards
    Bruno D’Itri

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    1. Thank you for your view.

      (I should say that Mr Beith did state that there is no evidence to suggest that judges are not starting from a position in favour of contact being maintained with both parents.)

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  8. Bruno D'Itri24 July 2012 07:53

    Hello John.

    Mr Beith does indeed make this claim. However, many would question its veracity.

    In any case, IF the judiciary's starting point was really to encourage shared parenting, then why object to enshrining into law a principle which is already enacted in practice?

    If parents were being treated equally in the family courts, if children were being allowed to remain in meaningful contact with both parents, if contact orders were being enforced by the courts, if false allegations were being punished, then I can assure you that there wouldn't be such vociferous dissent. People don't waste their time and effort fighting for a cause which has no basis in reality.

    I am one good and responsible parent who has lost meaningful contact with my sons due to existing family law. There are hundreds of others. We are not imagining it.

    Furthermore, as I am sure you will know, many erudite thinkers within the legal fraternity comprehend the problems and call for improvement. Mostyn J, for example, in his critique of Payne v Payne in Re AR.

    Mr Beith's views are 'out of synch' with the current Zeitgeist.

    Bruno D'Itri

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  9. When parents separate or divorce, the court automatically seeks to anoint one parent (usually the mother) with the legal status of ‘primary carer/resident parent’. It then bestows upon that parent a grossly disproportionate degree of power and control over the children vis-à-vis the ‘secondary carer/non-resident parent’ (dad).

    In many acrimonious cases an embittered resident parent uses this power to exclude the second parent from the lives of the children. The courts are reluctant to punish this abhorrent behaviour, their rationale being that to punish the primary carer is tantamount to punishing the children. With no deterrence, this behaviour is set to continue.

    Quite naturally, an unjustly excluded parent will employ the very costly (£200 plus per hour) services of solicitors and barristers in a desperate effort to regain contact with his children. Truly obscene sums of money begin to flow from broken families into the coffers of the law firms. The Family Justice Industry feeds upon the love an excluded parent has for his children.

    A presumption of Shared Parenting would permit a loving parent to be fully involved in the parenting of his children, post separation or divorce, without the need for costly and lengthy litigation. In Australia, for example, litigation reduced by circa 30% following the introduction of Shared Parenting legislation. Of course, in those relatively few cases where there is a serious and proven risk of harm, contact can and should be restricted.

    Plainly, a similar reduction of circa 30% in British family court litigation would prove extremely damaging to the Family Justice Industry. It is little wonder, then, that the Law Society is vehemently against a presumption of Shared Parenting. Family lawyers are not saints; we should not naively assume that their leaders would place genuine justice for parents and children ahead of their desire to maintain their income stream.

    The judiciary is no better. Sir Nicholas Wall – the former President of the Family Division – sought to blame parents for “using their children as weapons”, without accepting in the least that it is the System itself which facilitates, encourages and fails to deter such abhorrent behaviour.

    The real scandal is that the Law Society and the judiciary have succeeded in persuading our Government to dilute its original Shared Parenting proposals. There is now a very serious risk that the status quo is set to continue.

    Shame on the Law Society.
    Shame on the judiciary.
    Shame on the Government.

    Bruno D’Itri

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    1. Thank you (yet again) for your view.

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  10. History teaches us that powerful and wealthy “special interest groups” have direct and very influential access to Government officials and that they often get their own way, irrespective of what is actually ‘good’ or ‘just’ for society.

    The raison d’etre of the Law Society is to serve the interests of the Legal Industry. Of this, there is no doubt.

    The Law Society is perfectly aware of the extensive and compelling scientific evidence demonstrating, beyond all reasonable doubt, the significant benefits for children of remaining in meaningful contact with both parents post separation or divorce.

    However, the Law Society is also very aware that Shared Parenting legislation is likely to be highly damaging to the interests of its members, as profitable litigation would significantly decrease.

    The Law Society thus faces a real dilemma…

    Should it stand up for the interests of children and support Shared Parenting legislation or, instead, should it stand up for the interests of its members and oppose Shared Parenting legislation?

    It has opted firmly for the latter, and is using all of its sophistry and guile to try to convince our Government that Shared Parenting legislation will be harmful to child welfare.

    Some Government officials, such as Alan Beith, have been taken in. Other Ministry of Justice officials have also been seduced and have stated recently that Shared Parenting legislation is NOT actually expected to alter outcomes in family justice cases. The sole purpose of any new legislation, they have said, is simply to try to dispel the widely-held (but, according to them, quite unjustified) "perception" of anti-father bias in the system! Apparently, hundreds of fathers are only imagining that they are not able to see their children!

    We must do ALL we can to expose the shockingly immoral and self-serving behaviour of the Law Society in order to serve the genuine best interests of thousands of children.

    Bruno D'Itri

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    1. Yawn. I think I have allowed you quite enough opportunities to put your view, Mr D'Itri.

      Comments closed.

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