Friday, 27 April 2012

Shared Time Parenting After Divorce - What the Research Says

This post comments on the government's plans to legislate about parenting arrangements after separation or divorce. I talk about the research evidence and show that introducing a legal presumption that families involved in court cases should split their children's time between two homes is likely to be bad for most of the children involved.

Introduction:

The Government has recently announced that it intends to introduce legislation about parenting arrangements after the separation or divorce of parents, contrary to the recommendations of its own independent report. The aim, it seems, is to emphasise the importance to children’s well-being of having both parents involved in their lives after separation, just as we assume they are both involved if the parents are together.  

As Professor Liz Trinder of Exeter University wrote in a comment piece on the Guardian website in February 2012, that sounds perfectly sensible – but it’s important to keep sight of the big picture in order to see why some of the plans being proposed are a bad idea from the point of view of the children involved.

First, let’s clarify what this debate is about. So far as I am aware, it's a fairly universally-held view that, if it is safe, children should have a strong and on-going relationship with both of their parents regardless of the status of the adults’ relationship with one another. That being the accepted position, this isn’t really a debate about the principle that children should have strong involvement from both parents – it’s a debate about the practical ways in which that principle should be applied.

In this post, I explain some of the recent research that has been done into the working of the family court and the effects of different care arrangements on children’s lives. The aim of this is to demonstrate why changing the law to promote shared time for children of separated parents is a misguided idea that will harm children.

Family Law – Facts and Myths:

A lot of people know someone who has been involved with the family courts, either as a parent or as a child. Despite this, research consistently shows that only about 10% of separating parents go to court about issues to do with their children. The large majority of parents sort things out without help from the court, either entirely privately or with other assistance from professionals (usually family solicitors, who are skilled at negotiating and settling cases).

It doesn’t take much imagination to realise that many of the 10% who do end up in court are the most conflicted, the most bitter, and the most complicated cases. After all, these are the people who were unable to negotiate a settlement. Research shows that the cases that go to court have very high rates of domestic violence, drug and alcohol abuse, mental health issues and problems which often come close to needing intervention by social workers to safeguard the welfare of the children involved.

Despite these complications, the family courts adopt a strongly pro-contact position. They bend over backwards to promote relationships between parents and their children in the most challenging of circumstances, and have done their best to deal with the tricky problem of non-compliance with orders. (These cases are very complicated, because most of the ‘remedies’ that the law has impact badly on the children involved.)

Regardless of that, family law is repeatedly accused of being ‘anti-father’ and as excluding men from their children’s lives. Led by some fathers’ rights groups like Fathers4Justice and Real Fathers for Justice, the rhetoric that has taken hold is of the court colluding with hostile and vengeful mums to stop loving and blameless dads from seeing their kids. If that were true, it would be shocking and a matter for immediate and serious reform. But it’s not true – it’s a myth.

I’m not saying that there are no cases where something a bit like that might happen. I’m sure there are. The family justice system is very large and the courts deals with the best part of 100,000 cases about children’s relationships with their parents every year – no doubt there are a few cases where the judge gets it wrong (that’s why we have an appeal court!), or where not enough is done to stop mothers from keeping good fathers away from their kids. But these cases are a tiny and unrepresentative minority, and it is wrongheaded to call for reform of the entire system based on these examples. As I said in my last post, anecdotes make powerful stories, but they're a bad basis for making decisions when we have good research available.

Looking at the research, what we see is very different. The records for 2010 (the latest available) show that 95,500 cases went to court about children's contact arrangements. Of those, only 300 ended with the court specifically refusing to allow the father to see his child. That’s 0.31% of litigated cases – or, when you take into account that only10% of cases go to court in the first place, 0.031% of all separating families. In a few other litigated cases the application was withdrawn (2.29% of litigated cases) , and in a few others (0.88% of litigated cases) the court made ‘no order’ (which usually happens when the parents agree about the outcome during the course of the case). But in 96.52% of cases that went to court, judges made orders which involved at least some contact between both parents and their children.

The next question is whether those orders were for ‘meaningful’ amounts of contact, or whether they were token amounts. A high-quality piece of research by Joan Hunt and Alison Macleod investigated this question in 2008 by going to courts and looking through all the files from individual cases. This is incredibly time-consuming research, but it meant that Hunt and Macleod could say with absolute certainty what was going on in the courts.

And what did they find? Well, in almost all cases, the courts gave fathers exactly what they were asking for. If they asked to have the children stay with them one night a week, that’s what they got. If they asked for half the school holidays, that’s what they got. 

So what does all this tell us? That the family courts of England and Wales are not biased against fathers. The courts almost always make orders for contact, and those orders almost always reflect exactly what the fathers were asking for. Indeed, the bigger concern is that the courts are systematically downplaying the dangers to children and mothers of domestic violence in their zeal to promote father-child relationships.

Parenting Arrangements – Sharing Rights and Responsibilities:

A large part of the rhetoric around the post-separation parenting debate is about ‘sharing’ and ‘fairness’. It is sometimes said that, because the law ‘discriminates against fathers’, it would be better to have a rule that parents automatically share the upbringing of their children after separation. Again, that sounds sensible, but it’s important to unpack what it means.

The first thing to ask is about the extent to which parents who live in the same household actually share the everyday parenting responsibilities for their children’s upbringing. Some do, of course, but the more common pattern is for one parent to take responsibility for the majority of childcare. For a number of reasons too complicated to cover here, that person is more often the mother. (I am stating this simply as a fact, not trying to give it any normative endorsement.)

Next, we need to know something about the law. When the last major reform of child law took place in 1989, a split was made between the legal rights, responsibilities and authority about children’s upbringing – which was termed ‘parental responsibility’ – and the practical everyday aspects of children’s upbringing – where they should live, how much time they should spend with each parent, which school they should go to, whether they should have a religious upbringing or not, and so on.

Following reforms to the law in 2002, almost all parents have parental responsibility automatically – and those who do not have it automatically can usually get it easily enough. In fact, research shows the courts are often willing to give parental responsibility to parents who have absolutely no involvement in their children’s lives as a ‘label’ or ‘badge’. (One particularly revealing case involved giving parental responsibility to a man who had been convicted of paedophilic offences and who was deemed so dangerous to his children that he was forbidden from contacting them in any way. Cases where PR is refused are rare and extreme.)

The fight cannot, therefore, be about shared parental rights and responsibilities as a matter of law, because these things are already shared in virtually all cases. Just in case this needs to be made any clearer (though I can’t really see that there is much room for misunderstanding), the provisions in the law on parental responsibility could be changed to state explicitly that parents share it. This change would make no legal difference at all – that is already the case – but if it makes the message clearer then I cannot see the harm.

Parenting Arrangements – Shared Time?

Where I do see real dangers, though, is in making any legislative changes at all that start to dictate particular outcomes in favour of shared time for children between their parents. The law at the moment says simply that the court must make the welfare of the child the paramount consideration. The focus is all on the child. Parents’ rights are not the issue – the only thing that the court thinks about is what is best for the kids. Shared time legislation, on the other hand, is about adults – it treats children as things that can be split in half and divided up equally so as to be fair to the parents.

It’s particularly important to remember how few cases are decided in court, and how conflicted they are. If people who get on well and who can reach amicable agreements want to organise their childcare with a more or less equal division of time between two households, that can work quite well. Recent research in the UK shows that about 3.1% of separated parents outside the court choose to do this. Large-scale research in Australia shows that where parents get on well and can be flexible about the arrangements from one day to the next, shared time can work well for the kids involved.

However, two characteristics rarely found amongst parents who end up litigating in the family court are an ability to get on well with each other, and a flexible approach to the other parent. These 10% of people are highly conflicted and have major difficulties with their parenting – and the government is planning to introduce a presumption that these people, of all people, should split the care of their kids 50/50 between two households?? This is a recipe for disaster, and flies in the face of huge amounts of robust and careful research.

Research shows that shared time can be a good option for some kids, though it is not clear that shared time is any better or worse than having primary care with one parent and contact with the other. But for other kids – and this is the important part – shared time is clearly worse than primary care with one parent and contact with the other. So who are the kids who do worse with shared time?

Put simply, shared time is bad for children when any of the following characteristics is present:
  • there are concerns about violence (either directly towards the children or, more commonly, by one parent towards the other)
  • there is high conflict between the parents
  • there is a very rigid and inflexible arrangement of sharing the child’s time between the two households.
Okay, so now think back to the characteristics of the separating parents who end up in court. What did we see? High levels of violence, high levels of conflict, high levels of inflexibility. The research clearly shows that most people who end up in court arguing about parenting arrangements will not be well suited to a shared time arrangement, because the people who end up in court tend to have problematic relationships which make shared time bad for their kids.  

To be honest, none of this surprises me. If I had to pack a bag and move house every 3 days, I wouldn’t be very happy and I wouldn’t do so well at work either. Adults who do this as part of their job find it very dissatisfactory and, in general, try to avoid doing it for any prolonged period.  Then add in the high levels of conflict, inflexibility or violence between people in the two households, and it sounds like a nightmare. Why on earth do we think that kids, whose worlds are still developing and who find it harder to think about things in a long-term way, would find this a good way to live.

Conclusions:

Constant moving from one household to another is hard work, physically and emotionally. The research shows that the kids who do well with split time find their living arrangements manageable and do-able if they feel at home in both houses, and where both parents work cooperatively and flexibly to make the arrangements child-focused. If the parents can do that, then great. But if the parents can’t even be cooperative and flexible enough to make arrangements without going to court, there is nothing that the court can do to help, and imposing shared time arrangements on uncooperative and inflexible parents will be damaging for the children concerned.

In general, kids should have strong, on-going relationships with both their parents so long as it is safe to do so. The irony is that trying to encourage an equal split of time amongst the conflicted parents who end up in court is likely to lead to the exact opposite. All children are different, of course, but the consistent message from research around the world is that kids hate rigid clock-based care arrangements. Moreover, there is no reason to think that more time equals a better relationship between a parent and his or her child. What matters is the quality of the time that the parents spend with their children and whether they are good parents – better to have a really great weekend than a really stressful week.

So, despite the attractive rhetoric of sharing and fairness, it is important that the law not be changed to favour shared time parenting. Sharing and fairness are about adults. When we keep our eyes on the children whose lives we are discussing, shared time is demonstrably a bad option.

33 comments:

  1. I read this piece in the paper is morning -
    http://www.guardian.co.uk/lifeandstyle/2012/apr/28/charlie-condou-different-parenting-styles? - which emphasises that communication between/amongst the adults is essential if children are to thrive 'across households'. Then I read this blog. A good example, I think, of research telling us the same thing as common sense.

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  2. I agree, Julie. My only concern with the Guardian article is the idea that 'kids are incredibly adaptable'. I don't know any research on that claim either way, but my worry would be that they might appear adaptable when, underneath it, the things we are asking them to adapt to are causing significant stresses for them. We often say that kids are adaptable, but then so are adults - it doesn't mean that the best thing for us is to be having to adapt to things all the time. If anyone knows any actual evidence about this, I'd love to see it - maybe kids really are incredibly adaptable, but at the moment I'm sceptical.

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  3. Thanks for the news. Nice piece of information. I saved as a favorite to see newer things you publish. It is really great!

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  4. Yes I agree that one should not endorse a claim to be 'incredibly' anything unless it is literally impossible to believe. (NB students writing essays - do not use!)

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  5. This comment has been removed by a blog administrator.

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    1. Forseti,
      Apologies. I did not mean to remove the comment - I am still learning about the interface here. My concern with your comment was only the word 'bigoted' in the opening paragraph, which is too close to being libellous for my taste. If you want to re-post with that part omitted, I have no problem with the rest appearing here.

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  6. Nice article! Even I’m completely in favors of share parenting after having divorce because by share parenting you can able to give love ,care , affection , proper guidance, education and moral value to your children . By it parents can easily able to fulfill their legal duties and responsibilities towards their children, can make their children able to face any kind of challenges in life. Thanks for sharing such nice information to us, it is really very informative.
    Separazione E Divorzio

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  7. Our elected Government plans to bolster the legal right of a child to have a meaningful and on-going relationship with both its parents, post separation/divorce. It recognises that family law, as it currently stands, all too often fails to serve a child’s best interests in this extremely important respect.
    The Children Act (1989) rightly instructed the judiciary to serve the child’s paramount interests. However, the judiciary has singularly failed to understand or accept that a child’s paramount interests are, in the vast majority of cases, actually best served by facilitating and enforcing its meaningful relationship with both its parents. Instead, the judiciary has remained wedded to the archaic ‘single parent’, ‘primary carer’ model; an approach which has, sadly, led to a generation of fatherless children. Relocation law is a prime example: it rides rough-shod over any notion of shared parenting by placing thousands of miles between children and one of their parents. The judiciary’s approach is out of date and simply does not reflect the modern-day realities of 21st Century shared parenting.
    The aim of our Government’s proposed legislative changes is to make it very explicit to the judiciary that, for most children in litigated cases, ‘best interests’ equates to ‘shared parenting’.
    Contrary to what has been asserted above, there is currently NO legal principle concerning shared parenting. Let us hope that any amendment to the Children Act (1989) will be robust enough to safeguard a child’s right to be parented by both its parents. Let us also remember that this issue is not about parents’ rights: it is entirely about childrens’ rights.
    Furthermore, let us be absolutely clear that Shared Parenting does NOT, as many critics would have us believe, necessitate a precise 50/50 split of parenting time. This would be highly impractical in most cases. Rather, it is expected to range upwards from 20/80. Another objection from the critics is that it will endanger children. Very plainly, Shared Parenting will only be granted to parents who are not a proven risk to their children. Unsubstantiated allegations made by bitter and disgruntled ex-partners – intent on using ‘their children as weapons’, to coin Sir Nicholas Wall’s expression – ought not to be enough!
    It is a very great pity that the judiciary has failed to be proactive on Shared Parenting. For example, in the case of Re D (Children) [2010] EWCA Civ 50, Sir Nicholas Wall, the President of the Family Division, was presented with no less than 15 contemporary scientific psychological and sociological research reports which demonstrated, beyond all reasonable doubt, the verifiable benefits for children of maintaining close and meaningful relationships with both parents. This irrefragable scientific evidence went ignored or relegated by him. In contrast, our Government, to whom the scientific evidence was also sent, is taking full heed. This is precisely why our elected Government needs to legislate. Child welfare is far too important to leave in the hands of a few un-elected High Court judges, who often seem to be out of touch with modern society and family life, and who appear to have little understanding of the importance of scientific evidence.
    Best regards
    Bruno D’Itri

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    1. Excellent point of view, if there's no danger to a child and its fully practical e.g. distance then shared residency and care with both parents having high levels of quality time allows for a balanced child. It also creates an environment for the child of good access to both parents, which the child enjoyed prior to breakdown in relationship. Also regulations should be brought in to prevent parents moving miles apart mostly to cause disruption to court orders. Parents should need to apply for permission to relocate if move will impact on court older and a good justification must be given.

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    2. Excellent point of view, if there's no danger to a child and its fully practical e.g. distance then shared residency and care with both parents having high levels of quality time allows for a balanced child. It also creates an environment for the child of good access to both parents, which the child enjoyed prior to breakdown in relationship. Also regulations should be brought in to prevent parents moving miles apart mostly to cause disruption to court orders. Parents should need to apply for permission to relocate if move will impact on court older and a good justification must be given.

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  8. This one is real the best one about the shared parenting.This is the best read i have ever.

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  9. misandry record27 June 2012 at 22:28

    Complete rubbish. Try leaving your desk and meeting some of the real people in our family courts. I cannot begin to find words that do justice to how out of touch with reality you are. A few cases where the courts get it wrong? A myth that they are antifather? Clueless. Totally clueless. Just looking at your own words, only 300 cases denied contact out of 95,000. That suggest anything to you, anything at all? How about something like; we have a system that encourages mothers to create false grounds for contact denial. And do pray tell us how many of those tens of thousands of court orders are actually adhered to? I have a pretty good idea but I'll let you inform the readers. Let's remember, it's about the kids. Issuing an order means nothing outside of bureaucratic box ticking exercises if it doesn't result in the right outcome for children. Are you intentionally ignoring the truth or do you genuinely not get it? Truly truly astonishing.

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  10. As I am busy warning all of the dangers of policy advisers like yourself damaging families with distorted evidence so I have attached a short critique of your work by a fellow traveller who noted many errors but decided to concentrate on only a small number:

    1. You cannot have Judicial Statics showing over 80,000 contact or residence
    orders and then calmly claim that only 10% of divorce cases go to court for
    adjudication.

    2. You cannot base your solution on data that does not distinguish between
    un-wed mother, cohabiting women and married women. Their circumstances and
    patterns of behavior are very different.
    a). I can’t imagine married couples settling home and custody matters
    ‘informally’ or without the services of a solicitor. I can’t see most
    married divorcees relying on the CAB or “friends”. Nor can I imagine that
    the CSA would not get involved in these cases. Yet, if the data in these
    papers are to be believed, these seem not to form the majority. Therefore,
    to get services of a solicitor so low would suggest a disproportionate
    number of unmarried or un-wed mothers in the sample.


    3. If the picture is so rosy re: Rob George’s view, and the amount of
    contact and sleepovers so high then why the fuss from him, Mavis Maclean,
    Jenn McIntosh, Joan Hunt and Co etc ? Moving it from its present alleged 30%
    to say 40% should offer up no obstacles, mental, physical or emotional
    should it ?
    Quote:- "Thirty per cent of children in the non-resident parent sample and
    20 per cent of children in the resident parent sample stayed overnight with
    their non-resident parent at least once a week. This percentage did not
    change significantly between 2002 and 2007 in either of the sample groups."

    5. Rob George relies on 2 or 3 sources for his 10% figure. One of them is
    the Omnibus Survey Report No. 38 [ONS] "Non-resident parental contact,
    2007/8."
    a). As in 2002, the majority (89 per cent) of resident parents were female.
    b). the sample size appears to be only " 265 respondents who were resident
    parents and 170 respondents who were non-resident parents."
    c). Asking the child's views - this is nothing of the sort, " It should be
    remembered that although they refer to the child’s views, they are being
    reported by the parent and so may not include all the child’s opinions."
    d). throughout the Tables there is the same disparancy between mothers
    verions of events and fathers - a feature first picked out by Bradshaw in
    his late 1990s interim paper on NRP (Uni of York).

    See also The NS Omnibus Survey
    https://www.education.gov.uk/publications/eOrderingDownload/Parentreport.pdf

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  11. Fantastic read.All the article is informative.Thanks for sharing this research.property settlement

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  12. The findings of this research regarding shared parenting after a divorce are truly helpful. These facts are useful to a lot of parents like those who are having family counseling sessions to effectively do their roles even after they have separated. Thanks for sharing.

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  13. The child deserves to receive some quality time from his parents unless if the mom/dad is emotionally or physically abusing the child. The divorce process could affect the child in a bad way specially if both parents are fighting for a full custody. This is how to file divorce works.

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  14. 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 be permitted to 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.

    Single Parent-Primary Carer or Shared Parenting?

    Continued/

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    1. continued/

      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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  15. Baroness Butler-Sloss, a retired High Court judge, has recently aired her opposition to our Government's forthcoming Shared Parenting legislation.
    http://www.express.co.uk/posts/view/370559/No-50-50-sharing-of-children-in-new-divorce-law-says-top-judge
    There are three major flaws in the views of the Baroness.
    Firstly, she makes the erroneous and very misleading presumption that those calling for Shared Parenting legislation want a rigid 50/50 split of parenting time.
    Most reasonable voices who have campaigned for Shared Parenting (such as Families Need Fathers and The Custody Minefield) have acknowledged for years that a rigid 50/50 split of parenting time would be impractical in many cases.
    Instead, they have called for the significant and meaningful involvement of both parents, in order that the child may benefit from being properly parented by both its parents. Theirs has always been a qualitative approach.
    Of course, in order for a child to have a significant and meaningful relationship with both its parents, it will need to spend some minimum quantum of time with both parents, but this need NOT be 50%.
    Many who are vehemently against Shared Parenting legislation are finding it extremely difficult to counter the widespread and powerful scientific evidence in favour of Shared Parenting. They have commissioned a couple of academics in an effort to discredit Shared Parenting, but the evidence in favour of Shared Parenting is overwhelming. The general consensus among social scientists is that Shared Parenting is beneficial to children. There are parallels with the Oil Companies commissioning academics to try to convince us that Global Warming is not happening!
    Instead, opponents of Shared Parenting are rather desperately (and mischievously) attempting to shift both the debate and their attack upon the notion of 50/50. The Baroness succeeded in getting the Express Newspaper to headline this 50/50 notion!
    Secondly, whilst the Baroness concedes that children benefit from Shared Parenting when their parents are behaving "sensibly", she states that the children of parents who are not behaving "sensibly" cannot benefit from Shared Parenting, as this would be harmful.
    In the very common scenario in which the court-appointed Primary Carer (usually mum) is upset and aggrieved with any aspect of the separation or divorce, and refuses (or is emotionally incapable) to behave "sensibly" and refuses to facilitate contact , the Baroness suggests that the Secondary Carer (usually dad) should NOT be involved in the parenting of the child. The Baroness appears quite unable to perceive firstly, the injustice of her argument and, secondly, the long-term damage to the child in losing one of its parents. The Baroness gives paramountcy to the wishes and feelings of the Primary Carer mother.
    Thirdly, the Baroness appears completely out of touch with the current Zeitgeist concerning 21st century parenting. She is firmly wedded to the ideology of the 1960's and 70's which strongly held that children needed the nurturing of their mothers and the financial support of their fathers. In no other of the Baroness's judgments is this out-of-date ideology so stark as in the judgment of Payne v Payne (2001).
    Regards
    Bruno D'Itri

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    1. The Baroness claims:

      “I’ve heard one father who went into court saying, ‘Once this law is enforced, I will get half of the child”.

      Is she claiming to have heard this father in a case over which she was presiding? It seems so.

      However, the Baroness retired from the Bench many years ago, and well before the Shared Parenting Bill was aired.

      How, then. was she able to hear this father’s comments on the Shared Parenting Bill?

      In fairness, she may have intended to say that she had heard of the father’s comments from a third party, or that she had heard the father as he went into a court room whilst she was hanging around outside it.

      Of greater interest is the Baroness’s undying faith in the belief that “a child has to live in one place”.

      But is that really so?

      Should we start worrying about middle-class children who spend months each year living in their parents’ second holiday home? And should we be closing down their boarding schools?

      Should we remove all children from divorced parents who have happily agreed upon a Shared Parenting routine?

      There are many children who benefit from having one bedroom at their mum’s and a second bedroom at their dad’s, and who positively thrive from having a meaningful relationship with both of their parents.

      Confusingly, the Baroness declares that Shared Parenting is fine when parents are behaving ‘sensibly’. How does she reconcile this with her other declaration that a ‘child has to live in one place’???

      The Baroness comes across as a confused old lady with very old-fashioned and ill-conceived ideas.

      I rather think the anti-Shared Parenting lobby shoots itself in the foot whenever it wheels her out.

      Bruno D’Itri

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  16. I am very pleased that our Government is set to amend the Children Act in order to protect the Right of a child to benefit from a meaningful relationship with both its parents, post separation/divorce.

    http://www.guardian.co.uk/commentisfree/2013/feb/05/children-family-bill-panel-responds?fb=native

    This was an original intention of the Children Act (1989), but has been relegated or misinterpreted by the judiciary (specifically by Lady Butler-Sloss).

    I have campaigned vigorously over recent years for the acceptance of the principle that a child’s paramount interests are served by the Court giving due regard to maintaining its meaningful relationship with both its parents.

    Sadly, to date, the judiciary has remained more focused upon the wishes and feelings of the so-called ‘primary carer’ (usually mum) and has relegated the importance of the involvement of the de-facto ‘secondary carer’ (usually dad).

    There have been well-publicised cases in which the judiciary has recognised this shortcoming in the law, but has been unable or unwilling to act.

    In the reserved judgment of Re D (Children) [2010] EWCA Civ 50, for example, the former President of the Family Division, Sir Nicholas Wall broadcast (and later reiterated in a Family Affairs interview) his carefully considered view that Relocation Law – in the form of Payne v Payne – ascribed too great a weight to the wishes of the primary carer and relegated the harm done to a child due to the loss of its meaningful relationship with the left-behind parent.

    Regardless of his concerns, however, he proceeded to apply the very legal principles in Payne v Payne which he had criticised! Wall was either unable or unwilling to challenge a legal precedent which failed to serve the best interests of the children.

    With the forthcoming amendment to the Children Act, the judiciary will now be FORCED to give due and proper weight to maintaining meaningful relationships between children and both their parents.

    It is very hard to see how the principles of Payne v Payne can now survive. Plainly, a child which has been removed thousands of miles from its home country cannot easily benefit from maintaining a meaningful relationship with the left-behind parent!

    I expect this beastly law to be consigned to the history books before too long. A law which effectively permits a mother to cut out – like a cancer – a father from the life of his child is utterly barbaric and has no place in 21st Century Britain.

    Regards
    Bruno D’Itri

    ReplyDelete
  17. Thanks for the recent comments, Bruno.

    Regarding the proposals for revising the Children Act, my impression from talking to academics is that most people are pretty supportive. The proposed change makes clear what everyone thinks, and what the evidence shows, which is that except in the minority of cases where there are safety or other serious concerns, children do best when both parents (and, indeed, other family) are actively and positively involved in children's lives. The post that we are commenting on doesn't say anything about that - it's only about equal or near equal shared time arrangements. Those arrangement work well for some families, and they work badly for others. But even where 50/50 time would not work well, a major input from both parents is almost always good for children. Exactly how that input is arranged will vary from case to case, because people's lives are complicated, but the basic principle isn't in dispute. If this legislation helps to make that clearer, then that's all to the good.

    On the relocation point, I think that the debate is quite complex. I'm no great fan of Payne, which I think focuses to too great an extent on the role of the applicant parent (almost always the mother) - though the difficulty with Payne also comes partly from mis-reading it (see the explanation given by Eleanor King J in J v S [2010] EWHC 2098 (Fam), for example). At the same time, I doubt whether stopping relocation would always be the best overall result. Everything depends on the circumstances - I would rather not have any preconceived ideas, and leave it to be worked out (imperfectly, of course) on a case by case basis.

    To everyone's surprise, the Supreme Court this week refused permission for the father to appeal the relocation decision in Re F [2012] EWCA Civ 1364, which I wrote about on the blog back in October. I'll post about that separately soon. I was working pro bono as part of the father's legal team, and we really thought the SC would hear the case and sort relocation out. Very disappointing, not only for that father who got such a raw deal, but also for all those involved in these difficult cases.

    RG.

    ReplyDelete
  18. Dear Rob

    Thank you for your reply.

    I, too, was very surprised with the decision in Re F. By the way, isn't it for the Court of Appeal to grant or refuse permission to appeal to the Supreme Court?

    I wholeheartedly agree that 'Shared Parenting' needn't necessitate a fixed 50/50 division of time. I think most reasonable voices concur on this point. The division of time needs to be decided on a case by case basis, but there does need to be some minimum quantum of time in order for a 'meaningful' relationship to flourish.

    My primary concern is that non-resident parents (mainly fathers) do not find themselves completely excluded from their children's lives for very long and quite unnecessary periods of time.

    Despite being found by the court to be a perfectly caring, responsible and conscientious parent, I was denied access to my children, initially for a period of 8 months and subsequently for a period of 1.5 years. This Kafkaesque and soul-destroying experience is by no means unique. Many fathers and children are faced with similar separation due entirely to the failings of the current system. Many take their own lives (see Karen Woodall's Blog).

    With regards to Payne v Payne (2001), if you wish to learn of the involvement of the Justice Minister, Lord McNally and of the Chairman of the Family Justice Review Committee, Sir David Norgrove, please see the comments section of:

    http://www.mckenziefriend.com/2010/04/27/your-numbers-up-payne-v-payne-time-for-change/

    I have no doubt that the 'behind-the-scenes' involvement of the Government lead directly to the ground-breaking decision in Re K.

    As to the coincidence that my initials are BD, I couldn't possibly comment!

    Best Regards
    Bruno D'Itri

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  19. The Children Act of 1989 required the judiciary to serve the paramount interests of the child.

    Surely no one can disagree with this fundamental principle.

    The problem is that our senior judiciary has opted to interpret this paramountcy principle by adopting out-of-date suppositions which hark back to the 1960′s and 70′s. It has done so because of its rigid adherence to the system of ‘legal precedent’.

    Above all, a child needs the love and nurturing of its mother and the financial support of its father. Women are the emotionally weaker sex: if their wishes are thwarted by the court, their ability to parent their child will be adversely affected. A child can be raised quite satisfactorily without the nurturing of its father. A father may be permitted to share in the parenting of his child, but only if the mother is in agreement. If she is not in agreement, the father should not be involved in the parenting because this would upset the mother, and the resulting animosity would be harmful to the child. If a mother is found to have lodged false or exaggerated accusations of physical or emotional violence against a father, she should not be punished because this would harm her child.

    If these are the suppositions written into decades of legal precedent and indelibly ingrained in the minds of the senior judiciary – such as Baroness Butler-Sloss, Lord Justice Thorpe and Sir Nicholas Wall – then it is quite obvious that these judges will opt to interpret the Paramountcy Principle of the CA1989 by adopting those suppositions.

    A perfect example is Payne v Payne (2001). Butler-Sloss and Thorpe decided that the paramount interests of a child would best be served by ensuring that the child’s mother should not be upset by refusing her application to remove the child overseas. The unfortunate consequence – that the child would lose its meaningful relationship with its father – was not as important a factor as ensuring the happiness of the mother. In Re D (Children) [2010] EWCA Civ 50, Nicholas Wall refused to permit any challenge to the ideology of Payne v Payne, despite having being presented with a plethora of powerful scientific evidence in favour of shared parenting. Wall relegated the importance of that evidence.

    Our senior judiciary has utterly misjudged the best interests of the child by remaining stubbornly wedded to an out-of-date ideology of parenthood.

    The forthcoming amendment to the CA1989 – inserting a presumption of shared parenting – will hopefully rectify that serious judicial error.

    Regards,
    Bruno D’Itri

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  20. The Law Society is vehemently opposed to a presumption of shared parenting and strongly rejects any modification to the Children Act.

    It claims there is no evidence of any discrimination against non-primary, non-resident parents. Its leaders somehow seem oblivious to the fact that, week after week, many good parents find themselves unfairly excluded from the lives of their children, sometimes for many months on end.

    Of course, the raison d’etre of the Law Society is to serve the best interests of its membership, the Legal Industry.

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

    However, the Law Society also realises that shared parenting legislation is likely to be highly damaging to the interests of its membership.

    Many non-primary, non-resident parents unjustly excluded from their children’s lives will, quite naturally, employ the very costly (£200 plus per hour) services of solicitors and barristers in a desperate effort to regain contact with their children.

    Truly obscene sums of money begin to flow from broken families into the coffers of the law firms. The Family Justice Industry could be said to ‘feed’ upon the love an excluded parent has for his children.

    A presumption of shared parenting would permit a good and loving parent to be fully and meaningfully involved in his children’s lives, 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.

    Plainly, a similar reduction in British family court litigation would prove extremely damaging for the Family Justice Industry.

    The Law Society thus faces a real dilemma.

    Should it stand up for the genuine interests of children and their parents and support shared parenting legislation? Or, instead, should it champion the interests of its membership and oppose it?

    Rather predictably, the Law Society has opted for the latter and has been attempting to convince Government officials that shared parenting legislation would be detrimental to the interests of child welfare.

    Can we really blame the Law Society for looking after its own? Not really. The livelihood of thousands of family lawyers hangs in the balance. They face significant hardships, perhaps even unemployment.

    Nevertheless, our Government’s overriding duty must be to serve the best interests of children and of their parents.

    Plainly, if our Government succumbs to the powerful and persuasive lobbying of the Law Society, it may fail in that duty.

    Our Government would be well advised to evaluate the views of the Law Society in the light of its plain and considerable vested interest in the status quo.

    Regards
    Bruno D'itri

    ReplyDelete
  21. The ‘Children and Families Bill’ was debated in the House of Commons on 25 February 2013. A transcript of this Parliamentary debate can be found here:

    http://www.publications.parliament.uk/pa/cm201213/cmhansrd/cm130225/debtext/130225-0002.htm#13022511000001

    Tim Loughton spoke passionately and with much insight about the very real problems many non-resident parents (usually fathers) face in trying to maintain meaningful contact with their children. He was particularly scathing of resident parents who use the ‘system’ to exclude non-resident parents, and of the ‘system’ itself which fails to deter or prevent such abhorrent behaviour.

    In contrast, Sir Alan Beith appeared completely ignorant of these realities. He maintained that no shared parenting amendment was necessary.

    Beith suggested that the Paramountcy Principle would be undermined by the proposed shared parenting amendment.

    Loughton made it very clear to Beith that the proposed amendment plainly specifies that the paramountcy principle remains ‘paramount’ and that contact would not be ordered by the court if there was a verifiable risk of harm to the child. This plain explanation did not seem to satisfy Beith.

    Loughton recounted the fact that, of 3 million family breakdowns in one particular year, 1 million fathers lost all contact with their children. Plainly, this cannot be good for the welfare of those hapless children.

    Loughton explained that the shared parenting amendment was designed to serve the Right of a child to be parented by both its parents.

    In contract, Beith intimated that the amendment served the Rights of Parents rather than those of their children.

    Beith suggested that the amendment would cause non-resident parents to expect 50% parenting time with their children.

    Loughton made clear that the amendment was qualitative rather than quantitative in its design, and that it was plainly non-prescriptive regarding parenting time.

    Beith stated that the popular press was touting the idea of 50/50 time, and that non-resident parents would therefore arrive at the same understanding.

    Loughton stated that the misrepresentation of the amendment by the polular press would not prevent the Government from going ahead in the interests of child welfare.

    As the new legislation is enacted, the press and the general public will need to be educated as to exactly what it entails and what parenting arrangements can be expected by separating parents.

    Overall, I’d say Loughton won the argument.

    Beith’s position remains very closely wedded to that of the Law Society.

    It is no too difficult to speculate as to why the Law Society favours the current status quo and why it is against shared parenting legislation. Plainly, there are considerable vested financial interests in the continuation of non-resident parents going to court to re-establish or enforce contact with their children.

    Precisely why Sir Alan Beith follows the Law Society’s stance so closely requires a little more fanciful speculation, perhaps concerning the methodology and efficacy of lobbying by special interest groups!

    Regards
    Bruno D’Itri

    ReplyDelete
  22. I've just been fiddling with the zoom function of the SatNav on my new Audi (yes ladies... a new Audi!).

    I zoomed right out and managed to get the whole of Western Europe on the screen. This wasn't particularly helpful in assisting me with my 1 mile journey to the local shops!

    Incidently, as a man, I feel compelled to use the SatNav for each and every journey, even short, familiar routes I could probably drive blind-folded!

    Anyway, while I was fiddling, it made me think about the Children and Families Bill, and about the need to 'zoom out' for perspective.

    There has always been a direct link between societal norms and legislation.

    Most significant shifts in societal norms have led to changes in legislation, but this has usually involved a tough struggle!

    Anti-discrimination legislation for people of different race, gender and sexual orientation all eventually followed in the wake of changes in society.

    However, in each case, the resistance from what I shall call 'the forces of conservatism' was powerful. There were significant vested interests in the status quo, and those who stood to lose out were not going to accept change without a fight!

    In each case, honourable campaigners for justice and reform were discredited, undermined, attacked and even murdered.

    Martin Luther King Jr's letter from Birmingham Gaol touches my heart each and every time I read it. It is the quintessential call of any person facing discrimination and demanding justice.

    http://www.africa.upenn.edu/Articles_Gen/Letter_Birmingham.html

    Now, I perfectly accept that Matt O'Connor of 'Fathers 4 Justice' is NO Martin Luther King Jr!

    However, his argument for justice for children is, in my view, Righteous. It is Good. It is Honourable.

    A child surely deserves to enjoy the love, care and guidance of two good and responsible natural parents.

    The ideology of parenthood of the 1960's and 70's saw the mother as the 'natural' carer and the father as the 'natural' financial provider. Family legislation reflected this ideology.

    Of course, societal norms have now changed. In 21st century Britain, BOTH genders are now viewed as natural carers and financial providers.

    Has legislation fully caught up with this societal change? No.

    Do fathers face systematic gender discrimination? Yes.

    Is this discrimination indirectly perpetrated via the legal constructs of 'primary carer' and 'non-primary carer'? Yes.

    I am a good, responsible and conscientious parent. I know I am, because a judge found me to be so!

    And yet I was forced to endure two periods of separation from my beautiful children: firstly for 8 months and subsequently for 1.5 years.

    I now see my children once a month in a motel room in Eastern Europe.

    Any genuine 'meaningful involvement' in my children's lives has been significantly undermined.

    I am not alone in my experience.

    There are thousands of perfectly good and caring British parents (mainly fathers) who face similar discrimination.

    To the "discrimination deniers", to those who seek to preserve their vested interests in the status quo, and to those who are simply unaware of the discrimination, I say, think of that child, think of what he is missing, think of what you might say to him if he asked you why he couldn't see his dad.

    Let us open our hearts and our minds.

    Let family legislation reflect modern parenthood.

    Let us support Tim Loughton MP and his shared parenting legislation in the Children and Families Bill.

    Regards
    Bruno D'Itri

    ReplyDelete
  23. Scientific evidence for Shared Parenting:

    http://www.deferolaw.com/profiles/blogs/shared-parenting-the-psychological-and-sociological-evidence?xg_source=facebook#channel=f201ba577392ff&origin=http%3A%2F%2Fwww.deferolaw.com&channel_path=%2Fxn_resources%2Fwidgets%2Findex%2Fjs%2Ffacebookapp%2Fchannel.html%3Ffb_xd_fragment%23xd_sig%3Df2133fb5e9686c%26

    Regards
    Bruno D'Itri

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  24. I think there is a telling line in your blog:
    "And what did they find? Well, in almost all cases, the courts gave fathers exactly what they were asking for. If they asked to have the children stay with them one night a week, that’s what they got. "

    Of course one night a weekis not very much, I might babysit a friend's child that amount but would not consider myself to be playing a particularly large role in their lives. I doubt that fathers who are motivated to take their case to court only want to see their children that much and no more; rather, given they are presumably in a sitaution where any contact is problematic, they are asking for a) what they or their lawyers believe the court will agree to, and b) what the mother will be most likely to adhere to (given there will be no support in enforcing any order). In a book 'Throwaway Dads', the authors explain the difficulty that whereas in these disputes the mother might see any or anything above minimal contact for the father as a loss, the father would see equal contact as the biggest win. Therefore a compromise solution would always be something considerably less than half.

    Research shows time and time again that conflict is the worst factor. Yet the best way to reduce conflict isn't giving into unreasonable demands or to inequality. It would be far better to instil expectations into people that when they are parents they expect that in the case of divorce (of course excluding cases involving abuse etc), they must continue to be cordial to each other, that the children will see both parents equally and so on.

    I believe if this was the social, legal and moral expectation, the landscape of famiies would change for the better. Of course, if I am expecting that if I divorce my children will see their father once a week, I would be upset if a court decided it should be more. Why me and not others? Is it a reflection on my parenting? etc. But if the expectation is that equal time will be spent the only issue remains around how best to organise that for our lifestyles.

    Flowing from this are a lot of the other major problems. Of course it does not seem so important to chnage ones life because of someone who sees their children once a week or once a fortnight. But if from the outset the time is equal, it sends the strong and important message of two adults committed together to raising the children they together brought into the world.

    At each stage towards equality, there are practical barriers that seem insurmoutable. But first you have to do what is right, and as part of that you have to establish systems and social norms that support the right, equal situation.

    ReplyDelete
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