Relocation Disputes: Approaches in England and New Zealand

It's just a couple of weeks now until the publication of Relocation Disputes: Law and Practice in England and New Zealand (Hart Publishing, pictured). "Finally", you say, "the ideal stocking-filler present that I've been waiting for!" I'm fully supportive of that idea, so for those who aren't tempted enough by the lovely Edward Hopper on the cover ("Route 6 Eastham", 1941), here's a little more about the book.

This book started life in 2007, when I began my doctorate at the University of Oxford. I was interested in looking at how the family justice system deals with cases involving children, and a colleague had suggested that relocation disputes might make an interesting case study. Relocation cases, which I've written about here a couple of times before - see here, here and here for the main posts - are disputes between separated parents where one of them (usually but not always the mother) seeks to take the child to live somewhere else, and the other parent objects to that proposal. The 'somewhere else' can be a relatively short distance away, such as the other side of a large city or another nearby town, but in terms of cases which reach the attention of the law they more commonly involve longer distances, and in particular they often involve proposed international moves.

Relocation cases are commonly thought by judges and lawyers to be amongst the most difficult cases that they deal with between parents. While there are exceptions, in general what you see in a relocation dispute is a conflict between two very good, very committed parents, both of whom have legitimate desires and plans regarding their children. The legal framework governing the resolution of these disputes is actually quite straightforward in most jurisdictions. In England and Wales, s 1 of the Children Act 1989 makes the child's welfare the court's paramount considerations, while in New Zealand s 4 of the Care of Children Act 2004 makes the child's welfare and best interests the paramount consideration. The difficulty and complexity stems from the fact that we have to work out what that actually means in the relocation context.

In order to do that, I started by going back through the reported cases. The first, a case called Hunt v Hunt, comes from 1884, but the modern principles began to be developed by the English Court of Appeal in 1970, in a case called Poel v Poel. This case guided the courts in both England and New Zealand for many years. It was abandoned by the New Zealand courts in 1995, with their Court of Appeal decision in Stadniczenko v Stadniczenko, and was superceded in England by the 2001 Court of Appeal decision of Payne v Payne. In Chapter 2 of the book, I look at these shifting patterns in the case law, and at how the legal principles evolved and were interpreted and re-interpreted over the years.

But cases in appeal courts and in the official law reports can only tell you so much. I wanted to know what was really happening on the ground, and how those professionals who have to use the law in their work saw it. So I set off and interviewed trial judges, barristers, solicitors and welfare advisers who were experienced in relocation cases in both England and New Zealand. The views and experiences of the 44 men and women who talked to me as part of that study form the core of this book.

Chapter 3 contains the real comparison between the two jurisdictions and their quite different ideas about what 'welfare' means in the relocation context. I gave all my participants three identical case studies about different types of relocation disputes and asked them to tell me what factors they thought would be important in coming to a decision, and what the likely outcome would be if the case went to court. The enormous variation in the approaches of participants in the two jurisdictions was amazing, and the 'classic relocation case', involving a hypothetical child called Tom whose mother wanted to move to America with her new American husband, was the one that showed up the differences in approach most starkly.

From there, I focus in on the two jurisdictions in turn, asking practitioners to talk about their general experiences of relocation law and to evaluate the positive and negative aspects of their system. These discussions reveal a wealth of information about the practical working of the law, and about lessons that can be learnt both in terms of working well within the existing law and in terms of possible law reform.

Reform of the law is indeed the focus of the final chapter of the book. Relocation is one of the most controversial areas of family law, and in many jurisdictions around the world there is discussion about whether they can be dealt with better. I review a number of possible suggestions that have been put forward, and end with a discussion of an idea of mine which comes out the study.

Obviously I can't tell you if it's any good, but Mr Justice Peter Jackson of the High Court in London says in a review for the cover that the book "holds up a mirror to what we do in relocation cases, and draws a map of where we might want to go. More than that, we see how lawyers and judges think about hard decisions, and how studies of this kind can help us think more clearly."

--
Relocation Disputes: Law and Practice 
in England and New Zealand is published 
by Hart Publishing on 17 December 2013.

Relocation Research - first paper now available

In my last post, I published the Executive Summary from my new paper, "Relocation Disputes in England and Wales: First Findings from the 2012 Study". The full paper is now available to download free of charge from the Social Science Research Network.

There are two short points I'd like to make about this paper. The first is that it's a working paper. I wanted to get the first findings out as soon as they were ready because this is an important topic, but there's a lot more work to do. So while all of the statistical analysis that is reported in the paper is correct and final, the overall project isn't finished yet, and there will be more information feeding into the overall analysis and conclusions.

The second point is that this paper does not make any comment about legal policy. A lot of people dislike the English law's approach to relocation disputes and there is a respectable view that it needs to be reformed. Indeed, I have made that argument myself on this blog (see here and here), in my academic writing,* and as part of the legal team who sought to appeal a relocation case to the Supreme Court a year ago. That is an important question that needs to be addressed - but it is not the question that I am addressing in this paper. The first thing to do when considering change is to find out more about what is happening now. This paper is about that - it tells us about what the reality of relocation law is in the courts and lawyers' offices of England and Wales. We can add that information to the debate about what if any change needs to be made, but the research does not by itself answer that question. Consequently, no one should read this paper to find out what I think about law reform, but the fact that I do not talk about that in this paper does not mean that I don't have views on change.



* At the moment, a lot of academic writing is difficult for the general public to obtain. Some of my work is on the SSRN network (see here and here), though not all if it is available without charge (this is a policy of the journals, not of mine); I am happy to provide copies on request.

Relocation Disputes: First Findings from the 2012 Study: Executive Summary

This post contains the Executive Summary of a research paper from my study of relocation cases in England and Wales. The full paper is now available to download without charge from the Social Science Research Network.

  

Relocation disputes are cases between separated parents where one of them proposes to move to a new geographic location with their child and the other parent objects to the proposals. This Research Paper reports the first set of findings from a major study of relocation cases in England and Wales based on cases decided in 2012. The data used come from 118 first instance court decisions in relocation cases (96 proposed international moves and 22 proposed moves within the UK) – the CC sample – and 187 responses from family lawyers to a research questionnaire about relocation disputes –the RQ sample. We use statistical techniques to analyse those cases and investigate patterns of outcomes.

Part 1 | Relocation Law in England and Wales: A Summary

The law governing relocation disputes, while different for proposed international moves and for those proposals involving moves within the United Kingdom, is relatively straightforward and can be explained simply. The welfare of the child concerned is the paramount consideration, with guidance then offered by appellate cases as to how the child’s best interests should be ascertained by judges in international and domestic relocation cases respectively.

Part 2 | Previous Research on Relocation Disputes

The simplicity of relocation law belies the extent to which relocation disputes are immensely difficult for all those involved, whether the children, the parents, the lawyers or the judges. Previous research in England and Wales has shown that there are concerns that the law itself, although well understood, may not have struck the right balance in its pursuit of the child’s best interests. However, while this view was shared by many, others thought that the English courts had shifted their approach in the mid- to late-2000s and were now approaching relocation cases more ‘rigorously’. At the same time, researchers in other jurisdictions were investigating case outcomes and patterns of decision-making in a way that, until now, has not been possible in England and Wales because of the lack of access to the relevant materials.

Part 3 | International and Domestic Relocation Disputes: Characteristics of Cases and Families

Cases in the dataset came from all over England and Wales, but there was a clear dominance of cases coming from London and the South East of England. Cases were heard by judges at all levels, with the bulk of international cases being tried by Circuit Judges and most domestic cases going before District Judges. In both domestic and international cases, applicants were more likely than respondents to be legally represented, and those who had legal representation usually had both a solicitor and a barrister.

In both international and domestic cases, most disputes involved a single child, with an average number of children per case of 1.5. In terms of children’s ages, the mean age was around 7 (just under for international cases, just over for domestic ones). International cases more often involved pre-school aged children than did domestic disputes, but in both samples the bulk of children were aged 4 through 9; few children aged 12 or over featured in either category.

The vast majority of applications were brought by mothers (around 95%). In terms of care arrangements, a small minority of cases (around 5%) involved equal shared care arrangements, while a larger minority (7% in the CC sample, 38% in the RQ sample) involved 65/35 shared care arrangements. Conversely, in the CC sample overnight contact cases account for well over half of all cases, whereas in the RQ sample only around a quarter of cases were reported to be in this group. In both samples, a small minority of cases involved direct contact not including overnight stays or no direct contact at all.

Looking at parents’ relationships statuses, we see that parents in the international sample were more commonly married to one another previously, whereas the domestic cases involved a higher proportion of former cohabitants. In terms of each parent’s current relationship status, applicant parents are more likely to have remarried (35%, compared with 7% of respondents), whereas respondents are more likely to be in a cohabiting relationship or to be single (23% and 59% respectively, compared with 10% and 42% for applicants).

Some 70% of applicants in the international sample were foreign nationals seeking to leave the United Kingdom, most (though not all) proposing to return to their original home country. In terms of destinations for the international cases, the biggest category involved proposed moves to other EU countries (around 40%), with ‘North America’ and ‘Australia/New Zealand’ each accounting for around a quarter of cases. Domestic cases had an average travel time between the current location and the proposed destination of around 2.5 hours, though with a range from 1 hour to 11 hours.

Part 4 | International Relocation Disputes: Outcomes and Patterns

The overall success rate for litigated international relocation cases in the CC and RQ samples combined (N=141) was 66.7%. Given that English law was said to be ‘pro-relocation’, it is interesting to compare this figure with the equivalent data from Canada (68%) and New Zealand (68%), which are respectively ‘neutral’ and ‘anti-relocation’. Of course, court outcomes are not the whole story because pre-litigation advice is an important filter, but the similarity is noteworthy.

We then go on to identify factors which appear to be important in influencing case outcomes, which we divide into three broad groups. The first group relates to courts, judges and lawyers. The data suggest that courts in London and on the South East (1) Circuit are more likely to refuse relocation applications than courts elsewhere in England and Wales (around 62%, compared with 85%). There is also a difference based on the type of judge hearing the case, but the data suggest that this difference may be accounted for by case allocation: different judges hear different types of international relocation case. While most cases involved both applicants and respondents with legal representation, the data suggest that if one side does not have a lawyer then his or her chances of getting the desired outcome are substantially reduced (though this is correlation, not causation).

The second group of factors focuses on families and their biographical characteristics. In terms of children’s care arrangements, the overall picture suggested by the data is that applications where the respondent parent does not have overnight staying contact with the child are more likely to be allowed (around 75%) than cases which do involve staying contact (around 55%); but the amount of staying contact (whether amounting to shared care or not) does not make a significant difference. There is some suggestion from the data that cases involving multiple children are less likely to be allowed than cases involving a single child, but the small number of cases with several children makes it impossible to be sure of any pattern. In the international cases, the ages of the children made no apparent difference to case outcomes. In terms of the parents’ relationship statuses, we saw that the parents’ previous relationship with each other made no difference to case outcomes, and the same was true of the respondent parent’s current relationship status; but applicants who were now married had a significantly higher chance of their relocation application being approved than did applicants who were single (just over 80% for those who were married, compared with 50% for those who were single).

The third group of considerations looked at proposed destinations and the applicant parents’ motivations for seeking to relocate. The overall picture in terms of destinations seems to be that the shorter the proposed move, the more likely it is that the relocation will be allowed – so moves within the EU are allowed more often than moves to North America, which are in turn allowed more often than moves to Australia or New Zealand (in the CC data, 80%, 71% and 52% respectively). Consistently with previous research, we see that most applicants have several reasons for seeking to relocate, but we focus on four key groups: ‘going home’, ‘new job’, ‘lifestyle’ and ‘other’. The findings here are not straightforward, but the overall picture seems to be that cases involving a return home or a specific job offer have a greater than average chance of being allowed (72% and 70% respectively), while those seen as lifestyle decisions are significantly less likely to be allowed (48%). Most opposition to relocation applications was based on the child’s loss of relationship with the respondent parent; but in those cases where the respondent argued that the proposed move was poorly planned or that it was brought in bad faith, the application was less likely to be allowed (56% and 50% respectively).

Part 5 | Domestic Relocation Disputes: Outcomes and Patterns

The overall success rate for litigated domestic relocation cases in the combined sample (N=37) was 70.3%. Given that orders restricting internal relocation are thought to be unusual, it may be surprising that this figure was so similar to that for international relocation (66.7%). However, it should be remembered that many internal relocation cases will not be litigated, so the range of cases before the courts may be different in the two contexts.

Starting again with issues relating to courts, judges and lawyers, the data suggest that courts in London and on the SE-1 circuit may be more inclined to allow internal relocation applications than courts elsewhere – the reverse of the pattern seen in the international data – though this variation may be explained by case characteristics. A finding more in keeping with the international data is that District Judges seem to be more inclined to prevent domestic relocations than are Circuit Judges.

Looking at families and their biographical characteristics, similar patterns are seen as emerged from the international data. Children’s pre-relocation care arrangements appear strongly correlated with case outcome, with the proportion of relocations allowed increasing as the non-moving parent’s involvement in the child’s daily life decreases. In terms of children’s ages, cases where relocation was allowed had a lower mean age of child (7.0 years) compared with cases that were refused (8.3 years), though it is unclear why that would be the case.

Rather than proposed destinations, the focus in the domestic data is on distances of the proposed move. The data show that shorter moves (two hours or less) are less likely to be allowed than longer moves (61.1%, compared with 78.9%). Again, it is unclear why that should be the case, given that on-going contact will be easier to maintain after a shorter move. In terms of reasons for seeking or opposing domestic relocation, the data are equivocal about whether motivation makes much difference. No observed differences were close to being statistically significant, and the differences were in any case marginal.

Part 6 | Discussion and On-Going Work

The statistical data have revealed a wealth of findings, but have also raised many questions. The next stage of analysis will return to the judgments and look qualitatively at judicial reasoning. After that, the project turns to parental experiences. Parents in 30 relocation cases have been interviewed about their experiences, and those interviews will be analysed and the conclusions added to the overall project. 

Relocation Research - First Update

My research project looking at relocation disputes in England and Wales is now well underway. I wrote about this work on the blog briefly early last year, and this seems like a good time for an update.

The work has three distinct strands. Collection of data for the first two strands is now complete, and analysis of the findings is underway. The third strand, which involves interviewing parents who have been involved in relocation disputes which were resolved within the last 9 months, is running for a couple more months.


Interviews with parents: on-going work

So far we have done about 20 interviews with parents. The stories are very varied, of course, but the one commonality that comes through is just how painful relocation cases are, whichever position the parent is in. Even the parents who 'win' their cases - fathers who successfully prevent a relocation or mothers who are allowed to move - find the process traumatic and difficult. For those who 'lose', the position is even worse.

We are keen to increase the number of stories that we have for the study, so that we can get the fullest picture possible of what the experience is like for parents. If you are a parent who was involved in a relocation case (international or internal, and whether the relocation was allowed or refused) that was resolved in the last 9 months and you are interested in being interviewed about the experience, please do get in touch. Similarly, if you are a family lawyer who has a current or former client who might be interested, please contact us. There is an information leaflet available here.


Court cases and questionnaires: completed work

The other two strands of the work were conducted in 2012, and the analysis of the findings is now underway. The first strand involved collecting from courts as many relocation cases as possible over the year. For international relocation disputes, 95 cases were collected in this way; for internal relocation, 22 cases were submitted. This disparity might be explained in three ways.

First, when people think about 'relocation' they usually think international. The project relied on judges and lawyers submitting material to be studied, and they may have focused on their international cases. Second, internal relocation cases tend to be heard by District Judges in the County Courts, whereas international relocation cases usually go to Circuit Judges or High Court Judges. The sheer number of DJs makes it harder to contact them and they have a very high turnover of cases, so getting material from them may be more challenging. Third, there may actually be more international relocation cases that reach the courts than there are internal cases. The reason for that would likely be that parents are more able to negotiate the outcome when an internal relocation is proposed, whereas international cases are very difficult to agree.

The other strand of this research involved a questionnaire for family lawyers. The questionnaire was sent out both electronically and in paper copy, delivered at conferences and seminars and by direct mail to solicitors and barristers around England and Wales. 187 usable responses were received. Some of the questions were evaluative, but most asked the lawyers to give detailed information about their most recent relocation case. The aim was to be able to compare the cases reported by lawyers with the cases collected from the courts.

The analysis of these findings is now underway. There is a lot of work to do, but one or two initial findings can be shared here. First, looking at international relocation cases in 2012 (so, 95 court cases and 84 of the 187 questionnaire responses), one question is: what do we mean by international? Where are people proposing to go?

Graph 1 shows that there are three dominant destinations: countries within the EU, the USA and Canada, and Australia and New Zealand. That is probably not that surprising. International relocation cases arise for a number of reasons, but 'going home' (for the parent or a new partner) and 'new start' are both common reasons, and the links between Britain and other EU countries on the one hand, and with English-speaking developed countries on the other, makes these proposed destinations unsurprising.

Another question might be to ask how old the children are who are involved in these cases. On average, each case has 1.5 children, and Graph 2 shows the distribution of their ages. While there is clearly a little bit of variation between the court case sample and the questionnaire sample, overall the message from the two seems to be the same. There is a small peak of children just before school age, and then a main peak around 7 or 8. The drop-off of children aged 12+ is unsurprising, and is probably explained by the increasing

importance the the wishes and feelings of children as they start to get into adolescence and, in the relocation context especially, start to be able to understand the consequences of the decisions being taken a little more clearly.

 

These are obviously fairly basic bits of information. The work that we are doing at the moment is asking about much more involved questions, mainly trying to see what the data can tell us about which factors do and do not help to predict the outcomes of cases. We are not ready to make those findings public just yet, but it does look like there are some exciting results to come. Factors like (i) the child's previous care arrangements, (ii) the reason for the proposed relocation, (iii) the possibilities for maintaining a good relationship with the non-moving parent if the relocation is allowed, and even (iv) the type of judge and the location of the court are being considered, and we hope that this analysis will allow us to give useful pointers in future.

 

 

Rob George is lead author, with Frances Judd QC,

Damian Garrido and Anna Worwood, of "Relocation:

A Practical Guide", a practical handbook for lawyers

and parents who are involved with relocation cases,

to be published by Family Law in early June 2013.

Negative Impact? When your research stops something from happening

Large amounts of money for UK university research are allocated through a process known as the Research Excellence Framework (REF). As part of the next round of the REF, academics in the UK are being asked to think about the 'impact' of our research outside academia. This post, which was originally written for the Impact Blog of the London School of Economics, discusses the idea of 'negative impact', which is when the effect that your research has is to stop something from happening.



Does it count as ‘impact’ if a researcher's great achievement in the world beyond academia is to stop something from happening? Most academics have come to think of impact as a tangible change of some kind in policy, business, industry or society in general arising because of our research. But what about the case where someone ‘out there’ has had a bad idea and is in the process of trying to implement it, and you step in with your research and stop that idea coming into being? Is that impact? And if it is, how do you show that it was your research that had this effect?

The views of REF assessment panels remain unknown at this stage, but it seems to me that this form of impact – what I’ll call negative impact – is potentially just as important as any other form. Using research findings to save the status quo from poorly informed ‘reform’ ought to be valued as highly as any other engagement that academics have with wider society. That said, I’m less sure about how you know when you’ve had this kind of effect, or how to demonstrate it to anyone.

I propose to explore this with an example from my area of research, family law. I’m not sure whether the example actually involves negative impact or not, but at least it should serve to demonstrate why this issue matters. 

An Example: Family Courts and the Media

Most court cases in England and Wales are open to the public. Anyone can just walk in off the street and watch what’s happening. But family cases involving children or post-divorce financial arrangements are different, and the default rule is they are heard ‘in private’. That means that only people directly associated with the case are allowed to be in the court room.

There are good reasons for this rule. Family courts deal with sensitive, personal events in people’s lives – allegations (which might or might not be true) about parents neglecting or abusing their children, questions about whether a child should have a dangerous medical operation or not, women seeking protection from physical, mental or emotional abuse by their partners or other family members, and so on. These are things that people are entitled to keep private, and they should be able to get help from the court without the rest of us standing on the sidelines gawping.

However, the flip side of this privacy is that the general public is not well informed about what happens in family courts, and consequently there is much scope for misunderstanding. A series of comment articles by Camilla Cavendish in The Times raised the public profile of this issue with an attack on what Cavendish called the “secret justice” of the family courts. (Although these articles were largely based on unrepresentative anecdotes that don’t fit with the bigger picture, they gained traction in the public debate because, as I've discussed before, anecdotes often make better stories than research findings).

In part because of the campaign by The Times, there was a push in 2009-10 for a change to the law. Reforms were introduced in April 2009 to allow media representatives to attend family cases, but rules on reporting cases were not changed. That meant that although a journalist could attend most cases, he or she could not write about any particular case, but only about the family court system as a whole. Given that the media’s criticism of the courts was that they were systemically biased and unfair, that seemed a reasonable step, but the campaign for reform continued.

When further legislation looked likely, the Nuffield Foundation commissioned me to write a Briefing Paper on the subject as part of Oxford University’s Family Policy Briefing Paper series. The purpose of these papers is to offer a clear overview of the research evidence available on a particular issue which can then be sent to policy-makers, government officials, journalists, think-tanks, third sector organisations, and so on. While the Briefing Paper was not a lobbying document, the message from the research was clear: the proposed changes would be complicated, difficult to implement, and involve infringement of people’s privacy in personal disputes.

My involvement with this Briefing Paper led me to give submissions to the Children, Schools and Families Select Committee and to Ministry of Justice officials at consultation meetings. The findings of the paper were reported in specialist law publications and national media, and I did a BBC local radio interview about the issue. Nonetheless, the Children, Schools and Families Act 2010 was passed by Parliament in the dying days of the last administration, and I thought that my efforts had come to nothing. But here we are, two years on, and the relevant parts of the Act are still not in force (meaning that they have no effect – they are on the books but a dead letter unless activated), and the current government is about to introduce provisions in the Crime and Courts Bill to repeal this part of the CSFA 2010.

Discussion

So is that impact? It’s obviously quite hard to work out what my role was in any of this, because there were many other people and organisations involved on both sides of the debate. It is also difficult to know quite why the coalition government has not implemented the relevant provisions, since I am unaware of any public statement on the issue. All I have is correlation (my work against the reforms, and the reforms not being implemented) but no real indication of causation.

But then, I think that’s almost always going to be true. The status quo usually has some merit which people can see, and an academic’s contribution to making the case against change will usually be only part of a larger discussion. I’ve just had a similar experience (but with a less positive outcome) on legal aid reforms, and a new debate is just kicking off on proposals to reform the law governing parent-child relationships after parental separation. In all of these cases, the research community has sought to show that the proposed reforms may be harmful in some way and that the status quo is, overall, a preferable state of affairs.

Of course, sometimes we win and sometimes we lose. But when the tide is clearly moving in favour of change which research suggests will be for the worse, there ought to be some credit for the negative impact of making those findings public in such a way as to help stop the reforms.

Internal relocation: have kids, will travel (barring exceptional circumstances)

Internal relocation cases are disputes between separated parents about a proposed move to a different geographic location within the UK. In this post, I discuss the law and some research that I did with legal practitioners in 2009, and suggest that it is time to think again about the courts' current approach to relocation disputes.



One of my barrister colleagues at Harcourt Chambers has a case coming up about internal relocation. Relocation cases are disputes between separated parents that arise when one of them proposes to move to a new geographic location with their child or children and the other parent objects. The 'internal' part means a move within the United Kingdom, rather than internationally.

Families obviously move house all the time after separation, but internal relocation disputes that end up in court are pretty rare for a number of reasons. Some of those reasons are obvious - separated parents work things out for themselves when one of them wants to move, or the move isn't far enough to justify the kind of expense and aggravation that a court case involves. There are less obvious reasons, though, which relate to the law itself.

The Law on Internal Relocation:

Like all parenting disputes about children's upbringing, internal relocation disputes are governed by the Children Act 1989. The heart of the Act is that in all decisions about a child, that child's welfare must be the paramount consideration. In practical terms, that means that any relevant information can be taken into consideration, but only things which directly or indirectly affect the child will be considered relevant. This 'welfare principle' is then guided by case law as it develops in relation to particular types of case.

The first litigated internal relocation case that reached the Court of Appeal (and so started to matter more generally to the law) was a case reported as Re E (Residence: Imposition of Conditions) in 1997. In that case, the mother was providing the main care of the children, and the father sought an order from the court preventing her from moving with them from London (where they had lived before separation) to Blackpool (where the mother's extended family lived). The Court of Appeal refused to make the restrictions on the facts of that case, and set out some general guidelines for future decisions.

In the leading judgment of Lady Justice Butler-Sloss, it was noted that although the Children Act contains a power to impose conditions on a residence order, it would 'not sit easily' with what was meant by a residence order if conditions were routinely imposed. A residence order, which determines the person or persons with whom a child shall live, would normally come with significant flexibility about how to raise the child while in that person's care. As the judge went on:

"A general imposition of conditions on residence orders was clearly not contemplated by Parliament and where the parent is entirely suitable and the court intends to make a residence order in favour of that parent, a condition of residence is in my view an unwarranted imposition upon the right of the parent to choose where he/she will live within the UK or with whom. There may be exceptional cases".

This final point, about exceptional cases, was clearly intended by Butler-Sloss LJ to avoid any overly rigid rule, but with the advantage of hindsight it was perhaps unfortunately expressed. In subsequent cases, other Court of Appeal judges began to refer to the 'highly exceptional' circumstances which might justify stopping an internal relocation, and then of the 'truly exceptional' nature of an order stopping an internal relocation.

In the most recent reported case, Re F (Internal Relocation) in the summer of 2010, Lord Justice Wilson expressed 'puzzlement' at this development of the law. As the judge noted, it is hard to see any legal justification for an exceptionality test. All decisions about children's upbringing are governed by a single principle, namely that the welfare of the child is the paramount consideration. If a welfare analysis suggests that internal relocation is not in the child's interests, why should there be a requirement that the case be in some way 'exceptional'?

It might be argued that this label is purely descriptive: as a matter of fact, cases where restrictions on relocation within the UK will be the exception. (That is what I think Butler-Sloss LJ probably meant in Re E.) That might be fine. As the Supreme Court said in another child law case, it is okay for the outcome of decisions more often to be X rather than Y, but not okay for there to be a starting point or presumption in favour of X.

However, the way that the law in this area has developed means that the label is not really descriptive, but is actually a test which presents a high hurdle for someone seeking to stop an internal relocation to cross. Lord Justice Wilson was clearly unhappy about this state of affairs in Re F, but thought that the Court of Appeal was not able to do anything about it:

"It is now too late ... for [the Court of Appeal] to rule that, in internal relocation cases, the analysis of the child's welfare ... should not be conducted through the prism of whether the circumstances are exceptional. ... But for the reasons given, I believe that, had I not felt bound by authority, I might have wished to suggest that a test of exceptionality was an impermissible gloss on the enquiry mandated by section 1(1) and (3) of the [Children] Act."

While I think that the Court of Appeal could, in fact, have removed this undue gloss on the welfare principle, Wilson LJ nonetheless makes the argument for a re-think clearly.

Relocation Research

Similar ideas were found in my research into relocation disputes in 2009, when I interviewed lawyers and judges about their experiences of the law. One judge whom I interviewed and who, like Wilson LJ, was uncomfortable with placing an exceptionality gloss on the welfare principle, said this: "If the welfare analysis suggested that it would be best for the welfare of the children for them to stay, ... the court should have the power to make that happen."

Other participants pointed out the strangeness of having a different approach to moves inside the UK (allowed unless there are exceptional circumstances) and moves outside the UK (where there is a multi-stage test, albeit a controversial one). Many participants noted that maintaining regular contact after a move from London to Perth or Bangor would be a lot more difficult than after a move from London to Paris or Brussels.

However, even for shorter moves, some lawyers and judges were concerned about the effects that an internal relocation might have. As one solicitor said, "you might be talking about only a one-hour or two-hour journey, but [such moves] are still equally destructive [of contact]". It was these consequences of the decision that led one barrister to stress the importance of making the judge see why the case was important and more difficult than a normal contact case:

"You have got to look at this much more carefully and say, if I make this decision to [allow the parent to] relocate internally miles away ..., what is the medium- to long-term effect of that? Is it going to be reasonable [to continue] to have fortnightly contact? Often it is not, if the distance is vast and involves huge amounts of driving."

This is the reason why relocation cases call for a broad all-factor child-centred approach, not restricted by the straitjacket of an 'exceptionality' test.

Discussion:

Relocation law, both internal and international, is long overdue for a re-think. As one senior barrister said in my research, it is not necessarily even that the Court of Appeal has got it wrong at the moment (though it may have), but rather there are just so many people who are unhappy with the law as it is that the courts should review it with an open mind as to what the outcome will be.

There is lots I could say about how the law should be changed, but there's one overarching point that I think comes from this discussion. It seems increasingly difficult to justify having a legal approach in which so much depends on the proposed destination of the relocation. To be honest, I'm doubtful whether having a different rule for moves within the UK versus moves elsewhere would prove to be EU-law compliant if challenged in the European courts. (The rule appears to favour moves within the UK and therefore disfavour moves elsewhere within the EU, thus de facto discouraging people from exercising their rights to free movement within the Union.)

The Court of Appeal has often stepped in before to remove other glosses on the welfare principle that grew accidentally over time, and it should do the same with internal relocation. Failing that, then it is time for the Supreme Court to get involved, preferably with a combined appeal involving both internal and international relocation cases so that the legal principles of the two sides of relocation law can be considered together.

In an article published in the Journal of Social Welfare and Family Law in 2010, I suggested a series of questions that might be considered when dealing with a relocation case:

(1) What is the reality of the existing care arrangement, including consideration of the various contributions which are being made to the child’s welfare and wellbeing?

(2) Why does Parent A wish to relocate, and, in particular, is the relocation a covert attempt to disrupt the child’s relationship with Parent B? In terms of practicalities, are the plans to relocate well considered and reasonably realistic? Similarly, why does Parent B oppose the relocation?

(3) Taking into account the answers to (2), is Parent A able and willing not to relocate if the child cannot move? Conversely, is Parent B able and willing to move as well if the child does move, so as to continue the present care arrangement in a different location? Assuming one (or both) of these options to be possible, consideration must be given to whether it would be in the child’s interests to adopt that course, taking into account the likely effect on each parent and, directly and indirectly, on the child.

(4) If the options in (3) are impractical or undesirable, what would be the advantages and disadvantages for the child, either of going with Parent A or of remaining with Parent B? This assessment should take into account factors like (a) the realities of the existing care arrangements; (b) the effect on the child of moving with Parent A while Parent B remained, or of remaining with Parent B while Parent A moved (including the effect on the child’s relationship with the each parent, with other family members, and with friends and community more generally); (c) the possibility for maintaining a strong on-going relationship with whichever parent the child was not with; (d) the general disruption involved with moving (new school, etc) compared with remaining in the current location; and (e) any significant material advantages or disadvantages either way.

(5) What are the child’s own views about the matter, taking into account the child’s age and maturity?

This approach probably isn't perfect, but it might be a place to start in re-thinking relocation law.

For more detailed discussion, see my two case 

commentaries on internal relocation cases in the

Journal of Social Welfare and Family Law: (2010)

32 JSWFL 71-80 and (2011) 33 JSWFL 169-174

"Groupthink", Agreement and the Debate of Ideas

Twice in the last week, I've been accused of "Oxford groupthink" because of things I've said regarding the research about children and shared care arrangements after parental separation. In this post, I discuss why it is that I think I am not influenced by my colleagues in the way that "groupthink" implies, and I suggest, as an alternative explanation, that the charge of "groupthink" is designed to discredit a rigorously reached academic consensus that a minority group prefers not to accept.

What Is Groupthink?

It's 60 years since William Whyte Jr coined the term "groupthink", with its (probably intentionally) Orwellian overtones, in an article in Fortune magazine. Whyte acknowledged that groupthink had pejorative connotations, and thought in particular that it went well beyond the normal social pressures to conform with a group. For Whyte, the key was "a rationalized conformity - an open, articulate philosophy which holds that group values are not only expedient but right and good as well".

Unsurprisingly, this term caught the attention of scholars. Irving Janis, a psychologist at Yale, published a number of studies including an article called "Groupthink" in the journal Psychology in 1971 and a book called Victims of Groupthink in 1972. In the former, he defined groupthink in this way:

"I use the term groupthink as a quick and easy way to refer to the mode of thinking that persons engage in when concurrence-seeking becomes so dominant in a cohesive ingroup that it tends to override realistic appraisal of alternative courses of action. Groupthink is a term of the same order as the words in the newspeak vocabulary George Orwell used in his dismaying world of 1984. In that context, groupthink takes on an invidious connotation. Exactly such a connotation is intended, since the term refers to a deterioration in mental efficiency, reality testing and moral judgments as a result of group pressures."

Now, there's plenty of debate and criticism about all this (as the discussion on Wiki shows), but the basic ideas seem clear. Groupthink occurs when you have a group of people who, consciously or not, become more interested in agreeing with each other than they are in making an objective assessment. What's more, loyalty to the group overrides individual judgement; dissenters within the group are criticised and censored, and opponents outside the group are stereotyped and demonised.

Am I part of groupthink?

So is this going on amongst the academic community interested in families and the law at Oxford? Anything's possible, I suppose, but I'm not convinced. To start with, I'm just not sure that we see enough of each other. There are nine or ten of us here working in various capacities as tutors and researchers, but I can't recall us all being together at any time. Some of my colleagues here I see once or twice a year (usually at conferences outside Oxford!); one or two I see every few weeks; and the rest I see half a dozen times a year or so.

More interesting, though, is whether we find evidence of pressure to conform. In principle, I'd be surprised to find this since a large part of Oxford's ethos is a commitment to independence of thought. As a tutor of undergraduates, I try never tell my students what they should think about something. In fact, I rarely even tell them what I actually think - I'm more interested in presenting possible arguments to them and playing with the ideas. But is that what we find in the research community?

While accepting that some influences might be very subtle, I honestly can't think of any occasion when I've felt the slightest pressure to agree with any particular view. Even on occasions when I've co-authored with colleagues from Oxford, we often don't agree about everything - we just write about the things that we do agree about. For example, Peter G Harris and I disagree about whether pre-nuptial agreements should be allowed in the law or not. Nonetheless, we have co-authored articles on this issue, pointing out possible problems with giving additional weight to pre-nups.

In fact, a large part of the job of an academic is to subject the thoughts and ideas of other people to critical analysis. As a legal academic, I do this mostly with court judgments, but also with academic writing. For example, my forthcoming book, Ideas and Debates in Family Law, contains criticisms of a number of academics, including some of my Oxford colleagues.

I've also written particularly on the importance of dissenting opinions and counter-thought. My article, "In Defence of Dissent", was focused on the value that minority opinions have in court judgments, and I criticised a number of Supreme Court judges for appearing to 'discipline' one of their colleagues for publicly expressing disagreement with the majority view. However, the same applies in all walks of life, as I said in the article. Obviously we all pick our battles, but I hope that I'm usually willing to say when I disagree with something. (Just ask anyone who goes to Faculty Meetings or conferences with me!) So I think, on the whole, that I'm fairly aware of attempts to influence what I think about things.

There's more, though. The implied description of a so-called Oxford group of academics belies the national and international community of scholars that we work in. I see many of my colleagues from other Universities more often than I see some of my Oxford colleagues - from Exeter, Cardiff, Edinburgh, Cambridge, UCL, KCL, Sussex, Birmingham, Bristol and, internationally, from Melbourne, ANU, Sydney, Otago, Columbia, UBC, Cape Town, Paris... Obviously, these interactions come in different forms, but include lengthy and well established relationships, including plenty of people who are well prepared to tell me that they think I'm wrong, or that they think I've misunderstood something. This happened on a draft of my blog post on shared parenting, in fact. I sent it to a colleague outside Oxford to review it, and was told that something that I had written "went beyond the evidence". When I went back and checked my references, I saw that I had indeed got that point wrong, and it was duly changed before the blog post went live. I hope that my colleagues would always tell me if they thought I was wrong. It doesn't mean I'll agree with them, but I'll think about it some more and decide if they have a valid criticism or not.

The charge of groupthink also belies the sheer amount of time that I spend reading and thinking about cases and academic research. It was all but said to me last week that my views on some of the shared parenting research were based on an inaccurate summary given to me by someone else. That charge is offensive on a number of levels, not least because of the days of my life that I have spent reading vast and often dense reports and articles.

Understanding the Groupthink Attack:

It's possible that, without realising it, I am part of a groupthink culture - but I don't think so. I think, rather, that the charge of groupthink is designed to discredit an established, widely-held and in fact now dominant academic consensus of which I happen to be a part. Looking at a large body of research conducted by many scholars in many countries, I have reached certain conclusions. Those are also the conclusions of many (but not all) of my colleagues, and those conclusions are disliked by certain individuals and organisations because they do not fit with their own views.

However, finding their own views to be in a minority, some of those who disagree with my conclusions feel the need to attack the general consensus. There's nothing wrong with having a general consensus challenged - indeed, it's healthy, and I'm not unhappy about that. But there's some interesting politics when the attack is not about the research that I draw on or the way that I reach my conclusions, but rather on my very integrity as an academic scholar. The charge is that I have failed to make an independent appraisal of the evidence, that my ability to see reality and to exercise moral judgement has been impaired, and therefore that my comments should be disregarded because they are part of an invidious collective view.

In a way, I'm flattered that anyone thinks that what I say is potentially important enough to be worth going to this effort to discredit me. On the other hand, academics trade on our reputations, which is why I've thought it important to take a little time to explain why it is that I think my views are, in fact, my views based on my own analysis of the available evidence. They have been argued about and bounced around with friends and colleagues in Oxford and beyond, but they are, none the less, my views. The fact that many other academics have reached similar conclusions is not evidence of some conspiracy or a lack of ability to think for ourselves, but rather of the fact that there is an established, independently and rigorously reached academic consensus.

Shared Parenting in Australia - Notes from the Chief Justice's Talk

The Chief Justice of the Family Court of Australia, Diana Bryant AO, spoke about the lessons to be learnt from the Australian shared parenting reforms of 2006 at the Annual International Family Law Seminar in London on 1 May 2012. The Judge highlighted possible dangers of following a similar path in England and Wales, and offered practical tips to avoid the major pitfalls. This is an unofficial report of the Judge's paper based on the notes that I took; Bryant CJ will, I believe, be publishing her full paper in International Family Law later this year.

It is hard to imagine a more timely moment to hear Australia's most senior family court judge talking about the lessons that would-be law reformers in England and Wales can learn from the Australian experiences of shared parenting legislation. In her excellent paper, Chief Justice Bryant reflected on the 2006 changes to Australian family law, and commented on their relevance to current proposals to amend the law of England and Wales.

Before we get to the Chief Justice's talk, a very brief summary of the Australian law relating to children after parental separation may be helpful. The Australian law is complicated, so this is a rather simplified account (i.e. don't rely on this for anything - it's just to put the rest of the post in context) but in summary the 2006 reforms had the following effects:

• parents are presumptively given equal shared parental responsibility for their child, meaning the legal powers and responsibilities of raising him or her [which is basically the same as the law in England and Wales]
• if both parents have equal and shared parental responsibility, legal advisers and mediators have to discuss with the parents, and the court must consider, in turn each of the following options and decide whether they would be in the child's best interests:
• spending equal time with both parents
• spending 'substantial and significant time' with both parents (meaning at least some of all the following time: weekends, holidays, normal weekdays, and significant days like birthdays or Christmas)
• having other contact with the non-resident parent.
• through all of this, the child's best interests are informed by two "primary considerations", namely:
• the importance to the child of having a meaningful relationship with both parents
• the importance of the child's safety

Somewhat alarmingly, these last provisions had to be amended in 2011 to make clear that safety is more important than the meaningful relationship provision, which one would have thought to be so obvious as to go without saying - but apparently not.

So, what did Bryant CJ have to say about all this? After discussing the background to the Australian shared parenting reforms, her Honour offered three key pieces of advice for those seeking to reform the law in England and Wales:

1. Be clear what is intended by any reforms. Without clear and well-explained aims, any reform would risk misinterpretation by the public, regardless of any official interpretation by judges and lawyers.
2. Have available and make proper use of good research evidence. Bryant CJ was concerned that the Australian government had not had a good evidence base for its 2006 reforms and had instead relied on unrepresentative anecdotes. She also noted that the findings of the excellent Australian research done since the 2006 reforms [much of which I summarised in my post on shared parenting last week] have been resisted by many pro-shared parenting advocates because it does not match up with what they wanted it to say - and they have been effective in that resistance because the findings go against an established narrative that shared care is always good for children which those anecdotes had established before the reforms. Much of that research is important here, but Bryant CJ highlighted the importance of protecting children from violence and other conflict as being especially relevant. [I wrote about the importance of using research and not anecdotes when looking at law reform last week, so you can imagine that this was music to my ears!]
3. Avoid complex language in the legislation, because complexity leads to confusion. I won't go into the details about the Australian law that the Judge gave, but it covered the intricate relationship between "the best interests principle", the "primary consideration" of the importance of "meaningful relationships", and the statutory guidelines about "equal time" and "substantial and significant time". [If you're bored and have 5 minutes to spare, take a look at the complete pig's ear that is the much-amended Family Law Act, starting at s 60A and with a focus on the key provisions of s 60CC, s 61DA and s 65DAA.]

Bryant CJ then turned her attention to David Norgrove's Family Justice Review (2011) and the relevance of the Australian experiences to the shared parenting debate in England and Wales. Norgrove noted that the Australian focus on "meaningful relationships" had led to a degree of confusion and, in particular, was often conflated with there being a presumption of shared time. While the Chief Justice was quick to point out that the Australian courts have focused on the quality of parent-child relationships and not on time, she conceded that it was hard to know what the general population thought. She also observed, as Professor Helen Rhoades has noted, that many people saw the law as containing a de facto presumption of equal time.

One real danger of law reform, therefore, lies in the effect that it can have on people who make arrangements outside the courts, based on what they think the law is. If the law's message is not entirely clear, a perceived presumption in favour of equal time can take hold in the public consciousness, even if that is not what the law says.

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.