Why the Government is wrong about shared parenting legislation
I can really sum it up in two words: ’access’ and ’custody’.
Zoe Saunders
The Government Response to the Family Justice Review’s final report ignores the concerns raised in the Family Justice Review and proposes at paragraph 60 “a legislative statement of the importance of children having an ongoing relationship with both parents after family separation, where that is safe, and in the child’s best interests”. One might have thought that the fact that it already has to be couched in such cautious terms would act as a warning signal of the difficulties that lie ahead, but apparently not.
What’s the problem? The Family Justice Review interim report consulted specifically on the question of whether there was a need for legislation to more formally recognise the importance of children having a meaningful relationship with both parents post separation. This wording echoes the Australian family law that in 2006 enacted the Family Law Amendment (Shared Parental Responsibility) Act, which contained a provision requiring judicial officers to have regard to ’the benefit to the child of having a meaningful relationship’ with both parents. The interim report expressed support for such a proposition and 49 per cent of 401 respondents to the question were in favour, albeit some expressed concern about any dilution of the notion that the child’s welfare is paramount.
Nevertheless, having considered all the responses to the consultation, including a detailed response from Australian academic Helen Rhoades (which is attached to the final report), the Family Justice Review (FJR) does not support any change to the legislation. It is really important to note that this does not mean that there is not support for the principle of shared parenting, there is a clear recognition that the courts start from the principle that contact with both parents will be in the interests of the child, unless there are very good reasons to the contrary. The FJR recognises that the question is how to promote this principle without inadvertently encouraging dispute. The evidence considered by the FJR suggested that people had very different interpretations of ’shared parenting’ as a concept and that in practice there tended to be an emphasis on quantity of time rather than quality of relationship - an issue with which all family practitioners will be familiar.
The FJR concludes that any legislation might risk creating an impression of a parental ’right’ to any particular amount of time with a child would undermine the central principle of the Children Act 1989 that the welfare of the child is paramount. They also recognise that any further statement in legislation risks creating confusion, misinterpretation and false expectations.
The Government response to all this careful consideration is effectively to disregard these concerns on the basis that they will “consider very carefully how legislation can be framed to avoid the pitfalls of the Australian experience”.
This all sounds fantastic in principle, as they go on to state that any changes will be complementary to, not in conflict with, the principle in the Children Act 1989 that the welfare of the child is paramount. But the fact is that it has been over 20 years since the Children Act 1989 did away with the concepts of ’custody’ and ’access’ and yet any newspaper article relating to private law children disputes is inevitably couched in those terms. I often have clients who were born long after 1989 talking to me about having custody of or access to their children. If the general public cannot take on board the changes in simple terms from ’custody’ to ’residence’ and from ’access’ to ’contact’ in well over 20 years isn’t it hopelessly over-optimistic to suggest that carefully worded statements will filter into the national understanding without a huge (and expensive) programme of public legal education?
By far the more likely outcome of any legislative change is that it will be entirely misinterpreted, whether deliberately or otherwise, to fit the viewpoint of whoever seeks to rely on it to support their cause.
The Government response suggests that the aim of any presumption of shared parenting will be to enhance the prospect of an agreement between parents that is in the best interests of their child, without recourse to “often damaging and protracted adversarial action in the courts, which is clearly not in the child’s interests”. Aside from the fact that this ignores the iron rule that new legislation breeds 10 years of litigation, this seems to suggest that a presumption of shared parenting will assist in the “damaging and protracted” cases.
At this point I entirely expect anyone who has been involved in an intractable contact case will be laughing hollowly to themselves. If a neat little homily about the importance of shared care could resolve cases like that, then they wouldn’t be intractable - the clue is in the name. The hallmark of intractable contact disputes is that they inevitably involve allegations of serious harm to the welfare of the children involved. It doesn’t matter whether the allegation is physical, sexual or emotional abuse, or parental alienation - the fact is that those are the cases that will always be argued and any legislative changes have as much effect as adding a drop to the ocean.
My greatest fear about legislative change is that the Government will be handing a weapon to those who inflict domestic abuse on their partners. Any statement of shared parenting risks being added to the familiar litany of “no one will ever believe you, you’ll never get away from me, I’ll tell everyone you’re an awful mother/father, that you’re mental, on drugs, an alcoholic” in terms such as “you’ll never stop me seeing the kids, they’ll spend half their time with me”. Just as untrue as the previous statements and sadly just as powerful to the victim when repeated over and over. How could the Government’s careful wording manage to legislate for this? It can’t and they should reconsider.
Zoe Saunders is a family barrister at St John’s Chambers
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Readers' comments (40)
Colin Anderson | 13-Mar-2012 0:27 am
I agree with almost all of the points Zoe eloquently expresses in her article and for the reasons she elucidates. However whilst agreeing with her conclusion that the government must reconsider their position, this may be optimistic. Until the concept of children as people with rights rather than ‘chattels’ whose possession needs to be ‘shared pretty much equally in order to be fair’ becomes accepted, then these ill-informed arguments within sections of Government will continue. The current Government’s desire to appease certain sectional interests has little to do with the 1989 Acts desire to have the child’s interest as the paramount consideration and a lot to do with the politics of middle England I fear.
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Anonymous | 13-Mar-2012 10:34 am
This article as the FJR misrepresents the experiences in Australia.
The reforms in 2006 in Australia have been shown to be positive in government research. It is this misrepresentation of what is happening by the Norgrove Panel and in articles such as this which makes the government and others involved in these matters question the motives and consider them as merely vested interests in little or no change. Despite the negative impact on child welfare by remaining with the present system in this jurisdiction.
The reality is as follows from the conclusion of the Australian government commissioned report. The reforms are positive and applications are lower even at this early stage.
Evaluation of the 2006 family law reforms, dated December 2009 by the Australian Institute of Family Studies (AIFS):
CONCLUSION QUOTED BELOW:
“16.2 Conclusion
The evaluation evidence indicates that the 2006 REFORMS to the family law system have had a
POSITIVE impact in some areas and have had a LESS POSITIVE impact in others.
Overall, there is MORE use of relationship services, a DECLINE IN FILINGS IN THE COURTS IN CHILDREN’S CASES, and SOME EVIDENCE OF A SHIFT AWAY FROM AN AUTOMATIC RECOURSE TO LEGAL SOLUTIONS in response to post separation relationship difficulties.
A SIGNIFICANT PROPORTION OF SEPARATED PARENTS ARE ABLE TO ORT OUT THEIR POST-SEPARATION ARRANGEMENTS WITH MINIMAL ENGAGEMENT WITH THE FORMAL SYSTEM.
There is ALSO EVIDENCE THAT FDR IS ASSISTING PARENTS TO WORK OUT THEIR PARENTING ARRANGEMENTS.”
http://www.aifs.gov.au/institute/pubs/fle/evaluationreport.pdf
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Anonymous | 13-Mar-2012 10:59 am
P.S.
Zoe's last Para ref her greatest fear is sadly just scaremongering as a presumption of shared parenting in legislation will have no impact on domestic abuse cases.
Domestic abuse is either a factor in a particular children's case or it is not. If it is then it will still continue to be dealt with as presently and will have a significant impact on any decisions made by the Court.
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Jolyon Maugham | 13-Mar-2012 11:38 am
Zoe's analysis rather puts the coach before the horses. The primary purpose of family law is not to reduce conflict - although of course it's helpful when it does. The primary purpose of family law is to achieve justice and fairness for children and parents.
If minimising conflict were the purpose, why not automatically hand residence to, for example, the parent whose first name comes first in an alphabetical list?
The government's, quite proper, attempts to address a wide-spread belief that the family justice system is far from gender blind deserves better.
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Peter Hill | 13-Mar-2012 12:15 pm
I disagree with Zoe and I do believe Shared Parenting/Joint Custody SHOULD be the law.
As with most feminists, she invokes the FEAR card that domestic abusers will get the kids. The FACT is that women initiate domestic abuse equal to that of men and that according to the US Department of Health and Human Services report Child maltreatment report the number one ABUSERS of children are MOTHERS only.
So, it is best to Share Custody and stop using FEAR as a tool to prevent kids from having fair access to both parents, usually their dad.
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Anonymous | 13-Mar-2012 12:46 pm
My experience of the family courts has been as a litigant. From my viewpoint it is rather silly to raise the issue of the change in terminology from custody to residence and access to contact. All of these words are ugly and inappropriate to describe parent/child relationships - access and contact are particularly demeaning. It isn't any surprise that the general public hasn't picked up on residence and contact as they never contributed to greater understanding or added any clarification to meaning.
In her final paragraph, Zoe raises concerns that sharing parenting will add a weapon to domestic abusers. As someone who has experienced domestic violence, I would take a different view. Domestic violence is about one person gaining and abusing power and control over another. It is not about sharing. The family court's habit of handing almost complete power and control to one parent or the other encourages abusers to fight for control and use the courts as a weapon.
In my case, once I had been awarded 50/50 shared residence (I used the right word Zoe!) the abuser virtually walked away since their control had been lost. I now have full residence but do my utmost to nurture the best posible relationship between my child and the other parent.
So I don't agree with Zoe - I think that a change in emphasis to 'shared parenting' and a 'meaningful relationship with both parents' is a positive step. One that is more respectful to children than treating them as the property of one parent only.
I apologise but I'm sure you will understand that I have to post this comment anonymously.
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Robert Samery | 13-Mar-2012 3:56 pm
This article takes the relatively small number of cases in which allegations of domestic violence are presented, and generalizes from them.
There is great concern in the public over those relatively large number of cases where allegations are left either as unsubstantiated or falsely alleged and yet have great influence on the outcome of contact and residence.
That is a long discussion in it's own, however, having introduced the DV issue, there is a complete lack of any concern about the abuse found in cases of alienation.
It's quite curious an issue when the "Elephant" in the room of high conflict family issues is not just skimmed over, but entirely absent from the discussion.
Contrary to the above reasoning, in part, that is what the current change is meant to begin to address.
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Tina Rayburn | 13-Mar-2012 4:04 pm
It is a shame that access and contact are words that have to be used in a delicate family situation - being used to describe the relationships between parents and their children. Shame on Saunders for failing to understand the misery that is continually being inflicted on broken families in our courts. Her lack of empathy highlights that the plights of decent separating parents do not belong in our family courts at all. Save them for the public family cases. Divorcing/separating ordinary couples need skilled mediators and counsellors not articulate solicitors correcting them on their vocabulary.
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Nick Langford | 13-Mar-2012 8:02 pm
It was Joseph Goldstein, Albert Solnit and Anna Freud who proposed handing all authority over a child to just one parent, ‘the non-custodial parent should have no legally enforceable right to visit the child, and the custodial parent should have the right to decide whether it is desirable for the child to have such visits’. Which parent should be the custodial one was to be decided by drawing lots. It’s one way to eliminate conflict, the other is to share parenting.
Zoe seems to think that shared parenting has never been tried before in any other jurisdiction – other than Australia – but it has, and where it has been tried the evidence is that domestic violence does not increase – it falls. Martin Halla, writing last year, found a drop of 20%. Raising children without fathers has a serious impact on domestic violence. In boys it increases the likelihood that they will commit violent crimes, including rape; in girls it increases the likelihood they will both be perpetrators and victims – fatherless girls are 9 times more likely to be raped (something Mumsnet might like to include in their new campaign).
Peter Hill notes that feminists tend to dismiss evidence and promote fear instead; Dr Linda Nielson remarked on this in 2010, observing that where there is a lack of research evidence there is a tendency for courts and others to rely on the fear of what MIGHT happen to children in shared arrangements rather than the knowledge of what ACTUALLY happens in sole maternal custody. Let’s have some evidence-based arguments from lawyers for a change.
Meanwhile, I’m off to plant some flaming crosses on someone’s lawn, just so Zoe can have the evidence for her recent Tweet which otherwise would be entirely lacking.
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Anonymous | 14-Mar-2012 8:46 am
The last Para from Zoe demonstrates where she is coming from in this article. It's her "greatest fear".
Zoe states because a tiny few might 'say' things about shared parenting to their partners or ex partners (in addition to other threats they may make anyway) that the government should reconsider its proposals for shared parenting for the vast majority.
Are we really expected to take this seriously from Zoe and for the government to shape their policy for children's welfare on the back of this? It beggars belief that this esoteric 'non'-argument can be put forward as the "greatest fear" from the detractors of the governments proposals and it shows the paucity of their case.
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Zoe Saunders | 14-Mar-2012 1:40 pm
Dear Anonymous 1 - I do not accept that I have misrepresented the impact of the 2006 law reforms in Australia - I have read the document that you link to, thank you for the information. I accept that it shows that there were many positive aspects of the law reforms, but it supports the FJR's conclusions and my concerns about the way in which any change in the law would be understood and interpreted by the wider public.
As to your PS I accept that the legislation would not include cases in which domestic abuse / violence is a factor - the point I am making is the way in which a change in legislation would interpreted by the wider public, not it's legal impact
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Zoe Saunders | 14-Mar-2012 1:43 pm
Peter - I do not disagree with the principle of shared parenting and I think in an appropriate case it can have huge benefits for children. I disagree with the government changing the law to include this as a legislative statement because I am concerned it will be misunderstood and misinterpreted.
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Zoe Saunders | 14-Mar-2012 1:46 pm
Robert - I am confused by your comment. I specifically mention intractable contact disputes in which allegations of abuse and alienation are raised and point out that those cases would be an exception to any statement on shared parenting in any event.
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Zoe Saunders | 14-Mar-2012 1:49 pm
Tina - I am puzzled as to how you have reached the conclusions that you have about my lack of understanding or empathy - where have I said that I think the court is the right place for these disputes? You seem to be entirely misrepresenting what I have written.
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Zoe Saunders | 14-Mar-2012 2:07 pm
Nick - thank you for your comment can you provide any links to the material you are referring to?
I am not suggesting that shared parenting leads to an increase in domestic violence - what I am saying is that I am concerned that any change in the legislation will be misunderstood and misinterpreted by those with an agenda to do so, such as those who commit domestic abuse
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Anonymous 1 | 14-Mar-2012 3:17 pm
Zoe, in my original post I quoted the CONCLUSIONS of the Australian government commissioned report by the AIFS.
The conclusions were 'positive' and applications to Court had gone 'down' significantly.
It's no good cherry picking bits from the body of the report to try to support your view and the FJR which misrepresented the AIFS CONCLUSIONS in the first place.
The outcry from the public and the media against the Norgrove panel, judiciary and lawyers as a whole who support little or no change. Show that change to benefit children will only come via new legislation and a Presumption of Shared Parenting in an Act.
In your comments now you downplay your articles reliance on scaremongering about DV - Good to see you have adjusted your position.
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Anonymous 1 | 14-Mar-2012 3:30 pm
Zoe, you say - " I am concerned that any change in the legislation will be misunderstood and misinterpreted by those with an agenda to do so, such as those who commit domestic abuse".
This has got nothing to do with Shared Parenting laws and it simply an argument that preys on the fear factor.
Persons who commit domestic abuse (men or women) misunderstand and misinterpret loads of things deliberately or because they cannot help themselves having a Shared Parenting Bill go forward makes no difference whatsoever.
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Zoe Saunders | 15-Mar-2012 2:01 pm
Anonymous 1 - I cannot speak for the FJR and don't pretend to, but you must accept that in the AIFS report concerns were specifically expressed about the change in legislation in relation to the statement on shared parenting? Those concerns were noted by the FJR along with other research hence the decision not to support such a statement being included in our legislation.
I do not accept that I was 'scaremongering' about DV - what I am trying to explain is that a change in the law runs a significant risk of being misunderstood no matter how it is worded, the DV example is just an example of that.
I am not aware of a shared parenting bill - all I am commenting on is the government response to the FJR Final Report
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Anonymous 1 | 15-Mar-2012 5:02 pm
Zoe, in a 379 page report you are going to get some concerns obviously. However, the CONCLUSIONS were positive. The relatively few concerns are being addressed as appropriate, as with any legislation (new and old).
The only group who were dissatisfied significantly were LAWYERS.
This was because litigation and applications had FALLEN after the reforms, less work for lawyers.
The majority of Users, Family Consultants and Judges were happy with the Reforms in Australia. Many 'Lawyers' were not:-
AIFS quote - "While family consultants and most judges believed the FCoA’s model is an improvement, PARTICULARLY in the area of CHILD FOCUS, 'lawyers’ views were divided, with many expressing hesitancy in endorsing the changes."
It is this clear self interest as shown in this article and in the AIFS Report by 'some' lawyers that gives the whole profession a poor name sadly.
Judges, Users and Family Consultants saw the Reforms as child focussed and an improvement. Of course Lawyers did not 'quelle surprise'.
Your DV example was of no relevance to proposed shared parenting legislation. We will have to agree to disagree but it looked like mere scaremongering to me and others it seems.
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Anonymous | 16-Mar-2012 4:42 pm
Naivete and the perpetuation of abuse against men and children motivate this article.
Anyone who has been through the patriarchal family court that is designed to keep women in their place, and men in theirs, knows that there are only sinister economic motivations behind Norgrove and most practitioners in the business of capitalizing off of abuse against fathers.
We have heard the mythology of domestic abuse one too many times, and the big lie of this is vomit-inducing. More abuse these days is against men and children because men are expected to have a stiff upper lip and not complain.
The easy solution is this: find out which parent is most in favor of providing a loving balanced upbringing, and if the other is disagreeable to this solution, place the child in the care of the one that wants to foster love on both sides, till the other can get her (or his, in exceptional cases) act together.
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