Why the Government is wrong about shared parenting legislation

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  • 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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  • 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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  • 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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  • 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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  • 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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  • 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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  • 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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  • 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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  • 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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  • 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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  • 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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  • 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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  • 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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  • 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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  • 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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  • 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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  • 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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  • 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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  • 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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  • 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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  • Unfortunately, though, that "easy solution" isn't "good for the economy," let alone for the enormously profitable divorce industry.

    When will that industry really start to put the children first, instead of continuing to lie to the public with an empty rhetoric of "needs and wishes"? That rhetoric is fast becoming transparent to the public, though, and very soon it will no longer be possible to maintain a patriarchal status quo.

    The sooner we communicate the message to divorcing couples that neither parent will be allowed to dominate the other, and that the child will be placed with the parent best capable of fostering shared parenting, the sooner we will see a decline in disputes that currently clog up the courts, and leave parents financially and emotionally crippled.

    From ample years of experience, what becomes apparent is that what Zoe Saunders calls domestic abuse, this begins not in the home itself, but in the courtroom, where on parent knows that all the cards are stacked against the other, and exploits that with the most outrageous kind of contempt for justice.

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  • We shouldn't lose sight of the fact that Helen Rhoades, whose interpretation of the Australian experience Zoe seems to favour, is a feminist. Of course there is nothing wrong with that but family justice needs to be framed more broadly to serve the best interests of children and not just the best interests of feminists.

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  • Yes Zoe, you do write about cases involving various kinds of intractable disputes. The issues I have with your discussion is that there is a lack of acknowledgement of the how the current implementation of the legislation encourages these intractable cases. The probability of there being a "winner" of residence and contact (custody and access), in the context of an uncertain or yet to be determined outcome, fuels the war. If the probability of having a single were significantly diminished, and equal shared parenting were the rule, the fuel of these conflicts become far leaner and the allegations withdraw into begrudging cooperation.

    This is what I meant by a lack of discussion.

    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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  • http://family.michelmores.com/about-us/the-family-law-team-michelmores/Rachel-Cook/

    Hi Zoe
    Really like you piece. Well written. I agree entirely with you about the inevitable misunderstanding between primary legislation and public perception. Residence/custody is an excellent example of this. It seems there is to be lots of primary legislation coming the way of family lawyersin the next few months/year. Lots of changes for us to grapple with. We can only hope that these changes improve the experiences and outcomes for the children involved.

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  • I have worked in the family courts for more years than I care to remember + completely agree with what Zoe says. Despite what is said here + elsewhere (sadly, but perhaps understandably based on personal experiences), nearly all of the cases I have dealt with have been dealt with by "sensible" judges - not the female-biased idiots portrayed in the popular press.

    I could give many, many examples of this - I have acted for fathers and mothers and have found absolutely no bias whatsoever - perceived bias is of course subjective + personal.

    The best example against literal "shared parenting" I can think of was given by a family judge some 12+ years ago when he enquired re the argument of a child spending time equally with both parents as "where's the child's home?"

    Oh and please don't use the "abuse" argument re any contact/residence issue - again, I've rarely seen it used and, even then, it was only successful with substantive (e.g. criminal prosecution) evidence.

    Finally, the Anonymous who keeps putting words in capitals - all this does is make your point seem like a slighly deranged rant!

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  • Alex.... P.S. Your 'best example' against shared parenting from a judge 12+ years ago "where's the child's home" -
    It ignores a large amount of Case Law that declares children can and do easily move between 2 homes. It also ignores the research and studies that show that shared parenting benefits children generally.
    I hope this judge has changed his/her ways, although my experience shows there are still many judges and lawyers out there who continue pushing outdated stereotypes of families based only on their own experiences.
    Times have changed, both parents care for their children and look after financial responsibilities in the bulk of households in this country.
    It's a shame that old fashioned 60's stereotypes of what a family is are still being used as a basis for Court comment such as the Judge you quoted with such devotion.

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  • Alex... There are a couple of enlightened judges and lawyers who have spoken out about the family law system failures and how many times it affects children's rights to have a meaningful relationship with both of their parents.
    Yes 'judges' many times can be sensible but they are working within a system that is systematically biased in favour of the so-called primary carer (usually mother). It is a system that has little or no enforcement and little or no will to take the so-called primary carer to task for recalcitrant behaviour, except in a small minority of cases.
    Don't take my word for it:-

    http://www.guardian.co.uk/society/2004/apr/02/childrensservices.uknews

    Lord Justice Munby - 2004

    Judge backs angry fathers over contact with children - Call for sweeping changes to family justice system after 'shameful' court failures

    http://business.timesonline.co.uk/tol/business/law/article3850658.ece

    Lord Justice Ward - 2008

    Vengeful mothers leave good fathers powerless to see child, says judge

    http://www.telegraph.co.uk/relationships/divorce/6575997/Third-of-family-break-up-children-lose-contact-with-fathers-in-failing-court-system-poll.html


    “The adversarial nature of the system invites people to come and use the courts system as a punch up and the children get used as pawns," said Sandra Davis, head of family law at Mishcon de Reya, for whom the poll was conducted.

    “It polarises parents and it puts children in the middle of the antagonism.

    “Some fathers back off because it is too painful to carry on litigating, they give up.”

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  • Alex, although I appreciate your insight from years of experience in the family court, what you have seen and report here about the abuse argument may be misunderstood by some. I take it that you mean very few pleadings argue for sole access based on allegations of abuse. No doubt you know what you are talking about, and I certainly won’t contradict you.
    However, no pleading on that basis is necessary when there already exists a criminal court order barring the other parent from the home, or from being within half a mile of the child’s primary care giver. That court order seems to do a pretty good job at restricting any other access order defining pickup or drop off notwithstanding that 3rd parties will assist, the children will not be interested in spending time with the soon to be adjudicated "abuser", nor will any police enforce such orders, nor will any therapist put their client in a position of possibly being harmed while charges are pending against the parent.
    It's easy to make allegations and have them acted on by police, no fuss no muss, no cost and pretty well immediate, enforceable sole custody. There you have it, a de facto and pre-emptive family court access order.
    No family court judge or lawyer needs to be involved, which is why you accurately report from your family court experience.
    Thank you for drawing attention to this problem for children.

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  • As for "where is the child's home?" - the answer is quite simple. It should be with the parent best capable of promoting shared parenting? The fact that we have not matured to that point yet indicates what most people working in the industry would have to concede as "institutionalized sexism." Those who deny the existence of that - well, either they are malicious, or motivated by the financial gain of breaking up families.
    As for the issue of false allegations re: abuse, these are a rampant disease in the family courts, with judges saying quite freely that they hear allegations of sexual abuse of children from mothers every single day. When the family courts begin to treat false allegations as the crimes that they are, and when those who use the courts to inflict emotional violence on their former partners are treated as criminals, we will have progress, and greater safeguards for children will be in place.
    At present, the crimes of false allegations are put down to the emotional instability of separating parents, and thus pardoned. What this does is engender a culture of blame and dishonesty, which targets and bullies the parent who already has the cards stacked against him. In turn, this does violence to children, who are denied a loving relationship with their fathers. It's obviously time to get tough, and time for a more equitable treatment of moms and dads in the courtroom.

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  • Zoe - I agree it may be irritating when people use the words "custody" and "access" rather than "residence" and "contact". However I think that when it's just the words that have changed, rather than the conceptual framework in which they exist, of a legally defined hierarchy between post separation parents, it's little wonder that people regard the words as interchangeable. I believe this conceptualization does nothing to promote co-operation between post separation parents, and I look forward to its being abandoned.
    You touch on the issue of quantity of time rather than quality of relationship, and remark that it's an issue practitioners are used to. I can say with some authority that it is not only practitioners, but contact parents as well who are used to the argument that less emphasis should be paid on time and more on quality. The argument is as well worn as it is specious.
    I would defy anyone to identify any human relationship, other than that of non-resident parent and his/her relationship with his/her child(ren), where the amount of time spent in each other's company is considered entirely irrelevant to the quality of the relationship. How much more important is the issue of time, then, in a parent /child relationship, where there are so many complex tasks to be done to assist in the child's development? On this point, I think it noteworthy that no-one - as far as I'm aware - has argued that the amount of time a resident parent spends with her/his child(ren) is irrelevant to the quality of their relationship.

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  • Why the Government is 'right' about shared parenting legislation -
    http://www.mckenziefriend.co/2012/04/why-the-government-is-right-about-shared-parenting-legislation/

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  • I think the desire to gender the role of child-care is a pernicious one.

    Shared parenting is a modern concept and one which I see engenders opposition - the 'fear' of domestic violence is one which sees the feminist line as being traditionalist; i.e. women are principally carers of children and men are providers of money. Other arguments incorporate a fear that all men are pedophiles and therefore shouldn't be allowed to be engaged in the child-care role.

    The DV and all-men-are-paedophiles argument is simply a distraction from the real fear of a Modernist approach to family structures, for both established families and those subjected to separation and divorce. That is the adoption of shared parenting in a non-gendered vision of the family.

    Zoe Saunders should be forgiven for following the Traditionalist line advocated by some feminists and conservatives; that women should care and men should work.

    Unfortunately the Modernists are rolling-over such visions of distinct gendered roles and in time articles such as 'Why the Government is wrong about shared parenting legislation' will be nothing more than something for future social historians to laugh at.

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  • I am the litigant-in-person father in Re D (Children) [2010] EWCA Civ 50. I had argued that relocation law (Payne v Payne) relegated the harm done to children by a permanent breach of the meaningful relationship children ought to be permitted to retain with both parents following divorce/separation. Sir Nicholas Wall agreed but could do nothing to give paramountcy to the children's right to maintain meaningful contact with both parents. Payne gave paramountcy to the wishes of the relocating parent and Wall went with legal precedent. A legal presumption of shared parenting will hopefully be the final nail in the coffin of Payne, as it will give primacy to the right of the child to its family life (which, for such children, equates to maintaining meaningful relationships with both parents). As anyone who has attempted to nurture a very long distance relationship will surely attest, it is almost impossible to have a meaningful relationship over thousands of miles (despite the judiciary's faith in Skype). Bruno

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  • There is perhaps one thing that Zoe is right about here, and that is the naivete of the government - which may in fact simply amount to so much posturing.
    Surely those in government know that shared parenting is a fairytale so long as child benefit is in the hands of one parent. Only when child benefit is split between divorcing couples (or second best, awarded to the parent who is doing their most to support a shared parenting arrangement), will this fairytale turn into something remotely possible.
    Until then, everyone is dreaming, and children will continue to suffer parental alienation at the hands of resident parents (whose very status as resident parents suggests controlling behavior in the extreme).

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  • Following the Queen's Speech today, those of us who have campaigned for a legal presumption of shared parenting finally have something to cheer!
    It is highly regrettable that, in attempting to enact the primary objective of the Children Act - to serve the best interests of the child - our learned judiciary has failed to understand and/or give sufficient weight to the importance of the role of a father (a.k.a non-resident 'contact' parental unit) in the life of a child. This has been very evident in relocation cases, in which 'leave to remove' has been granted far too freely. The role of a parent is decimated following the overseas removal of one's children. In the case of Re D (Children) [2010] EWCA Civ 50, Sir Nicholas Wall was presented with a plethora of scientific research which demonstrated, beyond all reasonable doubt, that children fare significantly better, on a wide range of developmental indices, when they are permitted to enjoy a close, meaningful, shared-parenting relationship with both parents. He may have opted to ignore that research and evidence, but the Government - to whom it was also sent - has not.
    The Government will introduce legislation which will make it very explicit indeed to the judiciary that the close involvement of two good parents is necessary for the optimal wellbeing of the child.
    Bruno D'Itri

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  • With the announcement in the Queen’s Speech recently, Mr Cameron and his Government finally appear to have got the message.
    They plan to strengthen the legal right of a father to have meaningful access to his children, post separation/divorce.
    They finally recognise that family law, as it stands, fails to serve children’s best interests in this extremely important respect.
    Let us hope that any resulting modification to the Children Act (1989) will be robust enough to effectively safeguard children’s rights to be parented by both parents.
    Shared Parenting does NOT, as many critics would have us believe, necessitate an exact split of parenting time. This would be highly impractical in most cases. Rather, it is expected to range upwards from 20%. Another objection from the critics is that it will endanger children. Plainly, Shared Parenting will ONLY be available to parents who are NOT a proven risk to their children (mere allegation from disgruntled ex-partners should not be enough!).
    My personal interest concerns Relocation law, which, despite some slight improvement last July (Re K), still far too easily acts to separate children from one of their parents (in practice, usually their father) by thousands of miles.
    Plainly, a father cannot hope to enact any semblance of a Shared Parenting Plan when his children are residing on the other side of the planet!
    I, and many others, have campaigned vigorously on the issue. A significant turning-point was achieved in the case of Re D (Children) [2010] EWCA Civ 50 in 2010. In this particular case, the President of the Family Division, Sir Nicholas Wall, publicly conceded there was a significant risk that Relocation law – in the form of Payne v Payne (2001) – relegated the harm done to children by significantly and irrevocably damaging the child’s meaningful relationship with the left-behind parent. The case was widely reported in legal circles.
    Despite this concession, however, Sir Nicholas did nothing to rectify the problem, and, sadly, later resiled from his own criticism of Payne v Payne. We had expected more from the President. When there existed a significant risk of harm to hundreds of children, the Precautionary Principle appeared to mean nothing to him.
    My current hope is that, with the expected introduction of a legal presumption of shared parenting, Payne v Payne will finally be overturned.
    I have already made my views known to Mr Loughton, the Children’s Minister. Perhaps others will join in!
    Best wishes
    Bruno D’Itri

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

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  • An open letter to Tim Loughton MP, Parliamentary Under Secretary of State for Children and Families, 24 June 2012:

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

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

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

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

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

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

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

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

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

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

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

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

    I respectfully request that you advise me whether or not the Government will be seeking the input of Sir Nicholas on this very specific point.

    Yours Sincerely
    Bruno D’Itri

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  • Sir Alan Beith wrote to Mr Cameron last week, expressing his objections to the promotion of Shared Parenting:
    http://www.guardian.co.uk/law/2012/jul/18/family-law-confusion-lib-dem
    Mr Beith’s views closely reflect those of many family lawyers. According to them, the status quo is fine. It has been suggested that such resistance to change is fuelled by vested interests. It’s not too difficult to understand this hypothesis: the introduction of Shared Parenting legislation in Australia led to a 30% reduction in family law litigation.
    Mr Beith’s opposition to Shared Parenting legislation is, perhaps, best viewed in some historical and cultural context.
    In the 19th century, British family law was such that, if the father so wished, separated mothers were likely to lose all contact with their children. Development of the law occurred very slowly indeed. Some change came with the Child Custody Act of 1839 and the Matrimonial Causes Act of 1857, but it was not until 1925 that the welfare of the child became paramount. At every stage, there were numerous ‘Mr Beiths’ who resisted any development in family law.
    Even today, in certain Middle Eastern cultures, separated mothers are treated despicably and are often denied access to their children. Here, too, there are ‘Mr Beiths’ resisting change.
    Sadly, the injustices once experienced by British mothers are now being visited upon British fathers in 21st century Britain.
    A father can be fully involved in the day-to-day care of his children. And yet, following separation, he can find himself completely excluded from their lives.
    How can this possibly be permitted to occur?
    Following separation, the family courts automatically seek to anoint one parent with the status of ‘Primary Carer’. This will usually be the parent who, prior to separation, undertook 51% or more of childcare duties. In most cases, it is the mother. The law then bestows upon that Primary Carer a grossly disproportionate degree of power and control over the children, vis-à-vis the ‘Non-Primary Carer’ (the father).
    Of course, in most cases, separated parents are able to focus upon the well-being of their children and come to a mutually agreed childcare arrangement.
    However, in many acrimonious cases, the Primary Carer ‘uses the children as weapons’ – to coin a phrase adopted by Sir Nicholas Wall, the President of the Family Division. The children are used as a means of punishing a former partner by restricting contact. Such abhorrent behaviour currently goes unpunished by the family courts, their rationale being that to punish the children’s Primary Carer is tantamount to punishing the children themselves. With no effective deterrent, such behaviour is set to continue. As we know, our Government is looking at ways of introducing such deterrence.
    Single Parent-Primary Carer or Shared Parenting?
    There now exists a plethora of contemporary scientific evidence which demonstrates, beyond all reasonable doubt, the significant emotional, developmental and educational benefits for children of their being permitted to remain in a close and meaningful relationship with both their parents, post separation/divorce. Indeed, fifteen such scientific reports were presented to Sir Nicholas Wall in the case of Re D (Children) [2010] EWCA Civ 50. Sir Nicholas reserved his judgment for three weeks in order to read this very extensive evidence. He concluded that family laws potentially relegated the harm done to children by irrevocably damaging their meaningful relationship with the Non-Primary Carer.
    Mr Cameron – to whose Government the scientific evidence was also presented – understands the need for family law to develop in line with contemporary scientific evidence and with the realities of 21st century parenting. We need only to look at last Summer’s riots to see where fatherlessness can lead. In contrast, Mr Beith appears ‘behind the curve’.
    I am one such Non-Primary Carer. Before separation, I was actively involved in the lives of my two sons. Post separation, I was excluded. Despite numerous court appearances, including three at the Court of Appeal, and despite being found by the courts to be an entirely loving, caring and responsible father, I have lost meaningful contact with my sons. I fought for years in a legal system which simply could not understand and/or give due weight to the importance of a father (or ‘Non-Primary Carer’) in the optimal development of a child.
    As I see it, the problem lies in the fact that the judiciary has opted to interpret the Paramountcy Principle of the Children Act (1989) by using the ‘Single Parent-Primary Carer’ paradigm.
    Relocation law, in the form of Payne v Payne (2001), is a prime example: it rides rough-shod over any possibility of shared parenting by placing thousands of miles and any number of oceans between children and their Non-Primary Carer.
    What Mr Cameron seeks to do is to rectify this judicial error by making it very explicit indeed to the judiciary that the full and meaningful involvement of a good and loving father is vitally important in serving the paramount interests of a child. In reality, there is no material conflict between the Paramountcy Principle and the Principle of a Presumption of Shared Parenting.
    Regards
    Bruno D’Itri

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  • There now exists a plethora of scientific psychological and sociological evidence and research - some of which is Government-commissioned - in favour of 'Shared Parenting'.
    It plainly demonstrates the emotional, developmental and educational benefits for children of remaining in a 'meaningful' relationship with both their natural parents, post separation/ divorce:
    http://www.fira.ca/cms/documents/181/April7_Kruk.pdf
    http://sharedparenting.wordpress.com/2012/06/21/12c/
    http://www.thecustodyminefield.com/Reports/FamilyLaw-Relocation_The... (pages 20 & 21)
    http://www.google.co.uk/url?sa=t&rct=j&q=scientific+evidenc...
    As with most objective scientific inquiry, the evidence is never 100% conclusive. Selected research can always be found which fails to support 'Shared Parenting'.
    However, any 'meta-analysis' of all the contemporary research available would show a general consensus that children benefit from being permitted to remain in 'meaningful contact' with both their natural parents, except, of course, in cases where there is verifiable evidence of child abuse.
    Contemporary social scientists have confirmed what most major world religions have known for centuries - that children benefit from the love and guidance of both their mother and their father.
    Furthermore, much of the scientific data in favour of 'Shared Parenting' has already been exhibited as evidence at the Family Division of the High Court, and has proved to be very persuasive indeed.
    After reserving judgment in Re D (Children) [2010] EWCA Civ 50, the former President of the Family Division, Sir Nicholas Wall, published his carefully considered judgment that family law potentially relegated the importance of maintaining a close, meaningful and on-going relationship between children and their non-resident parent, contrary to the best interests of those children:
    https://docs.google.com/document/d/1ggN82hJshevz4fsC_bMitk8tGBClh56...
    In Re AR (A Child: Relocation) [2010] EWHC 1346, High Court judge, Sir Nicholas Mostyn J, also made reference to contemporary scientific evidence in favour of 'Shared Parenting'.
    It is vitally important to dismiss three prevalent myths concerning 'Shared Parenting':
    Firstly, 'Shared Parenting' does not necessitate a precise 50/50 division of parenting time. This would prove highly unworkable in many cases. Furthermore, most sensible parents are perfectly capable of understanding this important point. It is entirely possible for a non-resident parent to maintain 'meaningful involvement' in the life of his or her child at a sub-50% level of parenting time. Alternate weekends, mid-week overnight stays and half of school holidays should provide ample opportunity for a child to benefit from the 'meaningful' input of its non-resident parent. Any shared parenting plan would need to be based upon the particular circumstances of the family members.
    Secondly, if there is evidence of any significant danger to the child, contact can and will be restricted by the Court. The Government's Children and Families Bill makes this perfectly clear, and I am very surprised that those who oppose 'Shared Parenting' legislation appear quite blind to this very important safe-guard. The Bill does not undermine the Paramountcy Principle of the Children Act (1989) in any way.
    Thirdly, opponents of 'Shared Parenting' legislation claim that the judiciary already operates on the basis that both parents should be meaningfully involved in their child's upbringing. If this were true, why do they object to enshrining the practice into law? They are plainly unaware of the fact that resident parents applying to remove their children overseas will, in most cases, be granted permission, due to the application of Payne v Payne (2001). Plainly, it is almost impossible for a non-resident parent to be meaningfully involved in the parenting of a child who is residing on the opposite side of the planet!
    Furthermore, many perfectly good and conscientious parents can face months or even years of exclusion from the lives of their children. Resident parents can exclude good non-resident parents simply by refusing to abide by contact orders or by maliciously lodging false or exaggerated claims of domestic violence. Proving their innocence can take many months of arduous and cripplingly expensive legal struggle, and it is hardly surprising that many of these good non-resident parents simply give up the fight.
    The law needs to protect a child's right to be parented by both its parents; it needs to encourage non-resident parents to assume their parenting responsibilities, and it needs to discourage resident parents from using obstructive tactics.
    The Government's Children and Families Bill aims to achieve these noble objectives, in the best interests of children.
    Best regards
    Bruno D'Itri

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