Why the Government is wrong about shared parenting legislation

  • Print
  • Comments (40)

Readers' comments (40)

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

    Unsuitable or offensive? Report this comment

  • 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.

    Unsuitable or offensive? Report this comment

  • 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

    Unsuitable or offensive? Report this comment

  • 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).

    Unsuitable or offensive? Report this comment

  • 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

    Unsuitable or offensive? Report this comment

  • 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

    Unsuitable or offensive? Report this comment

  • 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

    Unsuitable or offensive? Report this comment

  • 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

    Unsuitable or offensive? Report this comment

  • 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

    Unsuitable or offensive? Report this comment

  • 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

    Unsuitable or offensive? Report this comment

View results 10 per page | 20 per page | 50 per page

Have your say

Mandatory Required Fields

Mandatory

Comments that are in breach or potential breach of our terms and conditions in particular clause 8, may not be published or, if published, may subsequently be taken down. In addition we may remove any comment where a complaint is made in respect of it. These actions are at our sole discretion.

  • Print
  • Comments (40)