Lawyers slam shared parenting plan
Lawyers have described government plans to introduce a legal presumption of shared parenting after relationship breakdown as ‘unnecessary political posturing’ that could detract from children’s wellbeing.
The children’s minister Tim Loughton set out plans to amend the Children Act 1989 to strengthen the relationship between parents and children in a consultation published last week. His proposal would enshrine in law the presumption that a child’s welfare is likely to be furthered through safe involvement with both parents, unless the evidence shows this is safe or in the child’s best interests.
Law Society president John Wotton said it is in a child’s best interest to have a meaningful relationship with both parents where it is safe to do so, but that it is already a factor in the court’s decision-making process.
He said the change could lead to unrealistic expectations from fathers, with a huge rise in fathers asking the courts for ‘equal time’, which would undermine the government’s drive towards mediation and out-of-court settlements.
Wotton said the primary focus should be on the rights and welfare of the children, not those of parents, and warned that the proposals risked detracting from children’s wellbeing.
The chair of the Family Law Bar Association Nick Cusworth QC said the government’s ‘determination’ to make statutory changes, contrary to the Family Justice Review’s recommendations, is ‘little more than political posturing’.
He said: ‘Existing legislation prioritises the needs of the child, and courts have long recognised the importance, where appropriate, of contact with both parents. The very small minority of cases which end in litigation should remain focused on the child’s best interests, not the perceived rights of the aggrieved parents.’
A spokesman for family lawyers group Resolution said the proposal would not change the law much, but risked placing the demands of parents over those of children.
Agreeing, chair of the Law Society’s children law committee Denise Lester called the ‘unnecessary’ change a ‘populist idea’, and warned that, taken with other factors such as an increased focus on mediation, it could undermine the safety of children.
The consultation runs to 5 September.
Comments
the new law
I have seen numerous reports on children and their parents, and quite frankly am appalled to see that as the law stands the mother is 9/10 the primary carer and that fathers are continually fighting to have some sort of reasonable contact with their children. I would like to ask why the Social Services and Judges think this is the only appropriate answer to a childs welfare, In some cases the father is the best parent and while the so called authorities mess around with red tape some children are slipping through the system and are being neglected. I wonder if it was their child or some-one in their family, that this was happening to would they take such a laid back view, So please take the time to ask yourselves why does the Government spend thousands of pounds on television adverts warning people to be vigilant of children at risk when nothing gets done about it and yet another child is hurt or killed. This may not relate to the bill just been past but when mothers/fathers with custody of the child start using that child/children as pawns of play then this is still abuse or neglect.While the parent with residence refuses to except that the child has another parent who loves,cares,respects,and so desperately wants to be part of their childs life and up-bringing is being so stupidly selfish the child/children are also desperate for the same. Lets not forget we all hope our children dont go on a downward slope to drugs and crime so lets ALL keep them safe, loved and looked after well.
Shared Parenting.
A change in the law to explicitly allow for shared parenting, where this is safe and in the child's best interests, is long overdue. Too many times children are held as pawns in the hands of the parent holding a residence order who has then elbowed out the non resident parent from their child's lives. It cannot be right that loving parents are denied the right from having a meaningful role in their children's lives where they clearly wish to do so because of the vindictiveness often held by the resident parent. In other cases children are often assessed by inept CAFCASS officers without any real understanding that a child's welfare can only be served by both parents being actively involved in their child's future upbringing whilst children are also often alienated from the non resident parent by the parent holding the residence order, Bravo Mr Cameron and Mr Clegg for finally putting our children's needs first !
Presumption of shared parenting
Wotton, Cusworth and Lester have got it wrong. The presumption of shared parenting IS about children's welfare and children's rights and not primarily about parents rights. Every child has a right to a meaningful relationship with both parents and their welfare is best served by this, other than in exceptional circumstances. The establishment of the legal profession have their noses out of joint simply because they have failed recognise this for a generation and don't like to be corrected by parliament.
Guys, put down your law books, forget about legal precedents, and try to learn about child development and human nature. If you are not blinkered and have an open mind John Bowlby's attachment theory is a good place to start - but make sure that you take in that both primary and secondary attachment figures play a vital role in a child's development. And don't fall into the trap of imagining that only mothers can be primary attachment figures - Brenda Geiger's research clearly shows that babies show no gender preference - they form attachments to those who are most closely attuned to their needs regardless of gender. Yes, mothers are more usually adept at nurturing babies and small children but very many men turn their hands to this also. Fathers are very often more adept than mothers at socialising children beyond the toddler stage. Of course, if they have been excluded or restricted in developing and maintaining their relationship (attachment/bond in Bowlby's terminology) then the fathers lose out - but the biggest losers by far are the children.
Wake up lawyers! Children do best when both parents are actively involved in their development. Put children first instead of your own pride at being corrected by parliament.
Political Posturing - What about Legal Posturing
Were it not for legal posturing and legal procrastination in secret courts legitimising the judiciary's social and professional preferences of sending family law cases round in circles, to the utter detriment of children but the perpetual profit of the legal profession, there would need be no change in law. Nothing...no research, no outcome, no commonsense suggests that decisions made in family courts are in the best interests of children and it is simply crass b/s to suggest that any small positive change in law promoting shared parenting, which was supposed to be happening anyway, will be bad for children. It'll only be bad for the legal profession. Less litigation now and less criminals in the next generation; less cashing it in on the back of the domestic violence industry. The MoJ have even admitted that most family solicitors do not know the law, they only know process. Paper pushers charging a fortune. Rather than squeal this rubbish about protecting children, why not try to find a job where ignorance of fact, ignorance of empirical research, posturing with views nobody else shares, using non-evidence based insinuations and procrastination not only pays handsomely but provides a career path to the judicial bench. Oh, there isn't one.
Shared parenting - Catherine Baksi 20/6/12
Catherine Baksi may be an excellent reporter (indeed, I like some of her other articles) but she really ought not to believe everything she is told and she should check her facts otherwise she might find herself locking horns not just with 80% of the British population but with a statistician.
Lawyer may also be unfamiliar with some of the key facts and figures but as many of them will attest - and Baksi concedes - children are emotionally better off with a father in their lives.
Without a father, children suffer higher rates of mortality and morbidity. The mental health rates for women in London are double the rest of the country (see Lauren Higgs, 27 April 2010). Children from single-parent families are also twice as likely to suffer from mental health problems as those living with married parents (The Guardian, Feb 21, 2006). Children of single-parent families, under our present custody regime, will see little of their father and are most prone to neglect and outright violence.
Some of my work on child homicides and beglect can be found on 'www.Straightstatistics.org' where a team of statisticians attempt to highlight spin from fact. Who murders who, and at what age, will shock many new to the topic.
If saving more children lives and improving 'children’s wellbeing' by introducing shared parenting is ‘posturing’ then it is a sad reflection on the ideologues driving policy.
The opinion expressed in ‘Comments’ concerning Messrs Cusworth, Wotton and Lester is one I would endorse.
Family Law 'out of synch' with 21st Century Parenting
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, 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 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 historical 'single parent', ‘primary carer’ model; an approach which, sadly, has contributed to a generation of fatherless children. The judiciary's approach 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 remember that this is not about parents' rights: it is about childrens' rights.
Furthermore, let us be absolutely clear that Shared Parenting does NOT, as many critics would have us believe, necessitate a 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 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 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, however, is taking full heed of it. 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 appear to be completely out of touch with modern family life, and who appear to have little understanding of scientific evidence.
Best regards
Bruno D’Itri
Shared Parenting in Australia
The basis of the government proposals referred to in Catherine Baksi's very informative article, are based on the experience in other countries where shared parenting is already a legislative mandate - and principally from Australia, where the presumption of shared parenting has been in existence since around 1996 and following amendments to the Family Law Act in the Federal jurisdiction in 2006. Based on this experience, does shared parenting work in Australia ? Without a doubt, it certainly does but of course, as with any area of the law, it is always a moving picture : as in Britain, the interests of the child are paramount, not what the parents necessarily want. May I suggest that anyone interested in the successful Australian development of shared parenting and how the Australian Federal courts deal with the competing wishes of either parent - including hearing from children themselves - should research this area on austlii or search the internet for Australian press articles on the subject. Meanwhile, well done LSG for reporting on this development.
Lawyers slam shared parenting plan
"Wotton said the primary focus should be on the rights and welfare of the children, not those of parents, and warned that the proposals risked detracting from children’s wellbeing."
Absolutely riduculous to suggest that the "rights and welfare of the children" are not fundamentally tied up with a meaningful relationship with BOTH his/her parents, meaningful being the operative word that requires some definition. Whilst it is arguable that there is an existing presumption that a child should have a relationship with both parents the absence of any definition as to what this means creates in turn the absence of any consistency across family courts as to how that presumption is implemented. The norm all too often has been alternate weekends, 2 days in 14, no basis on which a child can benefit from a Father’s parental input. There therefore to be an explocit provision, with some definition to ensure our children can benefit from a meaningful relationship with their fathers, as well as their mothers.
Shared Parenting
The "best interest of a lawyer or judge" is the standard that is being used to determine placement and custody. The Constitution clearly states parenting is a fundamental right that deserves the highest scrutiny when it is to be reduced. No STATE has ANY compelling interest to get involved in deciding time between a child and a parent when it serves no purpose. A purpose is when a child's is in imminent harm or danger by an UNFIT parent. Due Process in the 5th and 14th amendment adopted from the Magna Charta in England states that deprivation of a Constitutional, fundamental, right cannot be in effect short of due process which includes notice, a pre-deprivation hearing, and a right to defend oneself against the allegations. ONLY THEN can a parent be found UNFIT. The courts are automatically making a decision with one party depriving the other parent any due process and arbitrarily using the "best interest" standard to determine custody. I think the "best interest" standard is a paramount consideration but what is even more compelling is: FIRST, IT IS IN THE CHILD'S BEST INTEREST TO HAVE UNFETTERED, EQUAL ACCESS TO BOTH PARENTS! Judges and attorneys should not be granted the ability to play "a higher power" in establishing what your relationship is with your child, visa-versa. Ab initio, (from the beginning), it should be presumed parents have the best interest of their children in mind. The best interest is not defined as being a perfect parent but making choices according to using our best judgment. We mold our children who we are and that's what makes us unique. Goverment, out of our lives and leave families intact and alone!!
I cannot understand WHY people desire MORE GOVERNMENT?????
Please feel free to email me at support@twoparents.org. www.twoparents.org or on facebook at https://www.facebook.com/#!/Twoparents
Patrick
Shared Parenting
The ONLY reason these lawyers are against this legislation is because it would mean less money for them in divorce cases. They do not care anything for welfare of the children or fairness in the law. They ONLY care about lining thier pockets by destroying families!! If a lawyer and the courts are against it then it must be the right thing to do.
In Louisiana USA the state charges a 5% fee EVERY MONTH on top of the child support amount in order to fund the court. Therefore it is in the best interest of the state to maximize the amount of support they collect. Every effort to reform the system is fought vigorously by the state and a law professor, Katherine Spaht, who wrote most of the laws in the 70's and convinced our legislatuer to vote for them. The system is corrupt everywhere.
Presumption of Shared Parenting
Of course the lawyers all slam shared parenting. They stand to lose millions as the warring parties (warring because of their lawyers) sort out shared parenting plans in a sensible way instead of one parent taking the children and abusing both the children and the other parent by denying all contact.
It is the lawyers that promote these actions so that they can make thousands upon thousands with totally unnecessary court cases. They, and the Judges are required to act in the "best interests of the children", but do they? No. Any lawyer, solicitor or barrister, or judge should be immediately struck off if found to promoting this abuse of our children.
The presumption of shared parenting is long overdue and was supposed to be in the Children Act 1989. But a woman, Margaret Thatcher, and the lawyers got at it and removed this basic presumption.
Lawyers Slam Shared Parenting Plan
I had a meeting with my MP recently. His words: "I think everyone knows that the current system is broken. I don't know who can possibly contest that."
The proposed legislation change, which by the way needs much work still to be tighter and far less vulnerable to abuse, will only take money away from the law firms. That much is obvious. Furthermore, it also threatens to take power away from the group who have been in the driving seat for far too long, at the expense of their children.
This sort of legislation change is PRECISELY about the best interests of the child and it is long, long overdue, and everyone knows it, including The Law Society president. It's unbelievable that these folk with so much control over what happens to our children are so power and money motivated.
Have faith though, that those who really do have the child's best interests at heart are getting stronger and are being listened to so change will come. It absolutely will.
An Open Letter to the Government
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