Legislative presumption of shared parenting ‘flawed’
Government plans to introduce a legislative presumption of shared parenting could undermine child welfare and increase the volume of litigation, according to the Law Society.
Responding to a Ministry of Justice consultation which closed this week, the Society said the government’s proposal to promote co-operative parenting is ‘admirable’, but doing so through legislation is ‘seriously flawed’. The main risk is that shared parenting will come to be seen as a primary consideration in assessing a child’s welfare, at the expense of protection from harm, Chancery Lane warned.
The response said the welfare of children must always come first and that no legislation should be introduced that creates, or risks creating, the perception that there is an assumed right to substantially shared or equal time for both parents. Such a perception would lead to ‘heightened and unrealistic’ expectations among parents, making mediation more difficult.
The Society argued that legislative change was not needed, claiming a wide consensus that the current legislation provides the right framework for securing a child’s welfare, and that there is no evidence of judicial bias against fathers.
It said: ‘We believe the government understands perfectly well that the case against a legislative presumption is underpinned by experience, expertise and evidence which are absent from the case for legislative change. Nevertheless, political realities mean that this weight of evidence and opinion may be insufficient to head off legislation, as ministers wish to be seen to be responding to the concerns expressed by fathers’ and other groups.’
The Society added that the debate around shared parenting is a proxy for the more difficult debate around the ‘intractable problem’ of court orders.
Children’s minister Tim Loughton set out the government’s plans to amend the Children Act 1989 to strengthen the relationship between parents and children in a consultation published in June.
Comments
Shared Parenting
Shared Parenting has worked marvelously in Australia. It has been embraced almost universally by lawyers, judges and the divorcing public.
For anyone to say that it puts the childs rights or safety at risk is fanciful and inaccurate. It in fact puts the child rights front and foremost.
Shared Parenting reduces litigation and acrimony between warring parents especially when it is a legislative presumption.
Interestingly prior to shared parenting laws being introduced in Australia, fathers were the majority abducting parent. Following the introduction of shared parenting, mothers are now the majority abducting parent.
laws should reflect the concensus view of its citizens
It is clear from the social and economic problems that exist throughout the country, with generation after generation of single parents that the status quo is having a negative effect on society.
Whilst I agree in principle with the current (child centric) view, the reality from this legislation is that parents that are unemployed can provide 24hour care usually get given priority(control) and the whole family view, the phsycological impact and the impact on society( if the child will be hampered rather than supported through life)are rarely considered this ultimately leads to parental alienation for one parent (usualy the father) but a whole in the life of a child where a parent should be.
It seems that the usual outcome from dispuutes over children becomes a dispute over who has control over the child and this is fundamentally flawed.
If the presumption was that both parents would equally contribute the the welfare and upbringing of the child, it is obvious (to me at least) that both the parents and the child benefit along with society as a whole. That said safeguards are required where one or both of the parents are not fit or present a danger to the child safeguards and processes need to be robust to take into account holistically the impact on the child.
to sum up the usual outcome seems to be that a mother is deemed the primary carer and the father is deemed to be the finacial carer. Up until the 1970's this wasn't an unreasonable assumption in most cases however, we all know that a modern family is not like that and the law needs changing to reflect how the modern society works.
It is an incredible
It is an incredible conclision to arrive at that "there is no evidence of judicial bias against fathers" when the usual provision in contested cases us 2 days in 14, absolutely no basis in which a father can either make any meaningful parental input or maintain a meaningfuk relationship. Anything beyond this alternate weekend pattern is regularly described as disruptive, as our even telephone calls more than a couple of times a week. How is excluding a father in this way not "biased"?
'Father involvement comes at expense of risk'- I don't think so!
To claim that 'Shared Parenting will come to be seen as a primary consideration in assessing a child’s welfare, at the expense of protection from harm' is complete nonsense. Fathers full involvement in the life of their children will only be of benefit to the children and he will be a protector from harm as he can act to relieve the mother from full time care and therefore stress; or as an alerter to problems with a step-parent; both huge factors in risk of harm to children.
The main purpose of the family justice system should be to keep both parents fully involved in a child’s life following separation or divorce, wherever appropriate: in short, to encourageShared Parenting. Despite some flawed reports to the contrary, it is working massively in Australia with litigation on children's cases having fallen by 32% between 6/2005 (when the Shared Parenting law was passed) and 11/2010. There is a plethora of evidence that children do better in life when both parents are fully involved in their upbringing. Compared with children who do not have both parents involved, they do better at school; they are less likely to go to prison, get into drugs,alcohol dependency; they will be healthier emotionally and physically and their careers are more likely to prosper. It is really a 'no brainer'.
Shared parenting removes stress for children
If the welfare of children is really to be the paramount consideration of the legal and other professions, then starting with the presumption that both parents - and their families - will remain in a child's life unless there are substantiated reasons to the contrary is the path to take.
All evidence, as already stated, points to life outcomes for children being best when they have two parents involved in thier lives. Removing one of those parents unless there are shown to be very good reasons is therefore counter to their welfare and to be avoided. It is their right to have two parents in their lives. Currently, too many children lose the love and support of one of their parents - usually the father - and their wider family because the legal system is not robust in dealing with the intransigence of one of the parents - usually the mother - and insisting that that parent concentrate on the needs of their child and not on their own selfish wishes.
Children need and should be able to expect that their two parents will be enabled by the legal system to parent their child, including giving them security and safety. Starting at a point where neither parent is in control with the understanding that the law requires them to make a parenting plan which is the best way forward for their child would be greatly helped by a presumption of shared parenting in law.
Currently the law leaves fathers in the position of being 'optional extras' (except when it comes to finance) who have to accept any crumbs of time they are offered rather than take their full responsibility as the parent of their child. This is not what children should be accorded if their welfare is truly at the heart of this debate.
Presumption of shared parenting
It seems that all of the above posts echo the same belief; that a presumption of shared parenting should be recognised in family law. This is wholly and unequivocally correct. Why? because the current system has failed thousands upon thousands of childrens. The statistics speak for themselves. There is a presumption of shared parenting in marraige and co-habitation so why not post marriage. It's parents divorcing eachother and not parents divorcing their children.
A presumption of shared parenting does not conflict with the paramountcy principle. Shared parenting has been proved time and time again to benefit children, not harm them or pose a risk to their welfare.
Those members of the Law Society might be better employed in working with the government and dare I say it, propose how best to effect a positive change - otherwise they face the risk of losing their crediblity in maintaining the position of "nothing wrong with the system we like it just the way it is".
85% of adults in this country are in favour of shared parenting being the norm; how sad that the Law Society disagree - maybe you are the 15% minority of this country. Disgraceful.
Shared parenting and mediation
I am surprised by the skewed logic that suggests the presumption of shared parenting would be detrimental to mediation. Surely the contrary is the case.
Splitting up is painful, and the instinctive reaction is to lash out at the person who is perceived to be the cause. Far too many parents -more often than not mothers with primary residence and care of the child, will resist any meaningful input to the child's life by the person who has hurt them
a) because it makes them feel better and goes somewhere to redressing the pain (revenge =nothing to do with the child's interests)
b) because it's inconvenient to the new life they want to make (which often involves a new "father figure" or serial 'uncles' - no wonder today's children are confused and unhappy )
c) because they CAN.
This latter is the crux of the matter and if it takes legislation to force a change in oarental morality so be it. I'm no psychologist but it seems obvious the parent that knows it cannot use these kind of reasons to withhold or disrupt contact is far more likely to come to the mediation table in a positive frame of mind.
I echo what Jenny says. On the political front it is no use our Government complaining about absent fathers without enabling said fathers to be involved. Most of them want to be but are prevented or frustrated in their efforts.
The statutory presumption of shared parenting is a good start. What a pity the Government did not extend it to grandparents as was promised.
Every child is different
The problem with legislating for shared parenting is that it sets an expectation that this is the best outcome for every child, when each child is different. For my own child, it was painfully obvious after a year of shared care that he was unable to handle the frequent change overs. He needed a single home and continuity of care, at least for the foreseeable future. Fortunately, we could agree custody and contact arrangements. However, in a disputed situation I agree with the Law Society that the starting point must be an assessment of what is best for the child in question, not a presumption of shared parenting.
The reason why some parents
The reason why some parents fight when there is a presumption of shared parenting is because they don't want to share the kids. There needs to be a law to ensure shared parenting, and to prevent one parent from alienating the children from the other parent. Children need both parents, and anyone who claims otherwise is delusional and looking after their own interests. Unless it is proven that one parent is not capable of parenting their children, then shared parenting needs to be mandated.
Shared parenting
It is very clear that, as always, the lawyers are protecting their own (financial) interests at the expense of justice to the public - in this case children and their parents. It is so clear that modern families need a legal presumption of equal parenting by both parents; individual family circumstances (parental working hours, abusive parent etc.) may require adjustments, but from a starting point of equal time with each parent these adjustments are more likely to be agreed out of court - just what the lawyers don't want. I have discussed this with several lawyers - who have all admitted this! Self-interested lawyers, supported by their supposed "regulatory" body the Law Society, are a serious problem and impediment to justice in this country, and not only in family law - we badly need a proper regulatory body for lawyers.
Alleged "no evidence of bias against fathers"
Much of the debate here seems to revolve round whether the law is biased or whether there is a bias in court outcomes.
Whilst it may be possible to argue that the law itself is unbiased, it is nevertheless quite obvious that considerable evidence from outcomes shows a heavy bias. In a broader context, this is the case with many gender-based issues and a key question is how best to promote change without becoming too prescriptive.
The reason that outcomes lag behind our good intentions, is that it can take generations to truly implement change in the minds of a majority. There are still golf clubs around who do not allow women members and the related debates still tend to shed more heat than light. But as the elders fade away, newcomers with more modern views replace them and indeed new applicants who may have the (erstwhile) "wrong" gender will have different and more contemporary attitudes too.
On the other hand, in contact cases even where there is rough agreement on what constitutes appropriate target outcomes, the most glaring shortfall is in their implementation. For example it is currently possible for a hostile parent to completely ignore contact orders with impunity. Such delinquent behaviour must stop.
I have a personal example which is worth noting for both debates. In my case, we might have greatly benefited from shared parenting. Before and for several years after the divorce, the kids were happy, there were no significant disagreements on parenting style, generous finances were agreed, and we had "only" a divorce to get over. Being 2002 we had had to settle for the then "standard" 2 days per week arrangement. But that is only part of the story. Despite no substantive issues arising there was implacable hostility and increasingly ignored contact orders from the outset. There is now no contact at all as my children's mother has "not encouraged" contact, to put it very mildly indeed.
If we were getting a divorce now, ten years later, I believe it would be likely that I might request and indeed expect to obtain a shared parenting order. That (if true) is progress, and we need more of it.
But that is still only part of the story. I went round recently to drop off a birthday present for my son. There I met a gentleman who reliably informed me that the "family" had moved out the previous October, nearly a year ago. Needless to say I was shocked, hurt and concerned. Where were my children? I wrote to my former wife (with her monthly payment advice) advising her that under the existing circumstances she is obliged to let me have their (my children's) address. Her response was that as I had not had contact for three years now, it was "not imperative" that I have their address.
I spoke to two friends of mine to help me to decide what I should do. One is a County Court Judge and the other a family solicitor. Both of them advised me not to bother! There would be stress, emotion, costs, a great waste of time and the overloaded courts would take a long time to get a result which would do me little or no good. All very likely, I thought, being a reasonable man. But these are views of people who have given up on justice, whose expectations are stale from working with a defective system. That is why we need change - when even the priesthood of the law are losing faith.
I did go on to wonder though. If I had been assaulted or even had I been a woman who having drunk too much at a party found that technically she had been raped by a friend, the courts would be taking huge steps to catch and convict the offender (I use this example not to criticise technical rape but to underline the broadness in the apparent severity of the range of crimes of assault). Fair enough I say, these are serious crimes which can and do affect the entire emotional and physical lives of the victims, not to mention their civil rights. And the break the law.
Assault and rape should be punished. But at the same time, the failure of other parts of our legal system often results in even more damage to children’s lives (and to their parents’ lives and to their children's children's lives) because somehow, this kind of abuse is not considered a crime. For my part I feel that given a choice between what has actually happened to my children and, instead, being assaulted myself, it's a no-brainer. I choose the pain, but just give me back my children and give them back their dad.
Incidentally, for a mother to state she will put up with the worst in order to support her children is considered fairly normal. Why not for men? Should men be automatically treated so differently from women? Is this not a blatant form of discrimination?
I consider that systematically depriving children of a parent and vice-versa is a crime, and that when it goes unpunished it sets a terrible example for our children as well. It's too late for my family - but there are countless others who badly need and deserve the protection of the law from vicious and implacably hostile parents. The only way such parents are going to change their attitude and approach to the law - which is currently contempt - is when they know for certain that there will be meaningful consequences for them should they ignore it.
Another related point is that there should be proper punitive action taken when it turns out that allegations made against a parent are false, leading to contact delays and a waste of the court and everyone else's time. Otherwise the process is a travesty.
So shared parenting is not just a proxy debate and certainly is the future norm in an increasingly gender-neutral society where now two men can live in patrimony (sic) and adopt children while a single dad can be discriminated against on behalf of single mothers at the expense of the children. But in the meantime, the extraordinary and shameful anomalies in contact enforcement also need very urgent attention.
Fortunately the recent consultation also covers this issue and I and many others look forward to a positive result.
The Answer Is Bird Nest
The proper answer, where possible, is to follow the lead taking place in many Canadian Court, the use of Bird Nest Custody. It is the least inconvenient on the child, and equally inconvenient on the parents.
http://squidoo.com/BirdNestCustody
Birds Nest
One Canadian court judgment is clearly not "many" Canadian courts. This kind of order is rare and most families of moderate means could not afford it. If couples can have 3 residences all the more power to them.
Gay marriage. As the above
Gay marriage.
As the above comment indicate a unanimous concensus in favour of shared parenting, shouldn't the Law Society have consulted its members before purporting to speak for them?
I am reminded of the Society's open support for gay marriage which, although not so undividedly oppossed by members, clearly did not have the level of support that any democratic organisation would require before making a public resolution on its members' behalf.
On key issues, it may be worth asking us what we think, rather than telling us, and the world at large, what you think we should think.