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Posts Tagged ‘contact’

I don’t have time today to analyse this case in a full blog post but I did want to post a link to it. John Bolch at Family Lore has been able to provide a very helpful summary of it and links to the judgment.

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Just a thought. I’m not trying to be controversial or nuffing. But it did occur to me today that whilst the clamour for a presumption of equal parenting is all well and good (I agree its a solution that should be given serious consideration in most cases, but not that this should be elevated to a presumption) its something which is really completely novel as far as the history of the family is concerned. And I began to think about what equality really means in the context of parenting.

I’m all for equality of opportunity as far as parenting is concerned. It doesn’t matter to me whether its Mr Mom or Lady Cab Driver. Or a shared arrangement that defies the traditional homemaker / breadwinner paradigm.

However, whilst I’m no historian, I can’t think of any time in history or any culture where the role of primary carer is or has been generally  split equally between both parents. Aside from cultural norms and historical societal organisation into very gendered roles, there remain all sorts of practical and financial reasons why one parent most often carries out the bulk of the care of the children. It’s still most often the mother who performs this role, but there is no reason why it needs to be her as opposed to him.

I pause here to observe that even for topsy turvy families like mine where there is a gender role reversal from the traditional female carer : male breadwinner, it is quite often very hard for both of us to shed our guilt for not providing (him) or not being there to kiss it better (me): gendered expectations about our roles as parents are deeply ingrained in us all whatever our philosophy or intellectual belief. I go out to work: I feel like a bad mother, even though I know better. But there is no reason why the carer has to be the mother. And courts must ensure no prejudice in that respect.

But I want to draw out a distinction between avoiding discrimination in our attitudes to who should provide primary care and the quite distinct proposal that the primary care should be split equally between the two parents on separation. When families are together shared care and equal divisions of time are far from the norm, and I’m not sure why they should be the norm when they aren’t together.

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Fathers seek equality in matters of family justice. Equality to me means that each parent should have equal treatment from the courts, equal status as a parent, equal importance in the life of a child. It’s not a mathematical equation and it can’t be expressed in binary. What is legitimate to ask for is that the court, when faced with applications for residence from two parents, does not make its decision based on prejudice or gender stereotype. What is not legitimate is to prioritise a parent’s desire for recognition or affirmation over what is right for the child in any given case.

The complaint is often made that the overwhelming majority of residence orders are made to mothers, ergo discrimination. Well I don’t agree that this equals discrimination, because I don’t think you can tease out from that that brute fact that, in spite of big changes in society over recent decades, the way in which most families still continue to organise themselves is with mum as main carer, and that when most disputes come to court it is from the starting point that the children are used to being cared for by her. Which is not to say there isn’t discrimination in individual cases, but only that the statistics reflect the general trends in society that persist.

In private law disputes the title and status of ‘primary carer’ can become a much sought after prize, the symbol of victory in the battle for equality. The goal of 50% of a child’s time I think is often a symptom of competitiveness between parents, determined on securing a victory in their own conflict. Parents who count up how many nights a year they have and demand an extra 3 nights per annum to balance it out have really lost the wood for the trees – their kids aren’t counting. They are wondering why daddy / mummy is so angry all the time. The 50:50 approach fundamentally misunderstands the way in which our children see us as important figures in their lives. A breadwinner is no less of a parent than a homemaker / carer. My dad worked hard, he didn’t get home to put us to bed often and the patterns and nature of my relationship with him as a child was very different from that I had with my mother. But my parents are equally important to me, regardless of who bandaged my knee or made my sandwiches or who stumped up the pocket money. It is only adults who need to quantify their relationships in hours. Insistence on shared residence can be to impose the judgment of Solomon on children, if not tearing them limb from limb forcing them to be constantly moving from pillar to post in order to share themselves equally between their parents.

Shared parenting works well for some. Equal splits of time also for some. There are any number of combinations or arrangements. But, when there are two homes the practical and geographical problems can often make shared care stressful or impractical. For the bulk of families, whether separated or together the only practical solution is to take different but equal roles. Children understand that in their own way and think no less of us for it. Sometimes I think that the more parents try to demonstrate their equality through carving up the weeks into 50:50 shares, the more they force children to choose between them.

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I know that fathers rights / equality campaigners don’t think that the welfare checklist / best interests test achieves a non-discriminatory result, but I think a presumption of shared care would subjugate the welfare of the child to the straitjacket of dogma. But what if instead we were to legislate to remove any perceived discrimination by identifying what is impermissible for the court to take into account: a codification of the principle of non-discrimination by, say, a provision that the court must not make decisions about the care or residence of a child on grounds of gender.

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These are just my Friday night musings and I’ve had half a glass of wine (baby related abstinence means even this results in mild squiffiness). But I do think there are more creative ways to think about how we promote equality for mums and dads and I think that the debate about this needs to be both more rigorous and more innovative.

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Thanks to Family Law Week for alerting me to this judgment of Thorpe LJ in which the court considered the proper husbanding of limited resources in determining the way forward in a contact case. It was in the course of that judgment last year that Thorpe LJ remarked that the family justice system was ‘stretched to breaking point’. In that case a fact finding hearing would have served no purpose and therefore the court refused to direct that such a hearing should take place. Full judgment to appear on FLW website shortly we are told.

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A colleague emails:

…When looking through the LibDem manifesto this week, I noticed an express commitment, buried deep in the document at page 52, which may be of some interest (and reads, as follows)….
“The Liberal Democrats will “introduce a default contact arragangement, which would divide the child’s time between their two parents in the event of a family breakdown, if there is no threat to the safety of the child”
I’m wondering (a) what the default position will be (b) how many cases I have had in the last 4 years where a care and contact pattern has not been completely tailored to the circumstances of the particular family (less than 1 hand of fingers) and (c) how it would be implemented….?”

He’s right on the nail there as far as I can see. But I don’t see the other two parties as being exactly a family lawyer’s dream party either, so this won’t change my vote.

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The Lib Dems will also incorporate the UN Convention on the rights of a child into UK law, publish anonymised Serious Case Reviews and they make a number of generalised pledges about such things as the reduction of child poverty.

Thanks AC for the heads up.

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Surviving a Stepfamily Christmas

I must be moving up in the world: I haven’t dealt with a single last minute spat over who gets the kids on Christmas Day this year. I had steeled myself for the annual onset of the Christmas Contact frenzy: desperate attempts to shoehorn in urgent hearings, and to persuade a judge to give the judgment of Solomon in a 30 minute directions slot. But the only cases I have dealt with this year have been thought through well in advance and agreed sensibly, usually by saying one parent has Christmas Day and the other Boxing Day, in some cases a split on the day (where parents live nearby).

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There is an interesting and thoughtful piece in The Times today about just this issue: how blended and stepfamilies manage the minefield of Christmas. Christmas is a recipe for fallings out at the best of times but it can be a really tough time for those who are separated or divorced, and for their kids and their wider families.

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I attended the FLBA Annual Conference in Bath today and was struck by a really interesting talk by Dr Kirk Weir, Consultant Child, Adolescent & Family Psychiatrist. He presented statistics based on his work as an expert reporting in High Conflict Contact Cases over a number of years, in support of the proposition that an emphasis on a child’s reported wishes and feelings in such cases is misplaced and potentially misleading. The figures were quite striking.

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Dr Weir reported that of the children he assessed, all of whom were children expressing resistence to contact at the outset, most were able to resume contact once an observed contact was insisted upon. Contact was successfully reestablished and continued in the majority of cases. Factors affecting the likely success of contact leading on from such an assessed contact were neutral handover without the resident parent present (e.g. collect from school), the age of the child (although successful outcomes were achieved with all age groups success with over 7s was more unpredictable), and the length of the preceding period of no contact (the shorter the better). What was apparent from the material presented by Dr Weir was that:

  1. delay in these cases is likely to be harmful and to reduce the chances of a successful outcome (this is not news but the correlation was quite starkly apparent from the figures)
  2. wishes and feelings reports may lead us to abandon attempts to re-establish contact prematurely
  3. whilst for some children it is important to enable them to feel they have a voice, it is important to be aware that children need protection from the burden of having to express a preference for one or other parent or from having to take responsibility for such difficult decisions

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There are 40,000 contact applications issued in England & Wales each year. Delay is endemic. The President’s Interim Guidance actively encourages the use of short wishes and feelings reports as a first port of call in order to reduce the burden on an overstretched CAFCASS. These reports have their place of course, and many contact cases are far less entrenched or highly conflicted than the types of cases Dr Weir is involved with. But all cases start out the same way and most follow a pretty predictable route through in court conciliation, review hearings, wishes and feelings reports – trying this and trying that, softly softly…before months have turned into years and someone somewhere realises this has become a High Conflict Contact Dispute and BANG: you wish with hindsight you had grabbed the bull by the horns earlier on and got an expert in. If Dr Weir is right we’re going about it all wrong. And the current cheap and cheerful wishes and feelings reports may be storing up problems for further down the road.

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One of the topics not addressed by Dr Weir is that the LSC will now not fund any assessment of contact in private law cases and so Dr Weir’s own working practice of insisting that an assessed contact is an integral part of the assessment may no longer be achievable.

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Dr Weir’s paper on this topic has been submitted for peer review. If and when I hear of its publication I will post a link or reference.

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Dealing recently with a case where a publicly mother ordered to make a child available for contact but who had concerns about its continuation was refused public funding to make an application to vary until such time as the father had applied to enforce. How can that be a) in the interests of the child, causing delay and acrimony as it does b) reasonable bearing in mind the fact that it would potentially place the parent at increased risk of committal or community punishment if breach is proved on enforcement c) economically sensible given that a prompt application is much more likely to nip a problem in the bud? This case related to an order which preceded the automatic imposition of a warning notice, but I very much hope was an isolated example of LSC decision making.

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