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Posts Tagged ‘discrimination’

Rob Williams writes in the Guardian about the practice at Basildon hospital of excluding fathers to be from ultrasound scans. He suspect[s] that the policy to exclude men from the scanning room is rooted in a belief that men are not important to the process of bringing a baby into the world. Whilst I sympathise and think this policy creates more issues than it resolves, I suspect it’s not that simple.

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The article publishes in full correspondence in response to a complaint about this policy, along with answers to a Freedom of Information Act request. Rob Williams complains that the Trust’s claim that the policy is ‘to protect technicians from violence’ is not borne out when one looks at the statistics – only one incident of violence towards a sonographer in the two year period covered. But in fact, this is not what correspondence from the Trust says. It says that in part the policy results from very real concerns about ‘the reactions of partners when they are in the scanning room’. It seems fairly clear to me that what is likely to be behind this is not a concern about direct aggression towards staff, but the risk of an adverse reaction towards the patient herself, particularly at dating scans where a woman may be caught out in a lie. We know that domestic violence often emerges or worsens when women fall pregnant and I suspect that this policy relates to the risk to women patients, and of course the risk that staff may be caught in the crossfire. And a woman in an abusive or controlling relationship may not have been able to prevent her partner from attending the appointment, or may be unable to voice her preference to attend the scan alone.

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That said, I don’t think its a policy I support. I do think that it minimises the role of fathers and operates on a presumption that they will be disruptive or unsupportive. If we can manage to involve fathers routinely in the birthing process we should be able to make arrangements for dating scans to be carried out in a way which doesn’t exclude dads, whilst safeguarding vulnerable women. If this means that staff need to be watchful, sensitive and adaptable so be it. It shouldn’t result in women who wish to have their supportive partner with them being denied that support. Having experienced both the awful moment when the sonographer confirms that the baby has no heartbeat, and having gone through subsequent scans with my heart in my throat clutching on to my husbands hand for dear life, I cannot see that this policy is right. And allowing for the partner to be brought in after the initial scan does not solve this problem.

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We should not see all men as potential perpetrators. Violence against women is bound up with gender stereotypes and such a policy runs the risk of perpetuating them.
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Equally, the campaign which sought the information from the Trust seems to have been so focussed on rights and equality that it had a bit of a blind spot as to the very real issue that the Trust was quite legitimately trying to address.

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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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Family Lore has alerted me to this curious decision of Lord Justice Wall on permission (RW v SW [2010] EWCA Civ 457 (29 April 2010)). Wall LJ adjourned off a father’s application for permission to appeal to a two judge court notwithstanding the fact that his own view was that the appeal had no reasonable prospect of success, on the sole basis that the father is ‘one of many who feel let down by the system’.

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Hmmm…I admire the sentiment – it is important that all groups of litigants in the family justice system should feel that their case has been dealt with thoroughly – but is it right as a matter of principle that those that complain the loudest should get special consideration? Unusually in this case there is no public or private expense in the form of legal costs as the appellant father was in person and the mother (as is usual with permission applications) was not involved at that stage. However there IS a not insignificant expense no doubt to Her Majesty’s Court Service and judicial time is being taken from something else when the permission application has already been thoroughly considered. What if the two judge court disagrees with Lord Justice Wall and grants permission? Would not the Mother have cause to complain that the Father had been given two bites of the cherry? Certainly if the boot were on the other foot there would be uproar about discrimination against fathers.

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This judgment makes me uneasy. Thoughts?

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OK, so I lied – no big boobies here. But as they say in the playground: ‘Made you look, made you stare, made you lose your underwear’…

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I’m a little puzzled by this article by Martin Evans at The Telegraph, entitled ‘Lesbian Mother Appeals Court Decision After Daughter Removed’. Having seen this re-tweeted on twitter (thanks @johnbolch), I was expecting (reasonably I thought) that the subject of the appeal might relate to how same sex relationships are correctly to be treated by the family courts, that one of the grounds might raise some discrimination point etc – and so I clicked through. So naive…In fact the reference to the sexuality of the Appellant appears to be 100% gratuitous because there is absolutely no reference to the Mother’s sexuality anywhere in the article. Either that or the author has omitted to include some crucial information, because from the information provided this appears to be a relatively unremarkable appeal where the parents’ sexuality is nothing to do with anything. I despair at the state of journalism sometimes.

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The Times reports on a recently published Civitas report which is critical of Sharia Courts and in particular the tensions between Sharia and human rights and the law in this jurisdiction. Of particular note for family lawyers or those interested in it is of course the community pressure which can bear upon muslim women, and their relative powerlessness within the context of community justice fora like Sharia Courts, both in terms of divorce rights and in relation to the upbringing of children.

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No doubt the BNP are hoping to capitalise on the general disillusionment with mainstream political parties in order to gain seats in the forthcoming european elections and further down the line. (I have received a rather unpleasant leaflet through the door myself, plastered with respectable white people and unpleasant slogans.) For anyone contemplating casting a protest vote in the direction of the BNP READ THIS FIRST: the BNP White paper on Family Law (nice pun) is a little something I came across last week quite by chance. I read it through spluttering expletives and general disbelief at almost every paragraph – I will spare you a blow by blow commentary as it really does speak for itself.

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I don’t usually post on Politics on this blog but this document is a detailed set of proposals about family law, including that residence decisions where parents are divorcing should be automatically be granted to the parent who successfully petitions for divorce on the grounds of adultery, repeal of the Civil Partnerships Act and banning of same sex adoptions, to give just three examples, along with a number of quite serious misrepresentations of the current law and its effect. Given the subject matter of this blog how could I not comment?

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The BNP would have you believe they are so much more than a bunch of xenophobic crackpots – well, if this document is anything to go by they are much much more:  they are also mysoginist, homophobic, regressive and revolting. What they are profundly NOT is at all child-centred. I’m not quite sure what the status of this document is, but although I note it is the work of one former F4J activist (and as such may be borne in part out of the narrow perspective of personal experience) it nonetheless seems to be well on its way to being a fully ratified policy document, and the BNP appear to be quite happy for it to be freely available on the internet associated with the BNP logo. As such it represents a surprisingly candid snapshot of the types of people who are actively involved in the BNP and the views that they really hold when not polished and dressed up as respectable by their more PR savvy leaders. If their views on immigration were not enough to turn you off, their apparent views on family law ought to be ample reason for you to cast your vote elsewhere.

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Now THAT’s what the EHRC is FOR…Actually making people sit up and think about things.

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