Saturday, 30 June 2007

UNICEF Child Wellbeing and Family Law

January saw the publication of the UNICEF Report into Child Wellbeing. As you’re undoubtedly aware, their findings about childhood experiences in the UK were fairly damning, and the media didn’t cast single parents in a particularly good light.

The UNICEF report was based on research conducted during two earlier studies. The first (carried out by the Organisation for Economic Co-Operation and Development) included a statement which read ‘OECD analysts have concluded that at present the uncertainties surrounding the sample are such that it is not possible to make reliable comparisons between England's performance and that of other countries’. One can’t help wondering what happened to Scotland, Northern Ireland and Wales! The second (by the World Health Organisation) was concluded in 2001.

The report gave both political parties the opportunity to gain a few column inches of sound bites. The Conservatives spoke of the benefits of married life while Labour spoke of the need for respect for family diversity and the need to invest in our children. I’d recommend both parties check their statistics are reliable before making statements, let alone policy decisions.

While extolling the need for investment in children, a week later Labour’s Secretary of State for Work and Pensions, John Hutton, announced Labour’s intention to cut benefits for single parents. His reasoning was that such a move would help eradicate child poverty. A single parent can claim welfare benefits without seeking work until their children reach the age of 16. Labour’s intention is to force single parents to return to work when their children pass their 12th birthday.

UNICEF’s Report into Child Poverty in Rich Countries (published in 2005) suggested that moving parents into employment and off benefits could benefit children, and that the number of single parents on benefit was a particular issue for the United Kingdom. I hope that Mr Hutton considers what UNICEF also said in that report:

‘There appears to be little relationship between levels of employment and levels of child poverty. It is the distribution of employment among different kinds of household, the proportion of those in work who are on low-pay, and the level of state benefits for the unemployed and the low-paid that contribute most to differences in child poverty rates between countries.’

It may be unfair, but I suspect that Labour’s intentions, rather than being focussed on child wellbeing, relate to their need to reduce welfare costs to help pay for the war in Afghanistan.

If the Government wishes to reduce child poverty, state assistance will continue to be required for parents forced into low-paid occupations. Thought needs to be given as to how employers will support parents in maintaining a home/work balance and whether parents will be allowed time off work should their children be unwell (state funded). Are there sufficient jobs available which enable flexible working time for parents to take their children to and from school. Who will care for the children during school holidays? Not all parents have an extended family to rely on for childcare. Perhaps now would be a good time to invest in shares in childminding businesses!

Rather than focussing on the UNICEF report’s somewhat questionable statistics about the United Kingdom (or England as the OECD called it), it makes more sense to look at the countries that came top of the child wellbeing poll and what they do differently from us. I write primarily on matters relating to family law, so I thought I’d compare the top countries’ legal systems with our own. The results were quite interesting.

The Conservatives hold the view that children do better when their parents remain married. A wise counsellor once said to me “it’s not whether parents separate that matters, but how”, a view that I entirely agree with. The UNICEF Child Wellbeing Report states:

‘...plenty of children in two-parent families are damaged by their parents’ relationships; plenty of children in single-parent and step families are growing up secure and happy.’

Between 2001 and 2005, divorce affected between 136,000 and 153,000 children a year in England and Wales. These figures don’t include the children affected by the break-up of parents who aren’t married.

As well as providing counselling services to help couples in crisis, the Government has a role to play in helping parents achieve a more amicable post separation agreement. Politicians need to consider the UK’s current divorce law and how it affects families; the current system being one that promotes acrimonious and lengthy divorce which is not in children’s best interests. We need more political common sense. Tax credits won’t convince couples to stay together; neither do I believe having to wait years before a court will grant a divorce adds to the possibility of parental reconciliation.

When you compare the United Kingdom to the top 4 countries in the UNICEF Report you see a stark contrast between their family law systems and our own.

The Netherlands, Sweden, and Finland allow divorce by consent with no waiting period while Denmark requires couples to only wait for 6 months. In the UK, to achieve a no fault divorce by consent, a couple must wait for 24 months. If one party to the divorce refuses to agree to divorce, Sweden and Finland require the couple to wait for 6 months, in Denmark it’s 12, and in the Netherlands 36 months. Here, you must wait for 5 years unless you accuse your partner of wrong doing.

In the UK, a faster divorce is only achieved by accusing your partner of adultery, unreasonable behaviour or desertion. On average, approximately 66% of divorces are based on allegations of adultery or unreasonable behaviour. Sweden and Finland only have no fault divorces.
I have little doubt that if we introduced similar measures and moved away from a blame culture it would be far more beneficial to the 80-90,000 children each year who are currently caught up in parental disputes and allegations. Divorce would be quicker, less expensive, and there would be less acrimony between the parties.

Three of the four top countries have a more enlightened approach to decisions regarding child residence following separation. In the Netherlands, Sweden and Finland, shared residence is automatic. There are no battles to be fought over matters such as whether each parent has the right to take the children abroad on holiday, and it gives a clear message that both parents have an equal responsibility in their children’s upbringing. Shared residence is also automatic in Australia and in many states in America.

In 2002, the American Psychological Association published an article in their Journal of Family Psychology that cast doubt on whether children who live in single parent households are disadvantaged when compared to those whose parents are married. It also provides evidence to support the view that shared residence (custody) is in children’s best interests:

‘Children in joint custody arrangements had less behaviour and emotional problems, had higher self-esteem, better family relations and school performance than children in sole custody arrangements. And these children were as well-adjusted as intact family children on the same measures’.

Another interesting feature of Swedish family law is that there is no legal aid for contested divorce or residence cases. Instead, the sensible Swedes fund mediation for both parties. This explains why 90% of separating Swedish parents manage to agree matters themselves about child residence and issues such as the amount of time that the children are to spend living in each household. In the United Kingdom, only 20% of people who receive legal aid attempt mediation (despite the fact that legal aid can cover the cost). In Australia, New Zealand, Norway, some parts of Canada and the United states, mediation is mandatory.

In the United Kingdom, research shows that a non-mediated court case on average takes 435 days to resolve. With mediation, this reduces to 110 days, but 33% of separating couples are not even made aware that mediation is an option. The Legal Services Commission question whether there is a financial disincentive for solicitors to recommend that their clients seek mediation as this may lead to a loss of fees if matters are agreed amicably.

So why haven’t we copied these countries? It may surprise you, but in all bar the matter of making shared residence the starting position in child custody cases, we did! In 1996, a Conservative Government passed a law allowing (amongst other things) no-fault divorces with only a 9 month waiting period for reflection (13 months if there are children involved). The objective was to make divorce less acrimonious, however the law wasn’t enacted. In 2001, Labour asked that the law be revoked since they couldn’t agree on the best way to make part of it work (which concerned information sessions for separating couples). Their view was that these sessions didn’t save enough marriages and the process was too complex.

Six years later children remain caught in, and affected by, unnecessarily bitter, lengthy, and expensive divorces. Rather than blaming single parents, perhaps politicians should copy the Swedes.

By Michael Robinson and reproduced with the kind permission of oneUp magazine