Monday, 13 February 2012

Giving divorced fathers more rights could be dangerous?

An article in the Daily Telegraph today cites Ken Clarke saying 'Giving divorced dads more rights could be dangerous'. He also suggests that it places judges in too difficult a situation to ask them to set out the times that children spend with each parent following separation.

Dealing with the first point, the Government has vowed to give children the right to a presumption of a meaningful relationship with both parents following separation. If there is risk of harm to the children from one or other parent, the court will still consider this. What we're hopefully moving from is the perverse situation where a parent has to justify why they should see their children, to a situation where the other parent has to justify why they shouldn't.

Why peverse? Parents are routinely being CRB checked when they approach the courts. The greatest risk doesn't come from parents though, but step-parents and new partners of parents but these are not 'vetted' by the state. Neither are parents 'vetted' following conception or the birth of a child... so why when they separate. If we're going to have precautionary measures and heavy handed state involvement in the decision as to whether people are allowed to parent, it's a short step to needing a license before conceiving a child (the principles of the state deciding who is suitable are no different).

An industry has grown up around paranoia and unreasonable state interference in family life. Two years ago I was at a conference where the head of the National Youth Advocacy Service said that of all referrals to their contact centres, 75% of parents end up with unsupervised contact. Of those 75%, how many children were unnecessarily restricted from seeing a parent in the natural setting of home? How many were left with an assumption that their parent may be unsafe? What harm to a child from this? The child's and parent's liberties are removed, often without any evidence being heard... read on!

There's a disparity in law. When parents first go to court, the judge is highly unlikely to make an order as to contact unless the primary carer agrees or until oral evidence is heard at a later hearing (which may not happen for months... e.g. also following a CAFCASS Investigation and Report). This limitation wasn't introduced by statute but by precedent (Family Law Reports (1995) 1 FLR 495 heard by Wall LJ):

"The guiding principle remained the application of the welfare test to the practical facts of the case. The fact that the need to re-establish contact was in the interests of the child did not mean that the court would necessarily make an offer for interim contact. The elementary question had to be asked as to whether it was in the child's interests for there to be an interim order for contact pending a final determination of that question. The greatest care had to be taken in making an interim order and without hearing oral evidence, to ensure that it was in the interests of the child and that the order did not prejudice the issue. It was difficult to envisage circumstances in which an interim order for contact could properly be made where the principle of contact was genuinely in dispute and where there were substantial factual issues relating to a child which were unresolved without the court hearing oral evidence or having the advice of an expert such as a court welfare officer."

This delay is unacceptable, and there are often occasions when the judge hears the primary carer will only agree to any contact if it is in a contact centre (on occasions prompted to this course by their solicitor... and yes, I've heard a solicitor do this when there were no risks of harm being alleged, simply the mother was anxious at their child being away from them). It's hard to maintain a natural relationship with your child in a sterile environment where half the toys are broken and where strangers are viewing your every move. Such restrictions of family life are justified where there is a genuine risk of harm... but the restrictions are imposed on the grounds of an untested allegation, and remain in place for months due to the courts' and CAFCASS's inefficiency and poor case management. It's only a year since we've seen CAFCASS reports take 40 weeks. To add insult to injury for the falsely accused parent, they often have to pay to use the contact centre (and I've heard of costs of £140 per session).

Bear in mind the court assumes there is a primary carer, and the other parent must prove themselves. A child has two parents, and the days when one was a distant bread winner while the other was the live at home carer are gone, but not in the thought process of the judiciary.

Where there are allegations, the First Hearing and Dispute Resolution Appointment should have proper time allocated to it to give respondents the opportunity to answer allegations. These hearings may be limited to a matter of a few minutes where the respondent has no time to defend themselves before the restrictions are applied. The brevity of this first hearing does not serve child welfare, and only adds to the risk of delay and injustice.

On to the second point that Ken Clarke makes, of it being hard on a judge to allocate time between the parents. This is the judge's job in such cases where parents cannot agree, or where one parent is opposed to the concept of contact. Where judges fail to do their job, children lose contact with one parent. 3million children have lost contact with a parent following separation, which is why the Government is looking at reforming the law.

People assume that contact breaks down for serious reasons. In many cases, it doesn't.

I've seen one bizarre case where a child decided they didn't want to go to stay with their father. The reason was that the father took the child to see their grandparents, and the child found this boring, and wanted to play on their X-Box instead. The mother saw this as an opportunity to encourage the child not to attend contact. The CAFCASS Officer took the view 'what can we do if the child doesn't want to go?'. I was with the father when the officer said this, and asked what would happen if the child said school was boring? Would the Officer shrug their shoulders, or question whether the mother was exercising parental control in the child's best interests by allowing the child to do whatever they wanted. A child's wishes and feelings must be considered, but decisions about their lives sometimes need to be taken by adults, who are mindful of their needs. Sometimes, that includes explaining to a child the importance of other people's feelings. Where we don't do this, we end up with a fractured society where 'rights' have no connection with responsibilities.

Other cases where contact broke down often involve a 'contact' parent saying no. Whether it be to wearing inappropriate clothing, or staying up all night, or any number of normal disagreements which parents and children have.

A close friend of mine had a row with her daughter over what her daughter was wearing. She rang me, quite distressed, when she overheard her daughter's friend had run her toothbrush around the toilet bowl and her daughter laughing. Children and teens can do unpleasant things. At times they can be selfish, and at times, they will fall out with one or both parents. The sad thing is, when parents are separated, and when one parent remains hostile and judges sit on their hands, this can lead to a complete severing of the child's relationships.

Most people have a child who says 'I hate you' at some point in their life. For the non-resident parent, a natural part of the child's pushing against a boundary can see the cessation of all contact. The courts are there as a final line of defence to safeguard a child's relationships, and if the job is too hard for some judges, or Ken Clarke, they should do something else. It's a crying shame that Ken Clarke is still defending a legal system which has failed millions, and simply isn't fit for purpose.