Friday, 30 November 2012

2013 - Is this the year of the fatherless child?

A while ago, Iain Duncan Smith was quoted in the Telegraph on the subject of fatherlessness in society, and how the legal system had failed a third of children who had lost contact over the last 20 years. It's wrong to lay the blame solely at the doors of the courts. Successive Governments haven't treated the issue seriously or with sufficient thought.

Over 2,000 years ago there was a judgment given, where Solomon faced a bitter custody dispute. Not much has changed in the years since. Human nature doesn't change. People behave badly. People get caught up in disputes, and anger, revenge, spite and a long list of other unpleasant human emotions come to the surface. As one sage judge said on the issue of fact findings and allegations (we do love Mostyn's judgments) 'if parents were behaving well, they'd probably still be together'.

The Government is naive if it believes that mediation alone is a panacea to fatherlessness or will soak up the mess left by legal aid cuts. Lay advisers and members of the legal profession see the full ambit of unpleasantness in the courts. I've seen a number of extremely unpleasant cases recently, where before matters had gone to court, one parent was fabricating evidence to stitch up the other, then calling the police or social services. The Jeremy Kyle world sadly exists, and isn't limited to the working classes.

I agree that adversarial family law fans the flames of parental hostility, but it's naive to think that it's the cause of parental hostility, or that the carrot without the stick is sufficient to resolve many parental disputes. Statistics suggest that 10% of separating parents go to court, while a further 30% fail to agree any arrangements (lacking the court's involvement). Could it be that fatherlessness may be reduced by more parents accessing the courts? Could it be that an imperfect system is better than no system at all?

Where is the support for parents who cannot afford a solicitor, whose numbers are to be swelled by tens of thousands next year once legal aid goes? What access to justice for them?

45,000 are to lose legal aid. Courts are closing. Court delay more likely due to inexperienced litigants in person eating up court time. The Government's plans are likely to save some money (if only from the reduced legal aid bill). Has any consideration been given to replacing that support, and giving parents the depth of knowledge they need to make informed decisions should mediation fail? What we saw yesterday was a useful links page to third sector organisations, but nothing in practical terms to support parents whose ex-partner says 'no'. Nothing to support those falsely accused whose world is at risk and who need legal advice. Nothing to support those who come home and find the house empty and their children gone... and the list of more complex but fairly routine scenarios goes on.

...and consider what a falsely accused parent faces, which will become worse next year. The accuser receives Government funded legal representation. The accused not. No equality of arms, and I fail to see how their right to a fair hearing is protected. Consider the risks... loss of children, loss of home, and findings made that destroys their character... all judged on a subjective balance of probability in a court under pressure, and where the accused lacks the legal guidance afforded to their alleged victim. No checks and balances. Will the prospect of free legal aid encourage false allegations?

On a good note... consider the benefit to Government statistics... we'll see headlines that Government policy has led to more successful findings against perpetrators of domestic violence... 

The cost to society could be many times greater than the short term financial savings that the Government hopes for. We know that fatherlessness is linked to higher incidences of crime, teenage pregnancy, poor mental health, addiction, lower performance at school and other societal ills. Such are the findings of Iain Duncan Smith's Centre for Social Justice. Will mediation fix Broken Britain? Will the Government's new app, which is little more than a useful links page, give parents the tools they need to safeguard their children's relationships? No. Not for many. Not for thousands.

Can those third sector organisations deliver the support that's needed? Will they have the resources to meet demand? Could you fit 1000 parents in your local pub for a monthly support meeting?  Are there sufficient numbers and sufficiently knowledgeable volunteer advisers to offer support to 45,000 parents next year?

We hope the Government has something else up their sleeve, but we found nothing on that app, and have seen nothing in their publications to suggest they have meaningful support for the parents who find mediation doesn't work, and where a solicitor is unaffordable.

Is the Government's policy to hope that thousands of years of human nature can be reversed overnight? Surely the biggest social gamble in my life time. I may be being harsh, but they may be being criminally negligent.

Mediation can work, but there also needs to be access to justice where it fails. Access to justice is about to become harder. I wonder how many parents won't approach the courts because they simply don't know how to, lack the necessary information and feel overwhelmed.

On a good note... consider the benefit to Government statistics... we'll see headlines that fewer parents are resorting to the courts...

What we may see next year are the ranks of fatherless children swelled by those whose parents no longer qualify for legal aid, and a hopeless situation for those whose parents face false allegations. Broken Britain perpetuated, or made worse by this Government due to a mix of poor advice, wishful thinking and a lack of planning and resources.