Heavens... heavens... the tombola has stopped spinning, and it's time to look and see whether we've got a winner...
On the whole... yes, but with reservations. 4 or 5 numbers on the lottery ticket, but not the full house. We won't be purchasing our yacht and sailing into the sunset yet. Briefly, we'll set out what the Government has agreed to:
- A presumption of shared parenting (this does not mean a 50/50 division of time, but a presumption that both parents will continue to be involved in bringing up their children after separation... so long as it is safe for them to do so).
- We'll be seeing the terms residence and contact replaced with child arrangement orders. Sole residence is set to go... and that horribly demeaning term 'contact' is off to the dustbin too.
- There'll be new enforcement measures available to judges, including seizing of passports and removal of driving licenses for breach of orders.
All of these things are positive steps forward. Download the proposed legislative amendments
The Opposition
In terms of opposition, which was considerable, charities such as Gingerbread and One Plus One, along with the Law Society and politicians such as Alan Beith have opposed our aims. David Norgrove's Family Justice Review came out against shared parenting too (heavily influenced by the legal lobby). The opponents used some underhand tactics... claiming that the proposals were confusing (they're not), bringing along a very narrow selection of research (which commonly had small to meaningless sample sizes), claiming that shared parenting meant a 50/50 split of time (when they knew otherwise), and that there was no evidence to support that shared parenting supported child welfare (when there was evidence a plenty). There also seemed a lack of understanding as to what a presumption is... it's a starting point, and not an end! Thankfully, our Government didn't fall for it! Yay them!
Also, there were plenty of academics, individuals, and organisations arguing for shared parenting, and you might be surprised that we know a fair number of solicitors and barristers who did not share the Law Society's view (and who are quietly celebrating too... yay but shh).
Disappointment
There will be some who will see the result as a failure in terms of the overall campaign, and here's where we explain why.
Definitions and Interpretation
What does shared parenting mean? The Government's proposals are too open to judicial interpretation, and each judge will interpret what shared parenting means in their own, individual court. Some will argue that the result will be no different to what we have now. One crusty old judge may feel that Sunday afternoons once a fortnight is a 'meaningful involvement', while in the court next door, a judge who was or is more of a hands on parent would see family life and a father's role quite differently. That roulette wheel spins in every case... and opponents of the current legal system want a measure of uncertainty removed by the introduction of more detailed guidance. Perhaps it should be remembered that in 1989, Parliament intended shared residence to be commonplace, but the judicial guidance issued by the President of the Family Division contradicted this.
Domestic Violence and Legal Aid
We, and we hear many in the legal profession sharing this view, believe that the number of domestic violence allegations will skyrocket next year. The reason being that legal aid will be given to parents who claim to be victim of domestic violence, while otherwise, parents must employ a solicitor or represent themselves.
With no penalty for false allegations, the tactic of false allegations to stop contact for a 3 or 6 month period while the allegations are investigated will be appealing to the unscrupulous (as will free legal representation!). The status quo will grow in the their favour, and even if the court believes the allegations to be a pack of lies, there will be no sanction. Many falsely accused could also be forced out of their homes by the use of occupation orders or threatened with jail via non-molestation orders. Without more thought, the situation will be ugly, and many children and parents will suffer. Those genuine victims of domestic violence will see services stretched, and face greater disbelief and obstacles, as the courts try to fathom whether this 'victim' is genuine.
It might be appropriate if courts started awarding costs against those who falsely accuse (including legal aid costs), and treat contact denial based on false allegations (and contact denial in general) as another form of domestic violence and child abuse.
What comes next?
Will the Government's proposals result in real change? Will more children have the benefit of both parents in their lives? Will the court use the new enforcement measures? Who knows... we'll have to wait and see.
The Government were right, that without a presumption of shared parenting there was little incentive for waring parents to enter into mediation. They were right, that shared parenting is fundamentally in children's best interests, and a presumption with a caveat on safety is inextricably supportive of child welfare. The research supports that... and comes from respected academics and experts in child welfare, rather than law (surely, as it should be!).
Much will depend on judicial interpretation. We do not know yet who will be the next President of the Family Division of the Courts, but their guidance on this matter will be crucial. Thorpe is due to retire next year too... so we're to lose the two most senior family law judges, and we're seeing a young topgun (Mr Justice Ryder... 'I'm not the youngest High Court Judge ever... but the second youngest I believe') brought in to oversee judicial modernisation. Add to this the loss of funding for some 45,000 private family law cases when legal aid goes... a large increase in litigants-in-person... a legal system which remains overly complex and is already stretched... and an increase in false allegations caused by legal aid criteria... and it's a recipe for difficult times...
So celebrate or not?
Today... oh yes! Without opposition to, and credible arguments raised against those who were against shared parenting, we'd have seen no progress. Congratulations and thank you to those who took part. It is a progressive step forward, and one to be welcomed.
To those who remain concerned, skeptical and disappointed... we understand, and you've good reason. So forgive us while we celebrate tonight... too early for champagne, but a glass of pinot gris is welcome. Tomorrow we'll need to roll up our shirt sleeves and carry on. The world is a little brighter today, but it hasn't changed yet... and the forecast for next year is positively stormy!
