Wednesday, 22 October 2014

The Family Justice Minister, the Marx Brothers, and Parental Involvement

"Who are you going to believe, me or your own eyes" - Groucho

Justice Minister, Simon Hughes, said "We have made bold reforms so that the welfare of the children is at the heart of the family justice system, and there can be no doubt that parents play a very important role in every child's life. Following break up of relationships we are encouraging all parents to focus on the needs of the child rather than what they want for themselves."

Excting isn't it? Isn't it? Before you grab your vuvuzela and have a tootle in the streets, it might just be worth having a look at what the reform, introduced today, means in real terms, and how the Government fought against a presumption that parents play a 'very' important role in their (not every surely) child's life and succeeded in defeating it.

I may criticise his accuracy, his sense of reality, his intelligence, his poor use of spin, but one almost has to admire his imagination.

To suggest that the Coalition have placed the welfare of the children at the heart of the family justice system ignores the fact that this principle has been enshrined in law for decades. Look... it's there at s.1 of the 1989 Act. Perhaps this Coalition invented the wheel too?

His second claim, that there can be no doubt that parents play a 'very' important role in every child's life isn't introduced into family law at all. The level of importance, and involvement was qualified by the Coalition having specifically dropped there being a presumption of shared parenting (a Conservative manifesto commitment), and then further diluted the importance of involvement by removing the word 'meaningful', and finally giving up entirely by saying involvement could be 'direct or indirect' (meaning a Christmas card once a year might surfice).

His third claim that "Following break up of relationships we are encouraging all parents to focus on the needs of the child rather than what they want for themselves" misses the point that if the paramountcy priniciple and welfare checklist contained in the 1989 Act failed to achieve this, how will saying that a post card might be sufficient satisfy the psychological shift that children's needs come first.

Other claims that the notion of residence and contact are abolished are simply wrong. The new Child Arrangements Order dispenses with the word residence, it's true, but replaces that word with the more tortuous phrase "the person with whom the child lives", and contact remains as plain as the nose on my face (which sadly, is a rather large nose, and hard to miss).

So the reform missed in its goal to make child welfare more key (this was not necessary), and missed in its goal to give parents less to battle over upon the point of separation.  What we have is 'look, we've done something' where in reality, they've done nothing other than make the wording a little bit more tortuous, and saddled the courts, HMCTS, the legal profession, legal writers etc with a huge administrative burden by having to rewrite what was there before in a slightly different way. An abject waste of time, money and opportunity.

This lack of a grasp of legislation, which our Justice Minister so ably demonstrates, is also demonstrated by claims that the Coalition have introduced shared parental responsibility. Parental responsibility was shared under the old wording, so long as both parents were named on the birth certificate, were married, or parental responsibility was acquired by formal agreement or court order. Again, no change whatsoever.

While the new wording isn't a cause for celebration, I also don't think it's a cause for panic. Those judges who believed before that children need a proper relationship with both parents will continue to do so. Those who hold a more antiquated view of the man as breadwinner and the woman as care giver are slowly retiring with a younger breed coming through who have a better understanding of parental involvement in today's society. For the dinosaurs, misogynists and misandrysts who remain, the wording does nothing to limit their 'wide ambit of discretion' to decide what they wish (so long as there is some justification for the judgment, which again, was required before anyway).

The Government's belief that mediation and this gentle approach would bring about a sea change in how post-separation disputes are handled shows a lack of understanding of human nature (and history). Since King Solomon's time (and we guess before), some adults are capricious, self-centered, hostile, possessive, angry, anxious, malicious and we could go on and on. Allegations of abuse, at separation, are incredibly common. It never ceases to surprise me that the man or woman who was trusted to babysit and provide childcare throughout the child's life suddenly becomes Myra Hindley or Fred West on the day the parents separate.

The Government are still scratching their heads because, despite mediation being cheaper for the parents, potentially far quicker and less traumatic, the number of parents choosing mediation has fallen since legal aid was withdrawn. I'm still scratching my head at the Government being incapable of understanding that an adversarial legal system encourages parental dispute. A presumption of shared parenting would have more heavily emphasised that parents need to focus on the upbringing of their children, and the role both parents have. It would have given less reason for a prolongued court battle. What a shame Mr Hughes and his Coalition buddies rejected this... despite that a presumption is only that, and if unsuitable due to proven neglect, violence or abuse, would have been rejected if the individual case circumstances merited such.

This Government, by way of the Bedroom Tax, handed on a plate ammunition for malicious, alienating resident parents to thwart contact, being that the children didn't want staying contact because the non-resident parent didn't have a bedroom for them (and weren't entitled to one). Mr Hughes and his colleagues voted against the tax at party conference, but then went on to support it or abstain.  As Groucho said "those are my principles, and if you don't like them, I have others!" (a theme which ran through family law reform and politicians' promises). The gaff beset Lord Freud suggested that children stay on their non-resident parent's sofa bed (even when there are three teenage kids of different gender) which ably demonstrated the lack of practical thought which underpins Government policy, and underlines that child welfare matters not at all.

In light of his fanciful claims, I'm awaiting Mr Hughes announcing that his party is proud of their role in stopping the introduction of tuition fees.