Judicial Opposition to Shared Parenting - Who sets social policy?

Rumours are circulating of retired judges, now incumbent in the House of Lords, raising opposition to the Government's proposed shared parenting legislation. No doubt we shall hear other grumbles of discontent in the coming months.1

The Government is seeking to introduce a presumption of shared parenting in law. Where there are case specific reasons why shared parenting is inappropriate and may expose children to harm, each judge will still be able to decide whether shared parenting is appropriate. So what is the problem?

Laws should reflect societal norm, and be subject to democratic process. Parliament, democratically elected, decides what our laws should be. Once set, one would expect the judiciary to adhere to both the letter and spirit of the law, but on the subject of shared parenting, historically, the judiciary have opposed Parliament's intentions. I raised this matter once with Sir Nicholas Wall, current President of the Family Division of the Courts, who replied that 'the judiciary do not read Hansard.' A fair reply, but one would have thought that once aware of Parliament's intentions, there would be guidance from the President to his judiciary.

So why is a presumption needed in Children Act statute? This is where the discussion gets uncomfortable for the senior members of the judiciary... because the courts are too inconsistent... because outcomes in the courts do not reflect societal norm... because outcomes from the courts likely contribute to mental health, delinquency, low academic attainment and other social and developmental problems for children... because the judiciary believe that they (as experts in law) have a better understanding of child psychology than the experts, and Government. From this, the judiciary have shaped social policy for the past 20 years, in opposition to the intentions of Government. 

An outrageous claim? Let's look at some 'real' evidence, but be mindful that if the senior judiciary accept our evidence, they also accept that their defense of judicial discretion has been at the expense of child welfare... but onto some of the evidence:

What is the norm in society? There has been extensive research done by the Equal Opportunities Commission, with studies done in both 2003 and 2007 on the division of parental care time. These studies found that in intact families, the amount of care time parents devoted to children differed by only 16 minutes a day (between mums and dads). Women work now. Parents share care. That's not a desire, to be shaped by Government policy, but a reality which should be reflected in law.2

What outcomes are commonly granted by the courts when parents separate? Arrangements for children are markedly different. We were surprised when the research came out.

On average, staying contact is only granted in 60% of cases, but it is the variation between the courts which on one level is shocking, but on another, is no surprise at all!3

There are some excellent judges. Modern, with an understanding of current parenting trends... but there are also dinosaurs whose ideas of family life remain in the 1970s. What we get from the courts is an inconsistent outcome. A lottery... and a presumption may help iron out some of that inconsistency by reminding judges of what society is today, and of what is known today about securing child well being.

What difference between two courts...In one... staying contact granted in 73% of cases.. in another just 28%. In one... all parents permitted some form of contact. In another, just two thirds. 

We help people with many court cases, and a common question asked is 'what are my chances'. There are so many variables outside of the facts of the case... and these are the individual opinions of CAFCASS Officers and members of the judiciary. So much depends upon the judge you get, and frankly, who you get is pot luck. 

Child Welfare and Shared Parenting

Is there a link between shared parenting and positive outcomes for children. Yes... and the benefits are seen in their educational, psychological and sociological development. They are 40% less likely to suffer mental health problems. Less likely to experience drug addiction, teenage pregnancy, and delinquency. Their IQ is likely to be several points higher. Wild claims? Not at all... read the research findings here.4

Have there been attempts to introduce shared parenting before? Yes... when the Children Act 1989 was introduced. Parliament's view, over 20 years ago was that if shared parenting was practicable, there was no reason to discourage it. Read the words for yourself...

"It is intended that another difference between residence and custody orders is that the new order should be flexible enough to accommodate a much wider range of situations.

In some cases, the order will provide that the child shall live with both parents, even though they do not share the same household. If such an arrangement is practicable, there is no reason to discourage it.

More commonly, however, the order will provide for the child to live with both parents, but to spend more time with one than the other...It is a more realistic description of the responsibilities involved in arrangements of this sort to make a residence order covering both parents rather than a residence order for one and a contact order for the other."5

Parliament intended that the new act would see shared parenting and shared residence become the common outcome for children affected by parental separation. Parliament’s thinking was ahead of its time, and has been upheld by a wide body of research in subsequent years, and we detail much of that research in our publications.

The more progressive members of the judiciary are well aware of the advantages of shared parenting, and Parliament's intentions. As expressed by Mr Justice Mostyn:

There is very good reason why such orders (shared residence) should be normative for they avoid the psychological baggage of right, power and control that attends a sole residence order, which was the one of the reasons that we were ridden of the notions of custody and care and control by the Act of 1989.6

Again the problem is, that opinion is not universal, so outcomes are inconsistent. The matter of shared residence could have been settled some 23 years ago, but for the wrongful interpretation by the then President of the Family Division of the Courts, Dame Elizabeth Butler-Sloss. Following the introduction of the Children Act 1989, Dame Elizabeth issued guidance which went counter to the intentions of Parliament. She informed the judiciary that:

‘shared residence orders should only be made in exceptional circumstances’7

10 years later, this position was reversed to some extent in common law, when the need for exceptional circumstances was removed, but still, shared residence remained uncommon, and now is common in some courts, but rare in others.8

Dame Butler-Sloss is now President of the Grandparents Association, an organisation which we have worked with closely in the past on various legal reform proposals and which has historically supported shared parenting. It will be interesting to see whether Dame Elizabeth represents the wishes of her charity or those of the Law Society, when the debate on shared parenting legislation comes before the House of Lords.

Does the Law Society represent the views of all the legal profession? No. We know many solicitors and barristers who have privately told us of their support for shared parenting. Perhaps the most articulate expression of support was given in the High Court by Sir Nicholas Mostyn, when he discussed the UN Convention on the Rights of the Child in relation to relocation cases: 

"...If one were to draw up a hierarchy of human rights protected by the Convention I would have thought that very near to the top would be the right of a child, while he or she is growing up, to have a meaningful participation by both of his parents in his upbringing. Although this is (strangely) not explicitly spelt out in the text it must be implicit in the notion of the right to a family life. Recognition of the existence of this very obvious and critically important right is sometimes, so it seems to me, lost in the relocation cases."9

Had Dame Elizabeth read Hansard reports, this matter may have been resolved two decades ago. If the Law Society became experts not just in law, but in child welfare, they might have supported shared parenting many years ago. The research evidence is there, but plainly, they remain unaware as they claim it doesn't exist. 

So put simply... why should there be a presumption of shared parenting in law... to help correct the inconsistency of outcome in family court proceedings and better safeguard the interests of children.

We hope the new President of the Family Division of the Court, once appointed, will issue new guidance and be a champion of this reform. Social policy should be set by elected members of Parliament...

End Notes
1. Read the proposed amendments here http://www.thecustodyminefield.com/download/sharedparentingamendment.pdf
2. Working Fathers, Earning and Caring’, Equal Opportunities Commission 2003 & ‘Completing the Revolution: The Leading Indications’, Equal Opportunities Commission 2007, London.
3. Tables are taken from 'Outcomes of applications to court for contact orders after parental separation or divorce.' Joan Hunt and Alison Macleod. Oxford Centre for Family Law and Policy. Department of Social Policy and Social Work University of Oxford. Family Law and Justice Division. September 2008
4. http://www.thecustodyminefield.com/Factsheets/TCM-ResearchSupportingSharedCare.pdf

5. The House of Commons reference sheet 89/5.13 on the Children Bill (26 June 1989)

6. AR (A Child: Relocation) [2010] EWHC 1346 (Fam) at paragraph 52

7.The Children Act 1989 Guidance and Regulations, Volume 1, Court Orders

8.  D v D (Shared Residence Order) (2001) 1 FLR 495

9. AR (A Child: Relocation) [2010] EWHC 1346 (Fam) at paragraph 53

Presumption of Contact, Evidence and the Law Society

The Government, it seems, are to push ahead with their proposals for a presumption of contact with the usual caveats concerning safety. Hoorah... and so say... well not quite all of us.

Alan Beith,  the Liberal Democrat chairman of the Parliamentary Justice committee, wrote to the Prime Minister over the summer warning that the proposal would “simply lead to confusion” and risked “undermining the central principal that the welfare of the child is paramount.”

Neither statement is true, and nor is the Law Society's view that “...the case against a legislative presumption is underpinned by experience, expertise and evidence which are absent from the case for legislative change.”1

The Government has had evidence from both sides. We ourselves have put forward a wealth of evidence confirming that children fare best when subject to shared care arrangements.

I see no evidence! The Law Society and Alan Beith must accept, as the Government has, that evidence points to child welfare being underpinned by a presumption of contact. Children's charities and academics have been as vocal on this point as any fathers' group. Most surprising was the Law Society's claim that evidence and expertise is absent from the case for legislative change... and this may be why the Government has ignored their opposition.

A thought for Alan Beith... and Gingerbread... and the Law Society... and bit of evidence (and not from us, but from the 'impartial' Children's Society... and where the sample size used is greater than woeful double figures which has historically shaped social policy!).

Based on the experiences of 30,000 children, the research found that 'a child's performance at secondary school, self-esteem and well being as an adult is linked especially to the father's input' and 'children are 40% more likely to suffer mental health problems when separated from their fathers' and 'on average, children are less likely to fail at school or suffer depression the more they see their separated father.' ‘A Good Childhood: Searching for Values in a Competitive Age’. Richard Layard and Judy Dunn.The Children’s Society (2009)

So you see... there is evidence, and we've lots more.

Family law is in flux, and the industry is faced with the greatest changes in its lifetime. Legal aid cuts will leave many firms struggling for work, and we hear talk of up to half of firms ceasing to trade as the legal aid cuts bite. The Government estimates that 45,000 private family law cases will lose their legal aid funding.

Estimates are that only 10% of separating parents approach the court... and the charity Gingerbread have claimed that of the remaining 90%, a third fail to agree direct contact.2

A productive and member-centric approach for the Law Society might be to work on how its industry could engage with a staggering 75% of their potential untapped market. Something which would benefit both children and the legal profession. A presumption of contact might encourage more separated parents into mediation, and give them some confidence to approach the courts. Of course... there would need to be enforcement measures to ensure contact goes ahead... but the Government is proposing these too.

1. Absent fathers to get legal right to spend time with their children. Daily Telegraph. November 2012 

2. Family Justice Review Submission of evidence from Gingerbread