Elimination of shared parenting – The Children Act 1989

By Robert Whiston FRSA. June 27^th 2008

Prelude

There are elements of British law which are baffling – even to the British. Somehow they don’t make sense. One of these is the infamous Children Act 1989. The reason for this bafflement might be blamed on the convoluted minds that legal technicians are required to develop. However, there is another possible candidate – the Law Commission.

The Law Commission believes, for instance, that ‘the family’ was an afterthought and that fatherhood is a comparatively recent innovation. The reason it gives for this is that “historically, guardianship came first.” (Law Commission, “Parenthood and Guardianship”, p 5).

In the beginning, somewhere between the Book of Genesis and the Jewish exile into Egypt, parenthood did not exist. At the beginning of recorded time, according to the Law Commission, a man used to protect his wife, his home, children and assets etc not by  relying on his strength, not by his kith and kin or tribe for security of ownership but by reaching for the legal instrument called guardianship. Then, according to the Commission, he used guardianship, as an instrument for maintaining his authority over his family, children and possessions. This article maps onto the major changes that occurred, and why, between 1975 and 1989.

Introduction

There can be few single pieces of legislation that merit comparison with the medieval torture of ‘the rack’; and there can be few periods in history when the legal tyranny that gave rise to it is equally medieval. Such a period is now.

Simon Anderton scaled the bridge and began his protest on Father’s Day – June 15^th, 2008

Since 1989 when the divisive Children Act become law, fathers and fatherhood has been forever on the rack. Who can deny it ? Certainly not those that have felt its ire and been stretched beyond endurance, ending months if not years of emotional torture with a note and their own suicide.

What other conclusion save that it is vindictive can be reached when only this week (25th June 2008) Fathers-4-Justice activist Simon Anderton was arrested and subsequently released from jail following his demonstration against the Children Act atop Newcastle’s landmark bridge ? [1] 

• “The cars and lorries passing underneath were constantly sounding their horns in support, people were shouting my name and tying purple ribbons of support on the Quayside, kids were waving and shouting from outside the Sage music centre”, said Simon Anderton on his release (see picture).

For 20 years the press releases, lobbying and protest by fathers have fallen on deaf ears and now the media and politicians feigns total surprise as to the persecutory nature of the Act and the direct action taken against it.

Academics may play dilettantes but the public thankfully don’t dither – they know where it’s at; they know the score by now.

But what of the background to the Children Act 1989 ? How did it eliminate shared parenting ? Who, today,  has any idea of how the Act came about; its origins; and why it was possible to put into action such poorly designed legislation ?

Can anyone imagine the Lord Chancellor’s Dept [ now Min of Justice ] conceding that “the Lords recorded that joint custody had been the norm prior to the Bill ?” Detective work reveals a long and tortuous path and leads the investigator through Law Commission reports No 91 and No 96. ” [ See https://robertwhiston.wordpress.com/2008/02/05/5/ and https://robertwhiston.wordpress.com/2008/10/12/12/ and full text at http://lawcommission.wordpress.com/1986/10/01/00001/ ]

The Children Act 1989 

The Children Act 1989 was yet another product, unsurprisingly, of the Law Commission which published a Consultation Paper combined with a draft Bill to government in July 1988 (Law Commission Report No.172).[2] That Report (172) was the direct descendant of two earlier papers, Law Commission Report No. 91 [3] (1985) concerning guardianship, and Law Commission Report No. 96 (1987) which focused on custody issues, e.g. joint custody (see especially the ‘working papers’).[4]

The whole process of revamping Britain’s family, custody and guardianship laws were planned as a rolling programme initiated by the Law Commission in 1984.The contents and conclusions of Law Commission Report No 91 are covered separately and in some detail at “Killing Custody”
(see http://motoristmatters.wordpress.com/2010/07/02/12/).

However, it is Law Commission Report No 172 (on Guardianship and Custody) that holds the key to why we have a Children Act working the way it does – although reports No 91 and No. 96 make occasional appearances in this narrative.

Beginning at its first sub-heading, “Scope of this Report”, Law Commission report No 96 issues a direct challenge to the existing rules of common law and statute. Contentiously, it claims that [while]:

 “the main principles of the law are clear and well accepted the details are complicated, confusing and unclear.”

The Commission authors then claim that, “the result is undoubtedly unintelligible to ordinary people, including the families involved, and on occasions may prevent them or the courts from finding the best solution for their children.” (Para 1.1).

If it was ‘undoubtedly unintelligible to ordinary people’ in 1988 how much more is it unintelligible today ?

In this generalised view of ‘ordinary people’ they were, and are, wrong. A good case can be made out to demonstrate that the present regime (i.e. their new alternative) is more complicated, more confusing, more uncertain and not well accepted. Criteria enough in any other sphere for a subsequent serious revamp.

Another Arnhem – when dazzling plans go horribly wrong

If an artist can be said to have a discernable style of painting and an art expert able to authenticate work by that same artist, the same can be said of legislation.

Left: A now rather elderly Brenda Hoggett, aka Justice Hale [2006]

Not for the first time do we come across Professor Julian Farrand and Professor Brenda Hoggett, today better known as Lady Justice Hale, as two of the names on the list of authors of Law Commission Report 172 (as they were for Law Commission Report 91 and Law Commission Report 96). These two names are notorious in family law circles for their dislike of marriage and the family as a concept (Hale is Brenda Hoggett’s maiden name, she maried a Manchester solicitor called Hoggett). How ironic then that after each had one or two marriage and relationship break-ups in the 1980s and 1990s both are now married to one another. We need to know this social gossip because behind every social change there is not an anonymous committee or wise men but tenacious individuals who act as the ‘prime movers’ (the agents provocateurs).

It has to be understood that in the 1970s there was a movement afoot in legal and political circles to codify what was seen as Britain’s disparate, rag bag and rather wanton collection of laws – ancient and modern. In fact, modernity was the buzz word.

The only difficulty with this European ideal – the perceived elixir for England’s organic and juxtaposed legal legacy – was that it cut off the many other avenues of redress that common law permits for any given situation. A codification solution was adopted by Canada when it discarded its inherited common law for a contrived system – including the Canadian Charter of Rights and Freedoms.

• The aim was for Canadian laws to be gender neutral but the definition made it clear that ”Equality” did not mean treating all groups alike (equally) to achieve true equality and that it was frequently necessary and legitimate for policies and programs to deliberately treat different individuals and groups in different (preferential) ways. The practical effect of this gender neutrality was to make all laws gender preferred and specifically to benefit one gender.

Nonetheless, ‘standardisation’ was still seen in Britain as the pinnacle of competency. It is, therefore, not surprising to read in Law Commission Report No 172 (Para 4.25) that the Law Commission’s ambition first indicated in Law Commission No 96, is to provide parents, but also non-parents, foster- parents and step-parents with the same type of custody orders. [5] This was something new.

Henceforth, the Law Commission wanted all ‘parents’ (and anyone who could claim a parental-type role) to have equal status and to be treated the same in the eyes of the law. This broke the passive but dominant role fathers played in their children’s lives. The status of parenthood was thus compromised; now it could be given to any third party.

Under the pre-1989 laws parents were very much parents – and 3rd parties were decidedly 3rd parties, with substantial discrepancies in the types of orders that could be made reflecting this.

But interestingly in the same paragraph it recommends that;

•  “in divorce proceedings, the court may again make any sort of order” [ and that ] “a step-parent and parent [can] have joint custody”, or ‘no order’ at all.”

It does not say at this point that a ‘no order’ order is or should be the de facto norm. However, this was exactly what Sally Field, Head of Family Policy Division 2, denied at the Lord Chancellor’s Dept., when she and her team met with a delegation of fathers’ groups representatives in Oct 2002. (See below and Appendix A).

Whitehall and Fathers

Sally Field met with a delegation of the various fathers organisations who were pressing for a). custody reform and b). shared parenting (Oct 2002). An extract of the exchanges is given at Appendix A.

However prior to that, from 2001 to 2002, the LCD (now the Ministry for Constitutional Affairs) had been lobbied by fathers groups and engaged in informal discussion. In the aftermath of the just published Consultation Paper “Making Contact Work” the LCD had set up PSA-8 (Public Service Agreement 8).[6]

Hundreds of man hours were spent in these monthly informal discussions explaining ‘shared parenting’ to LCD staff, principally, Amanda Finlay, Warren Davis, Stuart Moore, Yvonne Neary and Mike Tester. It was clear that these civil servants could not think beyond their blinkered and the comfort zone where mothers had sole custody. In the questions they posed about the alternative of ‘shared parenting’ it was obvious their questions were solely based on this as the continuing mind set.

Perhaps as a by-product of pressure and the informal discussions, Amanda Finlay of the LCD, sent out invitations in June 2002 asking for delegates to be nominated by fathers groups for the various sub-committees to be set up under a PSA-8 initative (see Appendix B).

Left: Amanda Finlay, now a CBE, pictured as she retired from the civil service in 2009 aged 60.

However, in the pyramid of sub-committees that were set up, fathers were excluded from the decisive ‘Outcomes and Evaluations Group’ where the final decisions about change and reform would be made – that was to be reserved for academics (9 women and 1 man).

Progress during the summer of 2002 was not satisfactory and an anti-father bias was evident in most of the sub-committees. There was also a detectable resistance to change the status quo among the non-father delegates. This resulted in a demand from fathers groups to meet with LCD officials and led to the previously mentioned meeting in Oct 2002. This was so badly handled by the LCD staff that ‘Fathers 4 Justice’ was born that afternoon.

The LCD and its staff found it impossible to meet the reasonable of the Fathers Rights Movement demands for change; impossible to meet them half way; and impossible to offer a crumb of comfort other than to be on committees where fathers’ rights were only being further emasculated.

It is open to the independent observer to conclude what must have been the unspoken intentions of the LCD’s agenda.

Following the formal withdrawl by fathers groups, correspondence sputtered on between the LCD and fathers groups until Jan 2003. By mid 2003 all fathers groups had pulled out of the PSA-8 exercise, not wishing to be associated with or used as window dressing for what would inevitably be ‘genderised’ recommendations.

• Amanda Finlay’s current résumé  (in her own words) taken from http://www.newnhamassociates.org.uk/search.php –  She is an undergraduate at Newnham College. Subjects: English Occupation/expertise: Civil service. Types of advice: Careers advice. A long career in government working on strategies for improving access to justice, much of it part-time, drawing on skills as a writer and critic ( I read English), and experience as a parent and ordinary person! Major highlights have been working with Lord Woolf on Access to Civil Justice (writing a Report that’s still quoted ten years later), implementing the Human Rights Act and devising the policy for a Green Paper on Relationship Breakdown (with a Xmas card delivered by 40 protesting fathers dressed as Father Christmas) [she still doesn’t get it ! ], legal aid strategy and legal services reform. Now retired and cultivating my gardens in Greenwich and Normandy, and looking forward to giving back to the community in various ways, drawing on four decades of working in Whitehall on wicked issues. Happy to share experience and general knowledge of Whitehall and the legal world(remember I’m not a lawyer!).   [No dear, we know that only too well. She also works for a charitable council providing pro bono legal services  – RW ] . See also at http://www.legalservices.gov.uk/docs/news/Focus_60_June_09.pdf

Was it Parliament’s Intention ?

It is also a matter of speculation as to what happened between the Law Commission’s recommendations in the Law Commission Report No 172, the 3^rd reading of the Children Act, and between both of those and court practice today where joint or shared custody is a “no, no”.

Report No 172 appears to have been voted through parliament without any obvious or major changes which makes the absence by the courts of joint custody awards or shared residence options all the more curious.

This ‘custody deficit’ is thrown into sharp relief at Paragraph 4.4. In the 1988 view of ‘things to come’ the Law Commission (p.28) categorically states that:

“Our supplemental study of orders made in ten courts, for example, found that joint custody formed only 2 % of custody orders in one busy court but nearly 33.8 per cent in another. Yet irrespective of the order made, the children lived with the mother in between 85% and 92.6% cases.” (Para 4.4)

That 2% figure for joint custody orders as indicated in a separate article would confine rge data to the northern courts and that as one moved ever more southwards that figure would increase to 20%, 25%, 35% and occasionally 50%. This point is conceded within the same paragraph when it states that the location where “the parents divorce is likely to have a considerable effect upon the orders made”. Shame must fall on the Law Commission for devising legislation that catered only for the 2% of custody type orders and not the 30%.

The figures of “between 85% and 92.6%” of children living with their mother should not phase the reader unduly. Counting where a child lives, even when a joint or shared parenting order is in force, will inevitably be premised on the mother’s home. It is in the nature of human beings to count the mothers home as ‘home’ and is the type of bias transference that fathers have come to expect.

Well known social affairs commentators and academics, such as John Eekelaar, hold to the view that joint custody orders historically account for only 2% – 3% of all awards. In an exchange of emails he was not prepared to go into detail of counter the points put to him, namely that the Law Commission actually found much higher levels. [7]

There is an intriguing codicil to the above (Paragraph 4.4) in that the Law Commission felt it necessary to append the phrase “even though the practical outcome, in terms of where the child lives, is much the same” when differentiating between sole custody and joint custody.

This apparent dismissing of any significant difference is actually an expression of fear and the same thing can still be heard today.  It veils too the proper/socialogical use for the term ‘outcomes’. The ‘practical outcome’  referred to by the Law Commission can be confidentally presummed to mean outcome or result of the divorce process alone – for how are they in a position to measure or rank  socialogical ‘outcomes’ 10 years after the fact ?

They feel the urge to convince the casual inquirer that somehow joint custody is merely symbolic and need not be discussed further. The resistance, even hostility, to joint custody and shared parenting appears to be premised on an irrational fear that somehow fathers are going to run off with 100% of the custody and mothers will get none. This will happen, it is reasoned, if fathers are given fractionally more custody rights/time than at present. Nor can joint custody be allowed to remain discounted and downgraded as ‘merely symbolic’ when it is the very opposite for the children who are directed by family courts to who they may see and who they may not. 

Feminists today – and the Law Commissioners then – cannot seem to grasp the shared nature of both joint custody and shared parenting, as proposed then and now. In the subterranean recesses of their minds they must see custody as a psychological imperative and a portal to proprietorial rights over the child and that once the portal is breached they will distanced from their children’s company [8] (see references below to Parenting Act of Washington State ).

Instead of seeing joint custody as something inclusive and keeping  both parents engaged (and children happier because of that), they persist in twisting it into something ‘exclusive’ and nasty, i.e. something that will oppress mothers and/or keep them at bay. The sentiments of opponents to shared parenting can be paraphrased intis way:

The idea of fathers remaining involved is a nice theory but a dangerous one at a shared parenting level and likely to prove a recipe for continual conflict, particularly where couples cannot co-operate with one another.

Continual conflict, they believe with evey fibre of their being is unavoidable when adults attempt to parent a child. It does not cross their minds that equalising the power and duties gives neither party the ability to veto or manipulate the life of the other.

Wrong Foot Forward

The upshot is that rather than adopt the increasingly successful and flexible model of joint custody, Law Commission Report No 172 recommended the rigid, divisive, mother-only custody order which we still endure to this day (Paragraph 4.4).

The excuse appears to be that the Law Commission thought that “couples will co-operate in any event and [joint custody would be] a recipe for continual conflict if they cannot.” How wrong can you be ? Just how out of touch with base human instincts can you get ?

If in one breath couples can ‘co-operate in any event’, why in the next breath, and on a differnet page, banish shared parenting or joint custody, and give the reason as “couples cannot co-operate” ?

The next hypocrisy of the next Law Commission assertion is equally breathtaking. They conclude – at a time when the judiciary were calling for a unified court system – that one “difficulty” of joint custody might be the way “the views and practices of courts” differed “amongst judges, legal practitioners and clients about the merits of joint custody orders” (Paragraph 4.4). If some courts found joint custody easy, why not allow them to continue and let the others  who found it slightly difficult to come up to speed at their own pace ?

This issued posed enough of an embarrassment for the Law Commission to ditch joint custody in favour of the basic minimal all can agree upon. This is what the irrepressible motoring journalist Jeremy Clarkson would liken to forsaking an air-conditioned BMW “with all the toys” for an ‘entry level’ Fiat Panda.

When politicians are fond of claiming that their speeches or proposed  legislation are intended to “send a clear signal” to a specific category of culprits, the Law Commission is content to dismiss joint custody as impotent to influence post-divorce relations and sees them as purely an unnecessary “symbolic exercise” which do nothing to encourage the “non-custodial” parent to remain involved.

Addendum: Clearly a change of heart has taken place given the 2011 paper on pre-nuptial contracts and possible abandoment of Sect 25 (MCA 1973). (See ‘Predicting re-marriage numbers’ http://motoristmatters.wordpress.com/2011/05/01/27/).

Once again, just how wrong can you be ?  Many would suggest that good post-divorce relationships depend exclusively on good custody settlements. This could have been the scenario two decades ago had the Law Commission not been so prejudicial in its views. If the Law Commission had had the foresight to endorse joint custody in its various forms it would have informed those separations that do not go through the courts and the gain would have been that much greater.

It has been the contention of government and official circles that only a minoirty of divorce and custody cases see the inside of a court room –  most cases, it is said are settled amicably and without recourse. (Ref: ONS Omnibus Survey: ‘Non-Residential Parental Contact with Children’  19th March 2004 for the DfES – 10% and based sample of 935 adults). But of the 120,000 diovorces per anum (some of which will be childless), there are around 60,000 CAFCASS reports. It seems implausible that the Omnibus Survey can be accurate in putting the figure at 10% of divorces.

It is this series of post-divorce and custody miscalculations that forms the foundation of the Children Act 1989 and which in turn governs in large measure how CAFCASS behaves today.

Trumping a Parent’s Claim

Where else but in the allegedly advanced Western world could parents find they have less rights and control than third parties over their own children ? If this seems too fantastic to believe simply read the legislation mentioned on this website clause by clause.

Since the mid 19th century British society has been slowly moving away from concept that children were the chattels of their parents and towards treating them as individual legal persons whose rights have to be protected by the law – arguably demoting the role and side-lining the prestige of parenthood.

The Children Act 1989 started life as the successor to the Children Act 1975 which was a private members Bill designed to give effect to the Houghton Committee’s report following the tragic death in January 1973 of 7 year old Marie Colwell. [9] In other words, it was a public law initiative to a public law problem.

Scandal always provides an opportunity and momentum for a variety of moral, political,  enterprises with academia all too ready to launch  ‘initiatives.’ [10] In the Marie Colwell case the scandal released an Inquiry and coincided with an on-going review of the adoption laws, ie public law.

The private member sponsoring the Children Bill (1975) was a certain Dr David Owen, MP, who was later to become Health Minster. [11] It was his intention to give substance to the Houghton Committee’s report which aimed to “provide more and better chances of a secure substitute homes for children whose parents cannot give them a home.”

Addendum: In 2011 we are still trying to achive this simple goal, ref the Munro reports.

The Houghton Committee, set up in 1972, considered the increasingly confused law of adoption and recommended that an alternative legal institution of “custodianship” be created. This would have provided legal security for those providing long-term family care for a child – what we might call foster care today. Although the Children Act 1975 introduced custodianship as a legal concept, the provision was only brought into force in 1988 and then promptly fell into legal obscurity.

Essentially, the Children Act 1989 (born of the Children Act 1975) was designed more for public law cases than private divorce law, influenced as it must have been, by the shocking child neglect leading to the death of little Maria Colwell (and the dozens since who have follwed her to a grisly fate).

According to Sonia Jackson (The Children Act 1975: Parents’ Rights and Children’s Welfare), the apparently uncontroversial wording of Section 3 of the 1975 Act opened up the way to break with the Victorian tradition of children being owned, or the property of, their parents.[12]  She cites the uncontroversial but nonetheless breakthrough wording as:

• “In reaching any decision relating to a child in their care, a local authority shall give first consideration to the need to safeguard and promote the welfare of the child throughout his childhood; ….. “

However, the wording of Section 3 is not as she lists it – a possible explanation is given in Appendix C.

The disproportionate amount of consideration given to unmarried fathers in comparison with married but divorced fathers, is apparent today but it is surprising to note, as if a portent of things to come, that so much time was given over to the sub-topic in the Law Commission Report No 172 way back in 1988 (a time when the Law Commission was on record as actively supporting traditional families).

The Law Commission recommended that if a child was ordered to live with its unmarried fathers then he “should have almost all the powers and responsibilities of a parent” during that time” (Paragraph 4.26). In 1988 this would put him on a par with un-wed mothers with regards guardianship powers etc.

Despite the several Guardianship laws and Adoption laws that were passed in the 1920s and onwards, very little actual adoption took place until 1949.

Left: David Bedingfield

Barrister David Bedingfield makes this assertion in the journal Family Law Week, [13] based on work by Professor Cretney, a family law Law Commissioner before Brenda Hoggett’s arrival. [14]

Adoption moved from being the province of amateur organisations to ‘professionally’ trained and salaried social workers when the Adoption of Children Act 1949 was enacted.

After 1949, says barrister David Bedingfield, the “adoption system was driven by social workers” and saw an increasing number of older children removed from the care of abusive parents and made available for adoption. However, over time it was realised that the legal concept of adoption, i.e. permanent termination of biological parental contact, was too blunt a tool and that it often did not fit the needs of individual children.

One has to ask why, if permanent termination was seen as too blunt and too inappropriate for children needs, did the same law makers fail to realise the same would be true with regard private law cases ? [15]

If public law can be changed without parents demonstrating on the streets for years but every year there are corpses in the morgues, then there is no argument left for leaving private law unaltered (re: anti-social behaviour) now that we know both private law and public law regimes do not work.

If it is the position of the courts that they are powerless to reshape precedents and the government takes the view that primary legislations required before any change of policy is possible (the position adopted by Amanda Finlay of the LCD), then consideration should be made of the Law Lords 1999 ruling in Re B (A Minor) (A.P.). The truth is, policy can be changed and specific legal rulings can override, in this instance government’s immigration policy and legislation, allowing other cases to follow.[16]

The House of Lords ruling in that case, where it can be shown that “benefits [can] flow” those considerations must be taken into account and override an otherwise plain judgment. If this can apply to an otherwise illegal attempt to thwart or circumvent immigration policy most surely apply to legal application for shared custody

The shakers and movers of family law in years gone by, e.g. Professor Cretney, Hoggett, and John Eekelaar, have reached retirement age, removing the obstacles they once may have represented.

Relevance of Adoption to Custody

Although aspects of adoption have been dealt with in a separate article bsee Killing Custody (http://motoristmatters.wordpress.com/2010/07/02/12/), barrister David Bedingfield gives us more memorable information when he states that:

• “The concept of adoption, or the irrevocable ending of a child’s legal relationship with his birth parents and the beginning of a new legal relationship with the child’s adopters, has a troubled history in every legal system that has sought to provide for it.”
• Civil law inherited the Roman concepts of adoptio and adrogatio, and succession rights for descendents became inextricably a part of the legal cultures of those countries.
• It became a part of Roman law that adoption was only permitted in order to provide an heir to the childless. Adopters under Roman law were required to be past child-bearing age and the adoptee was required to be an adult.
• Islamic law as well does not provide for a complete termination of parent/child ties. Instead, the concept of Kafalah has been developed to provide a legal basis in Islamic law for a substitute family to provide primary care for a child.

Bedingfield underlines that since Roman times, laws encapsulating safeguards for adoption have been uniquely problematical and should in no way be mixed with divorce law custody issues. This is exactly what the Law Commission has managed to do.

The point is underscored later when Law Commission Report No 172 discloses that “Joint guardians may also apply for the resolution of particular matters in disputes between them”. Elsewhere these parties appear to have no rights to apply for custody or access. It is also interesting to note that the Law Commission sees no incongruity in the contemplating and awarding of “joint” guardianship” but views shared parenting or joint custody to biological parents with a degree of horror.

The fact that Law Commission Report No 172 discusses ways in which “Guardians may apply for legal custody if either parent is still alive, and to vary existing custody orders after the death of either parent” tells us that the reform of ‘public law’, i.e. adoption, triggered the Children Act 1989 and that the Act is dedicated to that end (Paragraph 4.31).

The downgrading process of fathers appears to begin with the recommendation that, “Unmarried fathers who do not have full parental rights and duties may apply for legal custody or access but not for the resolution of particular matters of dispute.” The implication is that whereas others may apply for the “resolution of particular matters of dispute”  (whatever they may be), the unmarried biological father cannot.

This is somewhat illogical, given that biological grandparents are able to apply for access to their grandchildren but only if a custody order has been issued to one of the parents or, morbidly if the child’s parent (who is their child) is dead – yet unrelated people in prearranged circumstances and who are qualified to do so, may apply for ‘custodian-ship’, which is a legal entity or status akin to guardianship and which is now called ‘parental responsibility’.

Collectivised Thinking

Part VIII of Law Commission Report No 172 (p. 60) is comprised of a concise list of recommendations. Following it, on page 71, is a draft Bill used as a template to create the Children Act 1989 (‘Arrangement of Clauses, Part I, General Principles’).

The pages preceding the Collected Recommendations contain some extraordinary concepts and assertions. For instance, the concept first mentioned earlier in the report in the “Parenthood and Guardianship” section, on page 5, states that our present law has no coherent legal concept of parenthood as such.”

This is amplified by the contents of the Recommendations.

• Historically, guardianship came first.’ It developed as a means of safeguarding a family’s property and later became an instrument for maintaining the authority of the father over his legitimate minor children. Hence he was recognised as their “natural” guardian.

This is nonsense. To make any sense of it one has to fudge the issue and believe that historically, guardianship can only have come first in the legal mind. To everyone else, if we assume that ‘parents’ were ’invented’ in the same way guardianship was, then it must have been literally eons before guardianship was dreamed up as a concept and then christened as such.

Going back 2,000 years, through to the New Testament, there are many biblical references to parents but none about guardians. Going back further in time, via the Old Testament, (6,000 years), again parents are mentioned but never guardians.

Since western culture, its values and jurisprudence owe much to the authority of the Bible it is inconceivable that, “historically, guardianship came first” as the Law Commission insists.

Law Commission Report No 172 then sighs unconvincingly that, “but nowhere does statute equate her position [i.e. a wife’s] to the natural guardianship of the father, which has never been expressly abolished” (Paragraph 2.2).

In the next paragraph (Paragraph 2.3) the Law Commission therefore suggests transforming the “archaic and confusing” laws of guardianship.

Dishonesty on this scale cannot go unreported and must be rebuked. Firstly, the reason why the natural or legal guardianship status of the father has never been abolished is that it represents the sole bulwark against tyranny and the apparatus of the state. Previous judicial authorities have been wise enough to leave it alone and wise enough to recognise a). the inalienable rights, and b) the dignity, of any free born man and his family.

Secondly, yes, the laws of guardianship might have a long and enviable pedigree but they are clear and concise – unlike modern divorce reform laws which all have a chequered history of operation. Guardianship is not confusing, everyone understands it. It is robust, dependable and an utterly reliable ‘known quantity’- something more modern and untested terms of parenthood, custodianship and parental responsibility” cannot claim to be (and unlike the Home Office and the Law Commission itself, guardianship is fit for purpose).

The reason why a a wife’s position is not  equal to her husbands is because her husband has sole guardianship responsiblities for legitimate children and women have sole guardianship responsiblities for illegtitimate children. If the Law Commission was logical then its propsoal to make both married couples have joint and equal guardianship would be followed by joint and equal guardianship for unmarried couples (see ref to Para 2.2 above) – but they haven’t done that.

As for its replacement the Law Commission suggests “parenthood” should become the primary concept and thereby “any lingering doubts about the status of mothers could be removed”, i.e. at the expense of the married father losing his role of guardianship over his own legitimate children.

Arguably this would give women two bites of the cherry and men only one, insofar that the ability to have a diluted form of guardianship would be restrictive to ‘parental responsibility’ powers but only if married – whereas women would have said thee same parental responsibility’ whether they were married or not. Under the old regime of guardianship each sex had  more equality and bites of the cherry, the man being given preference when married and still alive and the women when unmarried or when a widow (teh man’s guardianship powers moved to her).

At times the Law Commission’s sentiments hint of the Washington State solution which was initiated in 1982, on the statute book by 1987 and enacted in 1988. The Law Commission perhaps unwittingly, perhaps deliberately, refers to aspects of this new American family law (though not by name) and it is distressing to watch it fumble its way towards the objective only to then miss it entirely.

The Law Commission obviously wants a transformation of family law but is too hide bound to think outside the box or challenge the comfort zone of their loyal social commentators. The result is that original or innovative advice is not forthcoming.

There are attributes in the Washington State solution (Parenting Act 1987) that could be usefully absorbed into Europe, but having said that there are specific reasons (i.e. women’s lobby groups) why it may never be allowed to happen. Porter Kelley’s personal remarks on this aspect are extremely apropos. After long and heated negotiations Porter Kelley reports that:

• “Everyone accepted the idea that fathers are equally important to children.”

His narrative continues; “but never a word, not a word, was spoken about the policy section giving men equal rights, RCW 26.09.05. Oddly, it has been seldom mentioned in the many court decisions and articles regarding the Parenting Act.”

Porter Kelley was one of the Act‘s architects and describes how lawyers missed what is termed there the ‘Quiet Transformation’.[17] The Parenting Act eliminates “custody” and the battles around it – “parenting issues in divorce were recognised for what they were: parenting issues, not legal issues.” Their original concept that the function of parents and of divorce should drive parenting issues was universally accepted in the Act and worked more satisfactory replacing the ensnaring fog of war that previously marked out custody as battles.

The key components to the Washington State solution (i.e. the Parenting Act) can be summarised as follows:

1. Negotiations must begin and agreements must be reached before reaching court. That is to say “mediation” must begin before the guns go off, not after.
2. Lawyers and judges must keep reminding themselves that parenting is really a natural function, even in divorce.
3. Accepting this truism permits the legal profession to better serve the public and the tax-payer. Washington State reports huge savings for both the individual and the state.

The demands and suggestions of fathers groups, circa 2001 – 02 contained features found to be successful in the Washington State solution and pre-date the research findings by the DCA (March 2006) that agreement between divorcing parents over custody can be successful and harmonious (Appendix D). Read today, the findings of the DCA Research Series lend a déjà vous atmosphere to events

Addendum. It has since been learnt that the practical implications do not make a significant difference to fathers in regards the status quo as is operated in the US or Europe. The principle reason would appear to be that in the state of Washington the option remains at the discretion of the former female spouse to agree or not to any increase in paternal visits, contact, or residence time. The custodial parent is still the exclusive custodial parent, and has to choose to agree to let the non-custodial parent have time with his child(s). The Parenting Act 1987 is premised on the assumption that the former spouse wants to be reasonable – but if she is divorcing her husband that is a moot point. For fathers living through the legal process the narrative supplied by Porter Kelley is simply optimistic attorney language. In the final analysis, if the former wife doesn’t want a shared parenting arrangement, it isn’t going to happen (April 2009).

By contrast we can see that the Law Commission’s efforts in 1988 for what they were – woefully sexist. Specifically, they lacked foresight, lacked imagination, were confusingly put law before people. The exercise that they undertook did not in any shape or form address fathers’ roles and duties but instead sought to limit their role.

Law Commission report No 172 can quite legitimately be accused of aiming to improve the status and rights of women and nothing whatsoever to do with improving the situation of children.

It cannot even be claimed that, as a happy coincidence, the situation for children has improved – the 20 years following the Children Act has shown the very opposite.

The pages preceding the Law Commission’s ‘Collected Recommendations’ contain too many idées extraordinaire to detail here. For our purposes it will have to suffice to conclude this paper with a summary of the list and pass occasional comment upon it (see below and Appendices).

Collected Recommendations

The Law Commission concludes Report 172 with a chapter entitled Collected Recommendations. Here it believes that the law relating to the care, upbringing and maintenance of children should be brought together in a single, coherent and modernised code. In order to achieve that, they suggest that a modernised code would provide a simpler “and fairer system for children and their families.” They believed (naively ?) that this can only be achieved if private law and public law are included, i.e. mixed up together (Para 8.2, which referred to Para 1.5 – 1.12). Or perhaps they didn’t see the need to distinguuish between the two because they viewed both categories as now under the control of the courts ?

As regards parents and guardianship rights, they believed that “parenthood” should become the primary concept (as distinct from actually being a parent and having parental rights), and that the rules of common law and statute relating to parents becoming guardians of their children should be abolished (see Para 8.3, which refers to Paras. 2.2 – 2.3; clause 2[4]). This is the sort of hair-splitting (parents vs parenthood), that is the bafflement mentioned in the opening lines of this atricle.

There seems to be an attempt to confuse custody with guardianship when they are two distinct forms. The possibility of, for example, awarding custody to one parent but guardianship to another seems to have slipped the mind of the Law Commission.

It is from this same paragraph (ie Para 8.3) that the role and authority of fathers is permanently diminished. It leads directly to the clause in the Children Act 1989 that states that :

“. . . the rule that the father is the natural guardian of his own legitimate children is henceforth abolished.” [18]

The Commission’s proposed replacement, “parental responsibility”, which covers only “the care and upbringing of their children”, is the new legal status and role gifted by the state to parents. (Para 8.4, which refers to Para 2.4 – 2.5; clauses 2 and 3).

However, if a parent can simply be defined as having responsibility for ‘care’ and the ‘raising of children’ then parenthood ceases to be the onerous, serious, and comprehensive backstop for children and the law that guardianship once provided.

The new lightweight formula contains no provisions for duty or obligation, or unquestioning love. Parenthood is a covenant not to be replaced with a rescindable contract. [19]  Put another way, guardianship is akin to a well defended hill fort which can only be successfully assailed with good reason, by ‘committed’ government forces. What parental responsibility does is allow the government to remove the battlements from the hill fort, acknowledge you control the hill and offer in its place a promise not to attack (unless or until they feel you are being unfriendly, difficult, uncooperative or unreasonable).

In later years this shift manifested itself in both married and unmarried woman having their equal status up-graded with regard to guardianship-like powers, over their biological children regardless of the child’s legitimacy or not. By contrast, marreid men were down-graded and given the equivalent status of unmarried fathers once enjoyed in regards their illegitimates children, i.e. next to nothing.

The Oxford Dictionary of Law (5th Ed., 2003) defines “parental responsibility” as:

• ” . . . .  having all the rights, duties, powers, and responsibilities that by law a parent of a child has in relation to the child and his or her property.

It correctly states that the concept was introduced by the Children Act 1989, replacing ‘custody’ but it fails to mention the loss of guardianship powers. Parental responsibility is automatically conferred on both parents – but only if married (whereas guardianship was an instant right for women of illegitmate children and fathers with legitimate chidlren. Neither parent required the court’s permission to confirm the status). Parental responsibility is passive and can be bestowed by the courts whereas guardianship is active and an enshrined birth right.

Thus, parents have legally had their rights as parents separated and truncated from their role as a child’s guardian. The only way to apply for guardianship powers today (it would bizarrely appear), is via the Mental Health Act 1983. Even the parental ability to apply for ‘wardship’ hearings (once upon a time used successfully to protect chidlren from nerglect or abuse), have been severely curtailed since 1991 by the Section 8 Orders process contained in the Children Act 1989.

If a parent can be defined as purely having only a general responsibility for ‘care’ and the ‘raising of children’, then parenthood ceases to be sacrosanct or endowed with gravitas. Parenthood should be an onerous and serious estate, not to be entered into lightly or unadvisedly. If marriage can be described as a mystical union full of deeper meanings, then nothing short of that defines responsible parenthood and the bonds between parent and child.

As if to underline the pale imitation that “parental responsibility” represents, Law Commission Report No 172 suggests loading up the definition to include many of the “legal incidents of parenthood” which relate to the caring of a child aged under 18. The Law Commission than goes on to list what might also be included in “any additional powers possessed at present by a guardian of the child’s estate to administer or deal with a child’s property. (Para 8.5, which refers to Paras. 2.6 and 2.8; clause 3[1] – [3]). As Para 8.6 points out, it “should be made clear that “parental responsibility” does not include rights of succession to the child’s property or affect the child’s rights of succession or to be maintained” – reinforcing the contention that parental responsibility is not guardianship. This single sentence , arguably, puts England at odds with the rest of Europe.

Without too much fuss the proposals in Law Commission report No 172 move us from a society where ‘the state’ has to have extraordinarily good reasons to interfere with a parents’ role and duty, to one where ‘the state’ tells the parent when and how far it will allow a parent to parent.

The shift in emphasis is completed when, at Paragraph 8.9, the Law Commission recommends that parents be allowed to “carry out their parental responsibility” (implying a veto power), but that these powers can be modified or curtailed by court orders at any time. Parents now have to act in ways that are not incompatible with the court’s order (Para 2.11; see also Para 4.6; clause 2[8]).

How many parents are aware of the Law Commission’s condescending sentence to let parents ‘parent’ their own children ? It begs the question as to who ‘owns’ or controls these children – the State or the parents ? Courts are able to insist that parents act in way that they approve because the father is no longer the natural guardian of his own legitimate children. He is reduced in status to that of the father of an illegitimate child.

Under the terms of guardianship rules, parents could only be held to account for commissions and omissions with regard child care and neglect in its gross and unusual forms. With the advent of parental responsibility the court can impose trifling and/or serious pre-conditions on parenthood and can intervene at any point along that imagined continuum. There is a groundswell of opinion that believes courts and ‘professioanls ‘(social workers) are acting to the detrimant of children by ‘kidnapping‘ them “for their own good.”

In an act of worthless generosity, the Law Commission recommends that the “mother and father should also be able to make an agreement that the father shall share responsibility with the mother (a ‘right’ they always enjoyed). The agreement, they foresee, would be made in “a prescribed form, to be checked by a County Court and preserved in the court records.” (Para 8.14, which refers to Paras. 2.18 – 2.19; clause 4[l] [b], [2] and [3]). (Stalin and the Soviet regime could not, one thinks, have been more prescriptive).

This paragraph makes it crystal clear who is in charge from now on; who has the veto; where the permission lies; who in effect controls events; and just how far into private lives the state is prepared to intervene (the prospect of uniform EU devised legislation in this field is even more awesome).

Para 8.15 is more of the same except it contains one wrinkle that may not have been exploited before (this may be because it is not in the final draft of the Children Act 1989). Para 8.15 tells us that the shared responsibility agreement of Para 8.14 shall:

•  “have the same legal effect as orders conferring parental responsibility upon fathers” and can be severed only by a court order. However, the child, as well as either parent, should be able to apply for this but only if the court is satisfied that he [the child] has sufficient understanding to do so. ” –  Para 2.18; clause 4[4] & [5)].

Does this mean that a child can apply for and make an arrangement itself to see its own father and that only a court order can stop it ?

Did this fail to be included in the final draft of the Children Act 1989 because reformers thought women might be cajoled into reaching such agreements ?  This is singular behaviour that is more fully explored in “Killing Custody” (see URL above).

Most fathers will be all too aware of the next heading in Collected Recommendations – “The need for an order”. How one’s heart sinks at the sight of that seemingly innocuous phrase. Involuntarily the memory banks are triggered and flash backs of the anguish and pain it once caused kick in.

The criteria to be adopted by courts, the the Law Commission advises, would see them “make orders only where this is the most effective means of safeguarding or promoting the child’s welfare.” (Para 8.27, which refers to Para 3.2 – 3.4; clause l [1]).  This would include their proposed ‘no order’ order.

This sounds like a recipe for chaos. The impression is given to the public that a mother (who usually absconds with the children) is under no pressure to come to an agreement because even the court are not too interested in issuing an order allowing a father to see his children. Nothing is said about reinforcing the burgeoning and successful joint custody awards. In actuality, 1989 sees them cut off at the knees.

Subsequent events and experience have shown that “the most effective means” is a sham, joint custody was caught in the switches, the “safeguarding” is hypocritical and “promoting the child’s welfare” nothing short of a fraud.

Lingering for a while longer on intent and statements of custody arrangements, Para 8.29, foresees both courts and parents agreeing to provide an improved statement of arrangements for early consideration by the court. But didn’t this exist before the 1989 Act ? Weren’t they intended for public law cases as they are devoid of meaning in divorce cases ? And if the statements of arrangement have improved where are the tangible benefits today ?

Then we come to the nuts and bolts of the proposed ‘future regime’. At Part IV (‘Orders between parents and individuals’), the Law Commission recommended – and this is in 1988 – that a more flexible range of orders should replace the courts’ present powers to make only ‘custody’ and ‘access’ orders between individuals. (Para 8.35)

Its first new type order, it proposed, was to be called a “residence order. Importantly, this would determine “the person (or persons) with” whom he child would reside (Para 8.35 [a]). The result was simply a new name for the same old situation (residence order = custody).

The point is worth dwelling on; the projected residence order option can apply to one person or two persons – if the child lives for any time with either, i.e. both. But how often is that made available in court ? In fact, who knows about it ?

Residence Orders are explained by the Law Commission in this way; they

• “should be flexible enough to cater for a wider variety of [living ?] arrangements than can some custody orders at present, including cases where the child is to live with two (or more) people.” (Para 8.39).

A ‘residence order’ is simply a newer term for custody which the Law Commission supposes will be less aggravating than the term ‘custody’. Yet this flexiblity to cater for a wider variety of people was still born (or killed off in the womb ?).

Once again, the version of the Children Act enumerated by managerial staff at the Lord Chancellor’s Department does not map onto this Law Commission version at Para 8.39.

By comparing the Law Commission’s intentions, parliament’s alleged intentions, past historical practice etc, it becomes clear that staff at the Lord Chancellor’s Dept – principally, Sally Fields and Amanda Finlay – were selectively creative with the truth at the Oct 2002 meeting. A view confirmed in her letter dated Jan 2003 (see Appendices E & E1).

Duplicity does not stop there. Reading section b) of Para 8.35, regarding “contact order”, the Law Commission states that the person with whom the child lives or is to live is required  to allow the child to visit or otherwise have contact with another person (i.e. it’s father); How many judges know of that and act accordingly ?

And then suddenly, one stumbles across a thing of beauty. How exquisite can one sentence, out of thousands, suddenly become ? The closing comments of Para 8.39 state that where a child is living with two or more people “the order may then specify the periods during which the child should live in each household”

Bingo ! If that is not a seal of approval for ‘shared parenting’, then what is ?

END

Appendix A

 – The role played by Sally Field and Amanda Finlay (of the Lord Chancellor’s Dept) in the forestalling of share parenting.

Minutes (Extracts only) of the Meeting that took place on Tuesday 29 October 2002 at 1.00pm with the ‘Coalition for Equal Parenting’ (CEP)

Present:

LCD – Sally Field (Head of Family Policy Division 2) Warren Davis, Stuart Moore, Mike Tester, Yvonne Neary.

Management status: Sally Field, LCD – Head of Family Policy Division 2, Warren Davis, Head of Children Branch (private law), Yvonne Neary, Policy Officer Children Branch (private law) & Minute Taker

Fathers Groups – Tony Coe (Equal Parenting Council), Penny Cross (MATCH), Paul Duffield (Equal Parenting Council), Stephen Fitzgerald (Coalition Coordinator) Tony Lewis (FNF), Matthew O’Connor (Fathers for Justice), Robert Whiston (Mankind).

Sally Field It was important that those present understood the mechanism for effecting changes to the law. Secondary legislation was fairly easy to construct but was subject to parliamentary scrutiny and any statutory requirement to consult, e.g. the Rules Committee for rules of court.

Tony Coe explained that CEP did not seek primary legislation.  Indeed, the central plank of their position was that what they sought did not require it. The intention of the Children Act was plain; that Shared Residence ought to be the common form of order. The law, as they saw it, had never been implemented.

Matthew O’Connor added that he was astounded that Parliament’s intention had never been given effect.

Sally Field said that PSA8 was concerned with children and contact with their non-resident parent.  The reference in the target to “the best interests of the child” picked up the Children Act.  And “where this is safe for the child and other family members” picked up the work of the safety and contact centre working groups.

Robert Whiston pointed out that the term “the child’s best interests” was problematical since it was undefined and was therefore open to judicial interpretation.  He suggested that work should be done to look at long-term outcomes for children. The pre-1989 Act had used the term “beneficial to the child” which was a narrower definition and had worked better.

Sally Field said that what was emerging from research was that children felt worse about high levels of conflict between parents than they did about no contact at all.

Tony Coe disputed this and said that research from North America had shown that even where there was conflict, a minimum level of contact should be retained – conflict should be minimised in these cases by adopting a Parallel Parenting Plan. Children would always be aware of conflict. The approach being outlined today (and rehearsed at an earlier meeting by Peter Fell and Philip Dear) was so fundamentally flawed the coalition could not be involved further unless the Government could demonstrate the rationale for severance. At the moment the outcome depended on “where the chips fell” – i.e. maintenance of a status quo (minimal or zero contact) which had come about for want of early, effective intervention. The State had a duty (enshrined in European Law) to protect the child’s relationship with both fit parents.  While welfare research or reports were being done, the child’s relationship with one parent was being lost.

Stephen Fitzgerald said that his organisation ran a domestic violence helpline and often got fathers ringing saying that they, the child or both were being abused by the mother. Very little of this came out in court because Welfare Officers were not including it in their reports.

Robert Whiston suggested that the Safety Group needed to step back and look at the “good reason principle”. The current processes were deeply flawed as the dice always fell in one direction.  There was no proper risk assessment process. Once contact became an issue this then gave rise to conflict. There were many men who had violent women in their household but the issue of domestic violence in custody cases was only addressed when women were the victim.

Tony Coe said the focus must be to get “normal” cases right where safety was not an issue.

Matthew O’Connor warned that the law would fall if the Government did not listen to the father’s lobby, which was growing increasingly angry about the current operation of the law.  LCD must engage in dialogue.

Tony Coe said that it was the child’s right to have its best interests protected – and that meant not excluding a fit parent.

Robert Whiston observed that there was less abuse in cases where both parents were engaged in the parenting process and referred to cases such as Victoria Climbie.  Sally Field said that this was care policy and therefore Dept of Health’s territory. LCD’s focus had to remain on policy areas for which LCD had responsibility.

Tony Coe said that the present system lumped difficult cases with those that were straight forward.  One parent should not have the power of veto over the other’s rights.

Sally Field explained that the Facilitation and Enforcement Group was looking at this very point.

Matthew O’Connor asked why the courts were not enforcing Parliament’s intention behind the Children Act.

Sally Field suggested it might be useful at this juncture to look at the history of the Act.The Bill had started in the Lords and then progressed to the Commons. It was introduced in November 1988. Notes on Clauses produced at the time the Bill was progressing through the Lords recorded that joint custody had been the norm prior to the Bill, with an order being made in every case. The Bill sought to change this so that an order should only be made if it were better than no order being made – i.e. a less interventionist approach.

Robert Whiston queried whether this then meant that “shared parenting” should be the default.

Sally Field explained that “shared parenting” was not “equal parenting”.

Mike Tester added that shared parenting meant an equal say in the arrangements for children etc. Shared residence, on the other hand, meant a residence order made by the court.

Sally Field said that Parliament’s intention was that a residence order should settle where the child lives. The 1989 Act had sought to get away from “custody” – and in so doing preserved the other parent’s right to act. A non-resident parent retained equal parental responsibility. There was no reason to discourage shared residence where it was practicable and workable. But she did have difficulty with the notion that shared residence was intended to be the more common form of order. The Notes on Clauses prepared for the Lords stage of the Bill (and which the coalition quoted from) had been poorly drafted. There had been a debate in the Lords which clarified the position. As a result, changes were made to the Notes on Clauses for the Commons stages of the Bill to make it clear that “in some cases an order will provide for the child to live with both parents”. So this corrected the earlier ambiguity. The law was flexible enough to accommodate shared residence arrangements.

Tony Coe thought that Sally Field was at pains to convince those present that Parliament had not expressly intended that shared residence should be the common form of order, when patently there was clear evidence that it had. He referred to the judgment in D-v-D and said that the Law Commission paper had stated that a child should more commonly live with both parents than with one or other parent.

Sally Field said she wanted to pause for a moment to check her understanding of the coalition’s position and to reiterate LCD’s position. LCD’s view – and Parliament’s intention – was that shared residence should not be a common form of order. But that was not the same as saying that shared residence should not be a common form of arrangement. The Court of Appeal had reinforced this position.

Discussion followed about why a shared residence order was not the common form of order. The coalition felt it was about judicial education – that was to say, judges had not been informed of Parliament’s intention.

Sally Field said that the Home Office had a parenting fund to improve education of parents about their responsibilities towards their children.

Responding to a question from Robert Whiston, Sally Field confirmed that there was nothing “illegal” about shared residence orders.  Robert Whiston thought this pointed to a judicial training issue.

The coalition felt that shared parenting was the only way forward. If this route were not followed the UK would face larger bills for the social consequences.

Sally Field said that shared parenting was about parenting continuing after separation. In law, the non-resident parent did not lose parental responsibility.

Robert Whiston said this did not actually mean anything and Penny Cross agreed, citing the example that the non-resident parent cannot get access to health and education records.

Sally Field thought that the coalition’s concerns about the operation of parental responsibility was an area where LCD could engage in fruitful discussion and agreed that LCD could work on this.

Tony Coe said the coalition found it offensive to imply that by asserting the right of a fit parent there was some conflict with the child’s right. This argument would never be advanced when parents were still together.

. . . . . / . . . . .  .

Returning to his criticism of the gender bias on the academic evaluation group, Robert Whiston said he needed to know who trained the judges and what was the content.

Sally Field explained that the JSB [judicial studies board] was a quasi independent body – independent from the Executive. The Executive did not interfere and LCD officials had no veto on the content of judicial training, although they could influence this.

Sally Field said she would ask the JSB whether they would be prepared to share the current private law induction pack with the coalition.

. . . . / . . . . .

Robert Whiston asked whether the intention of the Children Act in relation to shared residence could be communicated to judges in a letter.

Sally Field said that the ONS survey would provide an insight into the differences between non-court ordered contact and court ordered contact. We needed to know how long court ordered contact tended to last.

Tony Coe said that the current system fuelled conflict and everyone agreed that conflict was bad for children. More needed to be done on parental education in terms of parents dividing up their available time. The parenting plan was good but no-one seemed to know about it – not even the judges.

Sally Field agreed and said LCD was already addressing the problem of distribution.

[the above should be read in the context of the 2006 findings outlined in Appendices D, E & E1]

Appendix A (1)

Royal Kensington Garden Hotel, London
October 29^th 2002

On the evening of the same day as the meeting with LCD staff, i.e. Oct 29^th 2002, the CEP (Coalition for Equal Parenting) hosted a dinner for LCD management staff so that they could meet with American legal professionals who were operating the system proposed by the CEP.

The CEP’s special guests from America were attorney Renee Sperling and James Cook of the Joint Custody Assoc, Los Angeles, who had (by 2002) spent over 28 years persuading 40 US States to adopt joint custody.

Tony Coe and Robert Whiston represented the CEP with the LCD represented by Sally Field. In addition there were 3 lay members of the Association of Family Law Practitioners (AFLP).

The pros and cons of the US system and potential reforms of the British system were discussed informally and in an unstructured way by the dinner guests of the CEP.

[the above should be read in the context of the 2006 findings outlined in Appendices D, E & E1 ]

Appendix B

‘Increasing Safe Contact for Children and their Families’

Conference Programme

Lord Chancellor’s Department, Family Policy Divisions I & II, Friday 14 June 2002

10:00 Conference opens – Coffee available

10:30 Amanda Finlay – Welcome and opening address on: Delivering the Public Service Agreement to: “Increase contact between children and the non-resident parent after a family breakdown, where this is in the best interests of the child.”

11:00 John Briden & Vicky Leach – Outline of Programme Management approach to delivering the target and working in stakeholder groups

Appendix C

Sonia Jackson in “The Children Act 1975: Parents’ Rights and Children’s Welfare” [20] appears to misquote both the Act and the Section.

On page 85 she quotes the Children Act 1975, Sect 3 as reading:

“In reaching any decision relating to the adoption of a child a court or adoption agency shall have regard to all the circumstances, first consideration being given to the need to safeguard and promote the welfare of the child throughout his childhood, and shall so far as practicable ascertain the wishes and feelings of the child regarding the decision and give due consideration to them, having regard to his age and understanding.”

However, the above comes not from the Children Act 1975 but from Section 6 of the Adoption Act 1976. The closest wording to be found in the Children Act 1975 is at ‘General duty of local authority in care cases’, and reads as follows:

In reaching any decision relating to a child in their care, a local authority shall give first consideration to the need to safeguard and promote the welfare of the child throughout his childhood; and shall so far as practicable ascertain the wishes and feelings of the child regarding the decision and give due consideration to them, having regard to his age and understanding.

The above section can be found in Part III of the Children Act 1975, and follows on from Clause 59 “General duty of local authority in care cases”, which has the preamble;  “In section 12 of the Children Act 1948, the following subsections are substituted for subsection (1) – ……”

The wording of the Act is available at:
http://www.opsi.gov.uk/RevisedStatutes/Acts/ukpga/1975/cukpga_19750072_en_4

See also:
http://www.publications.parliament.uk/pa/ld199899/ldjudgmt/jd990311/inreb.htm

Appendix D

“Making contact happen or making contact work ? The process and outcomes of in-court conciliation”

DCA Research, March 2006 [Extracts], By Liz Trinder, et al. (Dept for Constitutional Affairs Research Series, March 2006).

Executive Summary – 3 page version

http://www.dca.gov.uk/research/2006/03_2006excsum.pdf

Page 2 Findings: Immediate outcomes

• Consistent with previous research, the overall agreement rate was very high, with 76% of parents reporting a full or partial agreement.
• Overall, only 62% of parents were satisfied with the agreements they had reached. Parents reaching a full agreement were more satisfied than parents reaching a partial agreement. Parents who did not reach any agreement were least satisfied overall.
• Resident parents reported less choice about entering the process, more anxiety beforehand, more tension in the meeting, less able to say all they wanted to and more likely to report being pressured into an agreement by their ex-partner.

Page 2 Findings: Perceptions of the In-Court Conciliation Process

The average (median) length of the conciliation session was 45 minutes.

Page 3  Findings: Outcomes Six Months Later

The very brief intervention had quite a marked impact. At follow up only a fifth of agreements had not worked at all, most agreements were intact or had been extended, most cases were closed with low re-litigation rates, many more children were having increased contact, more parents were satisfied with the quantity and quality of contact and parents and children were doing better than at baseline.

Full 112 page version:

http://www.dca.gov.uk/research/2006/03_2006.pdf

Appendix E

From: Sally Field
To: Coalition for Equal Parenting (CEP)
31^st January 2003

[Extracts only]

LORD CHANCELLOR’S DEPARTMENT</em
Southside
105 VICTORIA STREET
LONDON SW1E 6QT 

 

INTENT OF THE CHILDREN ACT 1989

At our meeting on 29 October [2002], we discussed at length the provisions in the Children Act.  Referring to the discussions in the House of Lords at the time, I believe I set out the Government’s position quite clearly, and you have the fact sheets we prepared on those matters.  There is nothing else I can add to that, save that the idea that there should be any presumption of a common form of order would contradict the underlying principles of the Act, namely the paramountcy of the child and the “no order” principle.

. . . . . / . . . . .

In all questions that come before the courts about the upbringing of a child, including issues of residence and contact, the courts are required to treat the welfare of the child concerned as their paramount consideration.  The courts will decide on the evidence before them and the facts of each individual case, what is in the best interests of the child. The decisions taken are difficult ones and judges may be called upon to reach a view that will, inevitably, be disappointing or unwelcome to at least one of the parties.

. . . . . . / . . . . .

As I have outlined before, we believe the Children Act encourages divorced or separated parents to reach agreement between themselves about arrangements for the future of their children. The latest research indicates that the commitment of both parents to maintaining the relationship with the child is an important factor in keeping contact going.  We expect the results of the ONS survey, due next week, to tell us more about this factor.

. . . . . / . . . . .

The Children Act rests on the belief that children are generally best looked after within the family with both parents playing a full part, and without resorting to legal proceedings.  This belief is reflected in the concept of parental responsibility and the ability of unmarried fathers to share that responsibility by agreement with the mother.

. . . . .  / . . . .

Case law has shown that courts expect the resident parent to keep the non-resident parent informed about the child’s well being and progress.

Those with parental responsibility have the same rights as natural parents to receive information from their child’s school, for example, copies of the governors’ annual report, pupil reports and attendance records

. . . . [and so on and so forth re: minutiae].

[the above should be read in the context of the 2006 findings outlined in Appendix D]

Appendix E (1)

From: Sally Field
To: David Mortimer, Men’s Aid
6^th February 2006

[Extracts only]

“  . . . . . . Parliament’s intention in the Children Act 1989 is that a residence order settles with whom the child will live and both parents retain equal parental responsibility. There is no reason to discourage shared residence where this is practicable and workable. However, Parliament did not intend that shared residence would be a common form of legal order, and the explanatory notes for the then Children Bill in the House of Lords had made clear that “in some cases an order will provide for the child to live with both parents”. The law is flexible enough to accommodate shared residence arrangements, and we would expect such arrangements to be common, but we would not expect that orders for shared residence, with children dividing their time between two houses, would be common.”

I understand that you have emailed a number of colleagues in DCA/HMCS, asking for support for your reply to the CAFCASS Consultation. Please note that as serving civil servants, it would be inappropriate for any of us to express a personal opinion on this matter.

Yours etc,
Sally Field (Head of Family Justice Division)

 

Footnotes

[1] “Father ends Tyne Bridge protest”, 17 June 2008, http://news.bbc.co.uk/1/hi/england/tyne/7458740.stm[2] The Law Commission (Law Com No 172). “Family Law Review of Child Law Guardianship and Custody”, HMSO. July 1988, Item XIX of the Second Programme. There has been an internal numbering change and this is not available at http://www.lawcom.gov.uk/docs/consultations_list.pdf. Cross reference Albert Sloman library 1987/88 HC 594[3] The Law Commission, Working Paper No. 91, Family Law Review of Child Law: Guardianship, HMSO 1985. Listed at http://www.lawcom.gov.uk/docs/consultations_list.pdf[4]Family Law Review of Child Law: Custody, (Supplementary Working Paper No 96).

[5] Law Commission 96. Summary- “, , , examines and identifies the numerous gaps, inconsistencies and other deficiencies” in the law and proposes “a new, unified and simplified system , , , ,  “[reflecting] the responsibilities involved” and rejecting “the current proprietorial or “rights” based concepts of custody and access.”

[6] A budgetary arrangement between the Treasury and the various individual Ministries where money is earmarked for specific goals in the expectation off improvement / completion.http://www.hm-treasury.gov.uk/pbr_csr/psa/pbr_csr07_psaindex.cfm.

[7] Email exchange between Robert Whiston, June 2008,.and  John Eekelaar (Born 1942 Johannesburg, South Africa), Rhodes Scholar, Tutorial Fellow at Pembroke College, He retired from teaching in 2005, and is currently Academic Director at Pembroke College. He continues research as Co-Director of the Oxford Centre for Family Law and Policy (OXFLAP).

[8] Arguably the Law Commission members have always been feminists and the roster over the years vindicates this view.

[9] Maria Colwell died in 1973 of under-feeding, neglect and physical cruelty. It was the first of the modern era horror stories of fatal child neglect.  It led to the DHSS appointing Thomas Field-Fisher, QC, chairman of the inquiry committee (Field-Fisher Inquiry, HMSO Para 227) which reported in 1974. See also “The Lessons We Never Learn” The lessons of the inquiry into the death of Maria Colwell, thirty years ago, will echo again when Lord Laming reports on the Victoria Climbié case this week. (http://www.guardian.co.uk/society/2003/jan/26/comment.childprotection )

[10] “Scandal, Social Policy and Social Welfare”, By Ian Butler, Mark Drakeford, Jo Campling.

[11] Appointed Minister of State for Health in the Wilson government in July 1974.

[12] “The Children Act 1975: Parents’ Rights and Children’s Welfare”, by  Sonia Jackson, p85 http://www.jstor.org/pss/1409801

[13] ‘Adoption or Special Guardianship? The Impact of Re S, Re AJ and Re M-J’ http://www.familylawweek.co.uk/site.aspx?i=ed563

[14] After working for an unspecified period of time as a solicitor in London Stephen Cretney was appointed a Law Commissioner in 1978, leaving in 1983. During that period he was, amongst other matters, responsible for the Commission’s Family Law programme. He then became Professor and Dean of the Faculty of Law at Bristol University. In 1993 he was elected Senior Research Fellow at All Souls College, and become Emeritus Fellow on reaching retirement age in  2001. http://www.all-souls.ox.ac.uk/fellows/fellow.php?refid=1861

[15] Ibid – “Adoption or Special Guardianship? The Impact of Re S, Re AJ and Re M-J”

[16] Re B (A Minor) (A.P.), http://www.publications.parliament.uk/pa/ld199899/ldjudgmt/jd990311/inreb.htm

[17] “The Parenting Act and Mediation, Fifteen Years On”, by Porter Kelley, November 2003. Washington State Bar Association. Website. http://www.wsba.org/default.htm

[18] Law Commission No 172, Part VIII ‘Collected Recommendations’, Para 8.3 (page 60).

[19] A covenant is a one-way agreement voluntarily binding one party to others. The Covenanter’s promise to others may have conditions and undertakings. There is requirement for other parties to fulfill reciprocal agreements. The only party able to break a covenant is the covenanter. This is in stark contrast to a contract where barter is struck.

[20] Sonia Jackson http://www.jstor.org/pss/1409801