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Pay to View ?

April 12, 2011

by  Robert Whiston  FRSA  Jan 31st 2011

The Dept for Work and Pensions (DWP), launched a public consultation paper in mid Jan 2011 entitled “Strengthening families, promoting parental responsibility: the future of child maintenance”  (http://www.dwp.gov.uk/consultations/2011/strengthening-families.shtml).

It is yet another government review of how best to make a crippled child support system work. The government now accepts that the CSA costs too much to run and that child support payments are one of the most expensive forms of taxation to collect ever invented.

In a bankrupt Britain it wants to makes savings everywhere and where better than the CSA which it now wants to “provide greater value for money for the tax payer” ie the Treasury.

Executive Summary

Contact enforcement measures have been the bane of divorced fathers’ lives for many, many years. The prospect, in 2011 of matching maintenance payments to contact is therefore a welcome development. This is not to say that most divorced couples fail to reach agreement, they do, but there is a sub-set that does not and even among ‘well regulated’ divorced couples there are occasions when friction is generated over contact dates broken.

Governments usually claim that it is impractical to link ‘performance related contact’ by the mother with Child Support (CS) payment performance by the father. As a result Child Support (CS) payments have been seen as largely separate from visitation (‘contact’), or visitation rights.

No strategy has therefore been seriously considered at official level to counter an obstructive parent and consequently denial of contact brings no penalties to the mother while CS is still demanded of the father.

This is often termed “gate-keeping’ and is used indiscriminately to violate contact arrangements. Another term used is “implacably hostile” to describe a mother who will not abide by a court’s ruling. In the face of implacably hostility courts have chosen to be impotent and as a consequence fathers can no longer rely on the courts to enforce their own orders and for them to see their own children.

It has taken government a long time to acknowledge that ‘off balance sheet’ payments are made by divorced fathers even though they cannot make regular payments. This is a welcome step.

With government statistics we show how approx. 50% of fathers earn so little that their own standard of living (SOL) is slashed by making CS payments.

Child Support (CS) is a form of ‘taxation’ for fathers and represents a ‘wage’ payment to mothers. A divorced father is expected to fund his children as if he was still living with them but unlike a married father he has lost all his child-related benefits. He is not entitled to Child Benefits or Family Credits or the Married Couple’s Allowance worth an additional £2,800 pa. If he remarries his financial situation gets even worse.

Since 1995 governments have been asking – and fathers groups have been answering – what is the best way forward on the issues of contact, access, and child support (CS) ?

Every time an exit plan out of this impasse has been suggested it has been decried as too radical. Now time has finally run out. Patching up the current system is no longer a viable option.

Custody is the crux. The radical answer has to be a re-alignment of expectations and the introduction of shared parenting and shared residence. Both options have been introduced in other countries where the failures of their former system mirrored ours.

This submission will be controversial, and it is intentionally so, if we are to break out of the cycle of failure – a new approach is required and past attitudes need to be reappraised. Discussed is the option of abolishing CS altogether – given that it is uneconomic to collect and administer.

Are we content, in a liberal society to let divorced fathers ‘pay to view’ their children, or are we prepared to let them join in as real parents, and help raise them in their formative years ?

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 “. . . We know that one of the most significant issues for non-resident parents is when contact with their children is denied or withheld. This can lead to tension and hostility between the parents, especially where maintenance is still being collected through the statutory system.”

The two deterrents to counteractcontact being denied or withheld is firstly through judicial action by way of fines, withholding benefits or prison against the offending parent and secondly measures to reverse custody.

Regrettably, the judiciary has turned it back on these options on the basis that they are impractical or draconian and harmful to children’s well being while forgetting that a small number of exemplar cases and sentences is all that would be needed before the problem would fade. 

 “ . . . We are keen to explore approaches that allow maintenance arrangements to be considered in the round when determining appropriate contact enforcement measures.

We recognise, however, that there are challenges in linking maintenance and contact in this way, most importantly how such decisions might impact on the best interests of the child.”

The usual line of thought adopted by administrations is that it is impractical to link performance related contact by the mother with Child Support (CS) payment performance by the father.

In other words, Child Support (CS) payment has been seen as largely separate from visitation, i.e. contact. It is also rather convenient to see it in this simple way.

It is a peculiar logic to specifically bar any linkage which is usually on the grounds that the loss of paternal contact is deemed not to be in the best interests of the child. In other words, don’t punish the child for the defaulter’s sin of missing a payment. Yet maternal deprivation is increasingly viewed by some as child abuse. In this way “contact” (visitation rights) and CS are de-coupled.

Where any linkage has been applied it is, nonetheless, against the father for non-payment – if he fails to meet, for example, his payment schedule. This might result in an altered court order or a fine.

No linkage has been created regarding CS payment and permitting contact – or any default thereof. Thus obstructing contact brings no penalties to the mother and the CS is still demanded of the father and paid. This is a double standard.

“ . . . We recognise, however, that there are challenges in linking maintenance and contact in this way, most importantly how such decisions might impact on the best interests of the child.

We also recognise that it is important that this issue is considered within the context of wider reforms that are currently being progressed elsewhere in government.”

Punishment

Linking non-payment of CS with access is often used in some jurisdictions, e.g. Canada, the US, UK and Australia, to punish the defaulting parent (i.e. the father). These jurisdictions believe that the child should see both parents so when CS is not paid the state is left with limited options. Therefore, it permits continued contact but punishes the father.

This punishment usually devolve down to garnishment orders, loss of driver’s licence (or even professional practice licence), temporary confiscation of passport, etc, which are all forms of ‘internal exile.’ Arguably such measures belong more appropriately to the former Soviet regime of the USSR.

Meanwhile the cause of the non-payment is not addressed.

If the cause of the non-payment of CS is due to ‘gate-keeping’ and contact violations by the mother this goes unpunished. Sanction powers are already in place to deal with truculent mothers but the courts adamantly refuse to make use of them. Part of the answer is given in the following superficial comment by Dame Elizabeth Butler-Sloss:

“Judges can fine, or jail, uncooperative mothers, but these sanctions are rarely used.”- Dame Elizabeth Butler-Sloss (Sunday Times, Feb 17th 2002 by Margarette Driscoll)

Saving face

“Implacably hostile” mothers present a problem not just for the trauma of children but to the judiciary. Rather than confront such mothers the judiciary backs down to save face.

Under the present regime reversing custody against implacably hostile is not a simple matter because the other party is not prepared or geared up to take on a greater parental role. He may not have suitable accommodation or employment that allows the flexibility required. In addition, his income will not change as the state will continue to pay welfare benefits to the mother.

If custody were to be reversed, would the system still expect him to make his CS payments ?

However, if a shared parenting or a shared residence order were the norm and in place beforehand any ‘reversal’, i.e. a temporarily reprimand giving the mother time to reconsider her behaviour, would not cause a great deal of social upheaval for either party.

Dis-incentives

Child Support (CS) is a levy on fatherhood. It is a taxation burden placed on them for continuing to fund children without any commensurate tax concessions reflected in their Inland Revenue “personal allowance” assessment. This form of taxation brings them no rights or privileges. On the contrary it takes away rights or privileges.

For mothers, CS is a wage paid by the state and the former husband, it comes free-of-tax and it does not affect her personal allowance assessment, Child Benefits or Family Credits.

Suicides and failed suicides, once a common feature of CS demands have tapered off dramatically since the adoption of a far less aggressive posture by the CSA.

Hypothetically, a divorced father becomes a single persons again with a Personal Allowance of only£7,475 instead of the minimum addition of £2,800 for the Married Couple’s Allowance (£10,275). He is obliged to pay tax on any income over £7,475 and not (£10,275, even though he may still be paying for the matrimonial home mortgage, his own rented accommodation and the upkeep of his children.

He does not have the benefit of state benefits or allowances since all these, since the last Labour government, are not payable to women only and not men. He is not able to share in Child Benefit or use Family Credits etc to off-set his expenses.

If a divorced father were still married his child costs he would be able to share in his wife’s access to benefits and Family Credits.

We have placed the accent on ‘low income’ families since this is where most of the CSA problems arise and were it adversely bears down the most heavily.

The state and the judiciary cannot make up their minds up whether ‘divorce’ means what it says, i.e. a complete dissolution, or only a partial dissolution.

If the latter, then a divorced father should be entitled to the ‘partial’ element of Child Benefits and Family Credit etc. This was a point initially conceded in Hockenjos v Secretary of State for Social Security) Court of Appeal, 2001 (The Times, May 17th 2001, “Jobseekers’ allowance sex bias unlawful”).

“ .. . . .The principle of equal treatment means that there shall be no discrimination whatsoever on ground of sex either directly or indirectly…” – Article 1 of Directive 79/7/EEC, and Article 3 & Article 4, and of Regulation 77 of the Jobseekers’ Allowance Regulations (SI 1996 No 207).

Poverty

The link that is made between CS and contact / visitation comes about through studies which show that more generous visitation rights actually induce greater CS compliance. Surveys also show that   “reasonable” levels of CS payments also induce greater compliance.

Wishful thinking by the state takes this flawed data and assumes that poverty among single parent families (usually a single mother household or SMH), can be alleviated by better CS collection methods. However, studies show that CS typically constitutes (at best) around 25% of the income requirements for a lone parent family, and this obviously decreases as a percentage with increasing PWC income.

It is the ‘low income’ PWC that need CS payments the most, but equally it is not uncommon for the former spouse of the ‘low income’ PWC to be unskilled and or on a ‘low income’ himself. This renders the ex-spouse unable to pay.

Statistics listed in Appendic A show a pattern that can be found in North America and Australia namely that about 2/3 of alleged ‘defaulters’ are on low-incomes, are unemployed, or debilitated with substance abuse, and/or have suffer from mental health problems (see also Quantifying below).

It was to address this that we suggested many years ago a uniform taxation and payment out of general Treasury receipts in place of a one-for-one payment contract for each SMH (single mother household).

Custody is the crux

Since 1995 governments have been asking – and fathers groups have been answering – what is the best way forward on the issues of contact, access, and child support (CS) ?

In all that time it would be fair to say governments have always asked but not listened and have thus been forced to come back to the issue time and again.

Any response today runs the risk of reiterating what has been suggested before and not accepted. However, the issue continues to be a running sore that another attempt seems worth while.

Expected norms

Any response today also has to conform with the expected norms of political thinking but if f we think ‘outside the box’ there is always the alternative of abolishing CSA altogether and assisting co-operation between divorced parents based on the need by one parent to secure child support and the other parent to take a more active role in his children lives.

There is a presumption today that a father is automatically responsible for his child’s welfare and that this has always been so but that is not strictly true. The following extracts are not intended to be polemic but to offer the opportunity to re-assess whether the script we work with at present is flawed and in need of a fundamental overhaul.

The mother of an illegitimate child became statutorily liable to maintain the child by section 71 of the Poor Law Amendment Act 1834. “Affiliation proceedings” was the only way in which a putative father could be ordered to pay child’s maintenance.

This was bound up with the Liable Relative principle and it is noteworthy that a husband was added as a liable relative only by section 41 of the Poor Law Act in 1927.

The National Assistance Act 1948 swept away the liability of parents to maintain children over sixteen, and of grandparents to maintain grandchildren, of children to maintain parents, and stepfathers to maintain stepchildren.

Section 42 of the 1948 Act became the only statutory provision to set out the liability of one person to maintain another. It stated that (a) a man shall be liable to maintain his wife and his children, and (b) a woman shall be liable to maintain her husband and her children. A woman’s children included her illegitimate children and a man’s children included any children of whom he had been adjudged to be the putative father.

From that point onwards, ‘the State’ assumed responsibility for the support of all such persons who were in need of support but did not have sufficient means. This tied in with the Beveridge Report (1943). The Beveridge report was opposed to “means-tested” benefits and. flagged up the dangers of creating ‘poverty traps’.

Child Support Act 1991, see Section 1(1), states that each parent is responsible for maintaining the child by ‘periodical payments’. As enacted, only fathers provided money maintenance – the mother’s contribution was actually an imaginary one. At a stroke it cancelled out the ‘State’ assumed responsibility for the support of all such persons who were in need of support.

Periodical payments are not in fact wholly spent “with respect to the child”, but include a sum expressly stated to be for the PWC (parent-with-care), whom no statute or rule of common law has ever held the other parent liable to maintain, ex matrimonium.

Rules relating to step children and ‘liable relative’ were different in the era from 1920s to the 1990s. We used to be frequently reminded that a 40% rate of fatherlessness (due to divorce) was nothing new since the 19th century saw the same rate of fatherlessness but due to widowhood. Since there was no welfare state widows in the 19th century had the alternative of seeking a new partner or remaining single Many managed to re-partner.

A return to this mode would assist the remarriage rates – as envisaged by the 1969 Act – but which have never reached their true potential.

If all CS was abolished and replaced by a Child Support Allowance for men then this would be attractive to men taking on a divorced woman and her family since it would be paid to him as step father. The same Child Support Allowance would be paid to the biological father while married and cease when divorced.

The biological father would therefore be relieved of the taxation of CS without suffering any cut in his ‘contact’ rights.

For separated fathers the toxic aspect of the present CS regime is that it fails to take into account the income of any new partner of the former wife. Figures vary but around 90% of separated women find new partners within 6 months of their former relationship breakup. It is inequitable to expect an excluded father to pay part of his income into a household that is already enjoying state subsidies and the unofficial earned income from a new (male) partner.

Quantify

The present situation is one where fathers pay child support (CS) monthly in the expectation of seeing their child. When, however, access (contact) is blocked or curtailed they have no fast recourse to a remedy, indeed, they have no remedy at any speed.

Suggestion. Would it be helpful if child support (CS) was paid monthly in arrears (or quarterly in arrears) and be performance related ? Paying in advance or concurrently limits the number of options open for countermeasures.

However, it would be wrong to give the impression that paying child support is a pandemic problem; in actuality it is confined to a tightly drawn minority.

  • Firstly, the minority is confined to the unemployed, the disabled, the under-aged and the seriously ill.
  • Secondly, the minority includes those where the paternal DNA is in doubt. In the late 1990s 16% of non-resident fathers traced by the Child Support Agency disputed paternity and in 7% of the cases DNA tests established that he could not have been the biological father.
  • Thirdly, the low-waged though gifted no-fault divorce have not the wherewithal to ever provide adequately for themselves and thus cannot at the same time be reasonably asked provide for their children.
  • Fourthly, the remaining rump cannot or simply will not pay or if they pay it is irregularly. This might be for a variety of reasons. It is this sector, we suggest, that needs addressing – not the 3 categories above where the situation is more or less out of their hands.

The statistics provided in Appendix A explain how many fathers are assessed for CS payment and how many pay, the numbers who do not and by reason, e.g. unemployment.

Making Contact Work

For over a decade it has been accepted that around 40% of fathers lose contact with their children and the bond between child and father is ruptured – often deliberately and permanently.

“Too many fathers lose contact with their children after an acrimonious divorce. That is about to change.” Dame Elizabeth Butler-Sloss interviewed by Margarette Driscoll (Sunday Times, February 17, 2002).

A distinct correction we would make to Butler-Sloss’s opinion is that it is not merely “after an acrimonious divorce” but in the subsequent pursuit of contact regardless of whether the divorce was friendly or not.

The Lord Chancellor’s Department (now Ministry of Justice) promised in 2002 to respond positively and “as a matter of priority” to the recommendations contained in “Making Contact Work” but nothing was ever forthcoming.

The subsequent PSA 8 talks petered out when it became obvious that fathers’ right views were not going to be considered.

Recent Studies

A poll carried out by Mishcon de Reya in 2009 to mark the 20th anniversary of the Children Act has led its authors to state that the Children Act 1989 is “not working” despite its good intentions. The poll (of 4,000 parents and children) revealed that:

* 38% children never saw their father again once separated

* 49% admitted to deliberately protracting the legal process in order to secure their desired outcome
* 68% confessed to indiscriminately using their children as ‘bargaining tools’ when they separated
* 20% of separated parents admitted that they actively set out to make their partners experience ‘as unpleasant as possible’ regardless of the effect this had on their children’s feelings

* 19% of children said they felt used in the separation

* 50% of parents admitted putting their children through an intrusive court process over access issues and living arrangements

(NB The fatal flaw in the Children Act 1989 is that 90% of it clauses admirably apply to public law but it was never designed to deftly negotiate private law cases. We believe that if a new Children Act is ever contemplated in future it should apply only to private law cases).

This Mishcon de Reya survey replicated findings by Bradshaw & Stimson et al 12 years ago into how often did the non resident father see his children. Some of their 1997 findings in the University of York interim report are displayed below:

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How often did the non resident father see his children ?
Frequency   % age Sub-total
Regularly at least once a week 47  
  at least once a fortnight 14 61
Less regularly at least once a month 7 7
Infrequently once or twice a year 10  
  1-3 years 8  
  more than three years 10  
  not at all 3 31
Source: Bradshaw & Carol Stimson et al in 1997 University of York, ESRC Programme on Population and Household Change Seminar. Policy Studies Institute, 13 March 1997.

 

Payments

The same study (Bradshaw & Stimson et al, 1997), found  that 77% of fathers had paid maintenance and those who had never paid were more likely to have been unmarried and had shorter term relationships with the mother of their child.

In an earlier study (this time by Bradshaw & Millar, 1991, but also of other studies of lone mothers) it was found that only 57% of fathers made maintenance payments – later this discrepancy was discovered to be a bias in the ‘mother only’ questionnaires (it was realised that there was some deliberate ‘understating’).

One would have thought that given the evidence that ‘generous’ contact and ‘shared residence’ both  results in higher levels of CS compliance, and on a more regular basis, government would rush to adopt this option – but it has not.

Bradshaw & Stimson’s study found that the majority of the fathers gave “informal support” [money] and they gave more if they were not paying maintenance regularly (but 28% of fathers in their study had never paid CS and had never given informal support – see ‘Quantifying’ above.

The review has rightly picked up on the fact that this ‘informal’ paying over of money to the mother was not taken into account due to the rigidity of the CSA rules.

Resistance

All the time fathers’ groups were pushing hard for more contact and for the courts to enforce contact, women’s groups were arguing against it.

There seems to have been 2 or 3 reasons for this pushback; one was the fear of losing control of the children and the custody situation; another was the fear of losing of money; and the last was the claimed fear of spousal abuse.

The first of these – the ‘gatekeeping’ phenomenon – has been extensively written about in the US and a summary is not required here. However, if clarification is sought, a brief overview can be found in Appendix B.

The rational for the second appears to have been that in sharing more of the child with the father, or worse, a shared parenting agreement the state-sourced income paid to the mother would decrease.

The third obstacle, namely fear of spousal abuse (domestic violence), has been exploded both by new legislation and measures altering police procedures. Claims of the potential for child endangerment were totally discredited when Justice Nicholas Wall’s published his 2006 report into the claims made by Women’s Aid against fathers being given contact. Of the 29 cases Women’s Aid listed none were found to have any linkage between contact, fathers and court orders. Resulting enquiries triggered by Women’s Aid’s claims revealed that it was not the fathers who presented a danger to children but the mothers (e.g. in terms of serious abuse, neglect, homicides etc). More details can be found at Appendix C.

Possible solutions

In the final analysis custody is the one single item that will solve the overwhelming majority of disputes because:

  1. If one parent has custody and the other does not, then an imbalance is created.
  2. If one parent has unlimited access time with the children but can veto or interrupt the other parents access time a master-and-servant relationship exists.
  3. If one parent enjoys the apparent protection of the courts and the other parent feels frustrated by the courts then the imbalance is exaggerated.
  4. If one parent feels able to flaunt court orders while the other parent knows they will incur sanctions for disregarding a court order, another imbalance is created.
  5. If there is a presumption or unspoken assumption that mothers will gain always custody and fathers always be denied it a recipe for conflict has been written.

The remedy put forward by fathers groups to unblock what is often no more than an ideological log-jam, is shared parenting. This has often been decried but the criticism leveled at it reveals that its opponent have not fully understood what shared parenting entail and what varieties are available.

Despite its successful adoption in a variety of counties, e.g. Sweden, Australia, Belgium and some US states, and its ability to be implemented in a variety of subtle versions, the official view in England has historically been hostile.[1]

Rebuffs

In Oct 2002 the Coalition for Equal Parenting (CEP) met with Amanda Finlay, Sally Field and a LCD team to press for a fuller implementation of the 1989 Children Act. Over the previous months CEP delegates had met with LCD staff to ensure they understood what shared parenting involved. At the Oct meeting it was clear that the LCD staff still thought shared parenting was the same as ‘contact and residence’ in all but name (for a flavour of this dialogue see transcript at Appendix D).

The view of the ‘Coalition for Equal Parenting’ (CEP) in 2002 was that shared parenting was not merely the only way forward but provided a route to lower legal fees for clients and reduce governmental expenditure.

Further, if this route were not adopted the UK Treasury would face ever increasing bills for the social consequences until such time as they proved unsustainable.

Ministerial misconceptions

The most recent occasion when shared parenting looked as if it might have some chance of acceptance was in 2004. However, the pattern of apparent obstinacy and misrepresentation continued culminating in Lord Falconer intervention (July 2004), when he described dividing chiseler up as entirely different from dividing a CD collection: [2]

“There cannot and will not be an automatic presumption of 50/50 contact. Children cannot be divided like the furniture or the CD collection. It is more complex than that.”

Well, Lord Falconer, no its not. Dividing them up works very well in other countries and there is no reason why it should not work in Britain.

Lord Falconer lack of knowledge of shared parenting was revealed in his wording when he somehow imagined an exact split between both parents was intended:

 “[He]. . . rejected the idea of an exact split in contact arrangements as unworkable and not in the best interests of children”.

There is clear and unequivocal evidence that a sharing of custody and parental rights had existed prior to the Children Act 1989 and that the Act was intended to build on that base but in actualitie, destroyed it.

The Law Commission in a little known paper (Supplement to Working Paper No 96, 1985), discovered that joint custody awards were increasing in the 1980s and were especially popular in the south and midlands. [3] Upwards of 55% of all awards were joint custody, i.e. approximating shared parenting. Only in the North did this level taper off and ‘sole mother custody’ begin to predominate (see page 90). The distinct North South divide in custody settlements in the 1980s is displayed at Appendix E.

(See also an overview of Law Commission Report Supplement to Working Paper No 96, http://robertwhiston.wordpress.com/2008/10/12/12/  and “Twenty Wasted Yearshttp://robertwhiston.wordpress.com/2008/02/05/5/

Joint custody

Joint custody worked well and shared parenting which is an approximate equivalent or slight extension of it, promises to also work well. A Law Commission report came to this conclusion in 1988 (see URLs above).

The argument that both parents have to be ‘well adjusted’ and ‘highly co-operative’ even before considering joint custody / shared parenting is not borne out by the historical truth – nor is it borne out by contemporary examples overseas, e.g. Belgium and Australia.

“. . . By its very nature equal or shared parenting requires a high degree of co-operation between the parents and is an arrangement most often only reached between the parties privately.” – letter from Lord Irvine of Laird, 11th  March 2002.

Coincidentally, this is also the view of female researchers oppesed to shared parenting, e.g. Hunt, Trinder, Wade, Neale, Hunt et al.  Joint custody, arugmably an early / primitive form of shared parenting is never mentioned by ministers or researchers. The counter-argument today would probably be that “parental respnsbility” (PR) gives both parents joint custody but those who lived through that era know such a claim to be a lie; and those fathers living in today’s era  know that parental respnsbility is an empty status.

Those nations which enjoy a lower level of confrontation than Britain have usually adopted shared parenting as their custody basis or accepted the premise of a rebuttable presumption of equality for custody at the time of divorce.

Mediation

On the few occasions when alterations to diet of sole mother custody are discussed, e.g. Family Law Act 1996, it is often against a backdrop of mediation facilitating post divorce custody arrangements. If this option is to be revived it has to be envisaged that it would create yet another tier of the divorce industry. It should also be recalled that there were not enough trained mediators to cope with existing demand in 1995 and before the provision of the Family Law Act 1996 were abandoned.

  1. Mediation only works in those circumstances where both parents reliably know they have no automatic right or ‘guarantee’ to time or custody after divorce.
  2.  Sometimes mediation is used merely as an extension of courts bias and prejudices (see “Stolen Vows: The Illusion of No-Fault Divorce and the Rise of the American Divorce Industry”, by Judy Parejko, 2002). [4] 
  3. When mediation is not an option or not available, both parent have to be put in exactly the same position prior to custody arrangements being agreed. Fortunately, it is invariably found that both friendly and feuding parents still want the best for their children after divorce. Using this, a Parenting Plan can be devised and agreed. Indeed the LCD had Parenting Plans gathering dust on its shelves in 2002. 
  4. In the alternative, some nations have insisted on genuinely mutual agreement by parents (not the narrow legal definition of mutual) to then be endorsed and validated by the courts. 
  5. Other regimes have a technique of never closing the case file until the age of majority so that one or both parents can return the matter for adjudication. 
  6. Yet others have a system where the de fault position is shared time and residence which can only be varied by both parties agreeing to it. The amount of shared time and residence has to be agreed by the parents and if this proves impossible and court will impose equality. This threat usually has the desired result. 
  7. Options can include a parent’s right to demand shared or equal time / residence and this cannot be vetoed by the court or the other parent.

Officially, court orders for shared / joint residence should stand the same likelihood of success as any other.

“ . . . If the parties agree during the course of proceedings, an order for shared / joint residence is only one of the options available when the court considers” – letter Lord Irvine of Laird, 11th  March 2002

However, since the enactment of the Children Act 1989 the percentage of shared / joint residence awards has plummeted. There are two main causes for the fall; one is lack of judicial sensitivity towards modern family dynamics and fatherhood; the second is the often raised spectra of domestic violence which in the majority of cases is a ruse – a means to an end (see Justice Wall’s 2006 report into Women’s Aid claims).

Efforts to revive shared / joint residence have prompted the new argument that court imposed shared /joint residence is unlikely to work. Imposing an order has never been the position of fathers groups generally and so is not relevant to the overall situation. Having experienced court imposed ‘mother custody only’ they are keenly aware of the unfairness.

The ‘imposition’ of shared / joint residence where it is clearly inadvisable would not be supported by any group. However, where shared / joint residence is applicable and is equitable to both parents there can be no argument against it.

Sprawson Report

Fathers have for many years been at a severe disadvantage regarding Benefit payments when caring for their child. The first hint of this problem was a letter from Harriet Harman then Secretary of State for Social Security 1997 – 08, to Chris Smith MP stating it was “administratively inconvenient” to deliver various state benefits intended for fathers.

The department responsible for the payment of Child Benefit, in particular is incapable of dividing the benefit between the two parents where ‘shared parenting’ has been agreed and ordered. As a result the Dept pays 100% of the benefit to the mother regardless of whether the child spends 50%, 40% or 30% of its time with its father.

This bias has deterred some fathers from applying for ‘shared parenting’ orders while others have not been deterred regardless of the financial disadvantages it brings.

Over a period of very many years it finally transpired that dividing Child Benefit was an “administrative difficulty” which permitted Harried Harman to continue to discriminate against fathers. The Sprawson Report says that splitting the relevant benefits, as intended by Parliament when parents have separated, must be resisted because the government’s 1975 vintage computer system was unable to cope. Previous attempts to increase its versatility by software changes have brought traumatic chaos to the department.

The Sprawson Report identified “the Department for Work’ and Pensions s computer system”, which was first installed in 1975, as lacking “the sophistication and flexibility of more modern systems and cannot accommodate complexities [and]… is unable to process … the consequence of allowing for split entitlement” for all parents. [5]

‘High conflict’ families

A review of CS and contact would not be completer with out inclusion of this ‘new’ development. It has been the argument that shared / joint residence is unsuitable for some families, namely high conflict families, where inter-personal violence or frictions are commonplace. There will always be high conflict families but we should not let them rule the lives of the remaining 95% – 98% of divorcing families.

Jennifer Flowerdew, Brenda Neale and Carol Smart are academic researchers who have all published articles on shared parenting in legal periodicals, e.g. Family Law Association Review.[6]

A similarly critical paper, “Child contact with non-resident parents” by Joan Hunt & Ceridwen Roberts, was published by the Department of Social Policy and Social Work, as a Family Policy Briefing in Jan 2004 (the total absence of male researchers or of pro-shared parenting advocates is profoundly obvious).

However, analysis of the research reveals sample sizes of just over 30  or around 60 in some instances,  ranging up to 126 in another instance. In some papers, for example Hunt & Roberts’ 2004  exploration, no sample size is given.

The inference is that shared / joint residence is especially unsuitable for these types of families but what is overlooked in this particular argument is that no sort of custody arrangement would be suitable. Such families are inherently volatile and it is fortunate that they represent such a small minority.

Where we would agree with Brenda Neale, Jennifer Flowerdew, Amada Wade and Carol Smart etc is in the portrayal of children as pawns in a power struggle fought by parents but rarely explain why this occurs. [7]

If this is little more than a ‘beauty contest’ to win approval of the court it is a damaging process then the sooner shared parenting is adopted the sooner this practice will disappear.

Under the present flawed regime, which must be ended, children become pawns in a power and control-related struggle because they represent passports to key social security benefits essential if a mother is to have any reliable income after divorce, e.g. Housing Benefit and other subsidies.

In our other submissions for 2011 we again raise the ‘good enough parent’ principle first outlined to government in 2002 and why an unrepresentative and tiny group should not influence the benefits that 98% + of separating parent would like to see.

Conclusion

The first error made in 1991 was to criminalise, before the event,the non-criminal, i.e. fathers on low incomes and to treat all other fathers as potential criminals.

There was an assumption that some fathers who were not then presently paying court ordered maintenance were flaunting the system and they ‘could be made to pay.’ This made a lot of political sense and was highly useful but it failed to grasp the true dynamics.

Achieving the payment of maintenance to ‘disrupted families’ is a perennial problem, whether one goes back to 17th century church wardens, Lord Gorell’s 1912 Royal Commission, or Stalin’s  disastrous matrimonial experiments of the 1920s.

The common theme to all has been an unravelling of the matrimonial ties that bind together the social fabric. Indeed, the problems we find ourselves addressing today, in Jan 2011, have their origins in 1969 when there was another sequel to the unravelling of matrimonial ties.

The second error made in 1991 was to assume a state-sponsored, nationwide organisation (with all the rigidity and insensitivity that implies) could successfully replace the previous system. 

The prospect of defaulting to a position where each divorcing couple privately negotiate the best deal they can, takes the state out of the equation and saves a huge amount of time and money.

The stated purpose of the CSA was to recover all the money owed to PWC and relieve the burden on the Treasury. This was always going to be an idyll, a Shangri-La and the set up costs of £1 billion should have brought this home to any advocate.

The virtues of no state and no CSA involvement should be considered. If, as we are told, the majority of couples come to their own custody arrangements then the less fraught question of what each can afford to contribute out of their incomes will be governed by common sense (not a faceless bureaucrat).

For those fathers who prefer / want only weekly contact the amount paid will obviously have to be greater than for a father who seeks shared parenting structure (with a commensurate fall in running costs / child care costs to the mother).

The only role left is for the courts to be asked to step in when, a). agreement as to the amount cannot be reached, or b) .where payments are irregular, or c). where the ex-wife has found a new partner, or the ex-husband, weekly payments can be reduced. There is no need for a CSA.

The state, having created the climate for child maintenance problem to flourish should be responsible enough to take on the liability it has created. It should alter the climate

If the benefits paid to a divorced mother are currently paid out of general taxation why not go one step further and assume total responsibility ? If needs be create a 0.1% taxation for divorced fathers payable until the child’s 16 birthday, to cover government’s costs of assuming the overall enhanced benefit mantle.

The CSA recovers a fraction of the money it believes is due, so why waste million of pounds every year chasing amounts that will never be recovered ? Why not incentivise the situation instead ?

The acknowledgement of informal / off balance sheet payments by the former husband is a step in that incentivising direction. Informal payments plus enhanced benefits paid out of general taxation, as outlined above, will have the added bonus of lifting many divorced single lone mothers out of poverty (NB. single fathers-with-care seem able to earn enough money not to resort to the panoply of state benefits).

These measures will aid the standard of living of the ex-wife and the children (or lone father with care) and with the threat of sanctions removed, payments may even become more generous and frequent.

Overly-generous CS serves only to perpetuate the poverty trap for single mothers as they have neither the incentive to better themselves or be a better role model for their child.

The fundamental solution confounds previous political thinking. It is to make child support ‘economically neutral’ and thereby remove all perverse economic incentives that naturally tend to inhibit a solution.

End

Ref:

  1. “Belgium Chooses 50/50http://fkce.wordpress.com/2009/09/16/00031/
  2. “An overview of marriage, divorce and the new custody laws in Australia” http://sharedparenting.wordpress.com/2009/09/13/1/
  1. “Benefits of post-divorce shared parenting and the situation in the Netherlands, Belgium and Germany”http://sharedparenting.wordpress.com/2009/01/03/2/
  2. “Dwelling Choices for Divorce Children (Tornstam, 1996)” http://sharedparenting.wordpress.com/1996/03/01/3/
  3. “Child Adjustment in Joint Custody Versus Sole Custody Arrangements: A Meta Analytic Review (Bauserman, 2002)” http://sharedparenting.wordpress.com/2002/03/24/5/

 

Appendix A

“Dead beat dads” is an often heard description of non-resident-fathers thoughtlessly bandied about but as these statistics show, it is misplaced and rightly applies to comparitively very few fathers.

The combined effects of de-stigmatising illegitimate births and state subsidised single parenthood coupled with measures to increase the rate of marital breakdown, sees the number of child support assessment rise from 395,000 in 1996 to over 1 million by 2010.

The statistics listed below (Table G2.07) show from 1996 to 19989 and to 2002 that a sizeable number of non-payers are, in fact, unable to pay. For example, in 1996 of the 395.500non-resident-parents (NRP and usually fathers) who paid CS, 217,600 were employed.

Despite this, 14,800 of the 217,600 non-resident-parents in work paid nothing because of their low level of income. However, 23,300 managed to pay £4.00 or less per week while 38,800 of those unemployed (Income Support) paid £4.00 (or less).

The average assessment in 1996 gave rise to an Average Maintenance payment of £ 23.33 per week. The two bands closest to this figure £19 and £28 show only 18,600 and 23,300 non-resident-parents who were in work paid the assessment (= 41,900). Approx. one third pays no CS (129,200).

It is a feature of governement Depts that over time they alter the basis of the data collection and the numbering of tablse making comparisons sometimes  difficult. To avoid this special enquiries were made of the DWP to give a consistent basis for all the tables listed below (1996 – 2010)

 

May 1996

In 1996 when there were 395,000 NRP of whom 150,000 were unemployed (23,300 UB + 127,500 IS), representing just under 50% of all CSA Maintenance Assessments.

Payment pattern shown here in Appendix A are repeated in North America and Australia.  Between a half and two thirds (50%  to 66%) of those categorised as ‘defaulters’ are on low-incomes; are unemployed; or debilitated with substance abuse; and/or have suffer from mental health problems including para-suicide induced disabilities.

 

May 1999

By the time 1999 statistics were collated, there were 864,000 non-resident-parents (NRP) with CS maintenance assessments. There are 409,000 NRP (non-resident-parents) in work, 91,500 unemployed plus a further 216,800 on Income Support (409,000 in work vs 308,300).

This compares unfavourably with 1996 when the total for non-resident-parents (NRP) in work was 217,600 with 150,000 unemployed (23,300 UB + 127,500 IS). However, while the numbers showed an improvement the proportion of NRP paying maintenance fell to approximately half from two thirds, i.e. 395 v 217 and 864 v 409 respectively. Approx. half pay no CS (415,100).

May 2002

Although maintenance assessments have, by 2002, mushroomed to over 1 million (1,045,700), 500,000, or a half NRPs still pay no CS (510,000).

Approx 500,000 NRPs are in employment and pay CS.

Some good news can be derived from the ratio of the unemployed to maintenance assessments, where unemployment represents only 282,900 of the 1,035,700 assessments.

 

March 2010

A quite remarkable turnaround is seen in CS numbers in 2010. Following a re-naming of the service where the old CSA became the new ‘Child Maintenance and Enforcement Commission’ (CMEC), some cases were dropped and the new agency focused on the recalcitrant.

Annex G (below), shows the total number of weekly CSA assessment to have fallen to 255,600 with approx. half of assessed fathers paying nothing (140,000). However the proportion of unemployed fathers being pursued by the CMEC (CSA) has dropped significantly to 61,200. Whereas in 2002 there were 503,000 employed fathers on the CSA’s books, by 2010 these had been cut back to only 116,000 – a far more manageable number.

Appendix B

The ‘gatekeeping’ phenomenon

Gatekeeping can be seen as an expression of power and a display of power to the other parent. It also applies to the unrestricted power of decision making enjoyed by mothers.

‘Gatekeeping’, is an American term for mothers who hold the ‘veto’ over whether their child sees its father, precipitates unpleasant confrontation and can triggers unwanted actions and or events. Reinforcing such a regime perpetuates the very dangers that feminists are fond of exaggerating

One of the earliest references to this phenomenon was by Brigham Young University Family Studies Center in April 6, 1999 (see Journal of Marriage and the Family). Their study defined and empirically document “maternal gatekeeping.”

The study explored how women’s beliefs and behaviors may actually be one of the potential factors inhibiting a collaborative effort between men and women in housework and child-care. The article is based on a sample of 622 dual-earner mothers.
“While many mothers in the workforce feel they need more support in family work, most don’t even realize their actions may be placing obstacles in the way. They, themselves, may be limiting the amount of their husband’s involvement.” – Sarah Allen, author of the study.

Maternal gate keeping is defined as having three dimensions including the following:

  1. Mother’s reluctance to relinquish responsibility for family matters by setting rigid standards;
  2. The need for external validation of one’s mothering identity; and
  3. Traditional conceptions of family roles

All of these factors apply in extreme measure after a divorce.

Commenting on the same phenomenon Warren Farrell, in his book Father and Child Reunion, believes that mother-only households should be discouraged, in part by overturning the “tender-years doctrine,” which for most of the 20th century has encouraged judges to place young children in the primary care of their mother in cases of divorce.

One of the objections to joint / shared custody of the children is that it is a disincentive for divorce. Some studies have shown that the divorce rate has fallen in those jurisdictions where it has been introduce but this could be coincidental, or due to other factors.

It has been argued that to sponsor joint / shared custody is to invite higher levels of false allegations of abuse in order to restrict custody for one of the parents. However, this ignores the true reality of the preset regime of sole mother custody where spurious claims are commonplace in order to achieve a quick custody ruling. Currently, the accusing parent is seldom held accountable even if the allegations are, eventually, found to be groundless. How courts will deal with this in the future in open to debate.

Appendix C

Child homicides resulting from a failure Social Service oversight or child protection shortcomings are usually well publicised. These are ‘public law’ cases and we, the public, know about them because more press freedom is allowed compared with ‘private law’ cases. The most obscene of these public law cases usually results in a Public Inquiry, e.g. Lord Laming.

By comparison we know next to nothing of private law cases because they relate to the secret nature of Family Courts where details are suppressed and identities censured.

Whatwe do know is the total number, by way of published statistics and the gender / age pattern emerging from countries which publish the details of the perpetrators of child murders (mother predominate as perpetrator in this sphere).

The ‘child’s best interests’ (CBI), and ‘the interests of the child are paramount’ as mantras have been successful techniques used (usually by women’s lobby groups), to block any equality in custody matters between fathers and mothers. The assumption being that custody awards to fathers are somehow dangerous and will lead to an increased likelihood of child murders. This assertion has thwarted anyattempt to increase father participation.

Beginning in 2001 Women’s Aid openly accused fathers of murdering their children during contact visits and the like. This was part of Women’s Aid campaign against more contact (visitation rights), and they alleged that they had found 29 homicides by fathers over a 10 year period from 1994 to 2004.

They brought this to the attention of a Lord Chancellor’s Dept (LCD). committee looking into how to expand contact for fathers. LCD staff promised to investigate and duly reported that they could find no such numbers and instances.

Left: Lord Justice Nicholas Wall                           

Despite having no factual foundation the allegations continued to appear on Women’s Aid’s website for some years after.

They must have continued to apply pressure regarding their ‘data’ for in 2005 Butler Sloss head of the Family Division announced thatshe had appointed Lord Justice Nicholas Wall to examine their claims. Wall’s 2006 Report can be read at  http://www.dca.gov.uk/judicial/judges/report_childhomicides.pdf

Breifly:

Justice Nicholas Wall’s published his report into the claims made by Women’s Aid against fathers being given contact in March 2006. In the process he totally discredited Women’s Aid’s position.Of the 29 cases Women’s Aid listed none were found to have any linkage between contact, or fathers or court orders There was no potential for child endangerment from granting contact rights to fathers.

Enquiries triggered by Women’s Aid’s claims had a boomerang effect. Statistics revealed that it was not the fathers but mothers who presented a danger to children – in terms of serious abuse, neglect, and homicides etc. Given that the annual child death rate from unnatural causes is 100+ that should tell all of us that over a ten year period 1,000 child deaths are to be expected and for fathers to account allegedly for only 29 is eidcne that they are a safer palce for custody than mothers.

This has not deterred Women’s Aid and in 1009 the samer false information could be found on their website with no advice or caveatto the reader thatthe assertions have been proven to be untrue.

Appendix D

The role played by Sally Field and Amanda Finlay

(of the Lord Chancellor’s Dept)

in the forestalling of share parenting.

Minutes

(Abridged)

Tuesday 29 October 2002 at 1.00pm, LCD and ‘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).

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Sally FieldIt 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 PSA 8 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.

Appendix D (1)

Royal Kensington Garden Hotel, London

October 29th 2002

On the evening of the same day as the meeting with LCD staff, i.e. Oct 29th 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 shared parenting 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.

Appendix E

Geo-divide 1987

The distinct North South geo-divide in custody settlements in the 1980s is shown here in a map taken from the pages of  “Supplement to Working Paper No 96″ a Law Commission Report.

In the north, shared or joint custody ‘averaged’ 10% or less, whereas in the south and Oxford it accounted for 25%, with the highest penetration reaching 55% (ref; Law Commission Report). There was no unified standard adopted by courts and therefore adjacent court regions often awarded very different rates of joint custody. However, after the Children Act 1989, all that chanegd and in effect a unified system found previously only in the north was applied to the whole country.

 
 Footnotes:
 

[1] See “Belgium Chooses 50/50” http://fkce.wordpress.com/2009/09/16/00031/

[2] “Divorce plan puts children first Fathers’ call for automatic 50-50 contact time ruled out”   http://www.guardian.co.uk/society/2004/jul/22/childrensservices.socialcare1

[3] Supplement to Working Paper No 96, by J. A. Priest and J. C. Whybrow,

[4] See also “Strengthening Marriage Through Divorce and Custody Reform”, by Prof Stephen Baskerville, “The Family in America”  Volume 18  Number (5th May 2004)

[5] Sprawson was made head of the Child Benefit Policy section at the Department for Work and Pensions (“the Department”) in 1999. His role was “to manage the development and maintenance of policy on Child Benefit and Guardian’s Allowance, and to give advice to ministers on those matters” (re: Hockenjos case above)

See also: “Fireman Loses First Round in Child Benefits Challenge”, Firefighter Kevin Barber today accused the government of “unfairness” as he lost his High Court test case battle over child benefits. A judge rejected his claim that the money should be split equally between separated couples when father and mother played an equal role in caring for their children. Judge ruled that the 1975 computer code legally deprived the fireman of equal treatment.

[6] ‘Shared Residence: Not a magic solution’, Flowerdew, Neale & Smart 2004. http://reporter.leeds.ac.uk/493/s3.htm . See also http://www.canadiancrc.com/articles/University_Leeds_Shared_Parenting_DEC03.htm (full text).

[7]   ‘Children ‘used as pawns’ by parents’, Dr Bren Neale  December 20, 2004. Yahoo News

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8 Comments leave one →
  1. February 8, 2012 11:09 am

    As a separated Father with a harmonious relationship with my ex… I disagree that it is best for the children to be brought up in a shared custodial arrangement… where their existance is essentially split between 2 homes… I believe a rightful arrangement is that children live with the Mother… and have a stable base with her… and then flexible arrangements are made around that. Shared custody seems just to be an arrangement that just appeases the Fathers emotional needs without really putting the children’s interests first.

    • rwhiston permalink
      June 22, 2012 12:40 am

      Chris, all the credible literature and surveys show that the emotional needs and children’s interests you cite are best served by a father being either in the family unit or spending a lot of time with them to show he cares. Children draw strength and confidence from this. The red herring about children split between 2 homes is based on small sample surveys emanating from a certain quarter. If your regime works then that’s fine – but will it work in 10 years time when they are grown up ?
      “By their fruits shall ye know them.” Let’s hope they all turn out well and are a credit to you.

  2. R Whiston permalink
    April 2, 2012 1:26 am

    Chris, If you have a harmonious relationship then I am glad for you. If your custodial arrangement suit both you and your wife then that is excellent news. However, imagine if you were ordered by the court to have only shared parenting arrangements ? That might not suit you and might disrupt your life style. Similarly, for those fathers who want more than you, want to be more than an occasional visitor why shoud they be forced to have a regime that does not suit them ? During marriage these fathers had unlimited access to their children’s lives, why should it be curtailed after marriage ? Shared custody can and does provide the stable base you suggest but it is equally possible to allow it to provide two stable bases. It all depends on the ratio agreed between the parents. You have a ratio that suits you. The right to choose and flexibility, not rigidity, is the name of the game. I think if you read any of the literature or Gov’t statements you will find that the input of ‘both’ father and mother into a child’s life has benefits greater than you suppose and puts children’s interests first.

  3. Bruno D'Itri permalink
    June 21, 2012 8:26 pm

    Our elected Government plans to bolster the legal right of a child to have a meaningful and on-going relationship with both its parents, post separation/divorce. It recognises that family law, as it currently stands, all too often fails to serve a child’s best interests in this extremely important respect.
    The Children Act (1989) rightly instructed the judiciary to serve the child’s paramount interests. However, the judiciary has singularly failed to understand or accept that a child’s paramount interests are, in the vast majority of cases, actually best served by facilitating and enforcing its meaningful relationship with both its parents. Instead, the judiciary has remained wedded to the archaic ‘single parent’, ‘primary carer’ model; an approach which has, sadly, led to a generation of fatherless children. The judiciary’s approach is out of date and simply does not reflect the modern-day realities of 21st Century shared parenting.
    The aim of our Government’s proposed legislative changes is to make it very explicit to the judiciary that, for most children in litigated cases, ‘best interests’ equates to ‘shared parenting’.
    Let us hope that any amendment to the Children Act (1989) will be robust enough to safeguard a child’s right to be parented by both its parents. Let us also remember that this issue is not about parents’ rights: it is entirely about childrens’ rights.
    Furthermore, let us be absolutely clear that Shared Parenting does NOT, as many critics would have us believe, necessitate a precise 50/50 split of parenting time. This would be highly impractical in most cases. Rather, it is expected to range upwards from 20/80. Another objection from the critics is that it will endanger children. Very plainly, Shared Parenting will only be granted to parents who are not a proven risk to their children. Unsubstantiated allegations made by bitter and disgruntled ex-partners – intent on using ‘their children as weapons’, to coin Sir Nicholas Wall’s expression – should not be enough!
    It is a very great pity that the judiciary has failed to be proactive on Shared Parenting. For example, in the case of Re D (Children) [2010] EWCA Civ 50, Sir Nicholas Wall, the President of the Family Division, was presented with no less than 15 contemporary scientific psychological and sociological research reports which demonstrated, beyond all reasonable doubt, the verifiable benefits for children of maintaining close and meaningful relationships with both parents. This irrefragable scientific evidence went ignored or relegated by him. The Government, to whom the scientific evidence was also sent, is taking full heed. This is precisely why our Government – our elected representatives – needs to legislate. Child welfare is far too important to leave in the hands of a few un-elected High Court judges, who often appear to be out of touch with modern society and family life, and who appear to have little understanding of the importance of scientific evidence.
    Best regards
    Bruno D’Itri

    • rwhiston permalink
      June 22, 2012 12:30 am

      Bruno, I think many SP advocates would agree with your comment that Shared Parenting does not necessitate a precise 50/50 split. It would, indeed, be impractical in most cases. However, take care over wanting only a 20/80 split for that’s what many fathers have already and its not Shared Parenting but only a more generous Contact time (some Dads have only 14%). If you count in a).sleep-overs b). weekends plus c). some of the school holidays, you have to be aiming for 30%+ or many fathers will see no change.

      • Bruno D'Itri permalink
        June 22, 2012 5:07 am

        Hi RWhiston, Thanks for your reply. What I want, and what we might expect to get from the Government and the judiciary are two completely different things! There has been a great deal of discussion within the membership of Families Need Fathers on this very topic. The views ranged from, at one end, demanding 50% shared time, and, at the other, demanding simply that the Principle of SP should be accepted. In my view, any progress will necessarily be gradual. We should understand that Government, and especially the judiciary, are not into revolutionary change. It’s not in the British political DNA. Having said that, I do think we have made very significant progress of late. The Government is going against the Norgrove recommendations of the Family Justice Review; it is going against the trenchant views of the President of the Family Division, Sir Nicholas Wall; and it is going against the vested money-making interests of the family legal ‘service’. It will – barring a U-turn! – be introducting a legislative change to the Children Act (1989). For that, I think we must be content. In my own case, despite a well-established shared parenting regime having been in place, Sir Nicholas Wall applied the now discredited principles of Payne v Payne (2001) and sanctioned the overseas removal of my children. So, for me, 20% would actually be fantastic!
        Something close to 50% is, of course, the ultimate target. However, demanding this at this stage would, in my view, be counter-productive. Our best tactic is to win a series of small battles, rather than to plum for revolutionary overthrow. Best wishes, Bruno D’Itri

      • rwhiston permalink
        June 23, 2012 2:22 am

        Bruno, if you pause a moment you will find not only 180 degree turns are common but that ‘revolts’ are too – and in our DNA. Look at the smoking ban -where did that come from ? Passed in 6 months it seemed like. Look at the 1969 Divorce Reform Act and the MCA 1973. One up-ended marriage and the other up-ended property ownership law. We may gave to wait for another 290 years before this topic comes to the top of the Agenda again, so why not grab all we can ?

  4. Bruno D'Itri permalink
    January 10, 2013 10:21 pm

    History teaches us that powerful and wealthy “special interest groups” have direct and very influential access to Government officials and that they often get their own way, irrespective of what is actually ‘good’ or ‘just’ for society.

    The raison d’etre of the Law Society is to serve the interests of the Legal Industry. Of this, there is no doubt.

    The Law Society is perfectly aware of the extensive and compelling scientific evidence demonstrating, beyond all reasonable doubt, the significant benefits for children of remaining in meaningful contact with both parents post separation or divorce.

    However, the Law Society is also very aware that Shared Parenting legislation is likely to be highly damaging to the interests of its members, as profitable litigation would significantly decrease.

    The Law Society thus faces a real dilemma…

    Should it stand up for the interests of children and support Shared Parenting legislation or, instead, should it stand up for the interests of its members and oppose Shared Parenting legislation?

    It has opted firmly for the latter, and is using all of its sophistry and guile to try to convince our Government that Shared Parenting legislation will be harmful to child welfare.

    Some Government officials, such as Alan Beith, have been taken in. Other Ministry of Justice officials have also been seduced and have stated recently that Shared Parenting legislation is NOT actually expected to alter outcomes in family justice cases. The sole purpose of any new legislation, they have said, is simply to try to dispel the widely-held (but, according to them, quite unjustified) “perception” of anti-father bias in the system! Apparently, hundreds of fathers are only imagining that they are not able to see their children!

    We must do ALL we can to expose the shockingly immoral and self-serving behaviour of the Law Society in order to serve the genuine best interests of thousands of children.

    Bruno D’Itri

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