Parental Rights and the Role of the Courts

In an ideal world, decisions regarding child custody would not have to be made in court. Sadly the reality in 10% of divorce cases, is that courts are forced to take a central role in deciding the future of the affected children. The process of deciding and managing custody cases is often lengthy and drawn out. Time is even more precious when children are involved, and stalling in the decision making can add ammunition to the negative effects of the break up.

In the UK, there has been an ongoing campaign to give further legal rights to  fathers in the UK. Recent proposals to amend the Childrens Act of 1989 were revealed by Ken Clarke yesterday, which would give divorced fathers increased rights to see their children. There is some debate as to whether this would really improve the situation for the affected children.  In Australia the introduction of the right to shared access for both parents caused long delays in custody cases, which can worsen the situation for the children involved. The problems encountered in Australia illustrate that it may not be the law that needs changing but the way the cases are handled.

David Norgrove, who chaired the  Family Justice Review  which was commissioned by the government and published last year, criticised the proposals for reform. The report concluded that the law should not be changed, after thoroughly examining the issue of shared custody. The courts in England and Wales maintain that they assess each case individually and that the welfare of the child takes top priority. The minority of divorce cases that do get heard in the courts are a highly conflicted group, with numerous problems. In these complex cases usually both parents feel unheard. Coming to an agreement regarding custody and shared parenting will not be accelerated by giving parents more rights but by helping them fulfil their responsibilities. Finding a situation that is best for the children is the primary aim in such a situation and should be resolved by trying to give the children a voice. These cases are often very complex, courts already struggle to find the best speedy solution, more legislation could further impair the process.

In the majority of the cases that do go to court, family courts rule in favour of the mother. Because of the conflicted nature of these custody battle, this can result in a proportion of these children having little or no contact with their father. According to the Office for National Statistics, only 8% of single parents in Britain are men. The assumption of the courts is influenced by a traditional image of the nuclear family – where the mother cares for the children and the father works full time. These roles do not necessarily apply to the modern household and the courts bias towards the mother is somewhat out of date.

Growing up without the father can be difficult, but this is not always the fault of the courts or the limited custody rights. There are fathers who make the effort to see their children and there are those that don’t. However they should give the fathers that are good parents and want to have a key role in bringing up their children the opportunity to do so. Both parents have a right to raise their children and to be good parents, whether they are together or not. David Norgrove stated:

“This issue affects the lives of hundreds of thousands of children and it would be negligent not [to consider all options]. It is also right that we continue to encourage fathers to take responsibility as equal parents and to be fully involved with their children from the outset.”

The Children Act 1989 focuses on an individual child and their unique needs, preferences and circumstances. The rights of the child rather than the parents rights should be central in dealing with these cases. The primary issue is the culture of the courts that take an old fashioned stance in dealing with custody cases, rather than the lack of existing laws. The fair  implementation of these laws along with the role of the courts and social services should ensure the child has regular access to both parents.

4 responses to “Parental Rights and the Role of the Courts

  1. Thoughts on the Norgrove report, Ken Clarke, and the Government’s response to the Norgrove report. My sympathies are with Roger.

    I write this from a disenfranchised father’s perspective but knowing also that there are mothers who cannot see their children and many, many grandparents who cannot see their grandchildren.

    When the Norgrove report was published, we were not surprised that they were recommending no change in the current legal status of non-resident parents and grandparents – we had been warned! – but were nevertheless disappointed that really all they were recommending was to make a rotten system a bit more ‘efficient’. I attended one of their ‘public consultations’ in London and was not impressed with either Norgrove himself or his committee. For a start, Norgrove has so many fingers in so many pies that he had to dash off after half-an-hour. Excuse me, but weren’t we discussing one of the most important issues of our time? Sorry, gotta dash! Quite disgraceful. We, the assembled, were put into groups and told to give our views on a number of subjects; I cannot find any of the suggestions finding their way into the final report. Then we were given time (a very little time) to put questions to the committee, or further suggestions. Many of the questions went unanswered. There were no ‘end users’ – i.e. anyone who has gone through the system – on the committee. It was obvious that they had made up their minds what was going in to the final report and this ‘public consultation’ was a bit of window-dressing, and a complete waste of time.

    I am glad that the Government distanced itself almost immediately from the report, saying it was a Government-commissioned report rather than a Government report. They have since stated that they are committed to changing the law for non-resident parents. We will try and hold them to this commitment.

    One of the good things about the report, endorsed by the Government, is the emphasis on mediation to try and stop many cases reaching the Courts. If a couple can agree on a shared parenting arrangement without going to Court, it will save them and the State time and huge amounts of money and with any luck will prevent much of the acrimony that comes with court proceedings. This must be good for children and parents. However if, as in my case, one party does not keep to the agreements reached at mediation and the case subsequently goes to Court, then those agreements should be mandated by the Court. In my own case, the mother used mediation as a cynical exercise in wasting time and alienating my child against me, and did not keep one of the promises made. In Court, the Judge told me that those agreements were ‘irrelevant’. So what was the point?

    The main disappointment with Norgrove was the refusal to give non-resident parents any legal rights to see their child or children. They said that when this was granted in Australia it caused more problems than it solved and that Australia was abandoning the idea (which is not true). There have been difficulties with the system in Oz, from which we can learn, but many of the difficulties have been caused by lawyers rather than parents and it turns out that the report into the problems was written by. . . .a lawyer. I believe a presumption, a right in law, for each parent to see their children is the only way forward. It should be a basic human right, unless there is a proven reason why one or both should not. None of this ‘balance of probability’ nonsense – the burden of proof is essential. This would stop so many cases going to Court in the first place and would (almost) guarantee that each set of grandparents would see their grandchildren also. Losing your own children to a vindictive ex-partner who makes up allegations of ‘abuse’, condoned by the ‘Family’ Court on the ‘balance of probabilities’ is an outrage that destroys people. It is mainly fathers, who are most often the non-resident parents, but mothers can be treated in this way too if they do not have residence. And Grandparents, of course, are almost irrelevant nonentities in our confrontational Family Courts.

    It has been proved, time and time and time again, that children are best brought up knowing both their parents – whether or not those parents live together. Time and again it has been shown that children are more at risk from step-parents, boyfriends, etc. than they are from their natural parents. Yet still this system allows any new boyfriend (or indeed any number of new boyfriends) to move into the home of a child with no questions asked. No police checks for them; no court appearances. ‘New man’ (or sometimes ‘new woman’) is presumed to be fine to be with your child from day one. Yet the father (sometimes the mother) has to go through the hell of the family court system to maybe see their child for a few hours once a fortnight. Or often, not at all. In reality, I cannot see how you could prevent a new partner from moving in, but if the natural parent had the same rights as the new boyfriend to see their own children, those children would at least have another parent to turn to if there was any abuse.

    I always ask the question, why am I allowed to see anybody’s child – any child in the world – except my own? And why can anyone see my child, except me? I have never received an answer, nor do I expect one – there is no answer.

    No mention was made by Norgrove, or is now mentioned by the Government, of opening the Family Courts to public scrutiny. So many heartbreaking abuses have occurred in these courts partly because of the secrecy surrounding them, that we feel we must continue to campaign to open them up. The excuse always made for not doing so is that children’s identities have to remain secret. There is already adequate provision in the Crown and Magistrates Courts to ensure privacy of individuals, often used of late by very rich people who don’t want the public to know how dreadful they are. Publicity is the very soul of justice; justice must be seen to be done.

    I said that the Government, urged on by the admirable Ian Duncan Smith and Tim Loughton, is proposing to change the law for non-resident parents. The one loud dissenting voice has been Ken Clarke, aided by a Junior Minister in his Department, Jonathon Djanogly; unfortunately the Department is the Justice one! Hopefully ‘our Ken’ will be shuffled off in the next re-shuffle and we might have an enlightened and knowledgeable minister to take his place, such as Henry Bellingham. I think the times are a-changing and the process now is gaining momentum. It has been a long time coming, but so powerful and persuasive and truthful have the voices become that change, I believe, is now inevitable. I do hope that a new era in Family Justice is dawning; society will be much the better for it.

    I hope that all this may initiate a lively debate at least! Hope it is of interest.

    With best regards,

    Roger.

  2. Tashalaw, thanks for continuing to post excellent, sensible posts about important topics like this one.

  3. Of course until things change, the situation remains the same. Complex international laws, too much law in some respects, I believe Famly Law, is different it should consider speed, and resolution, to be an important factor. Mediation is very important, with International Law, much less costly, and it helps to heal, another very important issue. We so badly need change here, so many left in limbo, with unsatisfactory time limits.

  4. Still the Hague Convention struggles with the complex issues of the many countries that have signed, does anyone feel that there could be a better solution? I know Mediation is added, but with the cost of this and not to forget the distance from say the UK to any country in the EU, or farther. It still makes this something that is not easy to complete. Children are important to those they are close too. I should love to see improvement within this section of law. This includes all the family, grandparents are a must too, if they can be of benefit to the child/children. I loved my father, he played a very important part in my life, one I will never forget.

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