All Party Parliamentary Group on Family Law

Last week on the 15th Feb, the All Parliamentary Group on Family Law met for a debate in the House of Commons, the event was entitled: Shared Parenting: Panacea or Placebo?

Ray Barry, Tim Line and Stu G were amongst 5 or 6 Rffj members in attendance, Ray's report is on the EPA site

The next event is entitled "Transparency in the family courts"
This is a public event due to take place on Tuesday, March 29th at 6.30pm in the House of Commons

Stu G's report from the 15th Feb is below:

The All Party Parliamentary Group on Family Law and the Court of Protection
Speaker Meeting in the House of Commons
On Tuesday, 15th February 2011

Shared Parenting – Panacea or Placebo?


Report by Stu G
Research and Development Coordinator, Rffj


This Speaker Meeting was the third in a series. Far more people attended this third event than the second. This time, every seat in the Grand Committee Room was taken. The meeting was chaired by Baroness Deech and John Hemming, with two guest speakers advocating in favour of and two against the proposals of a legal presumption of shared parenting.

Most, if not all the other civilized jurisdictions in the universe, no longer concern themselves with whether or not shared parenting should be a legal presumption. Florida led the way decades ago and most nations have followed suit. All have conducted their own credible, longitudinal research with massive sample groups of children in and out of shared parenting arrangements. With the pathetic exception of the UK, all have decided that not only does shared parenting provide children infinitely better outcomes, they have actually defined shared parenting in terms of parental split of the child’s time and long since enacted laws with supportive social policies to implement and underpin shared parenting as the norm.

Here we were, in the second decade of the 21st Century, to engage in the typical British way of doing things: delay progress whilst we hold lots of meetings to which no experts are invited as speakers. These debates then rage on for decades. The old joke of joining the words ‘mass’ and ‘debate’ seems appropriate. Factions form, new leaders appear, and the overall message is diluted as each faction produces much the same material and proposals in different colours. Last Tuesday, we listened to four of the UK’s most eminent non-specialists part with their thoughts in their allocated ten minute speeches.

Just for the record, the Early Interventions Project has long since addressed the issues we were assembling to ‘discuss’. It was directed to happen in 2003 but scuppered by the Civil Service/ CAFASS. Its components were then plagiarized by separate father’s groups who chose not to collaborate with each other. Therefore, in a way, the evening was akin to hearing two speakers reinvent the wheel and two try to further buckle it.


John Baker, the Policy Officer of The Association of Shared Parenting.


First to speak was John. He spoke of his organization’s promotion of a draft Parliamentary Bill (Shared Parenting Bill), which he admitted ‘will not become law’. He expressed the need for a rebuttable presumption of shared parenting instead of the current sole resident parent arrangement where one parent wields all powers, including whether the child will have a relationship with the non resident parent. John said absence of resident parent goodwill, or its variance, is best countered by a presumption of contact for the children. The belief that such a presumption already exists is soon shattered when the non resident parent sues for contact. John noted that abusive parents who have their children taken into care have contact rights not afforded to good non resident parents unless they litigate. He gave an example of one particular separated couple who disagreed so much that they even called their children different names.

John moved on to talk about degrees of contact time. CAFCASS were briefly mentioned as the court’s supposed arbitrators of the children’s interests who typically award a flat rate of 1/7 of the child’s time with the father. He listed what ‘parenting time’ was for – it was quite an extensive and inclusive list of activities. In essence, he felt that there was ‘no formula’ and that degrees of parenting time should be linked to the length of the activities list in each particular case.
Lastly, John quoted from Articles 5,7,8,9,18 of the United Nations Convention on the Rights of the Child and suggested they be used as the basis for decisions involving children.

Stu G Comment:

John Baker is a well known and respected campaigner who has devoted much of his life to this cause. His proposal for a draft Parliamentary Bill puzzled me. Very few such bills actually become law - something like 10% - unless they are set in motion by a Cabinet Minister which, in this case, seems unlikely. A quicker and more effective solution to the family law problem would be to impose means of interpreting current law on the judiciary or better still, for the judiciary to adopt a specific interpretative policy. Bills take too long to get nowhere. Money, time and effort is diverted and wasted. Parliamentary Bills are generally a marketing ploy to create the image that we live in a democracy. If you want to spend lots of time and money appearing useful whilst not being very effective, get a backbencher to propose a Bill in the House of Commons.

When taken in the round, I thought that perhaps John contradicted himself in his shared parenting section. Our problems in law derive from a lack of legal definitions, yet he does not see shared parenting as definable in terms of apportionment of time. Furthermore, a significant degree of contact time would be needed to satisfy his well considered activities list. He does have a point, as kids should enjoy contact, but given the choice between calculating time based on activities when the resident parent is uncooperative and having definitive time to spend as the children wish, I’d take the latter. Activities-based contact is a new phenomena which my time-contact conditioned mind needs a while to absorb. When there are hundreds, if not thousands, of credible, empirical research articles positively linking good child outcomes in terms of parenting time, it seems counter-productive to introduce a new concept. John mentioned no research in his speech in support of his maverick idea.

In theory, activities-based contact could be worthy of a limited study. In practice, however, I thought of the disagreeable separated couple John himself used in his speech. I envisaged the following scenario:
(phone call):
Father:
“er…hello dear….I was wondering; I need more time with Timmy because I think it’s time for him to go swimming regularly and under our current activities-based arrangement there is no time allocated for it.”
Mother:
“Yes, good idea. He does need to go swimming more. How thoughtful of you. Just what he needs. But I’ll take him. You can F**k O**!!”.

John is correct about the ideal of adhering to the UNCRC. Experts reporting to the FJR inform that breaching the human rights of children is the norm in UK family courts. But a human rights watchdog needs two things; power and effective monitoring. The UNCRC has no real roots in UK law and court hearings are conducted in secret, with unaccountable operators, and whistleblowers jailed. It’s a good proposal in theory and one echoed recently, again-only-in-theory-so-far, in Australia. But not something which will happen unless the legal framework governing family law changes, which John does not propose in any realistic form.

I anticipated better from John. Despite being a seasoned campaigner, his proposals lack definition. Also, I felt he needs instruction on how law functions in reality, as opposed to theory. So it was disappointing, but no surprise when he concluded his speech without offering any workable solution.


Samantha Callan, Chairman in Residence of the Centre for Social Justice)


Samantha began her speech with the warning of how Great Leaps Forward often fail to match expectation.
She quoted Kennedy and Obama’s elections and the Chinese changes in the 50s and 60s as examples. Inferring the same logic applies to shared parenting, she quoted research from Australia which apparently concludes that children in the most conflicted post separation families do not fare well in shared care arrangements, suffering the worst mental health outcomes. She then admitted that, when part of the Centre for Social Justices’study ‘Breakthrough Britain’, she was part of a team which supported shared parenting. Her opposition to the Shared Parenting Bill hinged on elements the law would not take into account – that of conflicted families. She said the Bill presumes too much, that shared parenting should not be considered in terms of time allocation. She claimed research suggested that six pre-requisites had to exist before shared care could be successful: (1) geographical proximity (2) parents getting along well-enough (3) child focused arrangements (4) commitment to make it work (5) family friendly work practices for mothers and fathers (6) financial comfort –particularly for women.

Again, using Australia as the example, she stated that some separated couples had mistakenly believed the Family Law Act of 2006 to impose equal parenting, or 50/50 split. She classed many of those in 50/50 arrangements as ‘parents tenaciously holding on to their rights rather than the interests of the children.’

Stu G Comment

Arguing against shared parenting is akin to denying the Holocaust. It is the most damaging of prejudicial language, crossing all racial divides. In my view, it takes a rather ignorant person to accept the APPG invitation that Samantha Callan chose to. I wondered whether the speech would match my expectations. It did.

Social and psychological research databases are overflowing with credible papers depicting longitudinal studies, with large and mixed sample groups. The papers are subjected to critical peer review. But the ‘research’ Samantha quotes is written by Jennifer McIntosh, an Australian legal academic who selects sample groups which are more likely to produce the outcomes she seeks. Her work is found in Family Law Studies databases. (Who knows what poison lies therein?). Lawyers and CAFCASS might read it, but nobody else. So only lawyers, whose purposes McIntosh’s work serves, and the untrained, semi-educated and easily impressionable operators of CAFCASS, even bother to read it. Indeed, few seeking accredited social research would subscribe to a Family Law database.
McIntosh repeatedly makes the same claim and seeks to prove it – that shared parenting in conflicted families does not work.

It is a deliberately narrow trajectory. Luckily, only a minority of fools, prejudicators and legal profiteers take on board the message that it is the element of shared parenting, rather than the element of conflict, that causes the distress to the children involved. Unfortunately, these are the people with the biggest mouths, and their shameless ability to sensationalize will always ensure they get more airplay. Furthermore, as ever, McIntosh presumes the post-separation conflict is always instigated by the father. Most of the conflict revolves around parenting time, therefore the simple solution is to remove that issue via legal presumptions and most of the conflict will disappear.

Limiting the occurrence of shared parenting to cooperative parents encourages intransigence from mothers who wish to avoid it. It is a surreptitious means of maintaining the status quo.
McIntosh is unpopular in Australia; even judges have criticized her. Her work has no statistical significance whatsoever, and is therefore not credible enough to base sound policy on. One has to ask the question as to why, when her work is not taken seriously by the Australian government, judiciary or real researchers, would anybody wish to import her bilge to the UK? Perhaps Callan aims to be McIntosh’s UK equivalent.

No doubt the legal fraternity will be queuing up to desperately provide Callan with ‘research’ funding, safe in the pre-determined knowledge that her papers will mirror McIntosh’s and ‘suggest’ against the presumption/espouse the ‘disaster’ of shared parenting.
Whenever a speaker wishes to argue against the obvious, they need to weave a story. Judges in family courts do it often. They select a principal and build a story around it. Facts that do not attach well are disregarded. The imposed judicial outcome is ‘based on principal’.

Callan is doing the same in her speech by ignoring empirical research. Six key facts she chooses not to import from Australia are (1) that shared care is a political success (it is not the political disaster she claimed it to be during question time, losing a handful of feminist votes hurt no-one), (2) that monitoring has shown the outcomes for children to be far better than the previous system, (3) that kids are very happy to spend time alone with their fathers, (4) that mothers murder more than twice as many children as fathers and (6) that 80% of child abuse happens in the homes of sole resident parent mothers.

Callan also has trouble filling out her allocated speech time, so talks about American Presidents and China in the 50s. The Great Leap Forward analogy is completely misplaced – the rest of the world has already implemented presumptions of shared care; some jurisdictions ‘leaped’ decades ago. ‘Breakthrough Britain’, was a study motivated not so much about social breakdown, but how to reduce its cost to the nation. This implies that fathers will have a stronger argument to remain in the lives of their children if it saves the government money. (Luckily, it does). To claim expertise in matters involving children because of having worked on the Breakthrough Britain team does not, to me, add up. You do not measure a child’s quality of life with a calculator.

Another ploy, when faced with defeat, is to invent surrender terms. In court, this is often achieved when a mother’s counsel concocts a Schedule to a Contact Order, imposing conditions, at the whim of the mother, under which the directions of a judge will happen. The judge will undermine his own directions by approving the Schedule without reading it. So, in her speech, Callan lists six circumstances under which she feels shared parenting could happen, five of which can (and will) be undermined by the resident parent.



Craig Pickering
CEO
Families Need Fathers

Craig chose to tackle the detractors head-on: picking apart the argument against shared parenting.
He used five headings; (1) that Parental responsibility is inadequate, (2) that shared parenting is impractical/children do not like it (3) that ‘a child needs a home’, (4) that high conflict parents should not share parenting, (5) the ‘quality verses quantity’ argument, (6) and protecting children from abuse.

Craig accurately stated that, outside of the courts, PR has little or no significance or practical use, and later linked into how related law such as Child Maintenance benefits sole resident parents. He tied levels of shared parenting to practicalities such as the nearness of the separated parent. He defined shared parenting as an arrangement in which the children spent between 30-70% of time with either parent. He pointed out that researchers often interpret children’s views when negating share parenting too literally i.e. that the same complaints about their parents abound in intact families.
Craig referred to the intent of the Children Act 1989 being undermined; that the pre-1989 system has simply rolled on under different terminology.

Craig countered Callan’s high conflict argument well enough by quoting credible research and did the same for the ‘quality versus quantity’ argument.
So far as shared parenting ‘exposing children to abuse,’ Craig hinted that many abuse allegations were frivolous and that the onus of proof should be on the accuser. Again, he quoted credible research from the Australian Institute of Family Studies showing that even in separated families where the mother has fears about shared parenting, the arrangements are going well, benefiting the children involved, and that 37% of parents in this troublesome bracket are cooperating eventually. FNF proposes that CAFCASS be “focused primarily on the issue of sorting real from falsely alleged abuse with stronger links to other agencies”.

Stu G Comment
Craig’s was the shortest and best speech of the evening. It was the only speech of the evening which actually defined shared parenting and provided credible meta-analysis evidence paths to back up his position. (A meta analysis is an expert review of several other research papers, sometimes hundreds of them, to find common themes). In contrast, Callan provided no credible evidence for her views and concealed her sources of information.

Craig made the best of his limited ten-minute opportunity. I’m sure that given more time he would have went further. Ten minutes is simply not long enough and the points he has made speak for themselves. The only real criticisms I would have are that he could have produced the Australian evidence showing sole residence to be a very risky arrangement for children and I’m critical that his proposals to the FJR perceive a continued role for CAFCASS.

CAFCASS, in many ways, are the root of the problem. A decade after coming into existence, they are still untrained in the very subject of concern – appropriate levels of contact, under what circumstances, how soon. This is a fundamental failure; the courts are still ill-advised due to CAFCASS’s choice of completely ignoring their own remit. CAFCASS are also unaccountable. CAFCASS officers often quote from the same bent ‘research’ as Callan (“two homes can be confusing for a child etc”).

It seems untenable that FNF can recommend the continuance of an agency labelled by the Public Accounts Committee as ‘unfit for purpose’. I also have concerns about ‘other agencies’- which could include domestic violence agencies.

Only two agencies need be involved with allegations of abuse: the Police and the Crown Prosecution Service. If allegations are unworthy of proper, criminal investigation, to criminal levels of proof, they need not be part of the picture. Local Police could work closely with local authorities on the few cases left in the court system once a rebuttable presumption of shared parenting is enshrined in law. CAFCASS will no longer be required to produce their untrained, simplistic and biased reports to guide courts on whether or not children should see their good-enough fathers – contact will happen by default, and quickly. Proposing that proof of allegations be required whilst recommending the retention of CAFCASS appears contradictory.

David Hodson; The International Family Law Group


The download version of David’s speech papers had a two page prefix advertising his company and his numerous personal achievements. He works in both the UK and Australia as a lawyer as well as being a part time District Judge at the Principal Registry of the Family Division, London. He is a senior member of the UK College of Family Mediators and Chartered Institute of Arbitrators. He has co-written and edited books on Family Law.

David began in story mode…
“In the beginning, or at least in the 1970s and 1980s, three dinosaurs roamed the postparental separation world: custody, care and control and access….” and proceeded to entertain the audience with how the Children Act 1989 changed all that.
The story went on to show how shared residence orders evolved. “In A v A (Minors) (Shared Residence Orders) (1994) 1 FLR 669, the High Court judge said they should only be made when there was “something unusual” about the case”. The “non-resident parent” status was thus reinvented, and we were back where we started pre-1989.

(Fathers rebelled). Lawyers started to make shared residence orders and they “have been a predominant theme of the past 10 years.”
David ran through the cases which advanced the shared residence order and the reasons in each case for the move forwards:
In Re K (Residence Order: Securing Contact) (1999) 1 FLR 583
“important to bear in mind that nowadays, as opposed to a considerable number of years ago, fathers are at times better equipped to look after children than they were”.
In D v D (Shared Residence Orders) (2001) 1 FLR 495, “the test was the
child's best interests and that it did not require exceptional circumstances to justify the
order. It was sufficient to show that it reflected the child's best interests.”

In Re F (2003) 2 FLR 397, “a shared residence order had to reflect the underlying reality of where the children lived their lives.” In A v A (2004) 1 FLR 1195, it was found that the mother was making unilateral decisions about health and education without reference to the father and marginalising him. In Re P (Shared residence order) (2006) 2 FLR 347, “it does not need exceptional or unusual circumstances for a shared residence order to be made and the additional value of a shared residence order was conveying the court’s message that neither party is in control and that the court expects parents to co-operate with each other for the benefit of the children.”

Re K (Shared Residence Order) (2008) 2 FLR 380, “the first instance judge could quite properly refuse equal division of time and still make a shared residence order.” Re D (Leave to remove: Shared Residence) (2006) Fam Law 1006, the High Court made a shared residence order where the parents were in different countries, Re AR (A Child: Relocation) (2010) EWHC 1346, the newly appointed Mr Justice Mostyn said that “nowadays a shared residence order is the rule rather than the exception even where the quantum of care undertaken by each parent is decidedly unequal.” T v T (Shared Residence) (2010) EWCA 1366 Lady Justice Black said Mostyn had moved too fast and shared residence should be made in the “best interests of the child”.

David then said that the lessons of the 2006 change in law in Australia had affected the pace of change in England. He claimed that fathers mediated for equal levels of contact rather than what was in the interests of the children. He then summarised and agreed with the July 2009 Centre for Social Justice report “Every Family Matters” which identified all the areas of unhappiness in family law but concluded there was no need to radically change the law, other than for it to recognise the two parent framework and encourage shared residence. David concluded by saying that, in essence, there was no need to change the law because all that reformists seek is already there.


Stu G Comment:

David did not advocate against shared parenting as such but against the need for a presumption of shared parenting, basing his argument on his belief that, in principal, it is already here.

He is talking absolute rubbish.

Maybe I am moving too fast. Could it be that in every case where he acts as a lawyer David wins shared residence for his clients when they are fathers and loses sole residence applications when they are mothers? When he acts in his role as a part-time judge, does he always practice what he preaches? Does he direct shared residence in line with the guidance of the Court of Appeal? If so, all fathers should form a queue at his practice and outside his court. Perhaps that is why he put his company details on the front and second pages of his speech. But I’m sure if we ask David how many shared residence orders he has achieved or directed we’ll get the response of ‘oh, I can’t go into individual cases etc..’ And I do hope that when his firm is instructed, it is he who personally does the representation, not a fresh faced beginner.

David’s long-winded legal argument falls down before the race is even on. His story is based around principal. Again, the real facts that do not easily attach to the narrative are disregarded. To be credible, his speech needs to be based around practice. Reality contradicts his rose tinted view of family law.

The Children Act 1989 intended shared residence to be the norm. As David himself says, there is no term of ‘non-resident parent’ in the Act. Mike Robinson (a truthful expert and realist) has documented how Hansard and House of Commons guidance from 1989 shows shared residence to have been the intent of Parliament. (Hansard Debate 19December 1988, page 1217 to 1219, and the House of Commons reference sheet 89/5.13 on the Children Bill, 26 June 1989).

I quote:
“History shows us that family law reform is only successful if the courts accept it. Legislative change alone is not enough. What is needed is the narrowing of judicial discretion, stricter and more detailed external guidance, and the Supreme Court’s unfettered oversight of the judicial system to limit xenophobic reaction to change and dogmatism.” (Mike Robinson, McKenzie, Autumn 2010, Issue 90 p12-13)

In other words, the judiciary betrayed Parliament post-1989 and continued the legal industry, with all its multiple income streams for the legal profession, just as it was before the Children Act came into force. Shared residence was stolen by judges, then sold back to litigators by drip feed.

The best way to ensure the largest financial return on any model is to update it every couple of years. Each time the shared residence model was upgraded, no doubt a flurry of court applications followed, as more fathers fell into new brackets of qualification. The reality was that most of the applications were, and still are, refused without proper reason. Shared residence is the carrot, fathers are the donkeys parting with their money, searching for an equal status that few will achieve.

The success or failure of applications does not rely on merit. The Court of Appeal keeps the tills ringing by selling dreams; fathers clamour for that elusive, winning lottery ticket.
Lord Justice Wall himself contradicted Hodson’s position in his speech to FNF last year. When addressing the issue of shared residence orders, he said: “some judges like them, some judges don’t”. It is not about circumstances. There have even been a case where a father litigated for shared residence, having had years of increasing, trouble free contact, and was denied further contact to his children.

If the select few Court of Appeal cases that David quotes are presumed to provide guidance to and monitoring for the lower courts, that system is failing entirely. The Lord Justices are none other than the same High Court judges who have pocketed handsomely by undermining the Children Act over the previous two decades. Section 54 of the Access to Justice Act prevents appeals from the Court of Appeal to the Supreme Court. We have a legal system which is pretty much sealed for profit.

During question time David again contradicted his speech when admitting that judges have no training in what is in the interests of children: “it is unacceptable that a judge can sit on a bankruptcy case in the morning and a child matter case in the afternoon…. Judges need to specialize.” These comments of untrained judges do not sit well with David’s story of all being well; that there is no need for change etc. They sit better with Mike Robinson’s quote above. The sad truth is that most of the judges in family courts are untrained and do not really know the law. They know a couple of principals, and how to weave narrative to suit. David’s solution to the crisis, during question time, echoed that of his master LJ Wall : “more money, more judges.”

The real solution is a rebuttable presumption of shared parenting, along with a definition in terms of minimum parenting time, less cases in court; with those who do end up in court facing real judges who know the needs of children, and know the law.

David Hodson is also a mediator. He must know that the introduction of the legal presumption of shared parenting vastly improved the outcomes for mediating couples in Australia, with 87% agreeing shared parenting in or out of mediation. He chose not to share that fact with us. Instead he deflected the argument by insinuating that shared care was misinterpreted as 50/50 split, and that many of the 50/50 arrangements fell down.

The reality is that the shared care bracket in Australia is not 50/50 but 35-65%. It has been unequivocally proven to provide the best and happiest outcomes for children. Anybody who tries to convince you otherwise is just selling you an old, tall story; a car with a bent and rusty chassis. It does not matter who they are, what they are, or who they think they are. Do not be convinced, and don’t buy it.

On Tuesday, 15th February 2011, at The All Party Parliamentary Group on Family Law and the Court of Protection Speaker Meeting in the House of Commons, the only members of the audience who bought David and Samantha’s stories were the lawyers.