what about the children?

by Danka Neuborn *

what about the children? | help and info

Divorced fathers campaigning for the right to have contact with their children have been in the news over the last few months. Bob Geldof's attack on the legal system for its treatment of fathers in custody battles, 'Batman', the Fathers4Justice activist who scaled the walls of Buckingham Palace, and statements by Children's Minister Margaret Hodge that the courts do not favour either parent when ruling on where the children should live, all indicate that a significant debate is underway.

© C4

This article will explain the legal perspective behind the courts' decisions about where children should live and what contact they should have with each of their parents, and shed some light on the thinking behind the decisions that have hit the headlines.

The Government Green Paper, Parental Separation: Children's neds and Parents' Responsibilities, published in July, puts forward proposals which are intended to help separating parents to resolve disputes in a way that ensures that their children's needs are met (see help and info). The Green Paper aims to:

• minimise conflict and support good outcomes for children and their parents, preferably without recourse to the courts
• improve parental access to services which will enable them to reach agreements
• improve legal processes and service delivery for those who do go to court.

the law

The law on parental rights – or more accurately on parental responsibilities – is laid down in the Children Act 1989. Parents who are married to each other both have equal responsibilities to their children. Until recently, an unmarried father did not have an automatic right to contact with his children and responsibility to care for them but would have to make an agreement with the mother or obtain a court order if he wanted to formalise his position if the parents separated. However the law changed in December 2003. Since then, if the father was present at the registration of the birth and his name is on the child's birth certificate, his position has been equal to that of a mother.

The child's welfare is the most important consideration. Any arrangements after the break-up of the parents' relationship must treat the children's interests as paramount. One of the principles of the 1989 Act is that the concept of parental responsibility has replaced that of parental rights.

Rather than parents having rights to the child, the child has a right to have a relationship with both parents. The spirit of the Children Act is that the there should be no need for court orders but that parents should be able to make arrangements for their children without the intervention of the law. The aim was to minimise the adversarial situation parents often found themselves in after a break-up by changing the words 'custody' and 'access' to 'residence' and 'contact'. It should not be a case of 'winning' or 'losing' but of making the best possible arrangements for all concerned, especially the children.

secrecy

Campaigners for fathers' rights accuse the judiciary of dealing with child residence matters in secret and making decisions behind closed doors. This is not strictly true. The Children and Family Court Advisory and Support Service (CAFCASS) is the public body set up in 2001 to advise the courts on what it considers to be the child's best interests (see help and info). CAFCASS officers consult both parents before compiling a report setting out the arrangements they believe to be in the best interests of the child. The children are consulted too, if they are old enough to articulate their feelings and wishes.

If any serious allegations, such as abuse, are made, a Social Services report is filed. When the judge has heard all the evidence, he or she will give a judgement and explain the reasons behind it. The people who are affected by the decision are aware of all the documents that have been used in helping the judge come to that particular conclusion.

prejudice

Some fathers feel strongly that if, during these proceedings, the mother has undermined their position as a significant adult in their child's life, the judiciary tends to accept her perspective. There are a variety of reasons why judges may believe it is in the children's best interests to continue living with the mother. For example:

- Although many women are the main or only breadwinner in their family, it is also often the case that mothers have flexible working hours, part-time jobs or don't wok at all, which means they are more likely than fathers to be available to look after the children out of school hours.

- Even though courts grant joint residence orders more frequently than they used to, one of the homes is still usually seen as the main one because, after a separation, finances may not stretch to supporting two households that are suitable for the children.

- Despite all the changes in the family over the last few decades, it is still more common for mothers to take most responsibility for the care of very young children. So although fathers may have the ability to carry out those tasks, in practice small children are more used to receiving support and care from their mother in their early years.

It's also important to remember that a residence order made immediately after a separation or divorce is not necessarily final. As children grow older and their situation changes, it is possible to change the decision about which parent they will live with.

intransigence

Although most families come to terms with the arrangements that have to be made after a divorce or separation, sometimes the adults can't or won't resolve their differences. There is a minority of cases where, for example, mothers undermine the child's contact with the father or even sabotage it altogether, despite repeated appearances in court and CAFCASS reports that promote contact. If this happens, the courts are able to impose a number of penalties, which include sending the mother to prison or imposing a fine.

However, the judge has to take into account the damage that would be done to the children if their mother went to prison. This could leave the children with no one to care for them, especially if their relationship with their father were tenuous. The disadvantage of a fine is that mothers who could afford to pay would not see it as a punishment, and in a family where money is short, the children will suffer from funds being diverted away from them.

The judge may also change the decision and order the children to live with their father. This can work if there has been ongoing contact with the father and if the change of residence does not mean a complete change of lifestyle – for instance, moving away from their community, school, friends and relatives. The judge will also ensure that, in ordering such a change in residence, the father will promote contact with mother afterwards and not try to 'pay her back'.

Another possible outcome is for the judge to order a suspended sentence that lasts until the children reach adulthood. This means that they don't lose their mother, but she does realise how important it is for them to be in contact with their other parent.

equality

The Government's Green Paper acknowledges the changing role of fathers and recognises that, in many families, they take more responsibility for childcare than in previous generations. It also acknowledges that both parents have a responsibility to each other to enable them to sustain their relationships with their child.

Some parents believe that this means they should automatically be granted the right to spend an equal amount of time with the child. Here, too, the courts recognise that children are not belongings. Like anyone else, they need a base: a bedroom where they can keep their possessions; the security of a routine, especially during term time. Though they should be free to stay with each parent when they want to and it is practical to do so, and should also be able to have frequent contact by telephone, it is unlikely to be in their best interests to shuttle to and fro between two households, neither of which really feels like home.

the way forward

One of the main aims of the 1989 Children Act is to promote voluntary arrangements for the care of children and, as far as possible, to avoid the bitter conflicts that end up with parents facing each other across a courtroom. In the aftermath of a divorce or separation, though, when feelings are running high, the prospect of agreeing such arrangements can seem almost impossible. There are several ways of working through the conflict and achieving agreement.

Mediation With a trained mediator parents can discuss all aspects of parenting with the aim of coming to the best possible decision for the children. This is a voluntary process, so both parents have to agree to attend.

Collaborative law Like mediation this requires the co-operation of both parents and a desire to reach a satisfactory solution without judicial intervention. The difference between this and mediation is that here they sign a document at the outset, in which they agree that they will neither go to court nor threaten court proceedings. They attend meetings with their solicitors and receive legal advice throughout.

Counselling-parenting programmes The courts may refer the defaulting parent to a counselling and parenting programme with the aim of overcoming the prejudice they have against their former partner and enabling them to acknowledge the importance of the other parent in the lives of the children.

In the Green Paper, Parental Separation: Children's needs and Parents' Responsibilities, the Government clearly states its aim of increasing the number of disputes that can be resolved outside the court forum. A Family Resolution Pilot Scheme was launched in September, although this is limited to Brighton, Sunderland and a small area of London. Each applicant to the scheme will receive an information pack and will attend group sessions in which they will watch a video showing the experiences of children who have been through parental separation and have discussions which focus on developing their own parenting plan. In the final session this plan will be prepared with the aid of a CAFCASS officer.

It is of vital importance that any system that aims to meet the needs of the children of separated and divorced parents can work quickly. The fear of all non-residential parents is that, while the case is proceeding laboriously, they are losing touch with their child. Speed is important but however the conflict is eventually resolved – whether by agreement or by court order – it can only be sustained if both parents have confidence in the system of enforcing the arrangements.

* Danka Neuborn is a Family Lawyer

(October 2004)

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