The Queen’s Speech: a family lawyer’s response

Family Law|May 11th 2012

In these cash strapped times and having suffered huge recent defeats at the polls, the government seems to be keeping its head down, which is a pity. Recession is a time of opportunity, and I believe those who are prepared to go for growth, rather than simply cutting budgets still tighter, will fight their way through.  Its legislative programme as outlined in the recent Queen’s Speech was uninspiring as far as family law is concerned. Yes, for private children disputes the government will try and ensure that, subject to the welfare principle, separated fathers will get more of a look in. Although this isn’t an obvious change from what happens in reality, where the courts do routinely give contact to fathers. But what has once again been overlooked is the lack of a definition of “parental rights”.

Parents, particularly the one who is separated from the family, find that following divorce they simply hit a brick wall. All that counts is the welfare of the child, and they have no legal rights (even qualified rights) at all. Yes they have “parental responsibility” but as I have pointed out in the past, what that means isn’t actually defined anywhere.

The Law Society today states in its response to the Queen’s speech: “it is not true that the courts are biased towards mothers: there is and can only be one bias – the welfare of the child”. And then adds: “shared parenting or shared parental responsibility is too easily misinterpreted as meaning equal time with each parent and can lead to a focus on the rights of parents over the rights of children…what is really needed is a more thoughtful approach to what parental responsibility means post separation”.

With all due respect to the child specialists at the Law Society, what is really needed is a change in the law to define what parental responsibility means. What is wrong with legislation that tells parents what rights they have in law – as exists in Scotland? I’ve written extensively about this in the past, and it seems like a logical step.

Parents discover on marital breakdown, and usually to their horror, that parental responsibility gives them no statutory rights post-separation in relation to their children. I believe this is wrong, and the slavish adherence only to the welfare of the child shows both a lack of respect and downgrades the role of a parent in law. And these are not simply views I have dreamed up out of the ether; I hear these same concerns from parents time and time again.

This point came up recently during a discussion at Oxford I recently attended alongside a selection of the country’s top family law academics and judges. And yet again there seemed to be no-one at all in a position of authority who was prepared to agree that parents should have any legal rights to parent their children post-separation, even when subject to the welfare principle. The consensus seemed to be that cases are difficult enough and should not become more complicated. It struck me then that there is a wholly entrenched, unmoveable mindset. And I wondered if the actions of the more extreme father’s groups haven’t actually made the situation worse?

My own view remains that those bitter cases that concern judges at the highest levels, and help make the political case for legislators, do not form the majority. Legal rights should make things easier for couples, many of whom at the moment often only grudgingly sort out their arrangements, dissatisfied with the state of the law and in the knowledge that going to court won’t help much either. The government’s forthcoming legislative statement is no doubt intended to give that steer and so should be welcomed. But I doubt most parents will be fully satisfied, given that the law itself is not going to change to specifically define what parental responsibility actually means.

Then there is the adoption process and care proceedings, which we are told are going to be speeded up. There are currently 15,000 children in care, costing the country a small fortune. And an ever decreasing number, some 3000 last year, are adopted. This week the extent of delays in the system was also highlighted by the government itself, with hundreds of children forced to wait an average of 20 months from entering care to moving in with their adoptive parents.

Speeding the process up may seem a good idea, but I have my concerns. Adoption means a child’s links with the past are legally and irrevocably broken. I believe adoption should be treated with the greatest of care for the future benefit of all involved, especially where the children concerned are not babies. Children growing up in care are from the most deeply damaged of backgrounds. It is not their fault, but they may be deeply damaged too by what they have experienced in their young, tragic lives. Speeding up the adoption process to shift them from further burdening the State could well create as many problems as they solve for those children and their adoptive families, who despite their best efforts may find they are unable to cope long-term.

Ironically however, the legislative programme was announced at the same time as not only the savage decimation of legal aid, but of the court service itself. Today’s Law Gazette reports that: “HM Courts & Tribunals Service (HMCTS) wrote to civil and family court users earlier this year to say that it was to replace face-to-face services with online, telephone, post and drop-box facilities and to cut counter hours by two-thirds to 11am–1pm.” Yes, the court counters are intended to be open hereafter for just two hours a day. Imagine the pandemonium.

The announcement has been met with uproar across the country. The Law Society’s civil justice committee said that cutting counter hours to just two hours a day would be in breach of the Court Charter 1994, which states that 10am-4pm is the “national minimum standard”. Reductions in face-to-face services would also cause “delay, confusion and frustration for users and court staff” commented Keith Etherington, Law Society council member for civil litigation. He also said that: “Court users have been unanimous in their opposition to the changes. The civil court system is fast approaching meltdown. This HMCTS (Her Majesty’s Courts and Tribunals Service) letter is a declaration of intent, not a consultation, and we fear that the proposals are going to be pushed through without a thought for access to justice”. A HMCTS spokesman said that it will consider court users’ responses before implementing any changes.

So how then I wonder, is it going to be possible to deliver the government’s promises at all?

Fundamentally though, has anything really changed? Has Her Majesty announced anything that is actually new? I don’t think she has. Although the Centre for Separated Families has stated that:

“We believe that the government’s intention to introduce a legislative statement into the Children Act (1989) is by far the most appropriate way to support children’s ongoing relationships with both parents after divorce or separation”.

But isn’t this what happens in all cases anyhow? In the final analysis, you would have to ask whether any of what the government is proposing will have a real impact. What is very real is the erosion of the courts system in England and Wales, and the perilous state it leaves many families in.

Author: Marilyn Stowe

The founder of Stowe Family Law, Marilyn Stowe is one of Britain’s best known divorce lawyers. She retired from Stowe Family Law in 2017.

Comments(8)

  1. DT says:

    I think that the Queen’s speech was all-in-all, pretty under-whelming.

    I share your concerns Marilyn RE: the speeding up of the adoption process. It may “tick a government target box”, however,  it’s a ticking time-bomb for the future. The long-term consequences are of course irreparable. Obviously these matters need to be given priority; however, given their permanency, a knee-jerk response must be avoided at all costs.

    Parental Responsibility: When the Local Authority takes a child into care, and applies for (and is granted) PR, they seem to have a very clear idea as to what PR means and what they can do!

    Children & Families Bill: I have read that in relation to adoption, race/ethnicity considerations will be of less of a concern, than finding a child a permanent family which, in my opinion, has to be a very good thing – I’m only sorry it’s taken so long.

    I think the views of the extreme Fathers’ groups has made a whole host of situations a whole lot worse – particularly their own! I think they have some really important points to make, however I find their verbal aggression and intimidating tactics quite alarming and off-putting.

  2. Nick Woodall says:

    The Law Society is absolutely wrong when it states that “it is not true that the courts are biased towards mothers”. The courts operate in an environment that believes that ‘mum is best’. We have built forty years of social policy around this belief. From maternity leave, to Child Benefit, to welfare and education, our gendered expectations about what role mums and dads should perform is overwhelming. We have a whole industry steeped in Bowlby underpinned by a belief that men are dangerous to women and children and need to be treated with suspicion. The courts are not immune from that. So, yes, courts will generally allow dad to have ‘contact’, but mum will be the gatekeeper.

    I think that the difficulty lies in how one begins to define parental rights and responsibilities. As far as I am concerned, parents should be able to expect a ongoing, meaningful relationship with their children, and children should be able to expect a ongoing, meaningful relationship with both of their parents. The problem comes when anyone tries to give that aspiration legal meaning.

    A number of fathers’ rights groups have, over the years, attempted to do exactly that and, each time, they have ended up with a formula that puts the ‘rights’ of parents above those of ‘children’. As you say, Marilyn, most courts do uphold relationships between children and both parents at some level. So, the issue then comes down to including in legislation a presumption of the amount of time a child should spend with each of its parents. But this is always problematic as children’s needs vary from case to case and also over time.

    I have worked with parents who wave Contact Orders around whilst their child screams in distress. I have worked with parents who are so inflexible that a child’s wish to attend a friend’s parties or sleep-over can’t be accommodated. Parents in distress will often cling to their ‘rights’ because of fear, hurt and a sense of injustice and increasing the rigidity of that in law doesn’t seem to me to be the best way of resolving issues.

    Do we start at 50:50? It seems a bit arbitrary and is unlikely to best meet a child’s needs. Maybe 60:40 or 70:30? That seems completely unfair. Why should one parent start from a point lower than the other? So, maybe the best thing is for the Paramountcy Principle (child’s best interests) to remain but with a clear legislative statement included in the welfare checklist that states that a child’s best interests are served by both parents offering sufficient parenting time and parental decision making to ensure an ongoing meaningful relationship with both parents is maintained.

    What is more important, it seems to me, is that we dismantle the stereotypes about men and women, mothers and fathers. If the legislative statement is to bring about a truly different culture, it is critical that the workforce that engages with parents during and after separation understands and supports the needs of children to have a meaningful relationship with both their mother and father. This would require, amongst other things, wide scale gender awareness training and practitioners having a greater understanding of the issues that both mothers and fathers face after separation.

    Unless family mediators, Cafcass officers, social workers, child support professionals, children’s centre staff and all the other individuals and agencies that parents come into contact with start to work outside the Lone Parent paradigm, children will continue to miss out on the vital relationships that allow them to grow and develop into psychologically secure and fulfilled adults. To that extent, a change to the Children Act, whilst hugely significant, is not the end, but only the beginning, of a process to improve post separation outcomes for children.

  3. Bruno D'Itri says:

    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

  4. Observer says:

    Nick and Bruno do an excellent job of responding to this very important post.

    I only wish to add that regarding shared parenting, there is a difference to be made between a 50/50 presumption as a starting point and a presumption that 50/50 will be the reality.

    It is imperative that the government pursue 50/50 as a starting point so as to send the message that no party is being demeaned or valued less. Obviously, if one parent can only take the kids 20% of the time, due to work commitments, then so be it. But that 50/50 starting point absolutely cannot be compromised, or else there will be no change whatsoever, and a decade from now another review and consultation will be happening, and that government will be pointing to the failure of this government and a missed opportunity that is before us now.

  5. Observer says:

    DT –

    I don’t get your comment about extreme father’s groups?

    Why are these any more vile than those extremists who are extremely opposed to shared parenting?

  6. DT says:

    Observer

    I didn’t draw a comparison, I just made a statement.

  7. Bruno D'Itri says:

    Hi DT

    I’ve been mulling over your previous statement:

    “I think the views of the extreme Fathers’ groups has made a whole host of situations a whole lot worse – particularly their own! I think they have some really important points to make, however I find their verbal aggression and intimidating tactics quite alarming and off-putting.”

    People who suffer great personal injustice respond in differing ways. My first reaction was to want to burn down the Royal Courts of Justice!

    It takes a special kind of person who can put their personal hurt to one side and present a calm, rational and persuasive argument for change. Some achieve this and some don’t.

    I would say to everyone: please consider the arguments entirely on their own merits, rather than on how they have been made. Surely an argument ought not to be invalidated on the grounds of it having been made using offensive expletives or by someone dressed in a batman costume sat atop Lord Justice Thorpe’s house!

    Having said that, I do believe that you make a very valid point.

    How much more powerful and effective are the words of Aung San Suu Kyi or of Nelson Mandella, delivered as they are in such a peaceable and conciliatory manner? Perhaps the Palestinian problem would be over by now had their leaders responded to the injustice of occupation with calm rather than with rage.

    Yesterday, I heard of a father who, having lost his son in the 1996 Manchester bombing, sincerely welcomed the forthcoming reconciliatory handshade between the Queen and the former IRA leader, Martin McGuinness.

    If we fathers, who have lost meaningful contact with our children due to the injustices of the family justice system, can follow that noble father’s magnanimous example, then the change we seek will surely come all the sooner.

  8. DT says:

    Good evening Bruno

    Thank you for reading and responding to my comments above.

    You put across a very thoughtful and intelligent argument for what is an emotionally charged and thoroughly emotive subject.

    I will say again what I have said elsewhere, just in-case you haven’t read it. I don’t have children and so I say what I say as an ‘outsider’. I would hope that I can bring a dispassionate view to the idea of children and parental rights’ etc., however, I wouldn’t assume that I’m always successful.

    You are of course correct to say that everybody’s feelings manifest themselves in different ways, and yes of course it does take a special kind of person to put those feelings to one side and some are more successful than others in their plight and fight.

    I would never want to be in the horrendous position some parents (often fathers) find themselves in battling with the courts; perhaps an implacably hostile mother and having to watch the hurt and destruction the process has on all concerned.

    There are some who may have read my comments before and find my stance unsympathetic towards parents, as I am firmly in favour of child-focused legislation and I’m willing to take that criticism.

    I do find the Fathers’ Groups very off-putting. They have a very important message to get across for their own and their childrens’ sake and I’m sure that they do what they do as a last resort because they are sick of fighting and getting nowhere; however, when one does think of spiritually advanced and truly beautiful human beings such as Aung San Suu Kyi or Nelson Mandella, one must ask if we cannot all learn from them.

    Thank you again.

    DT

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