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.