Baroness Butler-Sloss criticises shared parenting law

Children|Divorce|News|January 14th 2013

Retired appeal court judge Baroness Elizabeth Butler-Sloss says parents who believe government plans to legislate in favour of shared parenting will mean equal access are being “ridiculous”.

In an episode of Channel 4 documentary Dispatches, to be broadcast tonight (January 14), the former president of the Family Division says:

“The problem about the phrase ‘shared parenting’ is the perception that parents have as to what it really means. I’ve heard one father who went into court saying, ‘Once this law is enforced, I will get half of the child’. Well that’s ridiculous. The child has to live in one place, so the duty of the court is to do what is best for the child.”

Equal access may not be practical or in the child’s best interests she says, according to a report in the Express.

“I think all parents should be sharing their children but that requires parents to be sensible, to co-operate and to look at what is best for the children.”

But in around five per cent of the cases which come before the family courts one or both parents are unwilling to take a reasonable approach “and the child suffers”, she adds.

The plans will see a new clause inserted into the Children Act 1989 which will

“…to presume that a child’s welfare will be furthered by the involvement of each of the child’s parents in his or her life, unless it can be shown that such involvement would not in fact further the child’s welfare.”

Baroness Butler-Sloss was the first female judge to be appointed to the Court of Appeal in 1988. Eleven years later she also became the first woman to serve as President of the Family Division of  the High Court.of Justice.

Author: Stowe Family Law

Comments(23)

  1. Yvie says:

    “I think all parents should be sharing their children but that requires parents to be sensible, to co-operate and to look at what is best for the children.”

    So what is wrong with 50/50 shared parenting as the default by law. It is then up to both parents to work out together what is in the best interests of their children. I have no doubt that with a defined starting point of equality, most parents would be able to devise a suitable co-sharing plan which would suit themselves and their children. Unless there are very good reasons, the State has no business in ursurping the role of both parents in these arrangements. For the parents who are unwilling to sensibly co-operate in the parenting of their children, the State would have no option but to step in and ensure that the best interests of the children are put first.

  2. JamesB says:

    She’s the one who has a marriage with her husband in Kenya and her in the UK for decades. Not sure that is someone to follow.

  3. JamesB says:

    To come off the fence on contact. My view… As is, but enforce contact orders and don’t expect the NRP to pay for having their children stolen from them.

  4. JamesB says:

    so, basically the pwc adopts the child on separation and the nrp doesnt get to see them or pay for them again until they are an adult. Conduct, Contact, and maintenance seem to be too big issues for court or separated former partners.

    I thought I had contact, now I don’t for example.

  5. JamesB says:

    to make it completely clear, if you dont get to see your child you should not be expected to pay maintenance for them. especially if another man is playing daddy to them.

  6. JamesB says:

    conversely make contact orders enforceable and maintenance realistic and dependent on circumstances (and back with the courts).

  7. JamesB says:

    either way, but the middle way doesnt work and is making a lot of nrps – myself included – very angry and alienated and disenfranchised from society.

  8. David Mortimer says:

    If all family court judgements are published online in the future’ it will allow us to monitor what each individual judge is going on a daily basis. If all family court judges do not believe it is in a child’s best interest to question what the primary carer has said to see if it is true or not because to do so would under mind their authority as the primary care giver’ you might wonder how it could ever be reasonably considered as safe & in a child’s best interests’, not to check?

    Why don’t family court judges refer criminal allegations of domestic violence & child abuse to the police given they are criminal offences which the police will not investigate unless told to do so by a judge?

    There are so many problems with every part of the family law system’ it’s hard to know where to start. It seems to defy fact & logic that to date the government has done nothing whatsoever to improve family law since the children’s act was introduced.

    Would the government go as far as blaming the family courts for creating a fatherless society or would that be too much like the pot calling the kettle black given the government encourages single parent families through the tax & benefit systems?

  9. Andrew Essen says:

    Judges should practice what they preach, there is however a more insidious outcome, that is above and beyond family courts mandate, and that is policy. These Judicial priests are simply ordered to deliver what multinational policy for demographics desires. One of them is the destruction of family or a model that carries out the process on the majority populate. It is often termed a multi speed process on demographic reduction for nation states. The UK, US and other anglofied cultures use the first welfare theorem model which is a federal monetary based incentive to substitute the paternal input for cash and pecuniary rewards. Ultimately of course the demographics for females who subscribe to the belief and policy become victims of it as history does indicate. The model is nothing new but has factors that history did not forsee. As it becomes normal when a multigenerational family becomes the simple target mother child only family. Whereas childrens hearts and minds are the will of the state. Males in all the models even historically have been war or social fodder. The tipping point has been reached, while the only people who serve the older model are the well heeled and titled. The rest of us are just the expected fiscal attrition and worker fodder. The rise of the welfare system is not without an unseen cause, it’s effects are deliberate and it’s purpose evil and misdirected. It does however take those who believe it is necessary to enact it to enforce it, for an essay on the subject seek out a document published by the US federal reserve called ‘Fiscal population growth.’, which will serve as a primer Much of the research with social agents used under the policy that the document may refer to will not be available, but it makes mention of many social change agents such as drugs and sex. The referring documents are not mentioned by name and probably secret government documents under the policy of ‘open and transparent government’, that are discussed, researched and deployed under executive policy. Don’t blame the judges, but I do advocate they be stripped of title, privilege and amassed wealth.

  10. JamesB says:

    Much of the political correctness in the new male bashing western model is contrary to natural law and is resulting in a lot of bitter single people and mass immigration and housing crisis and breakdown of society. Makes me worry when the politicians talk about Europe when real issues such as these are ignored. Like arguing about the deckchairs on the titanic.

  11. Paul Gilson says:

    The child doesn’t have to live in one place and the judge is wrong to assert that almost as a matter of judicial policy. When parents separate, children henceforth live in two homes, not one as the judge would likely have it. What is far more important to children than geographical stability is psychological stability and the stability of their relationships. Children are comfortable moving from home to school and vica versa so why not from one parental home to another? If a father only gets to see his child as often as say the child visits an aunt or uncle, then that is likely to lead to an impaired parent-child relationship over the longer term, particularly if there is lingering antipathy between the parents. Contact with both separated parents needs to be as high and frequent as possible and shared parenting legislation ought to reflect that.

  12. Bruno D'Itri says:

    Link for the article in the Express newspaper referred to by Marilyn:

    http://www.express.co.uk/posts/view/370559/No-50-50-sharing-of-children-in-new-divorce-law-says-top-judge

    Regards
    Bruno D’Itri

  13. David Mortimer says:

    Please can someone tell me what the government learnt & has done differently since the report called making contact work was published given that the government said at the time it accepted all of the recommendations contained in it?

    Please can anyone tell me who they helped at the time if they accepted families were failed?

    If the same issues or problems were raised again when the government had the family law inquiry does that not prove beyond any reasonable doubt that the government has not learnt or done anything to improve the family law system since then?

    We said a few years ago that changing the court forms to encourage separating couples to make allegations of abuse about each other & the definition of domestic violence would do nothing to improve the outcomes for children or fathers who try to use the family court system in order to gain or maintain contact with their children after separation or divorce.

    The history documented on the fathers rights websites must surely prove beyond any reasonable doubt that our current political representatives simply do not care about what is in the best interests of children.

    Logic would seem to dictate that the only way we will ever get to see real change is by electing a lot of new MP’s.

  14. Bruno D'Itri says:

    There are three major flaws in the views of the Baroness.

    Firstly, she makes the erroneous and very misleading presumption that those calling for Shared Parenting legislation want a rigid 50/50 split of parenting time.

    Most reasonable voices who have campaigned for Shared Parenting (such as Families Need Fathers and The Custody Minefield) have acknowledged for years that a rigid 50/50 split of parenting time would be impractical in many cases.

    Instead, they have called for the significant and meaningful involvement of both parents, in order that the child may benefit from being properly parented by both its parents. Theirs has always been a qualitative approach.

    Of course, in order for a child to have a significant and meaningful relationship with both its parents, it will need to spend some minimum quantum of time with both parents, but this need NOT be 50%.

    Many who are vehemently against Shared Parenting legislation are finding it extremely difficult to counter the widespread and powerful scientific evidence in favour of Shared Parenting. They have commissioned a couple of academics in an effort to discredit Shared Parenting, but the evidence in favour of Shared Parenting is overwhelming. The general consensus among social scientists is that Shared Parenting is beneficial to children. There are parallels with the Oil Companies commissioning academics to try to convince us that Global Warming is not happening!

    Instead, opponents of Shared Parenting are rather desperately (and mischievously) shifting both the debate and their attack upon the notion of 50/50. The Baroness succeeded in getting the Express Newspaper to headline the 50/50 notion!

    Secondly, whilst the Baroness concedes that children benefit from Shared Parenting when their parents are behaving “sensibly”, she states that the children of parents who are not behaving “sensibly” cannot benefit from Shared Parenting as this would be harmful to them.

    In the very common scenario in which the court-appointed Primary Carer (usually mum) is upset and aggrieved with any aspect of the separation or divorce, and refuses (or is emotionally incapable) to behave “sensibly” and refuses to facilitate contact , the Baroness suggests that the Secondary Carer (usually dad) should NOT be involved in the parenting of the child. The Baroness appears quite unable to perceive, firstly, the injustice of her argument, and secondly, the long-term damage to the child in losing one of its parent. The Baroness gives paramountcy to the wishes and feelings of the Primary Carer mother above all else.

    Thirdly, the Baroness is completely out of touch with the current Zeitgeist concerning 21st century parenting. She is firmly wedded to the ideology of the 1960’s and 70’s which strongly held that children need the nurturing of their mothers and the financial support of their fathers. In no other of the Baroness’s judgments is this out-of-date ideology so stark as in Payne v Payne (2001).

    Regards
    Bruno D’Itri

  15. Bruno D'Itri says:

    The Baroness claims:

    “I’ve heard one father who went into court saying, ‘Once this law is enforced, I will get half of the child’ “.

    Is she claiming to have heard this father in a case over which she was presiding? It seems so.

    However, the Baroness retired from the Bench many years ago, and well before the Shared Parenting Bill was aired.

    How, then. was she able to hear this father’s comments on the Shared Parenting Bill?

    In fairness, she may have intended to say that she had heard of the father’s comments from a third party, or perhaps that she had heard the father as he went into a court room whilst she was hanging around outside it.

    Of greater interest is the Baroness’s undying faith in the belief that “a child has to live in one place”.

    But is that really so?

    Should we start worrying about middle-class children who spend months each year living in their parents’ second holiday home? And should we be closing down their boarding schools?

    Should we remove all children from divorced parents who have happily agreed upon a Shared Parenting routine?

    There are many children who benefit from having one bedroom at their mum’s and a second bedroom at their dad’s, and who positively thrive from having a meaningful relationship with both of their parents.

    Confusingly, the Baroness declares that Shared Parenting is fine when parents are behaving ‘sensibly’. How does she reconcile this with her other declaration that a ‘child has to live in one place’???

    The Baroness comes across as a confused old lady with very old-fashioned and ill-conceived ideas.

    I rather think the anti-Shared Parenting lobby shoots itself in the foot whenever it wheels her out.

    Bruno D’Itri

  16. JamesB says:

    Here here.

  17. Yvie says:

    If that is the case Bruno, we can but hope that she will be wheeled out many more times!

  18. Name withheld says:

    I must say that Baroness Butler-Sloss does appear to be very out of touch to parents and wider families; but In my experience her views do still appear shared by the family court judges and cafcass.

    The approach the Barness wants to take is ideological, and forgets that human emotion is at play. It is ok for her to say that co-operation of both parents is the way forward and whats best for the children- in a perfect world i agree. However that not always the case and the law needs to step in to ensure it occurs.

    My husbands case was heard in late 2012, after 12months of legal to-ing and fro-ing. Which served to do nothing but damage the excellent relationship he’d had with his children before our case began.

    He case to me (as a step-mother) highlighted the low regard which cafcass and the courts place on a fathers relationship with his children, in our case daughters. Therefore exactly why shared paretning legisation is required.

    My husband sperated from his ex wife a number of years ago; by mutual agreement, no order required (happy Baroness Butler-Stross) the children spent every other weekend with him, one weekly midweek stay and half their school holidays. 40% of their time. Finance etc was also agreed amicambly. His relationship with his ex was fairly good, and at least always civil.

    However after being with her british boyfriend for a couple of years, he was offered a job in mainland europe. Despite them not having yet lived together, or having any finacial or legal commitment, she agreed to move herself and the children with him to eurpoe for the next 5 years. She left the children (both under 12) to tell my husband.

    Obviously upset he spoke to her about it. She offered no negotiation and said she was in her rights as their mother to take them. He could fun their return every 8 weeks. Cue the end of Baroness Butler-Stross’s co-operative world.

    12 months of legal lettters, meetings with lawyers, court dates later and both sides are near fianncial ruin. We have spent £17k trying to keep the children in the country, believing the following were not in their interst: 1) the distruption to their education -they would return haiving undertaken the IB programme, and come back to GCSE’s/ A-levels exams. 2) the relationship with their father and c) the reliance on an untested relationship for financial and empotional support. I have become an expert on cases such as Payne v Payne, Re K, Re L and Re R. We had argued about the number of nights the children had with us in order to have any hope of succeeding in this case.

    Cafcass interviewed my husband early last year and stated the move “sounded like a badly thought out plan”, at out home vist a few months later they commented on how close the children and their father were. Yet the final report another month later sat on the fence, and by the day of the final hearing a futher 3 months later her view given to both parties barrister had changed again. Despite our barister being totally aghast at her comment- “it would be more beneficial for the children to experience living in europe with their mother; than to see their father on a weekly basis or have him attend their school plays as clearly they are not as close as they were before this process began” – we were advised the judge has to side with Cafcass unless their is a legal reason not to. We never made it to the court room, settling and negotiating access dates, telephone contversations and even the right for my husband to be kept informed by the school on the childrens progress. This was a very painful decision, one my husband is still strugging with.

    To date 4 months later my husbands ex has not complied with a single direction in the courts legal agreement. My husband has not seen his children, other than once when they were able to ‘face time’ on an i-phone. Contact is weekly, by phone for 10minutes each child.

    The children appear happy, and are being plunged into a world of private schools, shopping and exciting activities. Our world back home is dull in comparison- and having made the trip to move over, they are now understanding the reality of what travelling back to us means- they think its too much of an effort. They also blame their father for the stress he put their mother through and the fact she spent ‘their money’ on legal fees. The ex played a clever game, showing the children all documents and emails, despite a court direction not to do so- my husband is seen as the bad guy in their eyes and has let to friction with his eldest. He refused to do the same to the ex, as it was not fair on the children.

    We have exhaused all our money in the first case, and dont have the money to take her all the way back to court. In any event, we are advised that in reality at best the ex wife would get a strongly worded letter from court (uk juristiction remains) and perhaps a Penal Notice, which is unlikely as the children will be affected.

    We now have to accept that his access to his children and any meaningful infolvment in their life is pretty much lost and is reliant on the ex chosing again to be co-operative, at least until they are old enough to understand the full situation.

    I would like Baroness Butler-Stross and all other judges minded to still think that parents can happliy agree whats in the best interst for children (when you get parties like my husbands ex wife who has no regard for the relationship with their father- or the court authority) to think again, and look at the reality of our seperated families.

    The vast majority of fathers are good, honest loving people and both they and their children deserve the right to have a meaningfull relationship with each other. No this does not necaessarily mean 50/50, but it should be regular, respected and sufficient to allow the father (or mother) not just time to take the children to the zoo; but to guide and shape their growth and personalities.

    Name Witheld

  19. Yvie says:

    Sometimes co-operation between parents can be difficult if not impossible, especially when the parents have seemingly different priorities.

    My grandson telephones his dad every day on the way to school. He talks rubbish, sings and mumbles but even so my son looks forward to talking to his son. This morning my grandson said that he had forgotton his house keys last night and had reached home before he had realised. There was no-one in to open the door (he is 12). It was a horrible wet afternoon yesterday and freezing cold. Neverthless my grandson had to walk back to the station, catch a train and walk quite a distance back to school to collect his keys. He then had the return journey to make back home.

    Several months ago my grandson had telephoned my son to ask if he could meet him off the train, buy him a breakfast and drop him off the school. He did so. However, mum was incensed by this, as it was ‘in her time’. In the final court order it was noted that dad should not pick up the children in mum’s time without her permission.

    So, when my son enquired as to why my grandson hadn’t telephoned his grandad to meet him from the station and drop him back at his mum’s, my grandson apparently answered, well you know why dad.

    What is wrong with parents who for reasons best known to themselves will actively discourage their children from seeking help from family members if needed. Is the desire to be completely in control more important than the welfare of the children?

  20. Truffle says:

    What happens when one parent refuses to adhere to an equal division of residential care made in a court order? My friend was taken to court by her ex-husband in 2011, He had continued to drag her to court year after year until he got what he wanted even though he was given extremely generous and flexible contact with their child since the split. Anyway, the final time the judge ordered that if my friend returned to live in the child’s hometown (she lived less than 20 miles away) the child would spend an equal division of time between his parents residences. Until that time the child would live predominately with his father. My friend duly moved back to the area but now the father is refusing to adhere to the equal division order and allows her no more contact than she had before she moved (i.e every other weekend and a weekday evening for 2 hours) She is absolutely distraught as she misses her child so much, he had been living mainly with her since his birth until the end of 2011 when the last court order was made, he was 6 at the time of the order. We have tried to find out what to do next as she simply cannot afford to go back to court to make her ex comply with what the judge ordered after he spent so long dragging her through the courts in the first place. There is plenty of advice for enforcing a contact order but not an equal division of residence, what should she do?

  21. Bruno D'Itri says:

    The Children Act of 1989 required the judiciary to serve the paramount interests of the child.

    Surely no one can disagree with this fundamental principle.

    The problem is that our senior judiciary has opted to interpret this paramountcy principle by adopting out-of-date suppositions which hark back to the 1960′s and 70′s. It has done so because of its rigid adherence to the system of ‘legal precedent’.

    Above all, a child needs the love and nurturing of its mother and the financial support of its father. Women are the emotionally weaker sex: if their wishes are thwarted by the court, their ability to parent their child will be adversely affected. A child can be raised quite satisfactorily without the nurturing of its father. A father may be permitted to share in the parenting of his child, but only if the mother is in agreement. If she is not in agreement, the father should not be involved in the parenting because this would upset the mother, and the resulting animosity would be harmful to the child. If a mother is found to have lodged false or exaggerated accusations of physical or emotional violence against a father, she should not be punished because this would harm her child.

    If these are the suppositions written into decades of legal precedent and indelibly ingrained in the minds of the senior judiciary – such as Baroness Butler-Sloss, Lord Justice Thorpe and Sir Nicholas Wall – then it is quite obvious that these judges will opt to interpret the Paramountcy Principle of the CA1989 by adopting those suppositions.

    A perfect example is Payne v Payne (2001). Butler-Sloss and Thorpe decided that the paramount interests of a child would best be served by ensuring that the child’s mother should not be upset by refusing her application to remove the child overseas. The unfortunate consequence – that the child would lose its meaningful relationship with its father – was not as important a factor as ensuring the happiness of the mother. In Re D (Children) [2010] EWCA Civ 50, Nicholas Wall refused to permit any challenge to the ideology of Payne v Payne, despite having being presented with a plethora of powerful scientific evidence in favour of shared parenting. Wall relegated the importance of that evidence.

    Our senior judiciary has utterly misjudged the best interests of the child by remaining stubbornly wedded to an out-of-date ideology of parenthood.

    The forthcoming amendment to the CA1989 – inserting a presumption of shared parenting – will hopefully rectify that serious judicial error.

    Regards,
    Bruno D’Itri

  22. Barbara Wiltshire says:

    These dinosaurs of the law are not living in today’s real world of increasing divorce and family splits. Children need security and love from both parents. If Judges treated fathers equal to mothers, and granted them contact and enforced those contact orders with the same zeal they do for mothers, it would go a long way to ensuring children get to keep their fathers. All too often women use their children as weapons against ex partners who they have personal gripes against. Relationship breakdowns happen for various reasons but are very rarely ‘friendly’ – women have a tendency to want to hurt their ex partners and the only way they can do that is by preventing them from seeing their children. When the roles are reversed (which is quite rare) and the father has custody, if the mother takes him to court for failing to comply with contact arrangements, the law comes down on him severely. This doesn’t happen when it is a woman in breach of the order. Judges are scared to impose penalties on women, and the women know this and act with impunity. If Judges treated all equal, women would find themselves in prison for contempt of court too. This evil and nasty abuse of their own children would then stop because they would realise they cannot use the legal system to carry out abuse on their ex partners. Fathers are perfectly capable of looking after their own children, of nurturing them, loving them and bringing them up properly. This is not a female monopoly.

  23. Bruno D'Itri says:

    Three cheers for Barbara Wiltshire, and for all women who speak up for the right of a child to experience the love and care of both its natural parents!

    Sadly, this debate is often wrongly portrayed by some as ‘fathers demanding rights’, when, in reality, it is entirely about child welfare.

    A big thumbs down for Baroness Butler-Sloss-OSAUR!

    Regards
    Bruno D’Itri

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