The pace of change by John Bolch

Family Law|March 17th 2014

I’ve never known a time like it. One way or another I’ve been involved in family law for more than thirty years now. During that time there have, of course, been major changes (the Children Act 1989 and the introduction of child support maintenance both spring to mind), but there was never so much change going on at one time as there is now. In fact, there were long periods when calls for change fell on deaf ears and the system seemed to stagnate.

No so now. On the contrary, it sometimes seems that nothing is going to stay the same. So much is going on that, whilst I have mentioned many of the new developments here previously, I thought it might be worth pausing for breath to remind ourselves of some of the major changes that are in store, and to ask the important question: are these changes actually going to make things better?

Now, before I go on I should say that I have always considered myself an optimist as far as change is concerned. I remember, for example, that my late mother used to get nervous at General Election time. When I asked her why, she would just say that the possibility of change worried her (even if it meant the party she always voted for taking power!). Not so me – I loved the idea of change, and always saw it as an opportunity for things to get better (even if they often didn’t, at least as far as elections were concerned). OK, I have probably become somewhat cynical as I’ve matured (who doesn’t?), but generally I think I still have a reasonably optimistic outlook.

I’m not sure, however, that there is much cause for optimism as far as some of the forthcoming changes in family law are concerned. In fact, despite the huge amount of change, I really can’t see that things are going to improve particularly, and in some ways they are surely going to get worse.

Take the family law provisions of the new Children and Families Act 2014 for example. The requirement to attend a family mediation, information and assessment meeting (‘MIAM’) to find out about and consider mediation before applying for certain types of court order sounds good, but it really doesn’t change much. In particular, it does not require the respondent to the application to attend a MIAM, so whether it will have much effect upon the number of cases resolved by mediation is not at all clear.

Then there is the ‘shared parenting presumption’, included by the government against expert advice, just to appease those who feel the system is biased against fathers. Under it, the courts will have to ‘take account of the principle that both should continue to be involved in their children’s lives’. But they already do this. I really can’t see this provision making any difference, and it may just lead to further arguments between parents, eager to establish their ‘rights’.

These provisions are due to come in to coincide with the creation of the new Family Court next month. Now, I can see that the unification of the present three tiers of family court (Family Proceedings (Magistrates’) Court, County Court and High Court) into one single Family Court with a single point of entry is likely to have some bureaucratic benefits, but my understanding is that in most areas there will not be single dedicated family court buildings. For the most part, the new court will still have to share its facilities (and staff?) with other courts. Until that non-existent time in the future when the resources are available to create separate family court buildings, we will surely not have a truly separate family court.

My last example of change is perhaps the most depressing. The new child maintenance (or is it ‘child support’?) system has been driven entirely by government fiscal concerns. Basically, the government has given up on child maintenance and told parents to sort it out between themselves, with the ‘inducement’ being that if they don’t, they will have to pay for the system to sort it out for them. Of course, most parents always have sorted out child maintenance for themselves. Those parents are not the problem – the problem has always been the parents who refuse to pay. To now penalise the parent who needs the money because of the failure of the other parent to pay is quite wrong, and will surely lead to great hardship for many single parents and their children.

So there we are. The one certainty is that the future will be different. Whether it will be better is another matter.

Photo by  Matt From London via Flickr under a Creative Commons licence 

Author: John Bolch

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

Comments(16)

  1. Paul says:

    The one thing I agree on with Mr Bolch is that the “shared parenting presumption” as he inaccurately terms it, is a load of codswallop. Making laws simply to appease people, in this case fathers supposedly, is unprincipled and immoral. What is required is a proper presumption in law that fathers get substantial time to raise their children, not a bare minimum as the developed case law provides for. That hasn’t worked. Fathers should demand proper law for shared parenting, written in statute and backed up by plenty of research studies by way of guidance so judges are correctly guided in their decision making.

    I somehoe doubt Mr Bolch would agree on that.

  2. Yvie says:

    Overall this article seems to take a slightly sneering tone. I take exception to a couple of points:

    Firstly, ‘shared parenting presumption’ included against expert advice just to appease those who feel it is biased against fathers. Not all ‘experts’ have come to the same conclusion regarding shared parenting, as shared parenting had proved to be extremely successful in many countries already, particularly Norway and Australia. Tim Loughton when he was Children’s Minster, was a supporter of shared parenting but unfortunately he was shuffled out of harm’s way, presumably as a result of this same ‘expert advice’.

    The remark about ‘parents no doubt wishing to exercise their rights’, seems to dismiss legitimate concerns that fathers might have, that they will be excluded from the lives of their children for no justifiable cause. On the subject of rights, it is actually the children who have the rights – and in case the ‘experts’ have forgotten, it is for a meaningful relationship with both of their parents. Many dads have found the Family Courts fairly even handed – my son was one of them, but there are plenty of dads who have been excluded from the lives of their children, for no reason other than it ‘might upset the mother’.

    Thirdly, the new child maintenance which is driven entirely by government fiscal concerns. If it doesn’t provide value for money, is there a valid reason why this organisation should be funded by the taxpayer. The majority of parents should be encouraged to work out child costs between themselves. The CSA can’t seem to get it right regarding child maintenance, and if anything make it worse. Rather than making strenuous efforts to identify those fathers who refuse to support their own children, they target fathers who are already financially committed to their children. They are easy targets and this slip shod organisation takes the easy route. Perhaps some thought should be given to dads who are not fortunate enough to command a decent salary, as for many single fathers who have shared residence of their children, the struggle to provide for their children is equally as arduous, if not more so, than for the single mother. In fact, you could say that many such dads are in a far worse position, as they do not receive any state help in supporting their children. Dads who have a shared residence will, by that definition, be supporting their children twice, once whilst they are residing with them, and again whilst they are residing with their mother.

    Unfortunately there are no votes for governments who promote shared parenting and the welfare of single fathers.

  3. Paul says:

    A very good analysis, Yvie. You ought to write more on the subject.

    You are damn right about the CSA. They are unscrupulous and immoral in their hunt for the easy target, namely fathers who are already actively committed to their children.

  4. Kingsley Miller says:

    Just because opponents of ‘a shared parenting presumption’ agree with the author’s opinion does not make them ‘experts’. There is a ‘feminist’ lobby against legislation consisting of charities, such as the Gingerbread Group, sponsored in part by the Nuffield Foundation who ran an anti Shared Parenting campaign based on the so-called ‘Australian experience’ where it has in fact been operating successfully since 2006! It is ‘change’ that has caused the author’s indignation. He has practiced law according to old precedents that were based on a flawed understanding of child development which reinforced the idea, as it was said at the time, that fathers should be obliged to ‘play second fiddle’ (Dr John Bowlby 1952). Society has changed and the author should open his eyes and change with it!

  5. JamesB says:

    I completely agree with Yvie.

  6. JamesB says:

    I agree with Kingsley Miller that Gingerbread is a feminist institution. It is sad that they have as much influence as they do as they do not promote good relationships between men and women.

  7. JamesB says:

    If Gingerbread want to be taken seriously, they should represent non resident parents too. Then it would be an organisation worth joining, rather than just a load of women moaning about men which is how it is coming across.

    Gingerbread do not represent non resident parents yet seek to write the law on separation and parenting under such circumstances, that is a contradiction as it ignores at least half of those effected and undermines their authority on the matter completely. If Gingerbread and F4J could merge and agree a policy between them then that the politicians could listen to and would have authority.

    If I were in Government and thankfully I am not I would ask men and women who have come out the other end (who are in their fifties sixties and seventies) what they think the rules of divorce and separation should be and go from there sensibly. Pandering to feminist organisations makes things worse. Closing down the CSA was a step in the right direction.

  8. JamesB says:

    I also have sat on the fence long enough. I have come down off of it just now and agree with shared parenting as an assumed starting point and reasonable. I have seen good single mothers and bad single mothers and good single fathers and bad single fathers. Women are not intinsicly better at bringing up children because they are women. I have a lot of experience to say that and that is the case.

    Re the Status Quo argument, that is nonsense. Just because it is how it was doesn’t mean its how it should be on-going, that is a silly argument. Things have to change when people split up. You can’t say you can’t look after a baby because you haven’t before, if that were the case all babies would be adopted and that is ridiculous, like so much of family law currently is.

  9. JamesB says:

    Sorry, has to be said, with re to John Bolch, he speaks as someone who has never had to pay child maintenance to someone for having left him. Once he has done that then I may consider his opinion on the matter worthwhile.

    As it is his last few paragraphs are completely one sided. He puts forward no ideas on how to help single parent families except to say just squeeze the man, which makes no sense and makes the matter worse.

    If you want to help society and children, and I won’t lower myself to saying what I was going to say, then….

    Suggest something workable, like assumption of shared parenting, or binding pre-nups, or making divorce harder and based on real fault. Just saying coerce the man is basically asking for trouble, which seems to be what you get, which maybe is what lawyers want but isn’t really best.

  10. JamesB says:

    I think binding pre-nups on marriage is the way to go.

  11. JamesB says:

    Last week John you were saying how Mums and Dads should communicate better and sort things out between them, and I agreed with you. This week you say the opposite and that is very confusing how you can argue both sides and expect to be taken seriously. So, from now on, I will not take you seriously any more.

  12. JamesB says:

    Any more, or any longer. Goodbye.

  13. Luke says:

    “the problem has always been the parents who refuse to pay.”
    =====================================

    Such a blanket statement is just wrong in my view – if a non-resident parent refuses to pay because the resident parent wilfully breaches the contact order then in my opinion the resident parent is the problem.

  14. Stitchedup says:

    “It is ‘change’ that has caused the author’s indignation. He has practiced law according to old precedents that were based on a flawed understanding of child development which reinforced the idea, as it was said at the time, that fathers should be obliged to ‘play second fiddle’ (Dr John Bowlby 1952). Society has changed and the author should open his eyes and change with it!”

    Dinosaur

  15. Stitchedup says:

    “Take the family law provisions of the new Children and Families Act 2014 for example. The requirement to attend a family mediation, information and assessment meeting (‘MIAM’) to find out about and consider mediation before applying for certain types of court order sounds good, but it really doesn’t change much. In particular, it does not require the respondent to the application to attend a MIAM, so whether it will have much effect upon the number of cases resolved by mediation is not at all clear.”

    Mediation is doomed to failure not because it isn’t a good idea in principle, or because it doesn’t require the respondent to the application to attend a MIAM.

    The family courts are biased towards Women and they know they have the upper hand. They have no incentive to attend mediation, particularly if the man is making moral arguments rather than legal arguments. There are also costs involved which will not be covered by legal aid. Best to avoid it and go down the legal aid route if possible.

    The golden bullet to avoid mediation is the good old domestic abuse/violence allegation. It will trump any offer of mediation, secure legal aid, occupation of the house, custody of the children and a non-molestation order/gagging order on the accused (usually the man).

    It really is the panacea to all separating/divorcing women’s problems; mediation is simply a waste of time, money and effort.

    It would be interesting to see the numbers (and percentages) of mediation refusals that go hand-in-hand with a domestic abuse/violence allegation from the woman. Perhaps this would shed some light on why the uptake of mediation has been so poor??

  16. Paul says:

    The Guardian reports that 90% of domestic violence allegations made to police go precisely nowhere.

    http://www.theguardian.com/society/2014/mar/10/domestic-violence-police-referrals-numbers

    As with allegations of DV to police, so with non-mol applications to courts. 90% plus ought to go straight into the bin.

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