January 16, 2012

Divorce and contact rights – who’s right?

 By Peter Jones, Partner

Feelings are running high with the recent announcement from Children’s Minister Tim Loughton that divorced parents will be given an equal right in law to see their children: a presumption of shared care. At first glance this may seem like a fair and reasonable move, but look a little closer and you can see how such a change could, in some cases, do more harm than good.

Under the current system, family courts tend to leave children with their mothers and this is often for practical reasons. The Office for National Statistics estimates that one in three children (a staggering 3.8million) lives without their father – but that’s not to say the father is not deeply involved in his children’s lives through a carefully considered contact arrangement.

Campaign groups have long argued that a father’s right to contact should be enshrined in law, but it can never be a case of one size fits all. Judges and family lawyers are dealing with people’s lives on a daily basis and do not take their responsibilities lightly. The vast majority of divorce and contact arrangements work very well – in particular the majority which don’t even make it to court because they are resolved through mediation and counselling, not to mention with the frequent and extremely valuable support of extended families.

We never forget that the ideal situation for any child is to be brought up under the loving care of both parents. Where a situation breaks down, it is almost always because of existing tension, even anger, within the relationship. This has a direct impact on the children who are sometimes used as pawns in order for one parent to exert power over – or exact revenge on – the other.

How will it help to address this with a change in the law? If the relationship has broken down to such an extent, imposing an artificial situation will only exacerbate matters, perhaps encouraging an excluded father to become more aggressive and demand his rights, or a mother to become difficult and unreasonable.

Enshrining such rights in law also creates the risk that the law will be applied broad-brush without in-depth examination of the family’s needs. Children of different ages, for example, need different care and parental support; siblings do not behave as a single unit. What about where there has been emotional abuse of a parent?

In his Family Justice Review last November, David Norgrove famously dropped this clause, saying that it would put too much pressure on judges to set out the exact length of time that each divorced parent should spend with their children. It is absolutely not about length or equality of time, but quality of time and the impact on the children. This is something that a responsible judge already considers when making a contact order, without the help of an additional law. So, Mr Norgrove: right decision, wrong reason.

This is doubtless one of the most challenging areas of family law; there is rarely a right or wrong way. What every parent, counsellor and those associated with children’s problems must do, is work together to achieve the best result for the children.  There is and never was any room for selfishness or partisan behaviour.  The children’s interests must come first, second and last; no excuses, no arguments but a fair and balanced solution.  

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