Shared parenting: A 70% solution? (original) (raw)

2002, Social Science Research Network

Abstract

In the context of increased litigation over contact, this article examines the debate around proposals for a presumption of 'shared parenting'. It concludes that such a presumption would not achieve the aims of its proponents. Its introduction would also be fraught with practical and doctrinal problems. n 1987 Michael King 1 criticised the Law Commission's proposals for the reform of the law relating to custody and access, the proposals that were subsequently embodied in the concept of parental responsibility in the Children Act 1989. 2 He argued that custody battles were often seen as symbolic contests affirming the parties' relative fitness as parents and that joint custody often amounted to a mechanism used to mollify non-residential parents. The proposed changes would likewise, he said, be largely symbolic in nature. They would have limited practical significance since courts have no control over future events, orders are subject to extra-legal re-negotiation and, in the case of older children who can vote with their feet, the court's pronouncement can be overridden completely. To suggest, as the Law Commissioners did, that the law is capable of 'maintaining beneficial relationships' is to confuse legal rhetoric with social reality. 3 While the symbolic recognition of both parents might help to reduce bitterness, King said, the law is not capable of changing human behaviour. In fact, the report of the Law Commission in 1988 reveals that the Commissioners were not solely preoccupied with the supposed instrumental effects of the law. 4 They suggested that giving equal status to parents should not only be seen as part of a general aim to encourage both to feel 'concerned and responsible' 5 for their children, but also as part of the objective of decreasing the incidence of symbolic litigation. 6 It was hoped that the incorporation of the concept of parental responsibility into the Children Act 1989, together with the 'no-order' principle, would have the effect of reducing conflict. Because neither parent would lose parental rights or status on divorce, there would be less to fight over. 7 The persistence of parental responsibility, it was thought, might lower the stakes and avoid casting the non-resident parent in the role of 'loser' who loses all. 8 NEW PRESSURE FOR CHANGE Yet the package that the Children Act 1989 offers to parents would appear not to have worked to increase parental cooperation and decrease litigation and, once again, dissatisfaction with the lot of non-resident parents is being voiced. First, evidence suggests that cooperation in the form of joint parenting and joint decision making are far from the norm; indeed, many 1 'Playing the Symbols-Custody and the Law Commission' [1987] Fam Law 186. 2 Family Law, Review of Child Law: Custody, Working Paper No 96 (HMSO, 1986). 3 Referring to para 3.7 of the Working Paper (ibid). And further: 'Here it seems to me, the Commissioners are entering a fantasy world in which the courts have the power to ensure the welfare and happiness of all children who come before them' (M. King, op cit, n 1, at p 187).

Loading...

Loading Preview

Sorry, preview is currently unavailable. You can download the paper by clicking the button above.

References (86)

  1. See B. Simpson, P. McCarthy and J. Walker, Being There: Fathers after Divorce (University of Newcastle upon Tyne, Relate Centre for Family Studies, 1995), at chapter 3. See also M. Maclean and J. Eekelaar, The Parental Obligation (Hart Publishing, 1997), at p 121. 10 Conciliation and Divorce (Barry Rose, 1981).
  2. R. Bailey-Harris, G. Davis, J. Barron and J. Pearce, Monitoring Private Law Applications Under the Children Act: A Research Report to the Nuffield Foundation (University of Bristol, 1998).
  3. Consultation Paper issued by the Children Act Sub-Committee of the Lord Chancellor's Advisory Board on Family Law, Making Contact Work: A Report to the Lord Chancellor on the Facilitation of Arrangements for Contact between Children and their Non-residential Parents and the Enforcement of Court Orders for Contact (LCD, 2001).
  4. Ibid, at para 1.3.
  5. Ibid, at para 1.4.
  6. J. Dewar and S. Parker with B. Tynan and D. Cooper, Parenting, Planning and Partnership: The impact of the new Part VII of the Family Law Act 1975, Family Law Research Unit Working Paper No 3 (Griffith University, 1999), at p 4.
  7. See H. Rhoades, 'The "No Contact Mother": Reconstructions of Motherhood in the Era of the "New Father"' (2002) 16 International Journal of Law, Policy and the Family 71, at p 72, referring to Australia, Senate, Family Law Reform Bill 1994, Explanatory Memorandum (November 1994), at para 5 and Family Law Act 1975 (Cth), s 60B(2)(b), respectively.
  8. J. Dewar and S. Parker, op cit, n 15. See also, evidence from an official enquiry after 2 years of operation of the 1996 amendments Child Contact Orders: Enforcement and Penalties (Family Law Council, 1998);
  9. H. Rhoades, op cit, n 16, at p 72.
  10. HMSO, 1985), at para 4.131, which proposed that 'prominence' should be given to joint custody to 'reinforce the idea of continuing joint parental responsibility'. The report did not recommend a presumption because it would 'detract from the overriding principle' of the welfare of the child (at para 4.132).
  11. Op cit, n 2, at para 4.46.
  12. Ibid, at paras 4.40-4.41.
  13. Ibid, at para 4.45.
  14. Ibid, at para 4.43.
  15. Ibid, at paras 4.40 and 4.43.
  16. 43 Op cit, n 4.
  17. Ibid, at para 4.10.
  18. Dame Elizabeth Butler-Sloss P, quoted by M. Driscoll, op cit, n 34.
  19. Conference Report, op cit, n 22, at p 15.
  20. S. Edwards and A. Halpern, 'Parental Responsibility: An Instrument of Social Policy' [1992] Fam Law 113. 48
  21. Op cit, n 19, at pp 211-212.
  22. Re L (Contact: Domestic Violence), op cit, n 20, at p 367G. 51 [1997] 1 FLR 533.
  23. See F. Kaganas, 'Re L (Contact: Domestic Violence);
  24. Re V (Contact: Domestic Violence);
  25. Re M (Contact: Domestic Violence);
  26. Re H (Contact: Domestic Violence) -Contact and domestic violence' [2000] CFLQ 311.
  27. Re L (Contact: Domestic Violence);
  28. Re V (Contact: Domestic Violence);
  29. Re M (Contact: Domestic Violence);
  30. Re H (Contact: Domestic Violence) [2000] 2 FLR 334.
  31. C. Piper, 'How do you define a family lawyer?' (1999) 19(1) Legal Studies 93.
  32. R. Bailey-Harris et al, op cit, n 11.
  33. B. Neale and C. Smart, '"Good" and "Bad" Lawyers? Struggling in the Shadow of the Law' (1997) 19(4) Journal of Social Welfare and Family Law 377, at p 392.
  34. M. King, '"Being Sensible", Images and Practices of the New Family Lawyer' (1999) 28(2) Journal of Social Policy 249.
  35. See C. Piper, 'The wishes and feelings of the child', in S. Day Sclater and C. Piper (eds), Undercurrents of Divorce (Ashgate, 1999), at pp 88-92.
  36. 59 National Standards for Probation Service Family Court Welfare Work (HMSO, 1995), at p 2.
  37. A. Critchley, 'When Will I See My Dad' [2002] Fam Law 319, at p 320.
  38. C. Sawyer, 'An Inside Story. Ascertaining the Child's Wishes and Feelings' [2000] Fam Law 170. 62 Ibid, at p 172.
  39. Op cit, n 11, at p 35.
  40. See, also, C. Piper and S. Day Sclater, 'Changing Divorce', in S. Day Sclater and C. Piper (eds), Undercurrents of Divorce (Ashgate, 1999).
  41. J. Dewar, reporting on his research into the new Australian law, observed that the further parties were from the trial process, the greater the impact of the law. Solicitors reported 'quite a few changes to practice', whereas barristers and judges reported comparatively few, with the same questions being resolved in the same way (J. Dewar, Reducing Discretion in Family Law, Family Law Research Unit, Working Paper Series, Working Paper No 1 (Griffith University, 1997), at pp 21-22).
  42. Cameron himself refers to 'Something like that, alternate weekends, half the holidays in a 70/30 split' (Conference Report, op cit, n 22, at p 16).
  43. P. Henman and K. Mitchell, accounting presumably for shorter holidays than Cameron, assume an 80/20% split, based on 'anecdotal evidence that the aforementioned pattern of contact -of half the school holidays and every second weekend -is a common arrangement between separated parents in Australia' (P. Henman and K. Mitchell, 'Estimating the Cost of Contact for Non-resident Parents: a Budget Standards Approach' (2001) 30(3) Journal of Social Policy 495, at p 502).
  44. J. Dewar and S. Parker, op cit, n 15, at p 74.
  45. See Making Contact Work, op cit, n 24, at para 14. See also J. Dewar, op cit, n 65, at p 18.
  46. A. Buchanan and J. Hunt, 'Disputed contact cases in the courts' (Cambridge Socio-legal Group seminar, 2002). See also A. Buchanan, J. Hunt, H. Bretherton and V. Bream, Families in Conflict (Policy Press, 2001).
  47. Op cit, n 24, at para 14.
  48. Op cit, n 65, at p 16.
  49. H. Rhoades, op cit, n 16, at p 72, noting 1,976 contravention applications filed with the Family Court of Australia in 1999-2000, an increase from 786 in 1995-1996.
  50. Op cit, n 15, executive summary, at p 4.
  51. R. Bailey-Harris et al, op cit, n 11, at p 13.
  52. Indeed, there is the potential for court battles between biological fathers and social fathers. A stepfather may have been active in raising his former partner's children and may wish to remain in contact after the relationship breaks down. In such a case the stepfather/social father may have had far more involvement in bringing up the children than the biological father and his relationship with them may be far closer. How the presumption would operate in such a case is not clear.
  53. H. Rhoades, op cit, n 16, at p 72.
  54. Making Contact Work, op cit, n 24, at para 14.55.
  55. See, Making Contact Work, op cit, n 24, chapter 14 and, for the attitude of the courts, Churchard v Churchard [1984] FLR 635; Re M (Contact Order: Committal) [1999] 1 FLR 810. See also Re L (Contact: Domestic Violence), op cit, n 20, at p 367. Amendments to the Child Support Act 1991 introduce new or 'improved' penal options for those non-resident parents who refuse to provide financial support for their children and evidence an increasing punitiveness to parents considered irresponsible.
  56. M. Freely, op cit, n 34. More controversially, Cameron proposes that a 'contact facilitator', 'someone much more robust and directive' be appointed where a parent continues to oppose contact (Conference Report, op cit, n 22).
  57. J. Eekelaar, 'Contact -Over the Limit?' [2002] Fam Law 271, at p 272.
  58. Op cit, n 16, at p 77.
  59. Op cit, n 20.
  60. J. Eekelaar, op cit, n 81, at p 272.
  61. See S. Maushart, Wifework (Bloomsbury, 2001), at pp 129-134 and references therein.
  62. C. Piper, The Responsible Parent. A Study in Divorce Mediation (Harvester Wheatsheaf, 1993), at pp 2-6.
  63. Op cit, n 9, at p 137.
  64. S. Maushart, op cit, n 91, at p 131.
  65. Ibid, at p 134. See also, for example, J. Pryor and B. Rodgers, Children in Changing Families (Blackwell, 2001), at pp 198-204 especially.
  66. See J. Pryor and B. Rodgers, op cit, n 95, at pp 201-202, citing J. Pleck, 'Paternal Involvement: levels, sources and consequences', in M. Lamb (ed), The Role of the Father in Child Development (Wiley and Sons, 3rd edn, 1997). See also, C. Piper, op cit, n 92, at pp 34-49 for a review of earlier empirical research.
  67. Op cit, n 9, at p 137.
  68. J. Pryor and B. Rodgers, for example, review research which suggests that employers are still inflexible and 'Involved fathers are also likely to encounter work place hostility' (op cit, n 95, at p 202). See also, R. Collier, 'A Hard Time to be a Father?: Reassessing the Relationship Between Law, Policy and Family (Practices)' (2001) 28(4) Journal of Law and Society 520, at p 531 (and references therein).
  69. J. Pryor, 'Relationship with fathers -well-being in young adults from intact and divorced families' (Paper presented to the Annual Conference of the SLSA, 2002).
  70. H-P. Blossfeld and S. Drobnic (eds), Careers of Couples in Contemporary Societies (Oxford University Press, 2001).
  71. C. Smart, 'The Legal and Moral Ordering of Child Custody' (1991) 18 Journal of Law and Society 485. 102 Ibid, at pp 490-491.
  72. C. Piper, op cit, n 92, at p 192.
  73. Op cit, n 103, at pp 91-94. An unusual case, recently decided by the Court of Appeal, suggests judicial endorsement of 'unequal' parenting by fathers (2002) (unreported). A father who was primary caretaker of his children was refused a residence order when the relationship ended, with the mother promising to give up work. Thorpe LJ is reported as saying that his application 'seemed to ignore the realities involving the different roles and functions of men and women' (D. Rabinovich, 'Mothers matter more' (2002) The Guardian, April 20, at p 22). The decision 'triggered immediate controversy' and the father is reported as expressing his incredulity that the legal system should allow this. See 'I raised our children but the court gave custody to my wife' (2002) Evening Standard, April 22, at p 17. While D. Rabinovich hails this case as an acknowledgement of the importance of mothers, it could be seen as detrimental to them too. Its corollary is that fathers are not expected to engage in caretaking and that they fulfil their roles adequately without doing so.
  74. As suggested, for example, by S. Maushart's summary of research findings (S. Maushart, op cit, n 91, chapter 10). She concludes 'In the worst cases [fathers] may find themselves expelled from family life altogether, as resentments that have been allowed to simmer reach boiling point, and destroy the very basis of the marriage', at p 132.
  75. This conflation is apparent in the recent Court of Appeal judgment of Re R (Litigant in Person: Judicial Intervention) [2001] EWCA Civ 1880, [2002] 1 FLR 432, at p 433, per Thorpe LJ: '[The father] has always had a determined aim to share the children equally with their mother. His first application of 23 August 1999 was for contact. He stated: "I wish to share contact equally with the petitioner so that the children spend 50% of their time with me"' (emphasis added).
  76. H. Rhoades, op cit, n 16, at p 79.
  77. C. Bridge, 'Shared Residence in England and New Zealand -a comparative analysis' [1996] CFLQ 12, at p 26.
  78. K. Kurki-Suonio, 'Joint Custody as an Interpretation of the Best Interests of the Child in Critical and Comparative Perspective' (2000) 14(3) International Journal of Law, Policy and the Family 183, at pp 198-199.
  79. J. Eekelaar, op cit, n 81, at p 272, citing G. Poussin and E. Martin-Lebrun, 'A French Study of Children's Self-esteem after Parental Separation' (2002) 16 International Journal of Law, Policy and the Family (forthcoming), and E. Hetherington and J. Kelly, For Better or for Worse: Divorce Reconsidered (W.W. Norton and Company, 2002), at pp 133-134. See also C. Sturge in consultation with D. Glaser, op cit, n 20.
  80. J. Pryor and R. Daly Peoples, 'Adolescent Attitudes towards Living Arrangements After Divorce' [2001] CFLQ 197, at p 199. See also, P. Amato and J.G. Gilbreth, 'Non-resident fathers and children's well-being: A meta-analysis' (1999) 61 Journal of Marriage and the Family 557, and J. Pryor and B. Rodgers, op cit, n 95, at pp 202-204 and 214-217.
  81. See generally, A. Diduck and F. Kaganas, Family Law, Gender and the State (Hart Publishing, 1999), at pp 272-278.
  82. G. Thomson, 'The Changing Family and the New Millennium' (2000) 38(1) Family and Conciliation Courts Review 10, at p 14.
  83. Report of the Matrimonial Causes Committee, op cit, n 37, at para 4.132. 115 Op cit, n 65, at p 17.
  84. Ibid, at p 18.
  85. S. Adam, 'The Voice of the Child', in Conference Report, op cit, n 22, at p 31.
  86. Sahin v Germany; Sommerfeld v Germany; Hoffmann v Germany [2002] 1 FLR 119; see case note by R. Bailey-Harris [2002] Fam Law 94.