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Private members Bill going through parliament to bring changes to family law

(74 Posts)
GenderEqualityAdvocate Sat 01-Apr-17 21:16:30

The MP and ex barrister Suella Fernandes has brough a private members bill to parliament callign for wholesale changes to family law.

Would be interested in your opinions. Is this a good thing or not? She is pushing for equal parenting and enforceable contact orders which I guess means punishments for predominantly women who withhold contact.

GenderEqualityAdvocate Sat 01-Apr-17 21:17:14

Full text from Hansard:

Suella Fernandes (Fareham) (Con)

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I beg to move,

That leave be given to bring in a Bill to make provision for the enforcement of Child Arrangement Orders, including times within which enforcement action must take place; to establish a presumption in favour of shared parenting under Child Arrangement Orders; and to make provision for a commission to review and make recommendations on the operation of family justice; and for connected purposes.

David and Sally separated after 10 years of marriage in September 2014. They had two children, aged eight and five at the time. David was a good father, who did not want to stop being a dad just because his marriage had ended. However, nearly three years later, with more than £200,000 paid in legal fees, David is still fighting through the complex and bureaucratic family courts to see his children eight nights a month, instead of the six nights originally offered by Sally. Sadly, this is not a fictional story. It is one of the many sad cases of high-conflict divorces. Family breakdown is painful for all involved, and it is the state’s duty to support those going through this difficult experience. However, as in the case of David and Sally, not only have those two extra nights per month been financially and emotionally expensive for them, but on several occasions Sally has unlawfully stopped the children seeing David, breaking the court order and undermining the father-child relationship.

Child arrangement orders are made by the court to regulate the contact and residence of children on divorce. In the majority of divorces, the orders are complied with, but in many cases a defaulting parent—that may be the mother or the father—can generally act with impunity. The courts are slow to respond and reluctant to penalise, sending the damaging message that court orders are optional, not mandatory; that the relationship with the non-resident parent is meaningless, rather than crucial; and that the system is inherently inequitable, rather than robust. In the worst cases, a non-resident parent, usually the father, can be denied contact with their child for several years. If they do not have a spare £10,000 to spend on legal fees, they are essentially erased out of their child’s life, with no remedy whatsoever. How can this be humane for a child, and how can it be fair to the parent?

The welfare of the child is paramount—that is an abiding and unassailable principle of family law—and children are less likely to experience depression, teenage pregnancy and delinquency when relationships with both parents are safeguarded, while children without a father in their life often struggle to reach their full potential academically, socially and professionally, but the law does not reflect this because of the failure to crack down on intransigent parents, and because judges and social workers turn a blind eye to parental alienation.

Family courts make huge and life-changing decisions for parents and children, often on thresholds of proof that are far lower than those required to achieve enforcement, so it is no wonder that the criminal threshold for contempt is rarely met and that judges fail to assert their authority swiftly under the Children Act 1989, or ​subsequent legislation in 2006 and 2014, and attempts to bolster enforcement have not worked. Data from the Ministry of Justice reveal that a mere 1.2% of the 4,654 enforcement applications were successful in 2015. Although the letter of the law sets out discretionary penalties for breach, they are rarely applied in practice, and the rise in the number of unfounded allegations of domestic violence as a defence against enforcement is worrying.

A new approach is needed: a tougher three strikes approach is long overdue, under which residence should be transferred, if that is safe, and community service should actually, not theoretically, be imposed on parents who are in breach. The confiscation of driving licences or passports should seriously be considered by Parliament. Legislation that emphasises the importance of both parents in children’s lives, other than in cases of violence, is needed in England and Wales. Real enforcement is one way of doing this, and shared parenting is another.

A rebuttable presumption of shared parenting should be a key principle when determining the contact and residence of the children. To be clear, this would not be an explicit statement of an equal 50:50 time division, and it does not mean shared care. As Professor Patrick Parkinson, a former president of the International Society of Family Law has made clear, it should, as a minimum, mean the child has a right to a meaningful relationship with both parents as far as practicable, and as long as the safety of the child is not put at risk.

Such a principle is commonplace elsewhere around the world, and it operates without difficulty. It could assure the child of an opportunity for the maximum continuing physical and emotional contact with both parents, and encourage the parents to share the rights and responsibilities of raising the child, as the law states in Iowa. It could provide for frequent and continuing contact with both parents, as in California. It could go even further to

“encourage the love, affection, and contact between the children and the parents”,

as in Colorado. Any of these examples would be a more appropriate starting point for judges when setting child arrangement orders than the weaker form of

“parental involvement...direct or indirect”,

which has been on the statute book since 2014. Although that was an improvement on the previous position, parental involvement can amount to a birthday card or a Christmas card in the worst cases, and non-resident parents, mainly fathers, can be airbrushed out of the lives of their children by the current system. We cannot keep telling fathers that they have equal responsibilities, and then not give them equal opportunity to carry them out.

Shared parenting and robust enforcement form part of the package of reforms that is needed if we are to bring our family law into the 21st century. Our antiquated system reflects the norms of the 1950s and 1960s, rather than relationships of today, and many issues remain unresolved, leaving gaps for Parliament to fill. A commission, to last no more than one year, should be launched by the Government to inquire into the following issues and to report back with recommendations for reform.

First, as last week’s Court of Appeal case of Owens depressingly highlighted, England’s fault-based divorce law results in absurd outcomes. Despite being in a ​loveless marriage, the petitioner was unable to divorce her husband because of the archaic rules requiring her to prove fault on his part. The reality is that not all marriages end because of fault. We therefore have a law that promotes the farce of allocating blame, setting parties on a needless confrontational path that fuels animosity and costs. A commission should report on whether it is now time for no-fault divorce.

Secondly, financial remedies and maintenance are rooted in a bygone era where women were entirely financially dependent on their husbands. The reality today is that many women are able to support themselves, so divorce should not mean an automatic entitlement to lifetime support from an ex-husband. Scotland and North America limit payments, so why don’t we? Unless Baroness Deech’s Bill on this subject secures Royal Assent, a commission should make recommendations on how to strike a better balance so that England can shed its reputation as the divorce capital of the world.

Thirdly, cohabiting couples with children are the fastest-growing type of family in the UK. Between 1996 and 2016, the number of couples in this position increased from 1.5 million to 3.3 million, yet they have no rights in the event of a split. Inquiry into what basic protections are justified would be valuable.

Fourthly, the enforceability of prenuptial agreements should be set out by Parliament. If we are to support marriage, we need to accept that people are getting married later in life, with assets earned before and during their union. They should be protected, if the parties agree, not put at risk, and a commission should look into this.

Fifthly, reform of the opaque way in which the family courts operate in public law needs wholesale review. Far too many children are taken into care for wholly inadequate and poorly argued reasons, according to Sir James Munby, president of the Family Division. Only the glare of publicity will enable this to stop, so we need to remove the cloak of secrecy and to open up our family courts.

Lastly, most family disputes need not see the inside of a courtroom. Instead, we need better incentives to use mediation or solicitor negotiation, for example by virtue of a costs penalty for parties who draw out the process. Saving costs, time and heartache should be priorities.​

Madam Deputy Speaker, I am not married. It will not surprise you, therefore, when I say that I do not have the battle scars of having lived through a nasty divorce. My views are informed by my previous work as a barrister in the civil justice system for 10 years. Moreover, I speak today as an objective onlooker moved by stories of injustice, hopelessness and deep sorrow. Yes, divorce is traumatic, but it need not be a tragedy that befalls thousands of non-resident parents. I hope the Government will take the opportunity to begin the work of creating a family law system fit for the 21st century.

Question put and agreed to.

Ordered,

That Suella Fernandes, Mrs Cheryl Gillan, Andrew Selous, Tim Loughton, Robert Neill, Frank Field, Caroline Ansell, Mrs Anne-Marie Trevelyan, Lucy Allan, Mr David Burrowes, Kate Hoey and Mr David Lammy present the Bill.

Suella Fernandes accordingly presented the Bill.

Bill read the First time; to be read a Second time on Friday 12 May, and to be printed (Bill 162).

Neighbourhood Planning Bill (Programme) (No. 3)

Motion made, and Question put forthwith (Standing Order No. 83A(7))

That the following provisions shall apply to the Neighbourhood Planning Bill for the purpose of supplementing the Orders of 10 October 2016 (Neighbourhood Planning Bill (Programme)) and 13 December 2016 (Neighbourhood Planning Bill (Programme) (No.2)):

Consideration of Lords Amendments

(1) Proceedings on consideration of Lords Amendments shall (so far as not previously concluded) be brought to a conclusion four hours after their commencement at today’s Sitting.

(2) The Lords Amendments shall be considered in the following order: Nos. 22, 12, 10,11, 13 to 21, 85 to 90, 1 to 9 and 23 to 84.

Subsequent stages

(3) Any further Message from the Lords may be considered forthwith without any Question being put.

(4) The proceedings on any further Message from the Lords shall (so far as not previously concluded) be brought to a conclusion one hour after their commencement.—(Gavin Barwell.)

Question agreed to.

ChocChocPorridge Sat 01-Apr-17 21:23:08

I do think that not making the agreed contact should be as severely punished as withholding agreed contact - BUT - I don't actually think that shared parenting should necessarily be the default.

For example, out of my family, 2 of 3 of my siblings do pretty much everything for their kids (and partner!) - bedtimes, school runs, shopping, cooking, feeding etc. If they were to split, why on earth would the partner suddenly think they have the rights or experience to have the child 50% of the time?

Continuity for the children has to be the priority, and I'm afraid that many men need to realise that if they opt out of parenting before a marriage breakdown, they run the risk of not being able to get it back after marriage breakdown, and that does mean that they should continue to pay for that.

On the other hand, perhaps this'll help drive home how vulnerable not working makes you when you have kids. How important it is not to let your partner ride roughshod over your career.

GenderEqualityAdvocate Sat 01-Apr-17 21:27:46

I think the suggestion is that resident parents who withhold contact will be more likely to be hit with community service orders and jail time.

This opens the can of worms that women who have been subjected to abuse or violence will be punished by the courts and their ex partner for not allowing an abusive ex contact.

ChocChocPorridge Sat 01-Apr-17 21:39:46

Oh, well, I do think that's probably the wrong way round.

I would say that there are many more non-resident parents not contacting their kids than resident parents arbitrarily withholding it from my experience, and certainly more non-resident parents not paying to support their children.

I think they should probably hit the bigger target first by dealing with them - after all, if they want to support these kids and parents, definitely better to get the non-residents to pay for them rather than the government.

Gini99 Sat 01-Apr-17 21:55:38

I think it is a private members bill that is unlikely to ever become law and deals with far too many issues to ever create effective legislation. I presume that she knows it won't become law so has stuffed as much in as possible to be seen as 'doing something' about all of these areas.

There are certainly bits in there that have been neglected for a long time and really need proper attention that they are probably not going to get (no-fault divorce, cohabitation). There are always private members bills on those issues and they never get anywhere.

On the children side there has been a lot more govt attention and legislation on this recently. The points that she has made were considered and largely rejected. Any review of private child law needs to recognise that the majority of cases go nowhere near court and the ones that do are often unusual, fraught and often involve risks to the children (and parents) such as allegations of violence, abuse, addiction etc. If anything one could say that the courts go too far in trying to impose a relationship in some of those cases.

Why is enforcement always about those who withheld contact (though I appreciate that this can be very damaging) rather than enforcement against those who walk away from their children, refuse to pay and don't bother to seek a relationship with them.

To be honest this looks like a lazy list that covers far too many issues far too superficially but that is not a problem as it won't get anywhere near becoming law.

GenderEqualityAdvocate Sat 01-Apr-17 22:05:23

You really want enforcement on fathers who walk away? Force them into a child's life? How is that beneficial to the child? Refusal to pay child support no longer falls under the remit of the courts.

MPs have done everything they can to get payments out of fathers and any changes to bring the self employed and limited into line would mean removing the status of limited companies as separate legal entities. Almost impossible to achieve. We have a system that is broken. Shared parenting and fines for neglect or non payment but you would still have NRPs who claim financial hardship whilst funneling money through Limited companies.

GenderEqualityAdvocate Sat 01-Apr-17 22:06:39

Sorry it no longer falls under the remit of family courts. Non payment of child support goes to the criminal courts, typically magistrates courts.

AvaCrowder Sat 01-Apr-17 22:08:24

NRP being made to contribute towards their children is not enforced properly. Most resident parents want their children to be happy, if only for the reason that they live with the consequences. This just seems like another stick.

GenderEqualityAdvocate Sat 01-Apr-17 22:19:15

Suella proposes a three strike policy and after that a transference of residency. You fail to comply with contact orders on multiple occassions and you run the risk of having children taken from you.

Gini99 Sat 01-Apr-17 22:31:49

You really want enforcement on fathers who walk away? Force them into a child's life? nope but if they have a child arrangements order stating that they should have contact then why do we never worry about enforcing this taking place given that it is all supposedly in the child's interests for that to take place? Enforcement in the children's context is a difficult issue but it is also often a one-sided one. That side is rarely the child's and anyone who speaks of three strikes and then the child is transferred is not focused on the child.

Anyway, the point is that these are all complex areas and she has shoved them all together in a way that suggests that she has no appreciation of the complexities of the issues. Certainly the speech doesn't suggest any careful reflection.

But this bill won't become law so it doesn't really matter.

GenderEqualityAdvocate Sat 01-Apr-17 22:48:50

She is an ex barrister, Cambridge and Sorbonne educated who works with childrens charities. She has been described as one of the smartest women in parliament. It looks like she appreciates the issues and sees the damage being done by the current laws.

Chances are it will never pass into law but it looks like there is a growing movement now being taken seriously by women MPs to take away this protection of Resident Parents (mostly women) who behave unreasonably when it comes to contact. A recognition of sorts that contact denial is a form of abuse.

Gini99 Sat 01-Apr-17 23:17:58

Hmm yes. I had never heard of her before your thread and I have no reason to say anything other than that she seems an accomplished and energetic MP but plenty of people on MN have a similar CV and she doesn't appear to have any family law experience or expertise so that background hardly adds authority to the bill. That is on a quick google so I am happy to be corrected on her family law expertise. To be honest it looks rather like a pressure group's shopping list that has been pushed together to raise her profile and generate publicity. It does not appear carefully considered.

Actually on the quick google I came across this which is helpful in explaining some of the misunderstandings in the speech by those who do have experience in the area (I should stress that I have no connection to them).

GenderEqualityAdvocate Sat 01-Apr-17 23:35:26

Having legal experience but no family law experience probably stands her in good stead. She has not profiteered from the misery of family courts so is more likely to cast a critical eye over it.

My MP is one of those backing the bill. I am thinking to email them to see if they can do anything to stop the removal of children from the location that their Non Resident Parent is at without the consent of both parents.

At the moment I see too many Resident Parents going to court to stop the parent with residency moving to another region or country. Too often the courts give in to the resident parent and they are free to relocate to the other side of the world.

I want a change in the law where when you commit to having a child you surrender the right to relocate more than 100 miles from the other parent unless both parties agree. Responsible parenting.

GenderEqualityAdvocate Sat 01-Apr-17 23:36:46

Sorry that should read Non Resident Parents as the ones bringing legal applications to block the removal/abduction of children.

childmaintenanceserviceinquiry Sat 01-Apr-17 23:48:31

Gender - what is your relationship to Suella, either professional or private? Because it's the biggest fucking load of aggressive crock I have read in a long time in relation to family courts and the current damage that they are doing to many families in England and Wales. Your support, on this thread, in your many posts, is beyond concerning and suggests a very high level of vested interest. Vested interests should always be disclosed. So do so.

No-one in the legal system seem to give a shit about people, primarily women, who come out of abusive marriages and then end up back in the family court system having to deal with their abuser on an ongoing basis as they demand 50:50 shared parenting in time, but not attitude (usually to avoid maintenance payments). I am not talking about cross examination where there has been documented violence in the previous 2 years.

The idea that any sane person would split discussion about maintenance, contact and asset splits when these factors are so inter-linked. Oh funny, that's already happened and so the abuser chips away at each element until they get the result to suit themselves. Not a sensible result that benefits both families and most particularly the children. But funnily enough is Suella concerned about that. No.

TimeforANewTwatName Sat 01-Apr-17 23:53:25

It reads like spin to me.

It's bugging me also that she has put forward, the dc of single parents, don't reach there full potential ect.

When i'm sure that myth was dispelled long ago. I'm pretty sure it was a deliberate mis-interpretation of the figures and percentages.

Off to trawl the tintaWeb, to see if I can find the source.

GenderEqualityAdvocate Sat 01-Apr-17 23:55:29

No relationship private or professional.

I am an advocate for gender equality. Equal treatment of all parents in court.

Maintenance is a completely separate issue to contact. I worry about the people who try to link them.

GenderEqualityAdvocate Sun 02-Apr-17 00:49:14

Suella sits on the "cross party Commission on Inequality in Education".

The commission is chaired by Rt Hon Nick Clegg MP; and the other members are Rebecca Allen, Sam Freedman and Stephen Kinnock MP.

She looks to be very well informed on the failure of children from single parent families to attain the same goals as children who have both parents in their lives.

She has access to the most relevant and newest data. Sorry to say it but she appears to be in a better position to post comment on the damage done to children by single parent families and contact denial than anybody else.

No wonder she is seeking to remedy the low achievement levels amongst those children blighted by absent fathers by trying to force through changes to our outdated family laws.

This is a woman arguing that men/both parents are needed in a child's life to achieve their potential. Makes for a powerful argument now that you consider her background.

AvaCrowder Sun 02-Apr-17 10:46:38

So the way to make absent fathers present is to go for the mother?

How would you tackle the absent fathers who volunteerily absent themselves? Are they up for prosecution or fines?

Gini99 Sun 02-Apr-17 10:48:59

Sitting on a parliamentary commission on education does not give her some special authority to 'be in a better position to post comment on the damage done to children by single parent families and contact denial than anybody else.'

It's very unhelpful to keep making this about how wonderful she is rather than about the ideas that she is advocating. The ideas should stand for themselves and I am sure that no-one on here would want to make any personal attack on her. She does, however, sound as if she has allowed herself to be used by a campaigning group without careful enough research into the issues. Her speech sounds like the rehash of lobbying material from a campaigning group rather than a personal consideration of the issues. Given that Fathers4justice and the libertarian Indigo group put out this press release www.fathers-4-justice.org/wp-content/uploads/2017/03/Family-reform-Bill.pdf on her bill it is probably not too much of a leap to guess that they were influential in this. Would you happen to have a connection to either of those groups 'genderequalityadvocate'?

GenderEqualityAdvocate Sun 02-Apr-17 11:02:27

You are still doubting her credentials? She looks to be in the top 1% of the population by intelligence if you go by her educational background. She is legally trained. She sits on bodies that are most likely the best informed in society about children's achievement levels and backgrounds and yet..... still you challenge her credentials because she has departed from the feminist mantra.

She raises valid points. Points that are hurtful to struggling single mothers but maybe, just maybe we have a problem with a family law court system that is outdated and still views motherhood as a holier than thou sacred being. She is advocating gender equality. Why is that so hard?

Dervel Sun 02-Apr-17 11:43:07

I'm a single father and I have had some experience with family law. In my view you want to make the whole process less adversarial and not more so. I also experienced zero discrimination on account of being a man. I'd been heavily involved with my child right from birth and in practical terms the court looked very favourably on me.

However in my view the courts should always be looking at this from any child's perspective. The only rights of any importance here are the child's. Children have rights, parents have responsibilities. The shift you are looking for needs to be a cultural one not a legal one. Men need to be educated to the fact that if they defer the lions share of childcare to women, those women will hold the stronger cards when it comes to children upon relationship breakdown.

I will agree there is an issue when it comes to the colossal cost of legal proceedings, but that applies to both men and women. The solution I would propose there is to setup private family legal insurance. I need insurance to drive a car I don't think it would be an entirely bad idea to start a company that would provide funding for lawyers. It would be wise that if everyone who found themselves parents were able to take out insurance so if in the unfortunate event of relationship breakdown there wasn't the added stress of huge legal fees.

GenderEqualityAdvocate Sun 02-Apr-17 12:06:27

So Dervel if you were to withhold contact between your children and their mother for no proven reason would you not think it right that the courts punish you even if from a child's perspective that is harmful?

Right now the "best interests of the children" is being used and exploited by unscrupulous parents with the encouragement of legal professionals who know the courts are loathed to touch a resident parent. It is time to get tough on parents who are subjecting children to a form of abuse by refusing contact without valid reason.

A default of equal parenting at the start also seems to be something you are advocating. It is currently far from the reality for most fathers. Gender discrimination is very real in the family courts even for the men who are/were primary carer prior to separation

ChocChocPorridge Sun 02-Apr-17 12:15:30

On the boards here I read far more often about resident parents, with agreed contact, where the non-resident parent just doesn't bother to show.

Why shouldn't that be punished if you're planning to punish the resident parent if they block contact? The effect is surely the same?

3 strikes and you're out - fine, 3 times you fail to turn up for agreed contact, and you're sanctioned. Frankly, in non-abusive cases, the idea that if they don't turn up for contact 3 times means they'd be on the hook for residency (your idea that 3 strikes and residency switches) might even be enough to get them to make a firm decision about being in their child's life.

The problem in all of this is your suggestions seem to be ripe for abusers to take advantage of - eg. this 100mile rule idea - abuser are already known for isolating their victims, now, they just have to move the family far enough away that the abused parent isn't allowed to move back to their support network - it's a horrifying thought.

In my opinion, the number 1, most positive thing that the UK can do for children is to make sure that the non-resident parent pays (and that it's recognised as neglect if they don't), and that they don't muck the kids about when it comes to seeing them.

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