Shared care proposals covering England and Wales - your views needed

[flippinada]

I thought this would be a good place to share this as it's an issue which affects a lot of lone parents.

Anyway, the government has issued a consultation paper on changing the law to introduce a legal presumption of shared parenting (ie 50/50 care) on separation as a result of the demands made by fathers? rights groups.

This will have profound safety and welfare impacts for children and their mothers who have experienced domestic violence from fathers/partners and your views need to be heard.

The details can be accessed here: cooperative parenting following family separation

I think what Toothbrush describes is different to a couple living apart through work - in that the case the parent living away will still have involvement through the other parent if that makes sense. It's very different to a parent having no involvement yet retaining legal rights.

I also thought it was parental responsibility, not a SRO, that gave those legal rights and was designed to encourage parents to work together to make big decisions. My XP has all those rights for the younger two, and could get them for the eldest by applying for PRRs, but there's no residency order in place. As it is, I don't consult him on anything, and only inform him of big information, because quite frankly it's none of his business and ceased to be so at the point in time that he moved away and stopped seeing them. It pisses me off that he still holds the legal right to input in their lives yet actually takes no part in them through his own choice.

But that's what this new legislation is aiming to achieve - continued involvement of both parents in the DCs life through co-operation between the parents, just as if they were a couple living apart for work purposes.

Unrealistic in my view.

i'd have to agree with cookedchips. Litigation isn't something most people go into lightly but for most that do- and the vast majority are fathers, they have come up against unreasonable behaviour such as contact blocking or being given the absolute bare minimum the resident parent thinks they can get away with , and all efforts to sort things out in other ways haven't worked. Mediation doesn't work in some cases, it isn't going to help when the RP is hostile towards contact. The only thing that helps is getting a court order and the threat of sanctions. Unless you have come up against someone who has stopped you seeing your own children and is trying to turn them against you, someone you used to love (in almost all cases) then maybe it is hard for some people to really empathise with what that feels like. Mediation and therapy is all very well but at the end of the day they cannot compel anyone to do anything . For some getting a judge to make a decision is the best thing that can happen.

For people who abuse the court system there are orders a judge can make to stop them dragging RP back time and time again over the same or similar issues.

For my brother getting a court order and his ex being told by the judge what it could mean if she broke it made a massive difference to her behaviour. Both went on to parent well together with no more instances of contact being stopped.

Snorbs - no! I am afraid you are completely wrong.

All mothers and all fathers named on birth certificate or who were married to mothers have parental responsibility. No parent should make a unilateral decision on the big issues such as health and schooling. There is a legal obligation to inform and consult, regardless of who child lives with.

But as ever, some parents behave badly and ignore this.

I don't agree with franceforless perspective. In many years of dealing with court applications I have seen mothers who unreasonably refuse, fathers who abuse, and lots of examples where each parent is as childish and unreasonable as the other.

Sometimes a sharp warning from a judge works wonders, sometimes it doesn't. I have a number of cases which have been going on for over two years now. These parents need urgent psychological intervention. The letters of the law don't budge them.

I agree NADM, unrealistic in the extreme.

France, NRP can also cause damage by using contact as a means of control - mine would decide not to have them on a whim because he knew it meant I couldn't go to work, and his behaviour was very damaging to our eldest child. Part of XP's reasoning for moving away was so that I couldn't control him any more by expecting him to do his share of the parenting he has since made various threats regarding court and whatnot, but seems content to leave it at that stage thus far. Others will go to court and get a court order and then not actually take up their contact, which can be devastating for children and leaves the RP in a difficult position of still being compelled to allow contact when the NRP does bother to show up. As previously mentioned, the new proposals are one-sided in that regard.

Apologies if I've got it wrong. I was under the impression that a sole residency order more-or-less trumps PR hence the increase in interest of shared res orders to restore the balance.

well you have the non-PR anomaly for children born before 2003. so for odler children it is not true that PR is automatic.

i agree with snorbs in that i think that where a judge/court orders sole residency it is usually (or should be) because of specific isues - raised in court, reprots from CAFCASS etcetc - whether severe MH (i mean severe and ongoing ); addiction; criminal behaviour or otherwise behaviour which means that the children will be best served with one sole person in charge.

i do think this implies day-today decisions rest with the person with sole residency. for very good reasons eg the other parent is not up to decision making for one reason or another. (my exp in "good" phases makes rash and ill thought out decisions... in bad phases is unableto decide anything...)

i think that in "normal" separations eg due to person going off forming new relationship falling out of love etcetc - then shared residency/shared care makes sense - going off with someone new doesnt necessarily imply inability to parent. breakdown of marriage/relationship in that scenario is comepletetely different to abusive relationship or where one parent has severe and significant issues around MH/addiction/criminal behaviour which makes them unable to parent without input from professionals... (and if things improve that could change later)

i also think that the idea that both parents are involved in every minutiae of decisions in normal circumstances is flawed - where parents are together i would suggest that sometimes each parent takes a role in decisions eg school, researching, deciding -then maybe presenting the conclusion at which parent A says great decision! one parent leaves certain things to the other there is tust they wil make correct decision - prbably because they toegher due to shared values etc. in other cases both may be fully involved every step. that once sperated suddenly parent B wants to be consulted on every last issue -that s/he wasnt that interested in before - well it may seem to be obstructive..

taking the analogy of parens who are together but by circumstance apart - i cant see discussions on limited time sat phone to afghanistan over every last detail of which body part is pierced or not - or even which nursery is chosen - rather there is enough trust that any decisions made will be fine for both. it is about trusting the other parent... some decisions yes need joint agreement.

of course separation may be because one parent has changed their values (eg my exp has suddenly become religious since separation and wants to take DC to sunday school - i dont agree - if equal PR etc then whose decision is it? he has them religious on his days and i have them aetheist on mine? )

the theory of shared residence (equal legal standing) and, where practicable, equal time with each parent is reasonable for sure - and contact blocking should be stopped. the asumption that father and mother are equal is the starting point for sure.

but that this could then be used as stick and argument over every last ear piercing or haircut is not the intention, surely?

but there also has to be mechanism to look at needs of the children where there is abuse/severe MH/criminal behaviour etc. by either parent.

(by severe Mh i dont mean mild depression - but i do mean significant evidence of inability to parent, this would not necessarily mean for example PND as usually that is self limiting and with help the mother gets over it - but during time of severe episode clearly it may mean the father has to take the responsibility, perhaps for older child(ren) while nother is treated. what i mean here is evidence of severe episodes and inability to care for self and others. or where drug/alcohol addition is so severe and person is not following adequate programme. .

where it becomes muddled is criteria and threshold for things like alleged abusive behaviour/what constitutes severe MH/addiction/ etc .

and those situations where it seems that the abuse is directed between the two adults but individually apparently each parent can parent well - so long as the other parent is not around. this "s/he is a good parent" despite the fact they beat the other one up scenario - to me that is where it looks muddied. and where "but i want my fifty percent" is used to beat the other parent.

i agree with snorbs in that i think that where a judge/court orders sole residency it is usually (or should be) because of specific isues - raised in court, reprots from CAFCASS etcetc - whether severe MH (i mean severe and ongoing ); addiction; criminal behaviour or otherwise behaviour which means that the children will be best served with one sole person in charge.

Sadly, that's not currently the case at all.

My DP, who had a equal/primary-caring responsibility for his DC's when he was with his ex (due to her F/T shift work) applied to the court for shared residency due to her contact blocking once they separated, and the court awarded his ex sole residency - despite being unable to provide the majority of care, which now falls to her disabled mother.
The Courts reasoning was that there was conflict between the parents and therefore shared care was not achievable.

For non married parents, before the law changed re birth certificates, fathers did not automatically get PR this is true. But I have known only a handful of cases where the court refused to grant PR on father's application and generally this was because father was abusive/dangerous.

I think cestlavie's post supports my point. Good parenting is about each parent being able to trust and respect each other and the particular needs of the child. It can be subtle and nuanced, there is rarely one size fits all.

The law is already very clear about the rights of both parents and more importantly the right of every child to have a relationship with both his or her parents.

The reason I am so utterly cynical of all these well meaning attempts to 'change' the law to 'improve' recognition of parental rights is that no reformer EVER try to touch the other side of the coin - the parent who refuses to be interested and involved. And why do they never get involved in that? Because they know full well that no law can make an unreasonable and selfish person suddenly behave like a decent and responsible parent.

My daughter's father has chosen to live on the other side of the world to her. In the past four years he has never taken her to the GP, the dentist, got her new shoes, organised or attended a birthday party. He has taken her to school twice. He has never attended a parents' evening, a concert, a sports day. He has never had to take time off work because she is ill. I doubt very much he knows who her friends are or who is her favourite teacher at school.

The problem with separated parents is not just about horrible contact blocking mothers and the problems separated parents have go far beyond the wording of particular laws - the principle is already clear and has been for many many years.

The problem with separated parents is not just about horrible contact blocking mothers and the problems separated parents have go far beyond the wording of particular laws - the principle is already clear and has been for many many years.

I agree - and alongside contact blocking mothers, disinterested fathers and emotionally abusive parents who use their DC's as weapons.

There are also parents who demand their "rights" by undermining and sidelining the other parent - and I fear the current proposals will only provide more opportunity for such a parent to achieve that aim.

NADM - in that case a new principle of shared residence law would help?
and a recognition of shared responsibiliies .. in your p#s case - on teh surface anyway - it looks like a flawed decision by the court to award soleresidency .

but having primary care is not just about time spent at home or if parent working not working - that should be clarified too.

my exp left his work due to his stress/MH and nominally became the PWC - yet his MH got so bad i was having to take time off work to do the care...nominally on paper he was SAHP for two years - in practice he didnt fulfil that role due to his severe mh episodes (and for example if i went away for a night or weekend i would organize child care help for the DC!) ....

so it should not be just about "providing hours of care" "being the main carer at home" on paper either. a full time working parent can be more effective at day to day care, organising food, clothes, schooling, health appts - than a SAHP if that SAHP has "issues" ....... it also isnt just about SAHP versus non SAHP. other issues have to be taken into account.

where no such issues - sure - shared residence should be starting point, the time spent with each may be not 50/50 for practicable reasons.

option of sole residency should be there for reasons stated. the criteria for granting sole residency needs to be clear but there will always be thresholds.

Disney: I referred to it in an earlier post but you should really read the judgement A v A presided over by L J Wall President of the Family division no less....if you want to see real conflict. Makes for some harrowing reading and yet an SRO was ordered - at one time the father was given interim residency....if you are going back to court thats the reference and argument for an SRO despite ongoing conflict.

So in your case - the judges erred in his reasoning.

chips yes, I've read it - horribly familiar, unfortunately.

Money in that case wasn't a barrier to pursuing legal action - it was in DPs case - it costs a lot of money to challenge a Magistrate decision

Ah, there lay the problem - you were in the Magistrates court notorious for being misguided, ignorant, inept and generally incompetent - although COunty courts can be just as fraught...

No chance of a frsh application?

I do find this interesting.

On the one hand, you have the clearly expressed views that the court system is rubbish, judges and magistrates are incompetent and on the other hand the people putting forward those assertions are usually the same people wanting a 'change' in the law.

Seems to be putting a lot of faith in a system that is derided.

I have read and participated in loads of cases where a shared residence order was made, where a shared residence order was refused, where there was orders for direct contact, where there was no order for any contact whatsoever and a parent prohibited from making fresh applications to the court for four years, so appalling was his/her behaviour.

Each case is entirely fact specific because the principle of the Children Act is that the child's best interests are paramount i.e. what is best for THIS child at THIS time with these particular parents. You can't just say well in this case Wall LJ made a shared residence order, therefore shared residence orders should be the norm.

It just doesn't work that way. You always have to look at the facts of each case.

I do wish campaigners in this issue would stop wasting their valuable energies banging whatever particular drum takes their fancy for eg mother's are always the problem.

We need to pay attention to the emotional intellgence of our children as they will grow into adults fighting these same tedious battles over and over again. I think everyone's time energy and money needs to go into more resources for relationship counselling, particularly before children are born and then setting up plentiful safe and well equipped contact centres which will help deal with problem of both abusive fathers and unreasonable contact blocking mothers.

i like the idea of better counselling and better education to help people before they become parents and we desperately need more contact centres. Where i'm unclear is how contact centres would help with contact blocking mothers? Unless you are suggesting that's where fathers who have a contact blocking ex should go and be satisfied with that as a place to see their children?

spero I agree.

At the moment, all the changes proposed are designed to make things better for one group of DCs who are disadvantaged under the current laws - but at the expense of another group of DCs for whom the current rules work well for.

A lot of people are making out where there is conflict shared parenting/ residence orders are not possible - I merely pointed out conflict is not a bar. I did not say it should therefore be the norm necessarily - please dont mispresent me.

Your witness to various orders being made requires context - what were the reasons for refusal etc.

Now tell us how many enforcement of orders have you seen made.

I have first hand experience of court where it was absolutley rubbish, fact...I also have had positive experiences - what was the difference? It came down to a different judge, different day and yet the facts of my case had not changed from one hearing to the next. You or anyone cannot challenge that.

The problem lies at the top

That does not mean it necessarily clouds my judgment on what is best for child - it means I roll the dice I take my chance, and I do it for my child not to get at the other person on the 'other side'

There are good dads, bad dads, good mums, bad mums.

NotaDisneyMum Tue 04-Sep-12 07:44:24

Court Ordered Residency does change the distribution of those responsibilities and remove the equality of parents, though.

A residency order bestows responsibility for day to day care on the resident parent (as per the wording of the order) and the resident parent holds the authority relating to the DCs overseas travel.

IMO a residency order is far more than just where the child lives.

s8 Children Act 1989 defines a residence order "as an order settling the arrangements to be made as to the person with whom a child is to live."

s2(7) states "Where more than one person has parental responsibility for a child, each of them may act alone and without the other (or others) in meeting that responsibility; but nothing in this Part shall be taken to affect the operation of any enactment which requires the consent of more than one person in a matter affecting the child."

The "enactments" require consent from all those with PR to change a child's name, for important medical and educational decisions and to take children abroad (unless someone has a residence order in their favour, in which case they may take the child abroad for up to one month - s13)

Any s8 order can regulate PR with conditions attached such as bestowing day-to-day care on one parent or permission for both parties can take the children abroad on holiday and must inform each other of travel arrangements etc. There are also other important issues such as religion where the courts could take a dim view of a parenting acting and it is advisable for parents to seek agreement from the other parent or permission from the courts.

In practice there isn't much to choose between shared residence and the more traditional contact/residence orders. For example even though parents may go on holiday for up to one month without consent from the other parent when there is a residence order in their favour they may still need to seek agreement from the other parent or permission from the court because it involves a change in contact arrangements.

The case A v A when 50:50 SR was ordered was exceptional - most SROs are in different proportions. Since then SROs have become more common, although there still aren't that many orders for SR 50:50 and in some cases the proportion is so small the reality is it isn't any different from a contact order. There was one father who fought hard for a SRO so now his child "lives" with him in a contact centre two hours a week or fortnight.

franceforless Tue 04-Sep-12 08:56:14

i'd have to agree with cookedchips. Litigation isn't something most people go into lightly but for most that do- and the vast majority are fathers, they have come up against unreasonable behaviour such as contact blocking or being given the absolute bare minimum the resident parent thinks they can get away with , and all efforts to sort things out in other ways haven't worked.

It isn't just parents with majority of care who are unreasonable and responsible for the breakdown of contact. Either or both parents, and even sometimes children themselves, may be implicated in the problem. Anecdotal evidence can't be relied upon and no one knows for sure that the problem lies any more with mothers than fathers.

blackcat- i think more contact centres would help in all cases - when mothers are blocking contact unreasonably, they often say the child is scared of the father, or I am scared of the father I won't bring the child to contact, and there is no one else to help.

a properly staffed and resourced contact centre is thus a great place for a child and father to meet safely - the child's reaction to contact can be seen by a neutral person, the father is safe from allegations. of course, contact centres are not a long term solution, but after a few months of good contact at a centre it is much more difficult for the unreasonable parent to continue to deny contact credibly.

The problem is that there are not many contact centres and most of the ones in operation are run by volunteers, only open for limiited times etc.

3xcooked chips
Of cases where contact was refused the reasons were - father had been violent, a judge heard evidence and agreed the father had been violent, father refused to accept judge's finding and children said they didn't want to see him. No order for direct contact. I think that was the right decision.
Another case, father had behaved badly during split but I think the mother was also exaggerating the extend of his behaviour. Unfortuntely his teenage daugther took against him and her much younger sister followed her lead. A guardian was appointed and spoke to children who both said they didn't want to see him. Indirect contact only was ordered.
Those are my two most recent.

I don't deny at all there are cases where the resident parent willfully and maliciously tries to influence a child against the non resident parent. However, I think this is relatively rare as I have had over ten years only three examples of this. In all three examples the Judge was prepared to order a change of residence which lead to a change of heart in two of the cases, but sadly probably too late to stop massive damage being done to the children.

In my experience in the courts over ten years the majority of cases involve parents who have been deeply emotionally hurt by the separation and who lack the emotional intelligence to cope. They get locked into a battle and of course the children are hurt the most. Hence my very firm view that psychological intervention is the key and sooner rather than later. I wonder how many people get together and have children without giving it any real thought about how they will cope if they can't agree later on. Having children is a massive, massive responsibility and I think we all ought to be thinking much harder about it.

Totally agree with your thoughts Spero.
I think some kind of breakup counselling/parenting apart counselling as opposed to practical and entirely factual mediation might help.
I speak from my experience - yes hurt in relationship, underlying issues on ex's part that make his involvement in DCs lives limited because those issues remain. And yet as I await next court appearance I have no idea what will happen dependent on judge/magistrate on the day.
I have expressed some of my hurt and perhaps haven't always been able to separate my feelings from what is best for DCs but there is a DD from previous relationship and her feelings are ignored by ex. So, how to do your best or probably better to say find the least worst situation that meets everyone's needs some of the time.
I do think the starting point should not be to blame one or other parent for not being able to cope or deal with the situation as it now is, but sense that ending up in court is a failure of parenting full stop and then to deal with why that failed both between adults and within the family as a whole.
Gawd feel am sounding a bit DM, but courts and rulings are the bluntest way of dealing with some very nuanced relationships that will have a continued influence on children's lives.

hindsight is a wonderful thing.
how many baby books or NCT classes focus on the children that the baby will grow into? most focus on the Birth as being the ultimate outcome of pregnancy. people dont say "i want a child" they say "let's have a baby"

it comes as a shock i think that one ends up with children - and become a parent... in for the long-term... i agree - is huge responsibility and people arent prepared for it...

i had children with someone who had had some mild depression but had a good job, was charming and thought i was wonderful

(in hindsight there were warning flags...re: controlling behaviours...)

i separated 14 years later from someone who had no job, was violent and aggressive and experiencing very severe and scary mh episodes (he blames this on having a disabled child/now just blames everything on me). who could have foreseen?

but in other cases the issues seem trivial and yes just look like point scoring using the children...

i think there should be both breakup counselling/parenting apart counselling AND practical and entirely factual mediation.

the first individually if necessary as you cant address practicalities if one or more is still anguishing over the breakup.

but that is maybe people dealing with end of relationship etc.

and you cannot legislate for people doing crazy stuff.

obviously cant trust DM for facts on this case but there was apparently background of concern - but says father was given residence -

www.dailymail.co.uk/news/article-2197365/Graham-Anderson-Murdered-father-Thug-kills-sons-mother-finds-new-partner.html

www.bbc.co.uk/news/uk-england-wiltshire-19470125 authorities to review case

cases like this make it clear tho about background of DV being taken into account...