Monday, February 27, 2012

The Church does not own marriage

The Government is moving ahead with its determination to allow same sex marriage.  It is reported on the BBC that Equalities minister Lynne Featherstone stated:

"it is the government's fundamental job to reflect society and to shape the future, not stay silent where it has the power to act and change things for the better."
She said: "(Marriage) is owned by neither the state nor the Church, as the former Archbishop Lord Carey rightly said. 

"It is owned by the people."

Is this the end of Civil Partnership Agreements? A rather unattractive and cumbersome phrase... 

Monday, February 20, 2012

Child Abduction... whose rights prevail?

Some of the most difficult cases arise when parents separate and choose to live in different countries.  The Hague Convention - an international law which all countries in the European Union adopt states that a child who has been removed from their country of residence needs to be returned to that country and the Court of the home country will decide in which country it is best for the child to live.

Countries who sign up to the Hague Convention apply its force diligently.  There are limited defences - one of which is the risk of harm to the child if a forced return is ordered.  The best defence is that the other parent gave their permission of course.

There is a case before the Supreme Court which involves a mother who took the child from Australia and claims that she will suffer mental harm and post tramatic stress if she is made to return.  The father has offered a whole raft of promises - undertakings to the Court - with regard to paying for her accommodation, maintenance for the child and having no direct contact with her.  The case will now be heard by the Supreme Court as the mother is appealing the Court of Appeal's decision for her to return to Australia with the child. 

If a child is abducted to England, the parent who is left behind is eligible for Legal Aid in this country - no mater which country he/she is from. These hearings take place in the High Court, are highly specialised, would involve both solicitors and barristers and perhaps an interpreter. 

Monday, February 13, 2012

Child's right to see father does not mean equal time with each parent

So says Ken Clarke "meaningful relationship is not about equal division of time, but the quality of parenting received by the child", as reported in The Independent

The Government stress that they are putting the interest of children first - no change there then and that there is a belief that fathers are treated unfairly but this belief is unfounded. He said:

 "What we are doing is going to state that principle in the law, because there are far too many people who think it's not being applied - although I do think the courts do apply it and try to apply it in most cases."

Not sure the statement of the principle will acheive anything.

The norm is that a child has one home post separation. If a father wishes to have an equal division of time with his child the onus is on him to prove that it is in the child's best interest.  Judges are not averse to citing the norm as a counter argument.

Monday, February 06, 2012

The Government's response to the Family Justice Review is to encourage parents to agree, to recognise the important role each parent plays in a child's life.

They state in a forward by Kenneth Clarke and Michael Gove:
"It means improving the enforcement options available where one parent fails to comply with decisions made either through mediation or by a judge. And it means going further than the previous recommendations and making it clearer that there is no in-built legal bias towards either the father or the mother. We believe that where there are no significant welfare issues, we should reinforce the principle through law, that it is in the best interests of the child to have a full and continuing relationship with both parents. We are aware of the debate on this issue, and the arguments are finely balanced. However, if we are to improve the effectiveness of private family law, we firmly believe that families' confidence in its fairness must be strengthened."

 With regard to shared parenting:
  • The changes in education and the introduction of parenting agreements which the review recommended will help ensure better recognition of the joint role of parents within wider society.  
  • It also accepts the need to clarify and restore public confidence that the courts recognise the joint nature of parenting. It will therefore make a legislative statement emphasising the importance of children having an ongoing relationship with both their parents after family separation, where that is safe, and in the child's best interests. The government is mindful of the lessons which must be learnt from the Australian experience of legislating in this area, which were highlighted by the Review and led them to urge caution. It will therefore consider very carefully how legislation can be framed to ensure that a meaningful relationship is not about equal division of time, but the quality of parenting received by the child. 
They are going to make a statement then.  Very good.  Not sure what difference that will make though.  How do you legislate for a meaningful relationship?  Will it be a contract like marriage?  What if the mother is abusive to the father and his new wife?  What if the father does not show up for contact?  What if the father is, as David Cameron describes "a deadbeat dad"?  Are these behaviours going to be punished?

As I see it, the vast majority of parents sort out their own arrangements upon separation and there does not appear to be a predominance of equal care being chosen.  Is it that the majority of families simply do not want this?  It therefore seems odd to attempt to legislate for everyone for what a minority want.

But what of that minority?  What of the father who is genuine is his desire and ability to have an  equal share in a child's day to day care?  What of the child who wants to spend equal time with each parent? Perhaps, if an application for shared care were to be made, the arrangements should commence on shared care and then it would be for the parent arguing against it to show it was not in the child's best interest and seek a change- rather than the other way round as it is at present.

Friday, February 03, 2012

Government u turn on fathers rights

Well, children's rights actually.  Rather than accept that giving father's a stronger role in law in their children's lives post separation may be harmful, the Cabinet revolt, led by Ian Duncan Smith and Nick Clegg has stated that there will be an overhaul of the Children Act 1989.

This will overturn the family justice review, which last November concluded no change needed and that increasing father's rights, even the right to maintain a meaningful relationship "would do more harm than good".

Parents are to be discouraged from going to Court and further encouraged to mediate - this objective seems to run through every proposal on family law.  Cuts in legal aid - mediate.  Can't see your children - mediate.

This news will be welcomed by lots of estranged fathers who feel that the Courts are biased against them.  It does seem odd that parental responsibility is designed to give equal rights and duties to both parents but post separation it is often the case that the mother makes unilateral decisions as to when the father can see their children.  It is also frustrating when the mother labels the father as "controlling" because he will not accept the limited contact with the children she offers.

It will be interesting to see what they actually do - anything short of an assumption of 50/50 care post separation will probably lack impact. 

It is reported in  The Daily Mail