family law review: getting it right for children

Policy Seminar Report - 15 July 2010

On 15 July 2010, the Centre for Separated families, the Centre for Social Justice, Fatherhood
Institute and Fawcett Society hosted a seminar to look at the key themes of the Family Law
Review and, in particular, how the justice system and the support services that surround it can
help families work together to reach agreements and how children can maintain relationships with
both of their parents, and other significant adults, after divorce or separation.

The seminar, which was sponsored by John Glen MP and chaired by Anthony Kirk QC was
attended by policy makers, practitioners, members of the legal profession, academics, charities,
advocates and others with an interest in the impact of family law on families and children.

Meeting the real needs of
separated families
Nick Woodall: The Centre for Separated Families
The core principle of the 1989 Children Act – that
the welfare of the child is paramount - is one that's
difficult to argue with. And it's a principle that's as
relevant outside of the family justice system as it is
within it. The notion that the well being of children
takes precedence over the 'rights' of parents is one
that sits at the very heart of everything that we do at
the Centre for Separated Families. Its an approach
we've used for the past decade and it is one that
brings positive outcomes for both parents and their
children.
 
What can easily be overlooked when we're
considering changes to the family justice system is
that the majority of parents, also, just want to do
the best for their children. Why then, do so many
find this difficult or impossible to achieve and why
do so many end up bogged down in low level
conflict. Or worse, in protracted and damaging
court battles?
 
In many respects, its not a difficult question to
answer, particularly when you work directly with the
messy part of people's lives as we, the Centre for
Separated Families, do on a daily basis. Divorce
and family separation is almost always a painful
process that involves hurt, loss and, often, a lack of
trust. Little wonder so many parents struggle to
build new, co-operative parenting relationships.
Given that, you'd think that the legal and policy
structures that parents encounter, along with the
support services that they look to for help, would
seek to engage with them in ways that would
orientate them away from the adversarial and
towards the collaborative.
 
Instead, what we see is a legal framework that
divides parents and accords them unequal status.
We see policy and practice that responds to myths
and stereotypes rather than real lives. And we see
voluntary organisations that play out at policy level
what parents themselves play out at the domestic
level – organisations that work to uphold parent's
rights rather than support co-operation. It's these
divisions of parenting status and a the adversarial
framework within which parents have to operate
that leads, too often, to poorer outcomes for
children.
 
We need look no further than the notions of 'care'
and 'contact', enshrined within Section 8 of the
Children Act, to see how parents are divided into
what we might call the 'proper parent' and the
'other parent'. We can see no need for this division
in status. Parents simply need to be helped to work
out how each of them will have a positive parenting

Family Law Review Seminar Report - 15 July 2010 1

role in their children's lives and how each will
discharge their ongoing responsibilities. But, even
those parents who go nowhere near the court
process – and that's the vast majority of parents –
find their choices constrained by the legal
framework.
 
Child benefit, statutory child maintenance, child tax
credits, housing allocation, in fact, virtually all of the
things that separated parents encounter, divide
them into the 'proper parent' and the 'other parent'
– the Parent With Care and the Non Resident Parent
- and all of the provision of services, all of the
support, all of the interaction with parents is framed
around this model.
And it's this model that serves to heighten the
division between parents rather than build
collaboration. At the Centre for Separated Families,
we'd like to see these divisions consigned to history
because we know that they don't serve children
well.
We'd like to see a statutory maintenance system
that assesses the capacity of both parents to
contribute.
We'd like to see a tax and benefits system that can
take account of the parenting input of both parents.
And we'd like to see services that engage with
parents in ways that are respectful, empathic and
impartial. Services that support co-operation and
the aspirations of both parents to continue their
parenting and providing responsibilities.
 
We're delighted that the Coalition intends to look at
the wider context of family separation and, in
particular, supporting relationships. And, where
families do separate, finding alternatives to
litigation. It's important, however, that such
initiatives don't fall foul of simply delivering more of
same, as so many have done before. What we need
is not more of the same, but services that are more
sophisticated. And these need to be co-ordinated
so that they're easy to access and available to both
parents, locally.
 
Whilst existing services such as mediation are an
essential component in the wide range of support
that parents need, these must be delivered in ways
that meet the changing aspirations of mothers and
fathers and the choices that they make about the
care and provision for their children when they
separate.
 
It's the failure of our existing approaches to offer
parents the ability to make such choices that
creates so many of the barriers that they have to
Family Law Review Seminar Report - 15 July 2010
o v e rc o m e i n o rd e r t o b u i l d c o - o p e r a t i v e
relationships. We can't, for example, on the one
hand, encourage fathers to be more involved in
hands-on parenting and then expect them not to
want to continue offering that when the family
separates. It's imperative that we move away from
the labels of the 'lone parent' and the 'non resident
parent'. They fail children and straight jacket
parents.
 
We welcome the Centre for Social Justice's
proposals for Family Relationship Hubs. These
would help with family relationships and parenting,
provide preventative relationship support and help
separating families to achieve workable parenting
arrangements. These could play a vital role in
providing the earliest possible support for
separating families by bringing together the multiple
services that parents need – education, information,
therapeutic input, facilitation of post separation
relationships and supported parenting relationships
with children. All of which are essential in helping
separating parents build co-operative relationships
that put their children's needs first.
 
A decade ago, the Centre for Separated Families
began working with the whole family after
separation – supporting mothers and fathers to
rebuild their parenting relationships. Many people
said that it wasn't possible to do. What we know is,
that not only is it possible, it's what most parents
want and, most importantly, it works.
 
By working with the real needs of families, we've
been able to translate our understanding of the
blocks and barriers that parents face into the
development of services such as Child Maintenance
Options, an information service that's available to
both parents to help them make choices about child
maintenance. The accessible, empathic,
empowering way in which Options delivers its
information could serve as a model for new services
that would help parents to make choices about the
ways in which they'll each parent after separation.
 
It's fair to assume that there'll always be parents for
whom no amount of support, however well
delivered, will prevent from taking the adversarial
path. For these families, the paramountcy principle
is as relevant today as it was when the children Act
was passed in 1989.
However, the family law framework and the policies
and practice that we put around it can move people
away from demanding their rights and towards
better parenting relationships where the needs of
children come first.
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Reforming Family Law
through principles not
prescription
Dr Samantha Callan: The Centre for Social
Justice
The backdrop to this seminar is the Coalition
programme’s statement: We will conduct a
comprehensive review of family law in order to
increase the use of mediation when couples do
break up, and to look at how best to provide greater
access rights to non-resident parents and
grandparents.
One of the CSJ’s many claims to fame is that we
started a trend in family law reviews. One proposal
of the seminal Breakthrough Britain report
(published in 2007) was that there be a review of the
relationship between the law and family breakdown
a n d l e g a l a s p e c t s o f m a r r i a g e , d i v o rc e ,
cohabitation, parental rights and the rights of the
extended family – and we acknowledged the
complexity from the outset. Shortly after we began
that Review, in 2008, David Cameron announced
that the Conservative Party would also conduct a
review on similar issues and finally, in 2010, the
Labour government joined in the fun with David
Norgrove’s Enquiry and the Lib Dems put family law
reform into their manifesto.
This unprecedented level of interest from across the
political spectrum is the best indicator that the time
is ripe to be making changes in what has previously
been considered something of a political no-go
area. Indeed, some non-resident parents’ (NRP)
lobby groups giving evidence, to our FLR, argued
that ‘the Children Act 1989 might be past its sell-by
date.’ As groundbreaking as it was in its day, the
Children Act was drafted in an era when the
assumption was that courts were faced with a
binary choice between two alternative homes – the
mother’s home and the father’s home. Contact/
access was what the loser received in the
residence/custody dispute. Now in many cases the
level of contact between parents is really the issue.
Both parents often want to have far greater
involvement in day-to-day decisions concerning
children’s lives before and after separation.
Parliament therefore needs to address a
significantly changed social and parenting context
since the Children Act 1989 was drafted and, we
concluded, to lay down principles rather than
Family Law Review Seminar Report - 15 July 2010
enshrining new (albeit rebuttable) presumptions in
law which would introduce inflexibility into the
system and hamper judges’ discretion in a way that
could conflict with the paramountcy principle.
Section 11 of the Children Act, currently headed
‘General principles and supplementary provisions’
does not offer any particular principles concerning
how to decide the case. This was where we
recommended laying down principles rather than
profoundly amending the Act by introducing any of
the various presumptions suggested. For example,
the presumption of shared care/parenting with the
possible starting point that both parents would have
an expectation of an equal right to parenting time.
We were aware that Australia had very recently
introduced Shared Parental Responsibility
legislation with the effect on the ground that many
parents now expect to negotiate on the basis of
equal time. This has made it more difficult for
mediators and others dispute resolution specialists
to create practical contact arrangements. The
public expectations created for any change in
legislation as well as the actuality of the changes
must always be taken into account.
Others argued for a presumption of reasonable
contact and Government proposals have in the past
been made for parenting plans which would outline
what full and frequent contact meant in terms of
time. In Florida, parenting plans setting out cycles
of contact in average cases meant that American
parents knew what kind of order a court was likely
to make, reducing the likelihood of litigation.
However we were aware that there are already
pressures on lawyers and parents in this country
not to litigate but to settle. The small percentage of
those that do make it to the inside of the courtroom
need to be concluded by a final hearing.
Finally, the more extreme and prescriptive
presumption of shared residence was suggested
with parties negotiating from that starting point.
Again, looking at Australia, there has been concern
voiced in the academic literature that the children
who are most likely to be in a shared residence/
equal time arrangement may actually be those
where parents are most conflicted, are most
tenaciously holding onto a sense of their rights and
not treating the child’s interests as paramount.
However, we outlined principles as guidance for
judges that parents should be considered as having
equal status in their children’s lives following
separation, unless the contrary was shown – equal
status but not equal time, the latter is merely one
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way in which parenting can be organised – in
appropriate cases. Also that children are most likely
to benefit from the substantial involvement of both
parents in their lives subject to the need to protect
them from abuse, violence or continuing high
conflict and that this may be in the form of a joint
(or shared) residence arrangement. The court would
still have regard to the ‘welfare checklist’ in s.1(3) of
the Act, and factors that would indicate that
substantial involvement is contraindicated will no
doubt emerge from a consideration of those factors.
We also made deliberate reference to financial
provision as a good indication of whether a non-
resident parent really is committed to their child.
We felt that the redrafted section 11 offers much to
both mothers and fathers. It addresses the
concerns of many caring and involved non-resident
parents (mostly fathers), while also addressing the
concerns of parents’ groups about violence, abuse,
and high conflict. It also meets concerns about
parents who will litigate to enforce their ‘parental
rights’ while frequently neglecting their
responsibilities. It builds on the 2006 legislation with
the importance of good contact actually taking
place for the benefit of the child with the non-
primary residential parent. It is a constructive and
positive provision, which gives much more
guidance to courts than the present Act and, we
believe, modernises it in an appropriate way.
Children in separation and
divorce: safeguarding their
best interests
Rob Williams: Fatherhood Institute
The Fatherhood Institute believes that the statutory
commitment to safeguarding the best interests of
the child should be paramount in all processes
supporting separating families, including court
processes; and that how this is best achieved for
the maximum number of children should be the
central question for the Family Justice Review.
One of the Fatherhood Institute’s key roles over the
past ten years has been to pull together research on
how men impact on their children and their
children’s mothers; and much of this research will
be relevant to the Family Justice review. Separation
does not guarantee poor outcomes. There are five
important variables:
Family Law Review Seminar Report - 15 July 2010
• the child’s own characteristics
• money and housing (fathers, mothers and
children)
• the level of conflict between the separating
and separated parents
• the quality of parenting by the resident parent
• and last but not least the quality of the
relationship with the non resident parent.
This depends in part, as does the quality of
relationship with the resident parent, on parenting
quality. But a non-resident father-child relationship
also needs to substantial and normative if it is to be
positive.
Father and child need to engage together not only
in recreational activities as tend to happen at
weekends, but in everyday interactions: getting
ready for school, being taken to and from school,
having friends round, helping with homework,
reading bedtime stories. More than these, a child
needs to feel a sense of belonging in his or her
father’s life, and that’s only achieved through
substantial and routine interactions. It’s for these
reasons that researchers are increasingly sceptical
about the value of what’s been called ‘standard’
contact: that is, every-other-weekend and tea one
evening during the other week. While sometimes
such an arrangement is the only possibility, this kind
of contact almost ensures that the child will remain
an add-on to his or her father’s life, and will not be
fully integrated into it.
All this is important because a strong relationship
with a non-resident father is associated with higher
attainment at schools, fewer behavioural problems,
less internalisation of problems, and less risky
behaviour during adolescence. What’s more, there
is a strong correlation between low levels of contact
with a non-resident father and depression in the
child. And the effects continue: young adults who
rarely or never see their separated fathers still suffer
substantial anger and self-doubt relating to this;
and are less likely to experience a smooth pathway
into their own romantic relationships. These are
important differences in outcomes, with big
implications for the best interests of the child.
This is also common sense. And it is recognised in
international law. Article 9 of the United Nations
Convention on the Rights of the Child outlines
states’ responsibilities to ensure that children are
not unnecessarily separated from their parents, to
give both parents the opportunity to take part in
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legal proceedings involving their children, and, most
importantly:
“States Parties shall respect the right of the child
who is separated from one or both parents to
maintain personal relations and direct contact
with both parents on a regular basis, except if it
is contrary to the child's best interests.”
While In the UK, 11% of separated parents share
the care of their children more or less equally
(Peacey & Hunt, 2008) and this is usually positive,
too many children (an estimated one-in-three) lose
contact with their fathers altogether or have too
little contact with them to be of any real
significance. That’s a lot of children – at any one
time, more than a million. Ninety-one percent of
resident parents are female (Office for National
Statistics, 2005) – a figure that has not changed in
40 years. Nor does this mean that the 9% of
separated families headed by a lone father are
headed by separated dads: very many lone fathers
are widowers.
. court decisions – and perceptions of these
Are all the fathers with low or no contact the kinds
of men that children would do better without? No.
Only 4% of children in separated families have
negative attitudes towards contact with their dads;
and research suggests that among the no-contact
fathers, only 1 in 6 is so seriously troubled that
contact with him would not be productive for the
child. Would these fathers have drifted away
a n y w a y, e v e n u n d e r a d i ff e re n t s y s t e m ?
Undoubtedly some would. However, in countries
which value and support both parents, the picture is
very different: in Sweden, for instance, one child in
three lives with both their parents in a 30% - 50%
split. That’s three times the number in the UK.
Indifference to the child is rarely a factor. Far more
influential are factors such as the child living in
another town, father or mother not understanding
the father’s importance; father feeling he has no
influence on his child’s life; father poor and/or
poorly educated; high levels of parental conflict,
failure to deal with the emotional aspects of the
separation, poor physical or mental health,
including over-use of alcohol/drugs (often in a vain
attempt to self-medicate).
P o v e r t y i s k e y. I t ’s t h e p o o re s t f a t h e r s ,
overwhelmingly, who are the most likely to lose
contact. Yet their financial circumstances are never
considered. Unlike in Australia, where both
separated parents are deemed ‘single parents’, here
Family Law Review Seminar Report - 15 July 2010
in the UK, it is only the resident parent’s financial
circumstances that are taken into account through
tax credits and benefits, including housing benefit.
Fathers whose housing cannot support overnight
stays by their children, are far more likely than other
fathers to lose touch.
Separated fathers also talk of a lack of information
not only about support and services but also about
their child. School communications go, typically,
only to the resident parent; nurseries turn them
away; they know nothing about their health needs –
sometimes, even the name of their child’s doctor or
his or her medical conditions. The information circle
closes in around the mother whilst the father
struggles to keep in touch with what his children are
doing when they are not right in front of him.
The court processes themselves present significant
barriers to sustained fatherhood. While it is claimed
(Hunt & Macleod, 2008) that only around 10% of
separations involve the courts and of these an even
smaller number go to a contested final hearing,
decisions – have a wider impact. Out of court
negotiations are carried out, as we all know, in the
‘shadow of the law’. And whilst Hunt and Macleod
found that in the majority of cases that came to
court the claimant (normally the father) was
awarded the amount and pattern of contact he was
requesting, this masks the reality that fathers
normally only ask for what their lawyers advise; that
delays and failure to reserve the case for the same
judge undermine outcomes; and that failure to
enforce is endemic, with British judges far less
willing than Canadian judges, for example, to switch
residence. So what should policy be aiming to
achieve?
• children who have the benefit of meaningful
and positive relationships with both parents
• mothers and fathers who can keep conflict
between themselves to a minimum and either
(at best) cooperate or else parent ‘in parallel’
without seeking to disrupt the relationship
between their child and his or her other
parent
• mothers and fathers who are capable of
l o o k i n g a f t e r t h e m s e l v e s fi n a n c i a l l y,
emotionally and physically and providing well
for their child, financially, emotionally, and
physically.
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When we look at possible processes that would
support such objectives important issues are likely
to include:
• cases should not be allowed to get to a
judicial process before separated or
separating couples have received good
quality, unambiguous information about the
realities of separation and divorce, the impact
on children, the importance of fathers,
mothers and grandparents to child wellbeing,
the impact of conflict and how to reduce it,
families need time and opportunities to
consider what will work for them
• clear protocols are in place to ensure that
everyone across the Family Law professions
is working towards the same aims and
objectives, including conciliatory rather than
a d v e r s a r i a l a n d l i t i g a t i o n re m e d i e s ,
minimising opportunities for parents to
become embroiled in allegations and
disputes (family lawyers have a very
important role to play here and collaborative
law processes seem to have much to
recommend them)
• fathers as well as mothers are treated as
central to decision-making and encouraged
to participate equally in parenting
• finding ways of hearing the voice of the child
and developing ways in which children can
be supported and can contribute
appropriately
• cases to be reserved for the same judge
• early intervention as soon as contact orders
are breached
• a presumption that couples in dispute (not
just those on legal aid) will have a meeting
with a mediator to explore options and clarify
issues prior to litigation. Some will agree to
mediate and other will not. Mediators should
be flexible and offer different kinds of
meetings, including separate meetings for
parents when they wish. This provides an
opportunity to reinforce messages about the
impacts of separation and of conflict, and to
support parents in taking difficult steps
• give consideration to the merits of
introducing child-inclusive approaches to
mediation, as in Australia, and to the
interesting programmes for high conflict
cases in Canada: early research evidence is
promising in terms of outcomes for children
and for mothers and fathers
• pilot parenting education and special
programmes for children experiencing
Family Law Review Seminar Report - 15 July 2010
separation, while ensuring that all
professionals involved understand their value
and promote them seriously to parents.
• develop multi-agency programmes (lawyers,
mediators, counsellors, CAFCASS officers,
court staff, judges etc) – as in the new
Australian project to promote collaboration in
family law system
• taking a whole family, family centred
approach which looks at the needs and
issues facing parents and children and other
family members, including new partners,
rather than simply looking at individual
interests.
• ensuring that there are places in communities
where mothers, fathers and children can go
to talk about and process family breakdown
and garner support
Should there be a presumption of equal parenting
time? Absolutely not. Presumptions of anything
threaten the best interests of the child. And the
issue is not about time but about meaningful
relationships, which is a much more nuanced
concept.
However, shared residence orders in this country
are rare and the proportion of decisions which end
up with the mother having residence is unchanged
since 1989. This despite the fact that men’s
involvement in the care of their children has
increased exponentially during the last 30 years.
We need to do something (even many things) to
decrease the numbers of children growing up
without a father.
It seems likely that if discussions about the future
for children in separated families were to take
shared (but not equal!) parenting as their starting
point a real shift might occur. So how could this
change come about – that courts use shared
parenting as a starting point for discussion? To be
honest, we do not yet know. Others will be better
placed to advise on whether a legislative change
would be necessary; or whether this could be
achieved by protocols alone.
We hope that this will be a matter that the Family
Justice Review will investigate seriously. The
evidence says that this is important for children.
And the current system shows us that a lot of
children are missing out.
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Considering the rights of
the child and gender
equality
Anna Bird: Fawcett Society
Like everyone round the table, Fawcett supports the
idea that children should, except in very exceptional
cases, have contact with both parents and their
wider family network – and vice versa.
Fawcett does have concerns that the need to
extend access for non-resident parents has been
set up as a struggle for rights for fathers versus
rights for mothers. Women’s and men’s rights
should not be pitched against each other in this
proprietary way of looking at things - which tends
to lead to a situation where children’s rights are
forgotten or ignored. The key principle where
families separate is, and must always be, that
decisions are made in the best interests of the child,
and that those decisions must protect both children
and any vulnerable adults from risk of harm.
In this debate, we recognise there are a number of
factors at play, including different moral arguments,
belief systems and political ideologies. Fawcett is
keen to take an objective view, situated in the
human rights framework, which should help steer
the course of the debates and decision-making. It
should mean that what ensues is fair and upholds
human rights principles for all involved; men,
women and children. I am not a lawyer, and what I
raise is not intended to be a trot through the law. It’s
as I say a helpful, objective framework through
which to understand our obligations and
responsibilities.
The paramountcy of Best interests of the child is
explicit in current family law and can be traced to
the UN Convention on the Rights of the Child where
it is enshrined in Article 3:
“In all actions concerning children, whether
undertaken by public or private social welfare
institutions, courts of law, administrative
authorities or legislative bodies, the best
interests of the child shall be a primary
consideration.”
Article 9 of the UN Convention is also clear that
children should have the right to maintain contact
with both parents:
Family Law Review Seminar Report - 15 July 2010
“States Parties shall respect the right of the child
who is separated from one or both parents to
maintain personal relations and direct contact
with both parents on a regular basis, except if it
is contrary to the child's best interests.”
The same rights are enshrined in the Convention on
the Elimination of all forms of Discrimination Against
Women:
Article 16 1.
“States Parties shall take all appropriate
measures to eliminate discrimination against
women in all matters relating to marriage and
family relations and in particular shall ensure, …:
d)
“The same rights and responsibilities as parents,
irrespective of their marital status, in matters
relating to their children; in all cases the interests
of the children shall be paramount; “
In terms of rights for parents, the State also has an
obligation under Article 8 of the Human Rights Act
which states that everyone has the right to respect
for his private and family life – that includes, for
fathers and mothers, for their enjoyment of their
family roles and responsibilities to be upheld. The
State can only interfere in certain circumstances but
then only in a proportionate way – so restricting
contact rights unduly should be considered in this
regard. These obligations are essential and non-
negotiable. In terms of introducing a principle to the
Children’s Act to assume the involvement of both
parents or an explicit statement of equal status of
both parents, the question should be applied - does
it distract from or compromise in any way our
obligations to act in the child’s best interests?
Fawcett would be concerned that changing the law
might unduly influence the need to assess the
needs, wellbeing and best interests of the child on a
case by case basis.
In terms of the current situation, I’d like to make a
few small points which we mustn’t lose sight of.
Fawcett is wary that there is a danger that in
agreeing the need to look at how to improve access
for fathers and grandparents, we might jump too
quickly to a conclusion that current law is failing or
flawed. So just to situate the debate in some facts,
in terms of residency, there is no legal presumption
that the child will stay with the mother when parents
divorce. It’s true that women are granted sole
residency in the majority of cases. But it would be a
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mistake to interpret this as a failure to provide for
equal rights of the mother and father to access
when families divorce. Other factors at work in our
society make it more likely for women to be
identified as the primary carer.
Some of the things that are relevant are that women
are more likely to be in part-time work, or to have
given up work to care for their children. Men, by
contrary, are less likely to have made more flexible
working arrangements to suit the rhythm of their
children’s lives. This is about:
• opportunity – it is often harder for men to get
access to flexible working arrangements
• culture – it is more acceptable and expected
for women to change their working life when
they become parents
• economics – the continuing gender pay gap
and the fact that women are more likely to be
in less well-paid work often leads to a
pragmatic decision that the mother should
take on the majority of the childcare
responsibilities while the father protects his
income
Since one of the leading factors in assessing the
best interests of the child is the need to cause
minimum disturbance, these existing factors in
terms of men’s and women’s lives will be an
important consideration for the judge. Whether you
think this situation – in terms of the roles of men
and women - is right or wrong, judges can only
work within the actualities of the society we live in.
If our goal is to encourage more equal parenting
these things are probably stronger drivers than a
change in the law in terms of affecting decisions
when families divorce.
In terms of access and contact for the non-resident
parent, again, on average, only 1% of applications
for contact (under the Children Act 1989) are
refused. Contact is usually granted even where
there has been a history of serious abuse. Where
there is a challenge to contact rights, it is usually
about the extent of access granted to the non-
resident parent. In terms of how contact decisions
are made, we need to look at the circumstances of
the case and here things like domestic violence are
important factors. Domestic violence is an issue in
up to 70% of family proceedings cases. Contact
arrangements can be used by an abusive partner to
Family Law Review Seminar Report - 15 July 2010
continue the abuse after the relationship has ended.
Around three quarters of separated women report
suffering post-separation violence. But this is not
about seeing women as victims and all fathers as
violent, and basing law around that. It could quite
easily be the other way round – that the mother is
emotionally or physically abusive or seeks to
manipulate the situation for her own gain. So what’s
important in law is that there must not be an
automatic presumption that “one size fits all”,
without looking at all the facts of the case at hand.
The rule must always be safe, positive and
appropriate contact. Any move which detracts from
the best interests of the child is likely to lose sight
of these principles. The key here is perhaps in
improving how we ascertain what is in the best
interests of the child in individual cases. We should
consult more with children rather than setting out
principles before we have met them.
One last point, I’d add that we need to recognize
that for many single parent families – often a lone
mother, but not always – the challenges can be
huge. They include balancing the children’s needs
and the responsibility and time involved in caring for
a child with work and often other caring
responsibilities. In many cases, increasing the
contact rights of the non-resident parent and/or
grand-parents may reduce the burden on the single
parent (and of course parenting is not always a
burden, but it is hard work and responsibility). But in
some cases the demand for contact for more
people or at more frequent intervals can cause
added complexity to that parent’s life, and might
cause added stress and anxiety. That’s not to say it
shouldn’t happen. Fawcett would argue that in
these circumstances the only way to weigh the
needs and rights of both parents fairly is through a
thorough consideration of the needs and best
interest s of the child.
To conclude, Fawcett’s view is that if the goal is
about fathers being able to play a fuller role, I think
we all agree that fathers having a greater role is
crucial and in most cases good for women, men
and children. But a legal remedy probably won’t
make the kind of change we are looking for. Actually
what we need is much more fundamental policy
change at the social, economic, cultural, and
structural level to enable and encourage fathers to
fulfill their role in children’s lives.
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