November 8th, 2012 by Robert Franklin, Esq.
After years of consideration, the British coalition government of Conservative David Cameron and Liberal Democrat Nicholas Clegg has issued its proposed amendments to the Children Act of 1989. To anyone who believes that fathers and children should have meaningful relationships post-divorce or separation, the proposals are an insult. To anyone who believes that mothers should be freed of some of the obligation of caring for children following divorce or separation, the proposals are a disgrace. Put simply, after years of promises, after years of study, the proposals are a prescription for maintaining the dysfunctional status quo.
Thanks to Yuri, one of Fathers and Families’ intrepid readers and supporters, here is the language by which the government proposes to amend the Children Act.
1A Shared parenting
(1) Section 1 of the Children Act 1989 (welfare of the child) is amended as follows.
(2) After subsection (2) insert –
“(2A) A court, in the circumstances mentioned in subsection (4)(a) or (7), is
as respects each parent within subsection (6)(a) to presume, unless the
contrary is shown, that involvement of that parent in the life of the child
concerned will further the child’s welfare.”
(3) After subsection (5) insert –
“(6) In subsection (2A) “parent” means parent of the child concerned; and, for
the purposes of that subsection, a parent of the child concerned –
(a) is within this paragraph if that parent can be involved in the
child’s life in a way that does not put the child at risk of suffering
(b) is to be treated as being within paragraph (a) unless there is
some evidence before the court in the particular proceedings to
suggest that involvement of that parent in the child’s life would put
the child at risk of suffering harm whatever the form of the
(7) The circumstances referred to are that the court is considering whether to make
an order under section 4(1)(c) or (2A) or 4ZA(1)(c) or (5) (parental responsibility of parent other than mother).
Notice first that the law presumes maternal custody. The “circumstances” under which a court is to presume that the involvement of a particular parent will “further the child’s welfare,” are those in which it is considering some custodial arrangement other than maternal responsibility for the child. If the court is not considering that, then all bets are off. All a court has to do is to ignore the possibility of some form of paternal custody and none of the proposed amendment applies. Once again, Dad is out in the cold and his children are left wondering why they no longer see him. Mothers are presumed to “further the child’s welfare;” fathers need to jump through a few hoops.
But even if a court considers the possibility of some form of paternal involvement in a child’s life, the proposed amendment imposes not the slightest burden on it to actually permit the child to see its father or the father his child. In the first place, what does “involvement” mean? According to normal English, it can mean virtually any form of contact between father and child, regardless of how slight. Who can deny that allowing a father to visit with his child for, say, one hour per month in a closely-monitored setting constitutes “involvement?” How about one hour per year? The point being that, to the extent the proposed amendment mandates anything (and it doesn’t), there’s almost nothing a judge can do that’s too little to satisfy its terms. Will a father who’s been granted one hour per month visitation with his child be able to appeal the judge’s order on the grounds that the amendment demands more? Of course not. ”Involvement” can mean anything greater than nothing at all.
If that’s not bad enough, let no one believe that fathers are accorded any rights under this amendment greater than what they already have. Take a look at section (6)(b). A parent may be allowed the aforesaid “involvement” with his child “unless there is some evidence before the court” to suggest he may pose a risk of harm to the child. The attorneys reading this will know what the term “some evidence” means. For our non-attorney readers, be advised that “some evidence” means any amount at all no matter how slight. Technically, it can even mean evidence that is dubious, barely believable, etc. So if a mother takes the witness stand and says “my ex-husband poses a risk of harm to the children,” that may constitute “some evidence.”
Keep in mind, her evidence may be rebutted by contradictory facts such as Dad’s never having harmed the children before. No matter, the amendment is clear; Mom has given testimony and that constitutes “some evidence” of Dad’s risk of harm.
To recap, the government’s proposed amendment applies only in cases in which the court is considering some form of custody other than maternal custody. If it’s not doing that, the amendment has no applicability to the case at bar. If the court does consider some form of paternal custody, mere “involvement” will suffice. ”Involvement” can be anything greater than nothing at all. But even those crumbs will be denied to father and child if there is “some evidence” regardless of how slight, regardless of how unbelievable, regardless of whether it’s rebutted by superior evidence, of the possibility that he’s a risk of harm to the child.
In a nutshell, that is what fathers and children in England and Wales are being offered by the Cameron/Clegg government. Did I call it an insult, a disgrace? Yes, I believe I did.
British Press Misrepresents Child Custody Proposal
The British press is most impressed. Articles in the Telegraph and the BBC have waxed rhapsodic about the proposal claiming it guarantees contact between fathers and children, and even, in the case of the Telegraph, that it mandates a “meaningful relationship” post-divorce. It doesn’t. The words of the statute are as plain as can be and there is no requirement that fathers have a meaningful relationship with their children. Judges would be required to order that only if the words were in the statute. They’re not. Reporters should read the proposal.
I hope it passes. Clearly this amendment, if it becomes law, will make not the least difference in the custody rulings of British family courts. As I’ve said before, those rulings reflect judicial bias far more than they do the mandates of applicable law. After all, no British law requires judges to give custody to mothers 90% of the time, but that’s what they do. No law requires those judges to refuse to enforce the meager visitation rights of fathers, but they do that too. The simple fact is that British judges have real difficulty grasping the simplest of things, like the fact that children need two parents in their lives, irrespective of whether their parents are married, divorced, separated or never married. But judges are stuck in a mindset that’s wholly at odds with social science and antagonistic to the best interests of children who need both parents, fathers who need their children and mothers who need the opportunity to work, earn and save. There is nothing in the proposed amendment that will change that mindset.
If the amendment passes, in a couple of years or so, we’ll be able to see that nothing has changed in the way custody and access are ordered by the courts. We’ll then be able to scratch this absurd amendment off the list of possible agents of change and move on to something better.
In the mean time, we’ll be able to start doing what we should have done long ago – targeting wrong-voting/wrong-thinking members of Parliament for defeat at the polls. To be blunt, this amendment is the type of nonsense officeholders come up with when they have no fear of electoral consequences from the voters at whom they’ve just thumbed their noses. For many politicians, fear is the only real motivator. Once they fear a group’s ability to make life for them hell at the polls, they miraculously come to grasp that group’s issues as never before.
Don’t get mad, get even.