Expert: British Government’s Family Law Proposal Doesn’t ‘Remotely Encourage Equal Time’

man repairing girl bike smallApril 19th, 2013 by Robert Franklin, Esq.

This provides yet another example of why people should read this blog, and not the mainstream press, for information on everything related to family courts, child custody, the science on child well-being, etc. The linked-to piece is by Professor Patrick Parkinson of the University of Sydney. It’s his submission to the British Parliament, at the request of a committee thereof, commenting on the coalition government’s proposal to amend the Children Act of 1989.

My most recent post on the subject was here last November (Fathers and Families, 11/8/12). In it I excoriated the government’s proposal as being no change from the status quo. Among other things, I said “Clearly this amendment, if it becomes law, will make not the least difference in the custody rulings of British family courts.” Parkinson puts the matter this way: “None of the options proposed by the Government will create any greater legislative support for shared parenting than does the existing law…” And further, “Nothing proposed either in the Interim Report of the Norgrove Committee, or by the Government in its 2012 Consultation Paper, has anything to do with “shared care” as understood around the world.”

As I said in my previous piece, those things are quite obviously true and can be seen to be true simply by reading the government’s proposed amendments. Unfortunately, that’s too big a task for the British press that last Fall eagerly reported that the bill would require a meaningful relationship between parents and children post-divorce. As I said then and Parkinson does now, that’s just flat wrong. Not one word of the proposal would require any judge at any time to issue a custody order any differently from what he/she does today.

Parkinson also takes on the infamous Norgrove Report that I too have dealt with in the past. The Norgrove Committee was tasked by the Cameron/Clegg government with investigating changes to the Children Act and making recommendations. After all, both Cameron’s Conservative Party and Clegg’s Liberal Democratic Party had, prior to their election, made statements strongly suggesting they’d support greater parenting time for fathers. We now know that nothing of the sort will occur, but shortly after they came into office, David Norgrove was appointed to head the committee to look into the issue. Perhaps because he had no experience whatsoever with family law, custody cases, or the social science on children’s welfare, Norgrove made a hash of it. His committee’s report was met with cries of dismay particularly from fathers’ right advocates and shortly came to rest in its natural place – the ash heap of history.

Many of the problems with the Norgrove Report stemmed from its reliance on feminist criticisms of Australia’s 2006 amendments to that country’s Family Law Act. The amendments had barely taken effect when anti-father forces began drumming up opposition to them. I pointed out at the time that there could scarcely be enough data on the effects of the new law to draw any conclusions at all. Needless to say, that didn’t stop the feminist opposition, but now Parkinson once again finds their claims, and Norgrove’s reliance on them, to be utterly flawed.

The Norgrove Committee’s discussion of the position in Australia as a result of the 2006 reforms was very unfortunate. When I was asked to give a paper on the Norgrove Committee’s work in London, I had to read the report very carefully. Greatly surprised by the various claims that were made, I checked the footnotes and went back to the sources cited, both in the main body of the report and in Annex G (on which, it appears, the Committee may have placed some reliance). I also checked my concerns with other academics before making any public comment. However, finding no foundation for most of the claims made, it was my duty, in these circumstances, to point out these errors and to correct the record even if that involved causing some anger and embarrassment…

The main points I made in my paper in London (Parkinson, 2012) were as follows:

(a) The 2006 legislation had not increased litigation, as claimed. In fact there has been a reduction of 32% in filings, due to the systemic reforms that were introduced, notably mandatory mediation and the FRCs. The 2006 reforms did not even increase litigation rates in the 12 months before those systemic reforms came in.

(b) There is absolutely no evidence that the requirement for courts to consider a meaningful relationship with both parents had, on its own, “contributed to damage to children because the term “meaningful” has come to be measured in terms of the quantity of time spent with each parent”, as the Norgrove Committee claimed (Family Justice Review, Final Report, 2011, at p.140). The problems with the legislation that have been identified in Australia could only be attributed to the legislative provisions as a whole. The most problematic aspect was the requirement for courts to consider equal time (s.65DAA), leading to much misunderstanding in the community that there was a starting point of equal time. The claim that the “meaningful relationship” provision in isolation from the rest of the legislation was responsible for creating expectations about the amount of time to which non-resident parents are “entitled”, has no foundation.

(c) There are troubling findings in the AIFS report about the number of families sharing care where there are safety concerns. The majority of those with such concerns who had a shared care arrangement were fathers. Around one in four fathers and one in ten mothers with shared care-time arrangements indicated that they held safety concerns for themselves or the children as a result of ongoing contact with the other parent (Kaspiew et al, 2009, p.233); but contrary to the extraordinary and unreferenced claim in the Norgrove Report that one quarter of all the judicially determined shared care cases involved parents with safety concerns, it is likely that almost none of these arrangements were made by courts (extrapolating from the data published in the AIFS Report).

(d) There is absolutely no evidence that the courts have been jeopardising the safety of children because of their focus on the importance of a meaningful relationship with both parents. The one case which is cited in support of that proposition in Annex G does not support it at all. Nor does the Chisholm Report, which is also cited in that submission.

(e) Although there has been a substantial increase in orders for shared care in judicially determined cases, the percentage of all children’s cases in which there was an order for shared care was under 13%. The 33% figure quoted by the AIFS needs to be taken in context. As I explained, it is from a sub-sample of cases picked out for analysis based upon a particular criterion. The cases where there was shared care ordered amounted to only about 32 cases out of 253 in total. Since judges retain a wide discretion to make whatever decision they think is in the best interests of the child, and most family law judges have very long experience as specialists in the field, it must be assumed that they had good reason to award shared care in these cases, based upon the paramountcy of the child’s best interests.

In short, every single claim by the Australian opposition to the 2006 improvements in children’s access to their fathers has been proven to be false. Astonishingly, Norgrove chose those claims to support his rejection of even slight improvements in British children’s access to their fathers. Unsurprisingly, he too was wrong.

I mention all this because Parkinson’s analysis supports what I said about the Australian amendments, the Norgrove report and the current proposal to amend British family law. I like to let people know when experts with the time to study matters in more depth than I can, come to the same conclusions I do.

However, at this point Parkinson and I part company. He’s excellent at evaluating the data on the results of the 2006 amendments in Australia. He rightly points out that the many statutes around the world calling for children to have meaningful relationships with both parents haven’t caused the type of confusion among parents, lawyers or judges that the anti-dad crowd in England pretends to believe would occur if such a law were passed there.

But Parkinson also ignores or mistakes several important things. First, he’s opposed to any sort of presumption of equal or even near-equal parenting time being required by law. He doesn’t say why, which I suppose is understandable. After all, with the exception of a single county in North Dakota, there is no jurisdiction on the planet with any such presumption. In fact, there never has been. So what data does Parkinson cite for the proposition that such a presumption would be a bad thing? None at all for the good and sufficient reason that there aren’t any. Me? I’d like to see some jurisdiction try it out just to see what happened. Unlike Parkinson, I don’t see the reason to oppose a presumption of equal parenting without knowing anything about how it might work, and work out.

Second, Parkinson is enthusiastic about laws that require judges to issue orders that encourage meaningful relationships between both parents and their children post-divorce or separation. He rightly points out that a number of states in the United States have such laws. What he neglects to mention is that those states can demonstrate no increase in parenting time for fathers, no change in standard visitation orders, no improvement in enforcement of those orders and no improvement in child-well-being. In short, judges faced with those statutory requirements seem to be doing what they’ve always done – giving primary custody to Mom and allowing the kids to see their father four nights a month or so. The only effort made at tracking the effects of such a legislative amendment found that it made no change in judge-ordered parenting arrangements save a slight increase in sole-father custody, which was the exact opposite of what the law was designed to do.

Parkinson seems a lot more interested in not disturbing the status quo than he is in improving the well-being of children by giving them more time with the fathers. He’s happy to say that “Children have a right to maintain relationships with parents and other family members who are important to them, unless this is detrimental to their well-being,” but he never mentions what that means or how it might be accomplished. As I said in my November piece, a child that sees his/her father one hour a month can certainly be said to “maintain a relationship” with him. The only problem is that it’s a lousy relationship for the sole reason that there’s not enough time to make it a full, real, parent-child relationship.

The point of parenting arrangements is not to satisfy the whims of legislators or social scientists; it’s to improve the lives of children. Real relationships with both parents accomplish that; the status quo does not.

Parkinson, not being a lawyer, doesn’t seem to grasp the fact that laws with weasel words like “meaningful relationship” are an iron-clad guarantee of just that – the status quo. Nothing will change until we make it do so. Parkinson is untroubled at the prospect, but millions of fathers and children are. Parkinson sets aright much that was misunderstood about the Cameron/Clegg proposal, the Norgrove Report and related topics. But he fails to see the big picture which is that children need their fathers and it’s the system of family law that separates the two. As long as he doesn’t see that as a problem, he’s got little meaningful to say on the subject.

Thanks again to Yuri for the heads-up.

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