Whiston on Shared Parenting in the 1980s.

October 12, 2016 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization

Picking up from Monday on the notion of “shared parental responsibility” and its possible effect on parenting legislation, I refer readers to this excellent piece by the equally excellent Robert Whiston, commentator par excellence on family law in Great Britain. In it, he reveals little known facts about the status quo in British family courts in the 1980s and how that contrasts with today’s realities there. He does so by resort to a document called the Supplement to Working Paper 96 that was published in 1986.

Astonishingly, SWP reveals that, particularly in the southern part of the country, shared parenting was quite common. There was a north-south divide in which courts in the North seldom ordered shared parenting and those in the South did so fairly often. But, so remarkable is SWP 96 that the agency responsible for it no longer makes it available to the public. It’s nowhere on the website for the Law Commission.

Whiston has a few words about that public body:

The Law Commission is the body specifically empowered by all governments in Britain to revise laws and propose changes. It has had this role since 1965.

It is an immensely powerful and influential body and as such has attracted the politically motivated.

Much of its work has focused on the arcane, the detail of obscure laws affecting few or no one. However, it is better known to some parts of the general public for its influence on divorce and custody laws. Throughout its 30 year long history it has continually and incrementally altered the basis upon which family law operates. Their unrelenting programme of change has led to a radical new look in regards matrimonial law and rights. It would be untruthful to summarise this programme as benign or in any way beneficial or equitable…

Critics point to how the Law Commission has legally ‘orphaned’ millions of children by their legal reforms. Today the government concedes that around 40% of all children in a divorce lose touch with their fathers after a few years. No other organisation, they say, could be said to have caused or replicated in peace time a second holocaust affecting millions of children.

So what is SWP 96?

“Supplement to Working Paper No 96”, by J. A. Priest and J. C. Whybrow, is the custody report time forgot and is the research paper every modern researcher ignores – or is ignorant of. It is not freely available on the internet and is not listed in the Law Commission’s list of published reports which only go back as far as 1995.

Law Commission Reports (papers) No 91 and No 96 date from the mid 1980s. Both papers informed the process of re-structuring divorce and custody following the 1969 Divorce Reform Act which introduced ‘no fault’ divorce…

‘Supplement to Working Paper No 96’ (SWP No 96) is a truly remarkable paper and gives us unique insight into the custody habits of Britain before the topic became ‘politicised’ by feminists.

It is remarkable because it overturns many assumptions and contradicts many of the custody papers of today that reportedly describe this period in time.

Rediscovering the contents of ‘Supplement to Working Paper No 96’ (SWP No 96) could potentially be a knotty, if not an explosive, issue for some researchers. It could endanger many reputations as it is seen to dismiss much of the modern day reservations about shared parenting; undercuts worries about confusing children about which residence is their home; demolishes the argument that it is too complicated a system; and undermines the assertion that ‘sharing with father’ is an entirely untried pioneering technology.

That’s because shared parenting was in fact ordered about 40% of the time in the family courts of southern Great Britain. In the North, it was rarely ordered at all. Overall, the average for the whole country was 12.9% shared parenting orders. So indeed, a report that analyzed over 82,000 divorces found no evidence for the proposition that shared parenting is too confusing for children or that it is untried or unfamiliar. In fact it is none of those things and wasn’t 30 years ago.

And apparently, few people in the southern part of the country, including parents, children, judges and Court Welfare Officers (CWOs) seemed to think shared parenting post-divorce to be anything strange worth remarking on.

SWP No 96, at Para 5.6, describes how the regional pattern masks a consensus amongst the judges interviewed that, where possible, both parents should continue to be involved in their children’s upbringing after divorce. The inference is that by creating a truly equal partnership of child care after divorce there is less acrimony between the parents….

In stark contrast to the last 20 years, the authors of SWP No 96 note how CWOs (Court Welfare Officers) in 1985 appeared to be very favourably disposed towards joint custody. They commented how it actually made their lives easier.

In an atmosphere where judges see the positive benefits of joint custody (shared parenting), where CWOs actively embrace the concept, and where solicitors are encouraged to promote the concept as an option to their clients, its works extremely smoothly with a remarkably low incidence of cases being returned to court for non-compliance

Joint custody could once again become a reality, today, if the actors in the family court were predisposed to create a conducive environment by simply re-introducing the option of joint custody to parents.

But they’re not. The virulent opposition to shared parenting from some quarters continues unabated. So it’s worth remembering that, just three decades ago, in much of Great Britain, the situation was very different.

What happened? A lot did, including radical feminism’s rejection of shared parenting and the domestic violence establishment’s continued opposition to anything that might let children see more of their dads. And then there’s the matter of the law passed by Parliament in 1989 that ignored the practice of shared parenting in the southern part of the country and embraced sole custody arrangements of the North.  Apparently, the notion of “shared parental responsibility” was at least partly to blame.

It is a supreme irony that the Children Act 1989 – designed to be the “New Deal for children” discarded all the best elements of SWP No 96 and incorporated only the worst.

Joint custody died the day the Children Act 1989 was enacted and instead of having a choice or moving to a de facto regime of joint custody, the nation had thrust upon it the austere one- size-fits-all regime of the north, where spouses preferred to see wives looking after children…

After the Children Act 1989 all parental choice disappeared. No longer could parents in any part of the country choose to have joint or shared parental care over their children. The better choice for all, namely of joint custody was unceremoniously taken off the table. It no longer existed. The trend identified in Law Commission Report No 96 was killed off.

All that was offered in return was the theoretical and ethereal concept of “joint parental responsibility” for both parents but which was devoid of teeth, meaning or power.

The notion of “parental responsibility” as a stand-in for parenting time is dangerous and easily misapplied. Shared parental responsibility has come to mean the sharing of decision-making about important aspects of the child’s life and care. That’s important, but is no substitute for time spent with Dad or Mom. No social science even pretends that it does. The concept of shared responsibility looks to be a stalking horse for, once again, marginalizing fathers in the lives of their children.

Thanks to Robert Whiston for letting us know that, 30 years ago, broad swaths of the British judiciary knew better than to do so.

 

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