Wednesday, 30 April 2008

The Two Ronnies - my favourite shop sketch

This is nothing to do with law. But it is very funny. xx

Children Caught Up in Parental Conflict

The Missouri Divorce & Family Law Blog has 3 interesting posts on A Dozen Ways Children of Divorce Get Caught in Their Parents' Conflict contributed by James Roberts, a Missouri social worker. I recognise each and every one of them, with one or two cases of mine sadly featuring practically all of them. I was particularly struck by the last one - parents hiding behind an apparently noble position - "I want her to make her own decisions" - as a justification for denying contact (when the child's wishes & feelings are not so readily accepted when it comes to refusing to do homework or going to school or going to see that boring old aunt. For any parent dealing with separation and contact issues these posts repay careful reflection to ensure that the child is not damaged and that you are not kidding yourself about being right or righteous.

Tuesday, 29 April 2008

Resolution, children & separated parents

Resolution has published a great guide about helping parents who are separating to deal with issues about children which is availalbe as a pdf download here .

Monday, 28 April 2008

The consequences of separation

A mother wrote to me recently setting out a history of problems with the father of her child including that he has a major mental illness, cannot organise himself financially so that he often runs out of food or basics like electricity and she is always having to bail him out. To add insult to injury he has also had unprotected sex with others and accused her of violence towards him. She concludes:
I really dont want to see him again as it is too much pain to take and I still love him. Can I enjoy life with my son without seeing him?? what if he goes to court to ask for contact order,,,will he get it?? Can I change baby's surname??

Packed into these questions is the stuff of family law itself. She loves him, she hates him. She wants to help him, he throws it back at her, but he can't help himself, or can he? Can she just sweep him under the carpet because he is too much trouble. I have a great deal of sympathy for what she is going through, bearing in mind as I do, that I am only hearing it from her side.

I couldn't advise her directly as the questions and the background need much more exploration. But I can make a few general comments.

Unless his mental illness makes him a direct danger to the child, the court will not simply assume that the best solution for the child is to cut him out. Even if there is some level of risk, the court will look to see whether it can be contained through supervision of contact or something similar.

If his behaviour over a period of time is such that no reasonable mother could be expected to deal with it or this particular mother has reached the end of a very long tether, then this will be relevant to the court's consideration and it might take the view that at the very least contact should be organised so she does not have to deal with him directly and might take the view that he should be cut out of the child's life at least for a time. Even that may be the subject of future review, particularly if he can show that he has improved in terms of his mental health or attitudes towards mother and child.

Strictly speaking, if the father does not share parental responsibility, the mother could change the child's surname without his consent.

What she also needs to consider is:

  • contact is the child's right not the father's (whether it should be or not is a whole separate blogpost). It may be the right thing to stop contact temporarily because of the father's presentation. But this is unlikely to be the end of the matter if the father persists in future. The child will in due course seek an explanation of why mother did not allow contact and it will be the mother who is resented by the child if she cannot explain it.

  • at moments of high stress it may be tempting to wish away the other parent and very difficult to forgive them for what they have done as seemingly responsible adults. But just how responsible they are for their actions in the moment is a moot point with people who suffer from significant mental illness or personality disorder. This does not mean the court expects you to put up with anything. But a parent is a child's parent warts and all and personality type and all. In time that parent will be part of the child's identity and cannot simply be airbrushed out.

  • the court does often expect a great deal of the parent in this situation who does not have the personality difficulties in terms of accommodating the other parent, but not to the extent of putting their own safety or mental well-being at stake.

  • What the court will want to focus on if an application is made is what is the direct risk to the child if contact of some sort is ordered as well as what is the risk to the well-being of the parent with primary care.

  • change of surname is a whole different legal bag of problems. Even if it can be done lawfully, if you are the one contemplating the name change, think long and hard about why you are doing it. Better reasons include confusion for the child if they are known by a wholly different name from the mother and maybe the new partner. Even then, what about a double-barrelled name, even if one part of the name is not formally used very often. If the surname is a symbol of the attitude to the non-resident parent, the rat will be smelled.

Monday, 21 April 2008

Equal parenting time

A questioner asks me whether I have experience of fathers getting anything like 50/50of parenting time. The short answer is yes, but this, of course, does not do justice to the question.

Over 15 years in practice, I must have seen just about every permutation of time division between separated parents from zero to 90% and whether the resident carer is mother or father. There is a hugely variable range of reactions from Judges. The younger the child, the more likely it is that contact to father is going to be restricted in time. But there are Judges who will look at what the arrangements were pre-separation and who decline to make any differential between children of 6 months and children of over 5. There is no hard and fast rule and no research which assists or is regularly referred to in court.

To give some specific examples from my recent cases:

In a case involving a child of nearly 5 and a history of regular involvement by father though essentially primary care by father, the Judge said that father could not have staying contact at weekends in part because he had consented to an earlier order for visiting contact only.

In another case, where a father had pretty much hijacked the mother into shared care, the Judge would not interfere on an interim basis with a 3 day on and 3 day off arrangement for a child of 7.5 even though many other Judges have indicated that this would not be seen by them as viable.

In a case involving a group of children from 8 to 12 a mother & father had agreed, with a little judicial direction, that the contact should be Mondays & Tuesdays to mother, Wednesdays & Thursdays to father and alternate weekends Friday to Monday to each parent with a more flexible arrangement in the school holidays. This was working well but involved a great deal of cooperation from both parents and a geographical proximity with home and school.

Midweek contact as an isolated occurrence eg every Wednesday for older children is often frowned on. Judges tend to prefer that children have the same home base on school nights, unless the parents can agree otherwise.

If a serious allegation of say, possible sexual abuse is made, this can lead to the temporary suspension of contact (including with the resident parent) for 1 month, 6 months, 1 year depending on how long it is before the court can spend enough time on the case to reach a view on the likely outcome of a contested hearing or to deal with a contested hearing. In other words there are some cases where it can quickly become apparent that these allegations have little substance, and some which take a longer forensic enquiry and some which fall into the first category but the court does not have enough time at an early hearing to take a robust view.

If the parents manage some sort of pretty much split arrangement for a period of time, I have known a Judge to contemplate an arrangement which involved a pre-school child attending two nursery schools in order to spend equal time with each parent.

I have had two cases recently where the difference between what the parents wanted was 6 nights a month. It may scarcely seem to matter to an objective view. But all of them had their reasons for advocating the slightly larger number of nights with them / smaller number with the other one and a common suspicion on both sides that the objective was control of both the child and access to finances (more benefits and greater access to public housing may follow if each parent has equal time).

It seems to me that there is a fairly simple rule of thumb adopted by many courts in relation at least to children over 5 and that is that the starting point should be 50% of the so-called quality time, maybe with a bit extra. For example, alternate long weekends from Friday to Monday during term-time with an extra visit or overnight in the non-weekend contac week and half the holidays including half-terms. Whether this has a sound research basis I do not know.

What I would encourage separated parents to consider is this:

Contact should not be approached on a mathematical basis. What is important is what works for the child and all members of the family. There is no point insisting on or against a 50 /50 split for the sake of it. If you are, for example, a working father, who cannot get home before 7.30 pm then perhaps think about abandoning your view of strict entitlement to those weeknights when you cannot get home and would have to use alternative carers yourself. If you are a working mother then do not insist on the child remaining in your care for the sake of some illusory stability or routine, when again, what it means is that you will have to call on an au pair. Both of you should, however, acknowledge, that the involvement of grandparents after hours while you are at work enables the children to spend time with their grandparents, if there is nothing about this which puts the children at risk.

Like the big yellow taxi , parents often don't appreciate what they lose in terms of casual opportunities for contact until it's gone. Maybe focus on indirect contact ie telephone and email to replace as best it can the popping into the children's bedroom at the end of a busy day or the casual conversation over a sandwich about what happened at school. Children remember not so much what you did with them as how you made them feel.

Mr Larch

Link to a very brilliant plea in mitigation

Monday, 14 April 2008

Step-parents & parental responsibility in UK family law

I am a stepfather. I have been living with a woman who has 3 children for about 4 years. I have 2 children of my own who also live with us. We are about to get married. Will this give me parental responsibility for my partner’s children? Do I need parental responsibility?

Getting married to your partner will not give you parental responsibility for your step-children (although you will have responsibilities for the welfare of any child in your care and for maintaining any child of the family).

Since 5th December 2005 step-parents and same sex partners in a registered civil partnership can acquire parental responsibility through a formal agreement or court order. However, anyone else who has parental responsibility has to sign the agreement – this will usually mean that the child’s biological father must agree.

You can also acquire it by applying to the court for a residence order or by adopting the children. As a married step parent with whom a child has been living for 3 years you have a right to apply for a residence order. You also have the right to apply if the child has lived with you for at least 3 years during the last 5 years, and within the last 3 months or you are a civl partner and have treated the child as your own. Much will depend on the attitude of the children’s father. If he is not involved with the children, asking for a residence order may be reasonably straightforward (although the father will have to have notice of your application). If he is involved and especially if he has parental responsibility, you would be well advised to try to get him to agree that you should have a residence order. It may help if you explain to him clearly why you want it (for example, to enable you to be fully involved in the children’s schooling or medical treatment) and to offer any appropriate reassurance about his continuing role in the children’s lives. If he has parental responsibility, you would share it with him as well as the children’s mother. In other words it does not take it away from him.

You should take legal advice about the best way forward.

Sunday, 13 April 2008

It's been so long

Sorry folks, have been rather neglecting this blog because of a combination of the call of other blogs & websites, some training on the new Public Law Outline, a hectic social schedule of wild celebrity parties and the fact that I am in mourning for a certain football team that is not doing quite as well as it might. But you are not forgotten so here's a little something to cheer you up.

No wonder so many marriages hit the rocks if this is what happens in Relate!