Family Proceedings: New ideas or just a load of new lingo?

Well the soap writers won’t be happy. They will be hankering after the good old days, pre Children Act 1989, when the terminology in family proceedings was about as loaded as a Russian Oligarch’s pockets.

The ‘C’ word. All those years ago, separating and divorcing parents had a mighty tool in their arsenal. ‘Custody.’ Even just the threat of it was often enough to cause irreparable harm to an already fragile relationship. Custody; a word conjuring up confinement, control and possession. A Custody Order would often result in one triumphant parent. The other (aka the loser) would then be awarded ‘access’ as though it were some kind of consolation prize.

The Children Act moved us on from all that. Like wearing velcro-edged shoulder pads in the workplace, the late eighties bought us fresh ideas. The Act slashed Custody and introduced the Residence Order. Likewise we lost Access and instead a parent wanting to see her/his children has to apply to the court for a Contact Order.

Arguably, some of the drama was lost.

‘You’ll see. I’ll fight you all the way. I’ll get custody of my kids.’ You can just see it. Man pointing aggressively in woman’s face as he storms out of the house. Or, woman screaming at man after being shut out of the family home because she’d been having an affair.

It wasn’t quite the same. Ie. ‘You just wait. I’m going to apply to the court for a Residence Order.’ Scary.

Now the Child and Families Act 2014, which becomes law on 22nd April, is going one stage further. Amongst loads of changes (which include the setting up of one Family Court) Residence and Contact Orders are being scrapped and ‘Child Arrangements Orders’ introduced. The principles will remain the same. That is, that the welfare of the child is paramount, that delay in proceedings is generally not good and that the court will only make an order if that is beneficial to the child. But the idea is that this terminology will remove any kind of winner/loser status and help parents work more positively together in terms of sorting out arrangements for their children.

It will be interesting to see what, if any, difference it makes. Personally, having spent many years talking Residence and Access, my view is that any step towards reducing antagonism and promoting cooperation, is a good thing. But I’m not so sure the screenwriters, undoubtedly still mourning the death of child Custody, will agree.

 

Cinderella Law: Pushy mothers – Beware.

Firstly, it’s a terrible tag line for a law. I’m guessing the implication is that should this proposed law (ie making the emotional abuse of children a criminal offence) have been around in fairytale land, Cinders wicked step-mother would’ve been facing 10 years inside.

The emotional abuse of children is serious and its effects far-reaching. Yet making it a criminal offence is at best problematic.

Here’s why.

Firstly, it’s hard to define. In the recent media publicity, examples such as ‘witnessing domestic violence,’ and ‘degrading punishments’ are used. Yet the NSPCC on it’s website says emotional abuse also includes ‘persistently ignoring a child,’ ‘never expressing positive feelings towards a child,’ and ‘pushing a child too far.’

So it’s not inconceivable that by introducing this law, we could be filling our prisons with over ambitious parents who’ve forced their children into endless streams of after school activities. And what about those American style pageant mothers who dress their toddlers up to look like Diana Dors? Or those who force them onto X Factor? Pushy definitely. But criminally abusive? Really? The NSPCC also states emotional abuse can occur when a parent is absent. So does that mean that a parent in hospital/prison who returns to the family home could then be locked up again for being absent? Sadly parental absence has always happened due to death, war and family breakdown. If this is seen as ‘emotional abuse,’ we are going to see a massive increase in our criminal population.

Problem two is proof. For a child to suffer emotional abuse, generally speaking we are not talking about a one off event. It has to be persistent and over a long period. Generally it will take place in the family home. So how is this evidence going to be secured? Are we again relying on our over-stretched and under resourced social care system? Or are we relying on our schools that already take on extra pastoral responsibilities as social care budgets are cut. I just can’t see where this evidence will come from. It certainly won’t be the parents (who maybe due to unmet mental health or other welfare type problems are unaware of the potential for emotional abuse anyway) and it won’t be the children.

Cinderella Law needs a lot more thought. There needs to be a clear definition of ‘emotional abuse’ plus systems and services in place to identify those children who are affected. Interestingly, in the civil system, children become involved in the child protection system due to neglect or sexual/physical abuse. The category of ‘emotional abuse’ is rarely seen. That’s not because it is not out there. It’s because it is so hard to identify and prove.

Obese kids and the care system

Well, it certainly got a lot of people going.

The Mirror yesterday announced, ‘Seventy-four kids taken into care for their own protection as they are TOO FAT.’ The capitals were theirs by the way, not mine.

The Telegraph said, in somber monotone, ‘Obese children removed from families.’

The Mail, true to form, upped the anti with its headline.

‘More than 70 morbidly obese children overfed by parents are taken into care.’ Now that stood out. It was use of the word ‘morbidly,’ that gave it the clout. It so beautifully wrapped the medical term in hole of dark, brooding gloom.

But what I’m not sure about is how I was expected to react to these headlines.

Should I have been horrified that that as many as 74 children in the UK were taken into care because of the size of their stomachs? Should I be lobbying my MP? Should I be petrol bombing McDonalds and storming my local chip shop in protest at their role in the fight against flab?

I don’t think so.

In the year leading up to March 2013, just over 11,100 care applications were issued in the courts. If, using the figures we have, 74 of those applications were due to obesity, well, that’s not a lot is it. Being a self-diagnosed dyscalculic and so not totally reliable on figures, I make that 0.004%.

So, are we on the brink of the care system collapsing under the weight of too much weight?

Well no. Granted, on the face of it, it is a shocker that children are being taken into care because of their size. But for a care order to be made, the court has to be satisfied that the child ‘has suffered or is likely to suffer from significant harm.’ And the obese, everyone knows, face a massive risk of serious illnesses such as diabetes, high blood pressure, heart disease, and cancer. So, on a harm scale, those type of risks to a child could easily be seen as significant.

Plus for a care case to even start, family assessments should have been made with planning for support. A care application should then be the very last resort. So where a parent is simply unable to either protect a child from extreme over eating or react positively to information and education about the health risks of obesity, maybe care proceedings are the only option.

Whenever any child goes in to care it is very sad. Especially in view of some of the experiences some children and young people have of the care system. In an ideal world, the social care budget would be huge and parents would engage happily with the excellent support services on offer. However, we are not in that place. My guess is these few cases highlighted involved parents who were simply unable to accept the health risks and act accordingly. They may of course also include cases where children are voluntarily placed in care by their parents or are in care (so that the Local Authority has legal responsibility for them) but are living at home.  It will now be interesting to see how this recent statistic changes.

Separating parents and welfare of the child

A number of children’s charities, working together as The Shared Parenting Consortium, had a result last week.

It campaigned, successfully, for an amendment to a clause in the Children and Families Bill. The clause originally provided that the courts should ‘presume,’ unless the contrary is shown, that involvement of the (other) parent in the child’s life would ‘further the child’s welfare.’

The worry was that parents would assume this means that they are legally bound to equally share access to their child.  It was felt, quite rightly in my view, that there should be clarity about the meaning of this clause. This is especially important in a world where ex-couples, due to the cuts in legal aid, are negotiating arrangements without legal advice.

So well done to the Consortium. Good work. It has clarified that s1. of The Children Act remains king. That is, that the ‘child’s welfare’ is the court’s top consideration when making any decision about that child’s upbringing.

I can see that some Father’s groups may’ve supported the clause in its original format. Without wanting to be stereotypical, the reality is that more men are likely to feel at a disadvantage when decisions are made about arrangements. It may be felt that sharing time equally should be a presumption in law.

But if that’s correct, all we are then doing is moving towards contact/access arrangements being made on the basis of parents ‘rights’ not the welfare of the child. And that, to me, is a very slippery slope.

The clause has now been amended to clarify that involvement in the child’s life can mean direct or indirect involvement and is not a division of a child’s time.

All good stuff.

But it doesn’t help in those sad and not infrequent cases where one parent is desperate for the other, post separation, to maintain contact with the child but that other parent just can’t be bothered.  Many times, in practice, I had a parent asking if there was a court order he/she could apply for to make the other see the child. Sadly, that is just not out there. But maybe it should be.

 

Harassment and Real Fathers for Justice

 

In an effort to make a point, the Fathers for Justice mob are often pulling stunts. From defacing art to scaling Buckingham Palace, their antics have been audacious and extreme both in terms of their actions and their lyrca.

 

Whilst I’m not sure that the all-publicity-is-good-publicity rule always applies, last week, a Real Fathers for Justice activist (a splinter group from the original Fathers for Justice) received a 4 week prison sentence, suspended for 2 years, after being found guilty of harassment.

 

‘And?’ you may say, weary of the common post-separation slide; wife gets more time with kids. Husband gets mad. So wife gets even more time with kids.  So husband gets madder. Then loses it. Harassment commences.

 

Well, what’s different with this situation is that instead of harassing his ex-wife, the husband and activist took a different approach and harassed her solicitor. It seems husband set up a web site to attack the lawyer plus made all sorts of accusations about delay and the lawyer’s failure to pass on messages to his client about their three children.

 

My guess is that the husband was unrepresented meaning that the ex-wife’s lawyer had no option but to communicate with him direct. No doubt, that’s where the problems began. It may have been that had the husband had a robust lawyer himself, removing him from the sharp end, the whole situation would not have become so personal and out of hand.

 

But this sort of situation isn’t going to go away. As the very damaging cuts in family legal aid bed in, a large group of those facing divorce and family proceedings will have to represent themselves.  And like the activist above, (who, without even the trademark super-hero outfit, still managed to gain attention to his cause) inevitably there is plenty of scope for those emotionally stretched people in the middle of proceedings, to get it all so horribly wrong.

 

 

The views of children in family proceedings

My initial reaction to the ruling last week is ‘yeah, brilliant.’ Lady Hale, Deputy President of the Supreme Court, suggested a 13 year olds perception of where she should live is as important as that of her parents. Being always a big believer in young people having their say in things that affect them, it was really good to see this. Let’s face it, what can be more important to a 13 year old than who they are to live with especially when, as in this case, parents intend to live in different countries.

But, let’s face it. There’s 13. And there’s 13. My guess is that the 13 year old girl in this case was pretty sorted about what she wanted to happen. But it is such a tough call. Whilst some 13 year old girls spend their evenings sticking posters of Harry Styles to their walls, other’s are contemplating how best to navigate movement in super-wedges and a bodycon dress. And, of course, that issue of subjectivity doesn’t go away as young teenagers become older teenagers. Some people, whatever their age, have greater insight, understanding and capacity to make decisions and, at the very least, add to the debate about what should happen to them.

It’s complicated stuff though. I’m writing a book at the moment about 15 year old twins at the centre of their parents residence battle. One of my girls has decided, categorically, that she does not want to have a say in with whom they are to live. She does not want that pressure. In her heart, she knows what she wants but she cannot bear the emotional impact it will have if she verbalises this.

I wonder how the family in the case above dealt with that one. The girl said she wanted to stay in the UK with her father. Regardless of the outcome of the case, I wonder what effect this (very brave) assertion by the teenager had and will continue to have on on-going relations between her, both parents and her siblings.

There is too the another situation which can put a spanner in the works. That is, where the views of a young person change. I’m not saying that was an issue in this case as for proceedings to make it to the Supreme Court, the teenagers views must have been solid and consistent. But sometimes, in family proceedings, the views of the child can become warped. That is, the fact that Dad won’t teenager out to a party but Mum will, can give Mum the advantage. But then, when Mum just happens to mutter that Dad’s been out clubbing with a 19 year old, it levels it out. So what does Dad do? He swings the pendulum again with a pair Nike trainers and a week in the Algarve. I’m not saying it’s always like this and I’m certainly not saying teenagers don’t and can’t see through these type (whether intentional or not) of parental manoeuvres. All I’m saying is with the ebb and flow of managing two parents who both want you, it must, inevitably, be so hard to workout what’s best for you.

Books and Brands

I’ve just read an interesting article in the Guardian about books and publishing. Basically, it is saying that big name writers are getting bigger leaving little space in the market for ‘mid-list’ writers.

If it’s tough on those mid-listers, where does it leave us new writers? Probably up a certain creek without a paddle.

It seems it’s all about branding. Big writers are now ‘brands’ meaning it’s very difficult to generate public interest in anything that isn’t that brand (or like it). It’s very hard for new writers to be discovered.

I get that. I’m a new writer, writing realistic teen fiction and drawing on my many years as a children’s rights lawyer. But in a market teeming with brands built around vampires and magic, it’s hard to see if there is any way to manoeuvre anywhere.

I guess it’s about finding a way of escaping that certain creek to more vibrant waters. It maybe takes one book and one publisher to stick his or her neck out to move the public interest on a notch. Harry Potter did it. Twilight did it. Fifty Shades did it. But with current brands being so big and the publishing industry being so threatened in so many ways, it is perhaps easy to see why it’s safe to invest in existing brands. And without much else coming on to the market, they then just keep getting bigger.