I’ve only just found this thread, so my apologies for arriving at the party
rather late.
The first posting refers to organisations which
want to partner with Wikivorce; my experience is that getting different
organisations to agree anything in this area is next to impossible.
Anyway, here’s my list; some may be a bit controversial:
The
first three are the original demands made by F4J:
• Mandatory
mediation – this seems to have come up quite
often in this discussion; it has to be compulsory; as Judge John Lenderman
of Florida said, “I'm totally convinced mediation should be mandatory.
Every judge that I've talked to around the United States says mandatory
mediation is the way to go.”
• Open justice – the family courts
must be wholly open; not the feeble compromise we have now. Judges and
other professionals must be accountable for their decisions and the process
– not just the judgements – must be open to scrutiny. Litigants need
access to cases similar to theirs if they are to prepare properly. There
is absolutely no evidence from jurisdictions which are open that a child
has ever been harmed through publicity and none that a child has been
protected by anonymity. It’s absurd to imagine that children in the
playground read the Times law reports.
• A rebuttable
presumption of shared parenting – the legal starting point must be that
both parents have equal status and equal responsibilities. The courts must
get rid of the terrible apartheid of resident/non-resident parent which so
often leads to children losing a parent entirely. Parents must be treated
equally; as Bob Geldof said, “This Lawspeak which you all speak so
fluently, so unthinkingly, so hurtfully, must go.”
In addition
to these reforms I would add the following:
• As an interim
measure, allow legal aid in
collaborative law cases.
Collaborative law encourages parents to cooperate and has a claimed 85%
success rate, while the adversarial alternative is hugely costly and
comparatively ineffective.
• Establish as a general principle
that no parent should be able to profit substantially either financially or
by gaining control of their children through divorce. Far too often
fathers lose their homes, their savings and their children because judges
follow a false belief that the mother should not suffer a drop in her
standard of living following divorce, regardless of the effect on her
former husband.
• Establish as a general principle that neither
the State nor any individual should be able to profit through the promotion
of family breakdown or increased hostility between separating partners.
• It’s clear from other postings that many people resent a system
in which there is no consequence to a spouse for committing adultery, and
in which the partner who unilaterally petitions for divorce pays no penalty
for breaching the marriage contract. What we have now is not no-fault
divorce but divorce in which the innocent party is held to be equally at
fault. That is unjust and leads to increased ill-feeling and animosity.
• Strict enforcement of the no-delay principle. Parents who
exploit delay for tactical advantage should be severely penalised; lawyers
who do it should be struck off.
• A re-assessment of the welfare
principle. Historically it is a compromise: the feminists who persuaded
the Labour Government of 1924 to adopt it wanted it to be the sole
principle, not merely the paramount one. It doesn’t mean anything: the
lack of legal definition means that anyone can interpret it to suit his or
her prejudices and the understanding of it has changed gradually over time.
It doesn’t work in all cases – for example in LTR cases – and it often
conflicts with other considerations. The interests of other children who
should be considered – for example half-siblings, or the mother herself if
she too is a minor – can conflict with the interests of the child subject
to proceedings. It encourages lazy lawyers and incompetent FCAs to ignore
all other factors and treat it as the sole principle. I would suggest a
reform which looks at the interests of the family as a whole (including
grandparents) rather than those of just one individual within the
family.
• Remove cases – especially highly conflicted ones –
from the courts altogether. If (mandatory) mediation doesn’t work the
chances are either that one parent represents a risk of violence or abuse –
and the case should then be treated as a child protection issue – or that
one parent suffers from a mental health disorder: where there is no sign of
resolution both parents should be assessed for personality disorders. It
is disgraceful that instead in such circumstances the courts allow cases to
run on for years without hope of resolution, while lawyers exploit mental
illness and child abuse for their own financial gain. The courts act as if
they have never seen such cases before, when they should urgently be
referring them to appropriate agencies for resolution.
• Leave
to remove cases. If parents bring children into the world they should
commit to raise them in their country of birth unless both parents agree to
take them abroad. If a separating parent decides to emigrate by all means
allow them to do so, but they should not assume they can take their
children with them, away from the other parent, away from
grandparents and the extended
family and away from all that is familiar to them.
• Abolish
CAFCASS. Whose insane idea was it to hand responsibility for settling
parental disputes to the Probation Service? CAFCASS has had a uniquely
disastrous history and should be stopped before it harms any more children.
It introduces huge delay into many cases (currently 40 weeks for a s.7
report in many regions) and then produces reports which more often than not
(according to HMICA and Ofsted) are inadequate. It fails to monitor
outcomes and keeps no records, thus ensuring that every recommendation it
makes is an uncontrolled experiment on a child. It fails utterly to
distinguish between true and false allegations, ensuring that some children
lose good, loving parents, while others are forced to have
contact (or indeed
residence) with parents who mean them harm.
• Establish a benign
and child-centred agency which uses sound research and evidence to
determine the truth of allegations. Pilot the use of schemes such as the
Domestic Violence and Child Abuse Risk Assessments which are successfully
being used in Los Angeles.
• Abolish Child Benefit. In the
1920s feminists such as Eleanor Rathbone demanded that the State pay
married mothers a wage for bearing and rearing children so that they could
become financially independent of their husbands. This became the Family
Allowance and then Child Benefit. Now that women make up 50% of the
workforce (and take more than 50% of the jobs in the “professions”) this
anachronistic benefit can no longer be justified.
• Nor can it
be justified for taxpayers to pay
benefits to those who put
society at risk. Benefits paid for the children of
unmarried parents should
therefore be stopped. There could be a period of grace, commencing the
policy for new births from 2012, for example, and allowing benefits in
exceptional circumstances such as rape. Is that too controversial?
• Child Support. Child support payments are made in compensation
for the lack of parenting. A monetary payment should never be accepted as
a substitute for parenting. The existing system does not allow for shared
parenting; indeed, although the 1991 legislation contained a loophole which
would have allowed for a shared arrangement, this was plugged by additional
legislation in 1992. This was because child support was devised as a tax
on parenting, and not as a system for supporting children. Neither the
State nor private enforcement agencies (which need to turn a profit) should
be able to take money which would otherwise benefit children at a time when
they need it most. At present the income of only one parent is considered
and payments are taken with uniquely draconian enforcement as if they were
fines. He must pay for each night his children are not with him, though
there is no reciprocal arrangement by which the other parent pays him, thus
he pays disproportionately, and because the liable parent is the father in
95% of cases the system is also sexist. A fairer system would take both
incomes into account and apply the same rules to each, eliminating any
discrimination.
That’ll do for starters.
England and Wales 
