Lets change it for the kids

Sobek wrote:
The law especially is rather good, thinking specifically about The Children Act 1989

How the blazes do you work that one out? The 1989 Act is primarily a public law solution with some private law bits hastily bolted on and bent to fit following the Cleveland Enquiry.

It assumes that children in private law disputes face the same risks as children in public law cases and undermines the authority of parents, replacing it with the state. A glance at this forum shows how much it infantilises parents, rendering them unable to make even the most elementary decisions for their children and handing responsibility for those decisions to unaccountable state employees.

Look at the rise in contact disputes from about 17,000 after the Act to 80,000 now - is that evidence of good law in operation? Look at the decline in shared residence orders, or the confusion between parental responsibility and parental rights.

For some good, detailed analysis of how great a gulf there is between the parliamentary intention and the actual Act as written, have a look at Robert Whiston's fascinating site.

Dear Forseti,

The Children Act 1989 has separate tests for both the public and private sectors when dealing with children's issues, which I am sure you will be aware of, as I am assuming you have read the Act.

I can understand that you might feel as you do about the legislation but to my mind it is still a thorough Act; what really matters is how it's interpreted and how competent the professionals in the system are.

It is not the case that the Act assumes anything about children in private family law proceedings and tries to assert the state by virtue of twinning it with public family law cases. The concerns often raised by professional critics of the system in relation to the Act centre around the ambiguity of the term "risk of significant harm" which I have no doubt you are aware of. It is in essence, a Catch 22. Legislate too precisely and the government will be accused of interference. Legislate too loosely and the government will be accused of creating loopholes to assert itself.

The amendement I proposed to the Act is a cultural one. It is about re-shaping the Act so that it functions as it was intended, namely, to look at the family as a whole whilst bearing in mind that children are generally speaking, the most vulnerable part of the unit. However, the problem is more cultural overall than legislative and so to my mind at least, the way forward is to address how we fundamentally view our family justice system in the context of the family unit, not as a mutually exclusive process where family matters are reduced to a logistical exercise.

The rise in contact disputes is not about good or bad law; this is about policy and again, working culture. There is plenty of room in the Act to allow for alternative forms of dispute resolution but the legal system earns its living from warring families and there is very little incentive to farm out work to more humane organisations that want to help. The rise in contact disputes therefore could be very easily reduced and dealt with under current legislation. This point is really more about lawyers and the monopoly they have on the system, which stems from policy.

There is also no confusion in relation to parental responsibility and parental rights. These definitions are all neatly addressed in legislation and beyond. Again, this is not a legislative problem, any confusion will be a result of the government not providing access to this information and this is certainly something I would argue the government is very bad at. Most litigants in person I help have no idea of where to get information to help themselves and it's an absolute disgrace.

Thank you for the site recommendation; I will certainly have a look.

I won't be signing the petition. It states...

'Child Autonomy asks our government to make the consideration of our children’s thoughts and feelings a legal right, which would fall in line with the Human Rights Act’s ethos and articles and would send a clear message to our family justice system: please listen to the voice of our children – they are the voice of Britain’s future.

Giving children the 'right' to express their views is a short step from placing an obligation for them to do so. Especially if they being coached by one of the parents.
This is a charter to promote parental alienation.

Children should be kept as far away from conflict as possible, not placed in the center ground.

Dear Zonked,

I would disagree with your intepretation of the petition. Allowing children to express themselves does not automatically mean that they will be granted all that they ask for. The petition simply states that children must be allowed to express their views.

How we subsequently interpret those views depends solely on the quality of the professionals dealing with the matter.

There is a lot of paranoya about allowing children the right to be heard. A balanced approach is essential to work out whether the views being expressed are rational and reasonable or a result of poor parenting.

Children make up a very important part of the family unit, arguably the most important. I don't believe we should be afraid of giving children autonomy, the levels of which will depend on their age and their comprehension.

All the petition does is re-iterate Sir Mark Potter's view that the voice of the child is an important dynamic which we can't do without when trying to understand the family unit.

Dear Sobek

To be frank. I think such a proposal if it became law would be used to separate more children from their fathers. Most kids would feel huge pressure to accept as gospel the primary carer's position. What child is going to declare autonomy from their primary carer? What kind of childhood would they have left? They will echo what they have been told to say, what else can they do? In such circumstances, who's to say what effect the children will suffer in later years? In adult life perhaps there would be feelings of regret, remorse and anger at the decisions they were forced into when a child.

Also, I think adults are very keen to avoid responsibility for their actions and would be quite happy to hide behind the cloak of following a child's wishes. An example of this is the LTR applicants who post their intention to move across the globe as reflecting what their children apparently 'want'. It’s a nice way to avoid guilt or responsibility.

A petition to oblige the courts to give paramount importance to a child's emotional needs would be a great thing and I’d sign it, but this is not it.

Dear Zonked,

You are very welcome to do as you wish with the petition in terms of not signing; there are many different schools of thought on family policy out there and mine is not the only one, by any means.

My main focus is ensuring stability for children; our policies are too parental 'rights' driven, from demanding 50/50 contact as a starting point when it has been well established and agreed by professionals and parents alike, when they are not at war with each other, that children are not divisible assets and that they need stability and continuity, to others demanding that the non resident parent should not have proper access to their children because they are not married to the other parent and so on.

In my opinion, and it is just mine, we need to be able to encompass past, present and future family scenarios so that the only thing ultimately that matters is that the child is given access to both his parents in a way that works best for the child, whether that's 50/50 contact or 40/60 contact and so on. We cannot have this kind of flexibility if we try to legislate on one position only.

That is why the voice of the child is paramount. It has to be heard in order to fully understand, whether by virtue of the child's own correct assessment of his needs or the need to examine further why the child feels the way he does if it begins to transpire that it is not reasonable. We cannot do this unless and until we recognise the importance of every family member's input.

Zonked, I don't know if you have been badly treated by the system or have experienced parental alienation, but I do sense you have, like many fathers who have been wronged, a very specific way of looking at things, which is of course your prerogative. Nevertheless, we can't make things better for dads or mums or kids if we don't start listening to the family dialogue, in its entirety.

Dear Sobek

I’m sure your well intention but your comments seem to lack insight into the real issues.

The nearest thing to your approach in current family law is the use of Family Group Conferences which tries to use an ecological approach to dispute resolution by involving all (adult) family members. No children are invited for the simple reason it is assumed all parties would want them shielded from involvement.

To say that a child can have an autonomous voice within a family unit seems to ignore how children grow and develop. The primary care giver has enormous power; even in abusive relationships children will mirror their parent’s views, values and opinions. You might wish to peruse attachment theory if you have any doubts on this. Of course children’s emotional needs can be assessed, their wishes ascertained, but that’s not the same as making their voices ‘paramount’ which is what you seem to be arguing for.

Am a little disappointed your so dismissive of 50/50 parenting. Now there’s a petition waiting to be signed.