What's in a Name - A Lot - That's What

A RUMINATION ON THE CONNECTION BETWEEN THE CHANGING LANGUAGE OF PARENTAL RIGHTS AND OUR CHANGING SOCIETY

Custody. Access. We all know what those terms mean. Or do we? Custody implies control and possession. Access implies limited residual rights.

This week (early February 2012) in the news it has been reported that the Government is proposing to introduce a presumption is favour of shared residence by an amendment to the Children Act.

Below I will try to set out the evolution of the thought process here. This has also been written to redress the incredibly bad reporting of a lot of the articles in the press concerning this.

In an excellent piece of legislation, as good as the Government’s proposed Legal Aid etc Bill is bad, the Children Act 1989 transformed the landscape of the interrelationship of separated parents and their children.

In many Islamic and African countries children belong to their fathers. It used to be so in this country as well, and until recently in many Mediterranean countries. There have been many cases when children are abducted by Arabic fathers and the mothers never see their children again.

Then, in this country in the 70’s the pendulum swung completely the other way. Judges decided that children should be with their mothers and their mothers should have custody have custody of them; and fathers should be allowed such crumbs of access as the court considered it just to award.

What happened so often in those days is that the house was transferred to the mother in exchange for her giving up her right to child maintenance – and the father simply walked out of the children’s lives. I read a statistic (where did they get it from) that after divorce at that time half of fathers lost contact with their children.

I must say that that was not my personal experience – but then I worked in a small provincial town with limited geographical mobility, whereas I suspect that the prospects of fathers losing contact with their children is far larger in large urban conurbations.

Then the Children Act was passed in 1989 and became law in early 1991. It said that the best interests of the child were of paramount importance. It said that both divorcing parents (there were far fewer cohabiting couples then) would have parental responsibility i.e. the duty to maintain and nurture the child, and the right of both parents to be consulted of questions of religion and schooling, the right to school reports, the right to consent to medical treatment etc.

It also raised the presumption that unless either spouse made a specific application and unless the Court considered it in the best interests of the child, the Court would make no order. Previously the court would almost automatically make an order, usually giving sole custody to the mother and limited access to the father.

The Act also replaced the word custody with residence and access with contact. Although public consciousness is still 20 years behind the time, for the legal system the new concepts were like a fresh broom. It symbolised closer cooperation between divorcing parents.

However, there were two flies in the ointment.

The first was the Child Support Agency. It defined one parent as the parent with care and the other as the absent parent. What loaded words. It implied that only one parent cared for their children; and the absent parent had absented himself from his responsibility. It drove a wedge between parents, casting the parent with care (almost invariably at that time the mother) as the angelic figure caring for her children and the absent parent (almost invariably the father) as this irresponsible miscreant who was shirking his duty.

The other was the curious mindset of the judiciary. Almost entirely male at the time, they created a mindset and mythology that lawyers ignored at their peril. The idea was that men in society should feel guilty for having oppressed women and a logical extension of that was that women were invariably the best parents, unless they were actually shown to be unfit. This attitude of the judiciary interweaves male judicial thinking even to this day – strangely enough it has been female judges and academics who have been most persuasive in challenging this.

So this very well intentioned paternalism, but one which has always been contrary to the morality of the ordinary public, has continued to permeate decisions and undermine the intentions of the Children Act.

Slowly but surely a concept has crept in called shared residence. Just before the Children Act was enacted there was increasing use of joint custody orders. Shared residence at last gives full acknowledgement to the role of both parents.

In one sense the term should never have needed to be invented if the judiciary had considered fully the meaning of parental responsibility.

What does it mean? Nobody really knows. It is very emotive. The mother sees it as an attempt to undermine her authority as principal carer. The father sees it as a form of entitlement. It is all about getting the balance right between the perception of the mother and the father.

Families Need Fathers and other similar organisations were viewed as crackpots in their day and derided. Slowly but surely their views have gained some acceptance. However, just as the pendulum is swinging in their favour, so it runs the risk of going too far.

There was an extraordinary experiment in Australia of equal parenting. This was the idea that there should be a presumption in law that each parent should have the children 50% of the time. It is now being abandoned in Australia and, thank goodness, any proposals to adopt the presumption over here has been abandoned as well.

Changes in society have resulted in a reduced polarisation of sexual and parental roles. There is also increasingly effective academic research establishing the need of children to have a full relationship with both of their parents.

Mediation has been highly successful in concentrating the minds of separating parents on the children, rather than their anger towards one another.

Cultures do vary. However, the health of a culture should be reflected in the importance it gives to its most important asset, the children, and its second most important, the family.

I was very concerned that equal parenting was being seriously considered. The concept can be criticised on so many different levels. But I laud a presumption of shared residence, providing that its meaning is defined by statute rather than every judge giving it his/her personal colour depending on his/her subjective views on the issue.

I just hope that the judges to not distort its intention – which is to indicate that in the vast majority of cases children will benefit from the full involvement of both parents in their lives.

I hope that fathers will not use it as a weapon, particularly overassertive fathers who will use it as a weapon to try to re-establish dominance.

New language influences cultural thought patterns. New cultural thought patterns create new language.