The importance of fathers is
finally being recognised and was highlighted In Her Majesty Queen Elizabeth
II’s speech on 9th May 2012.
It was revealed that a consultation will take place which could
radically reform the law governing children to enable both separated parents an
equal caring arrangement with their children.
As (perhaps through personal
experience) you may be aware, under our current legislation, as set out in the
provisions of The Children Act 1989, Judges and Magistrates must consider the
independent views provided by CAFCASS (Children and
Family Court Advisory and Support Service) when being asked to decide where children should
live after their parents’ have separated and how often children should see the
non-resident parent. The order which is made by the Court is considered as a
decision which has been made in the “best interests” of the child. The welfare principle, incorporating considerations
of the children’s physical, emotional and educational needs are applied when
coming to this decision. However, unless
the mother can be shown to be an alcoholic, drug addict or suffering from a
psychotic mental condition, I can tell you, that the chances of attaining
shared residence, are minimal at best.
The mother is almost always considered to be best placed to look after
the children, with the father getting the odd weekend and some holiday contact
(if he’s that lucky).
It has always been considered
that the mother, even if she is a working parent, is best placed to look after
the children. I have always found this
to be most antagonising when representing a hard working father, who works all
the hours he can for the sake of his children, who then may only spend one hour
each evening with them – but that one hour is so precious: this one hour is the
quality time that both children and father crave and need. That one hour, where the entire day’s stress
and strain is forgotten about by the father, and where the children excitedly
recite the day’s events at school. This
is simply a snapshot of the relationship and bond between a father and his
children. The weekend brings more time:
walks in the park, bike rides, barbecues, and just general ‘together time’,
which serves to cement the bond between father and child.
I have yet to see a case, where
after a couple separates, the father has been able to retain any semblance of
contact, even remotely close to the time that he shared with his children
before separation.
Don’t get me wrong, I am not
blaming the mothers here and in cases, where the mothers are the main
breadwinners, I am sure that the same situation arises with them. However, I am more concerned about cases
where both parties are working parents.
Even here, the mother is seen to be the main carer, in spite of the
children’s ages and sex. The Court, for
all its welfare principles and children’s interests, has always been inclined
to side towards the mother.
Divorce and Separation are hard
for the parties and the children: emotionally and financially. But as a devoted father, knowing that the
odds are stacked against you as far as your children are concerned, is the most
difficult fact to bear. So many heart
wrenching stories have been reported of distraught fathers and their desperate
actions following separation. These
actions, certainly cannot be condoned, but are in most instances, the actions
of fathers having fallen in to severe depression, fallen in to a deep deep
emotional black hole, from which they can find no way out.
Are things about to change?
The current proposals start with
an automatic principle of shared care – this is basically a flip of the current
situation: now we start from a position of equality and then it is up to both
parties to present submissions as to why this is not a good idea.
As always, there has been a lot
of criticism of the proposals, with many lawyers even arguing that the current
practice and procedure is more than sufficient and therefore there is no real
need for this new Bill. I would stick my
neck out and disagree.
The current procedures are needed
and essential to assess the interests of the children. But in practice, the Courts veered towards
the mother in their interpretation of the legislation and the fathers would
always start from the back foot. By
introducing a shared care arrangement, fathers are ensured that they would be
starting off from an equal position. The
Courts would still need to apply the welfare principle, but if the Bill passes
through in to legislation, it will no longer be possible to simply push fathers
to one side..
I’ll keep you updated as this
develops through Parliament, but for now, to all you fathers out there
struggling for contact with your children, please keep pushing for contact.
Things will get better.
