Shared parenting and the rights of the child: Marilyn Stowe speaks


Of all the hundreds of topics we have discussed on this blog over the last nine years, shared parenting after divorce is perhaps the biggest button pusher. We receive a flood of forthright comments whenever we write about this very emotive issue.

There are many angry commentators out there convinced that the family courts are unfair to fathers and they tell us so at length. If I have understood it correctly, their view appears to be that shared parenting arrangements after divorce should be completely 50-50 and that any deviation from this is a violation of their rights as parents. Whether you believe this philosophy to be correct or not, the fact remains that English law actually does not give parents any ‘rights’, as hard as many may find that to believe. Old family law staples like ‘custody’ have been consigned to history, even if journalists continue to use the term as convenient headline shorthand.

Instead we have child arrangements orders, which set how much time a child should be spend with each parent post-divorce, and most centrally, the Children Act 1989.

This key piece of legislation clearly states that the central focus of all family disputes involving children should be their best interests. If any party in a parenting dispute has rights, it is the children themselves.

The family courts do now have an operating principle – ‘a presumption’ – that these best interests are best served by the involvement of both parents. But this is certainly not absolute and very much dependent on the circumstances of each case.

This is a very emotional topic – as a parent myself I can certainly understand the strength of feeling expressed by many. But I would urge all the campaigners and commentators out there to remember that the welfare of each child underpins the system and that first and foremost a child’s welfare starts with the relationship of the parents to each other. There is no other answer.

 

Video transcript

Hello, I have been writing this blog since 2007 and there is one subject that seems to cause eruptions every time we touch on it, and this is in relation to shared care of children post family breakdown. There is absolutely no question that when families separate, parents are really quite shocked to find out that they don’t have any rights towards their children, they have parental responsibility but they don’t have rights enshrined in law. The only law that applies to the dispute between them that might arise, and for many may I stress it doesn’t arise, but for those where there is a problem the law is the Children Act 1989. The test is this; the welfare of the child is paramount so whatever a court thinks is in the best interest of the child is what it will do.

Now, in 2014 a presumption was introduced into law and the presumption stated that in a child’s life the welfare of the child is petuned to be best served by the involvement of both parents. That is on that basis that it would be safe to involve both parents and without specifying any strict division of time. Some groups take the view that division of time should in fact be enshrined in law; that fathers and mothers should equally be entitled to shared care of a child and that if you wish to depart form that, you have to show very good reason why. We in English law don’t have that and what we have is a court which will look at all the circumstances and determine what is in the best interest of the child. Historically it developed in this way before the beginning of the twentieth century; fathers had custody pf the children. In the 1920’s it changed and eventually mothers who stayed at home typically while father went out to work were entitled to have custody of the children because custody at that stage still existed. Custody was abolished in 1989 under the Children Act and now there is no such thing. What we have now is the Child Arrangements Order where the court specifies which parent a child should be with, to live with and spend time with if they cannot agree it themselves.

Sometimes as a practitioner I cannot believe the level of hatred that can exist between parties who were once happily married. I am pleased to say that I don’t actually normally act for that kind of person, for some reason, and I think it is because I might not hit it off with that person too well, I read more about them in the press and I read with great sadness about how parties can be at each other’s throats and get to the stage where parents feel it necessary to climb on the roof as parents did last week on Jeremy Corbyn’s house to protest about the arrangements for their children. It is absolutely shocking when mother or father is separated from a child because as a product of a happy marriage myself and I hope having brought up a child in an equally happy marriage where both parents inputted, I can well understand the benefits that having two parents can bring to the welfare of a child.

Personally, I am all in favour of shared care for a child, but that is not the law and all I can do is urge parties who are at each other’s throats to do everything they possibly can to try and resolve it because it is not them that suffer, it is a child and it is a cycle that can repeat itself later on in life if a child thinks that that’s the norm. Well it isn’t the norm and I think the best thing that parents can do is look at themselves. Don’t blame the law, don’t blame the courts, look at themselves.

Thank you.

Stowe Family Law Web Team

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23 comments

Andy - August 10, 2016 at 6:58pm

Same old issues, same old outcomes..Courts favour the mother as presumed to be the parent with care…
Typically every father feels and quite rightly, they are reduced to a shower of legal rules dished out by the courts to kick down the Father who quite frankly only wishes to have a normal life with the children or child but this will never happen as finances and ever increasing court arguments leave the Father or other battering ever increasing burdens on costs to fight such action as the courts dish out….

It’s all well and good saying there is no court bias..just ask all fathers out there who quite frankly been let down by the legal system that they thought would sort such issues out…
Hi time the out dated courts, if any left!!. As yet it’s just too good to get money through the arguing and solicitors costs into the government accounts…
With increased court application fees…

Andy - August 10, 2016 at 7:02pm

This subject makes me so angry when I hear this topic on fairness…don’t forget tho, all the lies stated by the mother in her attempt to obtain actions such as domestic violence and the list goes on…

And of course the children are not used as ammunition are they!!!!

JamesB - August 10, 2016 at 9:40pm

Your last paragraph, like the law makes no sense. I had this from a couple of dodgy Judges. They wouldn’t increase contact because mother was hostile. Therefore the men and children get shafted because all woman has to do is, well, they don’t have to do anything, you have to kiss their backsides and take what they offer, as courts won’t help, for as Marilyn says the mother can walk away and claim no co-parenting and Judge doesn’t want any conflict around the children, stupid law open to game playing like the rest of family law in this jurisdiction.

Anon - August 11, 2016 at 12:12am

” Courts favour the mother as presumed to be the parent with care” This isn’t always the case but often it is. When I divorced, my husband demanded 50:50 shared parenting. I opposed it. Why? During the marriage he had shown no interest in our child. On the day I went into labour he walked around town telling everyone he knew, that I was in labour and soon to give birth. Several told me they were surprised that he wasn’t at the birth with me. I wasn’t surprised. Since I became pregnant, he frequently told me he felt nothing for me and the baby. He actually left several times. Once he even moved in with a woman he had been spending time with and 2 days later he begged to be forgiven. It was a home birth and he was there for the last 4 hours. Afterwards, the midwives wanted me to go to hospital. He drove. I still remember the drive. He was furious and I don’t know why, he lurched the car around corners, applied the brakes so hard that I was thrown around, even with a seatbelt. I vomited in the kidney bowl the whole journey. I asked him to slow down but it only made it worse. The marriage ended when our child was 2. In the two years, he would wake up before the baby and then go to work. Sometimes at 5 am. He would stay late- often not coming back until about 8pm. Anything to avoid being with the baby. He put her to bed once and when she wasn’t asleep after 5 minutes, he stormed down the stairs and walked out of the house. If I said anything I was accused of stifling him, of not giving him enough space. During the night he pretended to sleep so I did the night feeds. He still demanded sex and would sometimes try when I was lying in bed breastfeeding and that was only part of the story. He never went to the doctor, the dentist, never did the school runs, checked for headlice ( there were older children) never sorted out the uniform, never bought it. He shouted at me one summer for spending £50 on a paddling pool from B and Q. It was a waste of money, he said. That week he spent over £200 on Bose speakers saying that he “had to have music”. He had anger outbursts which meant that he would shout and throw things. He had manhandled his older children. I’m writing all this to give a flavour of the background. When we divorced, he demanded 50:50 shared parenting and I said no. The reasons I gave were that he had an anger issue, he was not used to looking after children as he had left me to do all of it and I had concerns. He accused me of being hostile, parental alienation, contact denial. In the end the judge said that our child should live with me and see the father every other weekend and 1/2 the holidays. He tells everyone that I am preventing contact and I am a parental alienatior. The truth is somewhat different.

JamesB - August 11, 2016 at 10:16am

Wrt the best interests of the child, that is just an excuse for the court to shirk its responsibilities, like how the church used to be in Latin. Unless you are a lawyer and talk in a certain way you loose, makes me sick the way Judges treat laypeople on this subject. Parents should have rights too rather than messing them about like this which is frankly disgusting and child abuse.

JamesB - August 11, 2016 at 10:27am

Even if you do spent a fortune on lawyers as a father getting reasonable contact is unlikely with these horrible places and people, especially cafcass and the Judges who I found to be completely unprofessional and useless and sexist against men over a lot of times each time they were like that, they just didn’t listen to the evidence or anyone but the mother, absolutely disgusting. What did she say? I didn’t turn up, when I did. The cafcass officer saw I turned up yet he put that I didn’t, absolutely disgusted with the system completely fake and evil.

JamesB - August 11, 2016 at 10:23am

I meant to say people should respect each other and that husbands often do not respect their wives enough and wives often do not respect their husbands enough. These often end in divorce and the truth is often different from that said and should be sought. Also, couples counselling could save a lot of marriages from divorce. If divorce becomes the way then I have little respect for parents like my ex and Judges also who manipulate and talk nonsense to hurt the children and mess with their relationship with the other parent. Wrt parents not seeing their children I do not understand that, it may make sense to judge (probably not and a cop out) but I miss my children and hate them being taken from me for no reason and loaned back for short periods. Had no agreement on contact and so many insults thrown at me to see them on-going.

Paul Apreda - August 11, 2016 at 11:28am

Hi Anon – I do sympathise with the difficulties that you have faced. What you appear to be saying is that because he was a beast to you while you were together and appeared to show little interest in your child then now you are separated you should call all the shots. Surely the fact that he appeared to want 50/50 shared care was an indication that he now wanted to play a full and active role as an equal in the care and upbringing of your child. Unless of course he was motivated by a desire to control you and continue his abuse by wanting to spend as much time as possible with the child? Or perhaps he was simply trying to continue his financial abuse of you by advocting a position where he wouldnt have to pay you maintenance for the care of the child? Hmm, it appears he’s stuffed all ways round isnt he…?

Anon - August 11, 2016 at 3:51pm

Dear Paul, No I’m not saying I should call all the shots.What I was trying to say was that the father had no interest in our child but once the relationship was over he insisted on 50:50 because, as he put it, our child was ‘half mine so I’m entitled to see her for half the time’. The reason I objected to 50:50 was because he would have gone from not having anything to do with our child to having her for half the week and I felt, at the time, that it needed to happen gradually as our child was only 2 at the time and a sudden change like that especially following a backdrop of domestic abuse, would not have been in her interest. I don’t believe that he is ‘stuffed’ as you put it. On the contrary, his argument of ” she’s half mine so I’m entitled to see her for half the time” is not a valid reason for 50:50 care. As our child grows up she may well choose to spend more time with her father, I would leave that decision up to her after all, we do not own our children.

Stitchedup - August 11, 2016 at 7:39am

“their view appears to be that shared parenting arrangements after divorce should be completely 50-50 and that any deviation from this is a violation of their rights as parents. ”
Wrong and, quite frankly, massively patronising. I think you’ll find that most fathers genuinely belief it is in the best interests of the child to maintain a close, healthy, loving relationship with the biological father and indeed his immediate family, post separation/divorce. Please see my reply to Mr. Bolch; you will note that each sentence begins with “the welfare of the child is best served” NOT “my rights are best served”. In short Marilyn, we do not believe the courts genuinely have the best interests of the child at heart. As I and many others have said numerous times, the whole system has been infected with feminist political correctness and so acts in the best interests of the mother/female. Dismissing our comments by implying we do not understand the courts are MEANT to act in the interests of the child is both patronising and insulting. Our argument is the courts are shirking their responsibilities to children to appease the feminist riddled agencies that make up the family justice system and this amounts to abuse of the child and in my opinion contempt of court… Yes I believe a judge should be held in contempt of court if he/she demonstrates bias and shirks the responsibilities of fairness and impartiality entrusted in them by the crown. My humble opinion.

Paul Apreda - August 11, 2016 at 12:39pm

Dear Stitched Up – how dare you patronise Marilyn in such a way!!!
I think the point you’re making is that the Courts are getting it wrong. Of course that’s hard to prove – becasue every case is different of course. If that weren’t the case then we could apply a general principle and ask those who wished to deviate from that to make their case for so doing, and where would that end up!!! – parents making their own decisions !! Outrageous and a contempt of due process I’m sure.
Here’s a question to ask the lawyers and judges – ‘What is the lawful basis on which one person with PR prevents the child from contact with another person with PR WITHOUT an order from a Court?’ Bizarrely I havent had a reply to that one – and I’ve asked some of the top legal minds in the country.
Let me also draw your attention to s1(3)(c) of the 1989 Act – specifically the Court needing to consider ‘the likely effect on him of any change in his circumstances’ or in shorthand The Status Quo principle. Some might suggest that give Carte Blanche to whoever grabs the kids, pulls up the drawbridge and says ‘Take me to Court if you want to see the kids!’ But fear not of course our excellent system will spring into action using S1(2) ‘The Delay Principle’ as justification for bold and decisive action to ‘right the wrong’ caused by the controlling parent acting unlawfully to prevent contact…..?! Alternatively – DONT GO TO COURT or if you are dragged there by the other side’s application why not try S1(5) the ‘No Order Principle’ to tell the Court to keep their nose out. Just a thought 🙂 Paul

JamesB - August 11, 2016 at 12:10pm

50/50 as default for time spending with each parent has to be the future. Status Quo and mother over father arguments make no sense like in Kramer vs Kramer.

JamesB - August 11, 2016 at 12:17pm

Spolier alert

For those who haven’t seen the excellent film Kramer vs Kramer.

The Judge is duped to give the son to the mother but he is clearly better off with the father so she lets him live there.

Perhaps boys are better with the fathers and girls with the mothers? Just a thought for discussion.

Paul Apreda - August 11, 2016 at 12:24pm

Marilyn, Marilyn, Marilyn – oh dear, oh dear, oh dear 🙂 I wonder why you have difficulty understanding that ‘Shared’ doesnt always mean by equal division. Let me assist. You recall the cases where you advocate for a sharing of matrimonial assets after divorce and the woman gets a larger share? Try to apply the same logic to Shared Parenting and I’m sure you’ll soon get the hang of it…… 😉
Now, in relation to ‘Rights’, Section 3 of the Children Act 1989 also defines Parental Responsibility as
‘all the RIGHTS, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and hs property’. So, surprise surprise, parents DO have rights. Interestingly s2 & 3 of the Children (Scotland) Act 1995 stipulates Parental Rights and Responsibilities in Scotland.

But of course the Paramountcy Principle trumps everything else. Despite vast swathes of academic evidence proving that Shared Care benefits children it appears that can’t be taken as fact because ‘Every Case is Different!!’ Is it? Really? What is the evidence or the statutory underpinning for that last assertion? That seems like a perfect recipe to ensure that cases need to be dealt with by a Court doesnt it?
You talk about Children’s Rights. I presume you must mean the rights set out in the UNCRC. We have the UNCRC incorporated into Welsh law, and the President made a powerful speech in Cardiff in January exhorting England to catch up with Wales in this regard. Of course Article 3 is effectively the Paramountcy Principle. But let’s look at Article 9.3 – and the right of the child to DIRECT contact and a meaningful relationship with both parents following divorce or separation, UNLESS it is not in the child’s best interests. Clearly a presumption with a caveat. I’m sure some here would say that Courts place the caveat first, or that as the Court system does not record the difference between Direct and Indirect Contact it is difficult to know how often the Article 9 ‘Right’ is over-ridden. Let’s also look at Article 18 – another ‘Right’ of the child. Here it is a requirement on Government to use their best efforts to ensure recognition of the principle that both parents SHARE common responsibility for the upbringing of children. Hmm, interesting. I wonder whether the UK Govt. can evidence compliance with this? Certainly the Welsh Government cannot as it refuses to record the gender of parents accessing parenting support because doing so would be ‘a disproportionate administrative burden’ according to a letter I received from the First Minister.
So, apologies for ‘going on’ like this and for taking up everyone’s valuable time with such frippery. I’m certain you wont change your views BUT you did mention that you were a parent yourself Marilyn. I’ve no idea of your marital status or the care arrangements that you have or had in place for your children but as a highly successful and ‘driven’ lawyer I’d be very interested to hear you elaborate on the subject you raised about your own parental instincts.
Finally on the subject of parental rights – would I be correct in recalling that when interviewed in 2005 by the Telegraph – telegraph.co.uk/finance/2918722/A-legal-force-of-nature.html – you said that you were focussing on “absent parents who don’t live with their children, and what RIGHTS they have. Whether it’s a father or a mother, they DONT HAVE THE RIGHTS I THINK THEY SHOULD HAVE”. So, what’s changed? Oh, and while we’re at it what specific and measurable actions have you taken in the last 11 years to advance this cause given that it was supposedly your focus?
With all best wishes
Paul

PS I wonder if you’ll publish this 😉 Yes of course you will – after all it’s a matter of free speech isnt it

Marilyn Stowe - August 11, 2016 at 2:52pm

Dear Paul
Thanks for your comments. They deserve a considered reply which I will do later today or tomorrow. In the meantime please do read the posts Ive personally written on the blog about shared parenting: marilynstowe.co.uk/2012/06/22/shared-parenting-are-the-government%E2%80%99s-proposals-up-to-scratch/
Regards
Marilyn

Paul Apreda - August 11, 2016 at 3:09pm

Thanks Marilyn
I’m grateful for your signposting to the pre-legislative process that saw the creation of the Children & Families Act, and to your earlier comments in favour of Shared parenting.
I gave evidence to the House of Commons Justice Committee publications – parliament.uk/pa/cm201213/cmselect/cmjust/uc739-ii/uc73901.htm – on the Pre-legislative scrutiny of the Bill (as it then was). In it I emphasized the rights of children over those of parents.
I can now see far more clearly that there is much that we agree upon. Perhaps it would be fruitful for us to exchange ideas directly as we are in a dialogue with the President about a number of matters and I would welcome your input. best wishes, Paul

Marilyn Stowe - August 11, 2016 at 3:39pm

Dear Paul
I’m not just sitting here in an ivory tower presiding over a law firm. I do care. I’ve seen a lot.
Regards
Marilyn

Paul Apreda - August 13, 2016 at 1:31pm

Dear Marilyn
Please dont imagine that I think you’re sat in an ‘ivory tower’. Honestly I would imagine that you’ve seen more cases than have I.
The real question is how we deal with the problems that persist in this area. You’ll be aware of the Women’s Aid campaign against contact. You’ll also be aware that MoJ statistics show that just 2.1% of C79 applications end with an Order for Enforcement. Could these facts have something to do with the alarming statistic that more than 20% of separated dads lose contact with their children within 2 years of separation.
We’d be very happy to work with you to try to find a better way to deal with these issues.
best wishes
Paul

JamesB - August 11, 2016 at 12:29pm

On second thoughts, perhaps, like the schools do, siblings are best kept together. That said I have seen and heard of several times where the boy has lived with the father and the girl the mother post separation.

The only rule is children do best if parents sort out their differences and stay together. Other than that the over-simplistic woman good man bad approach of the court is not right and we should have 50:50 assumed shared care as default where no agreement.

Dave Stephenson - August 16, 2016 at 12:16pm

If this were simply a matter of children having rights, then the law would ensure that they (the children), automatically have the right, or at least an ability to maintain a significant and meaningful level of contact with both of their parents at the point of their separation. As it stands, the person who becomes the ‘Resident Parent’ (RP), immediatley becomes a person initially entitled to have the final say in whether contact can take place at all; and if contact is permitted, RP’s also have the ability to determine when, where and for how long they will allow contact to occur. Children are not entitled to have their say and the only recourse for a Non-resident Parent (NRP) when facing denial of contact, is an application to court.
Court proceedings are a lengthy process, further delayed by a requirement to attempt mediation. This process inevitably allows an RP to create and establish a routine or ‘status-quo’ of their own choosing, and from which they can be confident that the courts will be reluctant to deviate.
The system is clearly flawed.
If this were simply a matter of what is best for the children, then it would not be possible for one parent to manipulate the situation in their own favour. 50/50 contact or Shared Parenting by default is not about parental rights, it is about what is right. It is about preventing children from being exposed to injustice, unfairness and inequality from the outset; it is about placing children in a position to retain possession of that which they have always had, two parents.

That’s why I signed the petition, and that is why you should too – yougov.co.uk/news/2012/06/13/equal-rights-over-child-custody

Dave Stephenson - August 16, 2016 at 12:37pm

My apologies, this is the petition to which I referred – petition.parliament.uk/petitions/130560

Matt - January 15, 2018 at 2:21pm

Its funny, as a father, I recognise my responsibility to my children, and one of those responsibilities is to make sure that they don’t suffer any detriment due to our (parents) separation while they are with their mother.
As such I provide for them while they are with mum and trust that that money will be spent in their best interests.
What I get in return is a mum who ‘manages’ access (e.g does things like trade access on my birthday for another access day, where we both have an enforced week off but school holiday i.e. Christmas she will attempt to force me to take the non enforced week off (so I have to take both weeks off work) (I believe this is to ensure the artificial boundaries set by government are not breached and to make my life harder). She doesn’t pass on information from doctors/ nursery/ school.
I continue to play straight, I pass on all the information I receive, give updates on the children’s welfare, I don’t claim any benefits for the kids, they go to the mum, I buy school uniforms, cloths toys, put a roof over their heads, food, ironing, washing and a full time Job….Normal stuff, not really worth listing because its just what you do.
I (the Dad) have to approach each institution individually to ensure that the children’s best interests are achieved, that I know about doctors appointments, vaccinations, homework, when my child changes class at nursery. I am constantly given the excuse that the person who first registered the child was mum…..she is the primary respondent, the system doesn’t allow….
But individuals (mainly women) have worked around the system to help me be a dad.
To them I am very grateful.
My responsibilities remain to ensure my children are well taken care of at school, at nursery, where ever they might be, this includes whilst they are at their mums house and if that means I have to pay to do it, so be it, even if sometimes you think you might be taken for a ride. That is just what it takes. I would support them at their mums house even if it was not legally required, it is necessary for my kids, its where they spend 50%+ of their time and if they are not thriving there……
I hope this makes sense?
A Dad

Yvie - January 15, 2018 at 6:04pm

You sound a good dad Matt. You want to be involved in the lives of your children post-divorce. However, it is not always to be. My son has always had a good relationship with his two boys. Sadly at 15 the eldest decided ‘he had the worst dad in the world’. We have not seen him now for over two years. The youngest who had the most amazing dad until recently is now starting to find fault with his dad. Apparently his stepfather is a better father to him than his dad has ever been. Where does all this come from. How can a good relationship disintegrate so quickly.

What I do know is that no child ever stops loving a parent without some outside negative input.

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