UK Family Law Reform

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The Children Act 1989 - 'A plague of one-parent Families'

An Act Which Failed

The Act is, in private law cases, an empty vessel, it is unserviceable. After divorce and separation, parents do not have the right to see their children. They merely have a right to apply to see their children. There is nothing in case law or statute which confers the presumption that children should be able to see their parents to a reasonable extent; or that this presumption (if it existed) would be a right of substance.

A Vertical Playing Field

It is an inevitability that a presumption which does not exist, or presumption which is of no weight, can be defeated by:

an objection that does not exist, or an objection which is of no weight. Ergo, where an application for reasonable contact (typically by a father) is defended (typically by a mother) it is almost inevitable that the father will lose. In fact, this is what happens. The result has been at least a generation of one-parent families.

The Children Act 1989 - An Empty Vessel

Other than the right to apply, the Statute confers neither rights nor presumptions upon a non-resident parent attempting to see his child after divorce or separation. Case Law has got no further than affirming that a father should not be prohibited from seeing his child at all and forever without some reason (e.g. allegations of verbal aggression Re B 1992).

Almost nothing is quite enough

Beyond this, the Family Division has yet to produce a useful generalisation. The Idea that a child should be allowed to see his father hardly at all is embraced with universal fervour.

Crumbs

Re S (1990), Re H (1992) and Re R (1993) affirms that contact with both parents is the right of the child. Re D (1993) affirms that a child should grow up in the knowledge of both parents

But a child has: contact with, knowledge of his non-residential parent if allowed to see him once a month for one hour under supervision in a public-hall 'contact centre'. That a father should hardly be allowed to see his child at all is a concept accepted without demur hundreds of times a week.

Wasting Public Money

The Lord Chancellor's Department spends hundreds of millions of pounds each year on the manufacture of one-parent families. By virtue of the deficiencies in the Act, there is almost no case that the resident parent can lose. So all cases must be publicly funded. Trivial 'contact disputes' drag on for years consuming tens or hundred of thousands of pounds each. There is no hurdle to distinguish between worthy cases that should be funded, and worthless cases, which should not.

This is: contrary to public policy. The result is fatherliness and perhaps de-socialised children on a broad scale. contrary to common sense. Many contact disputes could be resolved in a couple of afternoons by trained staff working to a simple set of guidelines.

Squandering Public Money.

Over the years, Parliament has said to the Family Division: "Here are several billion pounds of public money. Take it away and do something to our children with it, on condition that you do not tell us what it is. Do not trouble to find out what you do with the money. Just spend it".

Spending money on 'something'

The Children Act, in private law cases, is entirely discretionary. Once a parent falls under Section 8 ('would you like to see your child?') he is all but beyond Statute, precedent, case law or any meaningful legal framework. Saving only the 'Welfare Checklist' of Section 1 (3) [see post] all is silent. The Court can do whatever they want, including reaching opposite decision on the same facts. It is as though any criminal offence, no matter how grave or trivial, could give rise to any sentence ranging (according to whim) from acquittal to life imprisonment. In addition to their exemption from the customary right of appeal, special features of the family Division include:

unlimited powers of 'sentencing' (full/nugatory contact) for the same 'offence'
unlimited powers of 'sentencing' for all and any 'offence'
Since perjury from the custodial parent is encouraged through being condoned, there is no need for the offence to have occurred.

Spending money in secret - These Courts sits in secret.

The most basic research has yet to be undertaken on 'outcomes'. None, including the Courts, has any idea of what the results (ramifications) of their labours are.

The Welfare Checklist - This is the one supposed 'safeguard' of the Act. It is worthless. Section 1(3) specifies the sort of things which the Court is meant to take into account.

Sadly: the Welfare Checklist has no application to the median case where neither parent is deviant the terms used are wide and wooly. They mean all things to all men/women in so far as they have a meaning, it is the wrong one

A Misapprehension

Under Section 1 (5) of the Act, the Court will not make an order unless it considers that this would be 'better' for the child. This imposes the burden on the applicant to show that the effect of a proposed 'change' have been 'perfectly well' had he stayed at home with the mother, who can au contraire raise (or invent) all sorts of trivia to suggest that the child is worse (e.g. that the child comes back tired/upset/grubby/late). This simplistic doggerel is the stuff of tens of thousands of 'contact disputes' each year. Almost no contact is a general prelude to no contact.

The Welfare Checklist II - An Irrelevance

The Welfare Checklist means almost nothing. In broad terms and in the overwhelming majority cases:

the child wishes are normal
the child needs are normal
both parents are capable of meeting them
the father has no plans to harm the child
the child's age and sex are typical of a child of that age and sex
the impact of any change in seeing his father will be routine
the range of powers in the Act are the powers of the Act

Parenthood: an Unmentioned Concept

Without the basic presumption that there is a 'special relationship' between parent and child which should, whenever possible flourish, the applicant parent is attributed a status and motivation equivalent to that of a passing stranger. The Court is bound to consider the 'welfare checklist' when arriving at a view based on 'the best interests of the child'. What this means in practice is that the Court arrives at whatever view it pleases, and then affirms this is in the child's 'best interests'. The term is an empty retrospective label which must of necessity be affixed to all decisions, since they would otherwise contravene the Act.

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