Laws of Love

I found myself listening to a fascinating programme on Radio 4 this morning entitled What is a Wife?

The programme explored the changing trends in marriage and indeed whether marriage has a future in the 21st Century. It’s certainly true that marriage rates are dropping and co-habitation is increasing, but the programme suggested (as well as raising various humorous takes on marriage), that in fact in 25 years only 10% of the country may be in marriage and instead there may be renewable contracts.

Particularly when Valentines Day is only just behind us, it was surprising (and indeed somewhat refreshing) to hear such a non lovey-dovey take on marriage. That said, of course this country’s political parties appear desperate to support ‘the [married] family’ at the moment and it does appear that the stage is set for yet more controversy. The documentary raised the issue of parenting having been divorced from marriage and this scene which is evidenced in family courts up and down the country on a daily basis  is certainly the root of the politicians’ interest in it all.

Is marriage heading for the rocks? I suspect not as, given I’m something of a romantic (and indeed an engaged romantic!), I believe there will always be a place for the ‘mystical’ side of marriage. However, what people must realise is that whilst marriage may be seen as an outdated tradition and divorce law is chaotic, sadly i legal terms cohabitation law is potentially even more of a mess.

PS - One wonderful thing about the documentary was the title music - “Housewife’s Alphabet” by Peggy Seeger, well worth 79p! 

I always worry about writing posts condemning budget cuts in family law, but yesterday’s article in The Times, if true, tells of yet further concerning cutbacks. 

The alleged proposals are concerning for family lawyers (and family court clients) for three reasons however:

- Closing court centres and cutting court staff can only lead to poorer access to justice. The reality is that outside London and other major urbanisations, it is important to have a local court. Often family clients have extremely limited resources and serious childcare needs. The prospect of forcing parents etc. to travel 30 miles + just because their local court was closed will have serious implications (I’m ignoring the fact that owing to legal aid cuts clients in rural areas may have to go similar distances just to find a specialist lawyer!). 

- Equally further redundancies among court staff will only lead to a poorer service at court. Court Service employees are not paid large sums as it is and they are, for the most part, dedicated to their jobs. The system is, sadly, coping with far more work than it is truly fit for, and fewer staff can only lead to greater delays and a higher proportion of cock-ups.

- The article appears to state cuts will be made in “double representation” in public law (Care) cases. The very idea that there is double representation is a fallacy. A wheeze of CAFCASS legal has been for some time that if, in a care case, a Guardian is supporting the Local Authority they do not need separate representation. This is untrue. A Children’s Guardian may well support the plans of a Local Authority but they may well do so for different reasons and arrive at decisions from an entirely different perspective (that of the child), and it is lunacy to say that the court is not entitled to have that differing perspective enunciated by a dedicated representative to make sure the court takes on board what is said.

- The other avenue for “double representation” may be to prevent parents having different represenation if they run the same case. The difficulty is that there are truly very few care cases where parents do run the same argument. Any case in which domestic violence is a live issue (a huge proportion of care cases), is a case where separate representation is needed. Likewise cases involving sexual abuse or non-accidental injury require separate representation (invariably even if both parents admit such acts one will claim they were co-erced by the other). Equally in Care Cases the key decision is usually eventual placement of the child and parents (assuming they are separated), almost always have different strengths and weaknesses and  these need to be put forward vigorously. 

Ultimately in relation to family law (and particuarly care), it is understandable that the government will feel pressured to cut costs; however it must be realised in Whitehall that family law delivery ‘on the cheap’ will lead to huge injustice (and in Care cases it is strongly arguable wrongful permanent removal of a child is far more serious than a period of wrongful imprisonment). Further, when so many social problems are said to be due to children being given poor / unfortunate parenting, a small cut in the Ministry of Justices budget may well require huge increases in other areas of government activity, not to mention a further loss of social cohesion.

When will it be realised that court staff and family lawyers are, on the whole, dedicated and hard-working professionals desperately trying to ensure the system remains fit for purpose.   

Frequently in practising family law we criticise the parenting of others. Indeed, I do so without even having children of my own. Yet I do think that as family lawyers we need to bear some responsibility for the extent to which those criticisms are actually valid.

A very interesting article in today’s Times was about the so-called “worst mom in America“, who had let her child ride the subway home from school on his own. This act appears to have enraged America, where fears of abduction etc. haunt every parent. I don’t want to comment particularly on her specific attempt at ‘regaining children’s independence’ in allowing her son to do something she used to do as a child all the time some twenty years ago; but it does make you think. What is the appropriate standard of parenting? Where does protection of children end and smothering begin? In Care cases we frequently use ‘good enough’ parenting, but what does that mean? As I say, a plethora of questions, but take a look at the worst mom’s blog for an interesting perspective on whether we are actually taking children’s freedoms away and instilling fear within them in the name of keeping them ’safe’.   

On a similar theme an interesting news story is the vegan child who appears to have medical difficulties as a result of the dietary choices made by her parents on her behalf. Seemingly Social Services are about to intervene and this story also raises questions of line-drawing and the extent to which modern society should or can regulate parenting, that most intimate of activities. Neglect is often taken to include failing to feed your child appropriately, but is ‘impropriety’ a particular choice of diet (include within this obese children eg)?

Finally in the trio of artcles there was an insightful piece on counselling and the extent to which psychotherapy and the like actually helps or hinders people. There certainly was a change-over between the UK and US whereby counselling appeared to be protrayed as the answer to all problems. Now it is  recognised that sometimes letting people deal with things internally can actually be more beneficial. Once more the question must be asked - to what extent should or can outsiders intervene in very personal affairs and is such poking and prodding helpful or right?

None of these articles provide answers but they do ask interesting questions and ones worthy of consideration by a profession where being critical of parenting styles and personality-types is often encouraged by emotionally wrought clients and the lawyer needs to act as a reality check for parents’ expectations and standards.

There are, without doubt, incompetent and lazy social workers. However, there are equally incompetent and lazy lawyers, managers and plumbers. The difficulty is that the press in recent days has given the impression that the proportion of unfit social workers is higher than that of bungling individuals in other walks of life.

Mistakes have been made in the past and Children’s Services Departments (as Children’s Social Services now tend to be known), have been refining their procedures for many decades. The most recent wholesale review of national practice was conducted by Lord Laming in the Victoria Climbie Inquiry and that highlighted, amongst other things, the need for closer co-operation between agencies.

The recent death of Khyra Ishaq in Birmingham, a 7 year old who seemingly starved to death, has brought trenchant criticism of Social Services within the press and indeed from Khyra’s absent Father. Further it has lead to several commentators shouting from the rooftops that the lessons from the death of Victoria Climbie have not been learnt, a point made this week by Victoria’s Mother.

On a similar theme, The Times today noted an innovative project by CSV (Community Service Volunteers) whereby volunteers are paired with families whose childen are on the at risk register. This scheme appears thusfar to have had superb results in two pilot areas and is set to be extended. The article itself however raises the view that this role should be fulfilled by social workers not an ‘army of amateurs’.

The tide appears to be turning though with a comment based article in the Sunday Times noting that in fact whilst Victoria Climbie’s death plainly raised questions of Social Services it also raised questions of her own Mother’s conduct. A similar standpoint comes through in a reader’s letter entitled: “Parents must bear the blame“.

The truth of the matter, it seems to me, is that such diametrically opposed approaches miss the point. Social Workers deal on a daily basis with those most in need. These parents are to some extent ‘to blame’, but the majority of parents in difficulties have themselves had apalling childhoods and are often weighed down by their own problems. On the other hand the stresses on Social Workers are huge and the vast majority of these professionals are commited to their jobs and truly care for children they come into contact with. The difficulty is that they are poorly supported (the system simply can not cope with the number of referrals), snowed under with obligatory paperwork (the need to record all interactions and write lengthy reports leaves many simply tied to the office) and hugely demoralised (often knowing that they can’t undertake the job in the way they would like and that they are paid less than the average plumber).

Social Services do owe the public a duty of care and failings in the system causing children at risk to go unnoticed must be rectified, but it is rarely appropriate to criticise and castigate Social Workers in general. Rather, deficiencies are often due to those in overall control of the system and the allocation of local authority resources (Children’s Services is rarely a high priority for the electorate and therefore an easy target in cutbacks).

Equally, in many cases the Social Workers on the ground are dealing with the residue of society’s wider problems - drugs, poverty, lack of community. As noted in the Comment in the Times dealing with the CSV project described above, it is often the lack of a postive role-model or support network that fails to protect such families from falling into dysfunction.

In conclusion, there are certainly some inadequate social workers, but it simply isn’t appropriate for the press to castigate Social Services at every turn before even establishing all the circumstances. Society as a whole must look at itself and though Social Services’ role is that of a ’safety net’, they can not be expected to save the day on every occasion given the huge tasks we ask of them, though that will always remain their objective.

Further to my earlier post I gather from the BBC that MP’s have voted to scrap the need for a Father when considering couples’ eligibility for IVF treatment. Apparently the government see ’supportive parenting’ as being what is required for children to be raised in a proper and caring manner and, horror of horrors, I actually agree!

I haven’t ever been involved in a case where in-vitro fertilisation was an issue, but the current debate regarding the regulation of this area of science does have interesting cross-overs with what we more usually regard as family law.

In The Times today it is noted that human-animal embryos will now be allowed, however seemingly this success for the government has been at the expense of reforming section 13(5) of the Human Fertilisation and Embryology Act 1990.

The current legislation contains the follwoing provision which the government wished to scrap:

(5) A woman shall not be provided with treatment services unless account has been taken of the welfare of any child who may be born as a result of the treatment (including the need of that child for a father)… (emphasis added)

In the real world the number of one-parent families (usually mother only), has of course risen greatly since even 1990 and fathers have re-acted to what they perceive as a devaluing of the paternal role (see eg Families need Fathers). I have no doubt that where two parents exist, spearated or otherwise, it is almost invariably more beneficial to a child to have a good relationship with both parents.

The issue in the Act however is different to that facing fathers seeking contact. The Act’s current attempt at near-prohibition works to the disadvantage of gay and lesbian couples and single women who wish to have a child. One must contrast the Act’s seeming discrimination against such family forms (fertility clinics must look at them differently to heterosexual couples where there will be a father), to how the law approaches carers of children who are already in existence.

In fact Local Authorities, with the courts’ approval, regularly place children with single foster carers or adoptive parents and the Court has happily placed children within the care of gay or lesbian parents (for a relatively recent example see Re B (Leave to Remove) where a father assisted his lesbian sister and her partner to have a child and his sister’s partner then applied to move with the child to the USA. In that case the court ruled it was right for the sister’s lesbian partner to move with the child to the States.)

It does appear that as a result of simple politics the opportunity will be missed to once and for all make clear that the welfare of the child is not influenced purely by ‘having a father’; but rather by a child having a good quality carer or carers who are open to a child having full access to their heritage and relatives. Such arrangements highlight that where fathers exist they should be given rights but where they do not (I’m thinking in terms of anonymous sperm donation), a child is perfectly able to turn out well if it is brought up in a loving environment.

This reality has long been recognised by the courts (as noted above) and it is about time that parliament also stopped appeasing the far right and valued loving parents of all varieties. Contrary to MP’s seeming fears, such a statement is perfectly in line with recognising father’s rights and in fact likely to lead to just as cohesive a society (if not moreso as the more loving and attention-giving parents of all hues, the better).