Laws of Love

For close watch on the topic of Sharia law I defer to John Bolch who posts regularly. This article however was of particular interest because it reported that a Junior Minister recently suggested that whilst Sharia Law is not going to gain jurisdiction in the UK in family matters, it is always possible for agreements reached in Sharia courts to be submitted to English courts as consent orders. The Times article notes that the reporting of this possibility has been criticised and so it should be.

The difficulty lies in the very nature of consent orders which, whilst judicial acts, are ultimately the least safe exercise of judicial discretion. The reality of everyday court life is that when a proposed consent order is placed before the Judge, there is indeed a cursory check of the information before the court to ensure that the order is fair, however rarely is there any in-depth investigation and the court relies upon the truthfulness of the parties and the skill of the parties’ advisors.

The danger is that whilst agreements reached via a Sharia law ”mediation” (or indeed any other type of mediation) may appear superficially fair, such that they get approved by an English Judge; there may very well be different principles etc brought into play. There is a risk that women used to being subservient may well see a financial settlement as ‘fair’ yet without proper financial disclosure in a Sharia court the Husband is then free to put what he wishes in the English disclosure and all the Judge will see will be two parties in agreement. Likewise in relation to orders regarding children, those used to being subservient may well be subject to principles which might offend English law in reaching an agreement that, to an outsider, is not inherently wrong without investigation of the actual circumstances. 

The truth is that mediation other than under Sharia works because there is faith that mediators have remained neutral and ensured the parties truly consent and are not pressured. Sharia court mediations (let alone hearings) are implictly dangerous due to the different starting premises that apply (a woman’s role is in the home etc), and the position women often find themselves in whilst ending relationships (ostracised, used to being underdogs etc). 

Recognising anything to do with Sharia Law is inherently complicated and there is a great risk if the waters are muddied, as suggested by the Junior Minister, injustices will occur which, particularly in family law, could have devastaing consequences for the lives of those involved. The true difficulty is that unless the parties tell the Judge that Sharia was used he would be none the wiser.    

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.   

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).

I had an interesting conversation at court today as to the court’s approach to parents who block contact because the non-resident parent doesn’t pay maintenance or CSA.

The conclusion reached in discussions was that actually the court’s attitude tends to depend on the particular judge. In esence there are two views:

a) if the absent parent truly cares for their child they should pay

b) blocking contact due to non-payment is like putting a price-tag on your child

Certainly in my experience which view holds greatest sway does tend to depend on your tribunal. Is this fair? Almost certainly not, however nor is there really one answer that fits all situations. Personally I find it abhorrent when contact is stopped, to the detriment of a child, just because the other parent is not paying. That said, there is a strong argument that non-payment does show a lack of commitment or a failure to put the child first which the court should not simply ignore.

The issue is further clouded by the fact that for those resident parents on benefits, CSA paid by the non-resident parent is received by the state (to make up for benefits paid out), rather than received by the resident parent, also the disastrous state of the CSA / CMEC does nothing to instil any degree of trust etc in the system.  

It’s a tricky issue that probably needs to be dealt with on  a case-by-case basis, however the system does need looking at urgently - trouble is I’m far from confident that there will be any action - far too politically sensitive I suspect!