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A parent is still a parent even after divorce or separation

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A parent is still a parent even after divorce or separation.

Single parents, absent fathers, parent with care. What’s in a name?

I am often surprised at how people expect their status as a parent to change, simply because their relationship status does. Being a partner and a spouse is something that can cease or change depending on the choice of one or both parties. Parenthood is, of course, for life.

Labels are unhelpful in family law

The terminology we use to describe ourselves and each other post separation can be very telling about how we view co-parenting post separation. It is no coincidence that the Family Justice system has striven to change the language we use and ‘custody’ and ‘access’ became ‘residence’ and ‘contact’ and, most recently, simply ‘child arrangements’. The emphasis is clearly on refusing to label and concentrating on sharing care or at least both parents having meaningful involvement in it.

The term ‘single parent’* is a curious one. Given that it is a fact that children generally have two parents, why does the process of separation mean that they only end up with one? By definition (and certainly parental choice) children will spend time with each parent separately post separation, so both parents will be ‘single’ parents at some time or another.

The same applies to the term ‘parent with care’*. Both parents can and do care for their children. Just not in practice at the same time. Time spent with each parent will depend on lots of factors but, like it or not, the general position is that children need routine so one parent, certainly in school time, will probably have more time for hands on care than the other. The parent who has traditionally accommodated the school routine often practically has more time to undertake care during these times and that tends to be mums. That is a societal issue and not necessarily a legal one and I would say that almost without exception dads recognise that a separation means they need to reorganise work and other commitments and be part of regular routine as well as the fun times if they want to stay in touch with all aspects of their child’s life. That can be massively helpful for mums who often need to maximise their income and find their work commitments post separation increase.

The polar opposite of the ‘parent with care’ is of course the ‘absent father’*. This is a term I find insulting as, in my experience as a family solicitor, more often than not, dads leave the family home on separation to minimise disruption for their children rather than absconding or attempting to slip out of their parenting and other obligations. Whilst dads might not see their children every day post separation, they are and wish to be very much ‘present’ in their children’s lives.

All married parents will have parental responsibility for their children and all unmarried parents will have provided dad is named on the child’s birth certificate. Parental responsibility is completely unaltered by separation and rarely affected by child arrangements orders. Parental responsibility exists whether the children are spending time with a parent or not. That means the right to be informed and consulted about all key aspects of a child’s life such as education, health, religious upbringing and medical treatment. These areas require two parent decisions and, unless an order provides otherwise, parents need to agree if children are to be removed from the country. In practice, it generally makes sense for both parents to have relationships with school and GPs to avoid unnecessary contact if it is difficult but the bigger decisions will require discussion.

Parents can, and do, parent differently once separated

Parents are permitted to exercise their parental responsibility in their own way when children are spending time with them. As frustrating as it might be, parents can and do parent differently post separation and attempts by one parent to control how time is spent, what children eat and who children spend time with in that period are given very short shrift by the Court. It of course makes sense for routines to be similar and diet and health needs met but parents can parent the way they choose provided that their choices are not unsafe or otherwise damaging (and I mean ‘damaging’ in the real sense of the word).

As family lawyers we are now just about getting our heads around the new terminology. There is something beautifully simple and eminently sensible about making orders that just determine where and when children should spend time with their parents, rather than purporting to confer extra or equivalent rights and responsibilities or superior parent status. Parents are, of course, already parents and they already have responsibility for their children. Nothing has changed. They just don’t live together anymore.

Kathryn McTaggart
Divorce & family solicitor, Cardiff

* For the avoidance of doubt, none of these labels are legally recognised definitions despite sometimes being treated as such by the general public and some legal representatives.

Comments

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Kathryn McTaggart’s article has absolutely hit the nail on the head!  A charter for post separation parenting perhaps?

This article should hang on the walls of every CAB, Mediation, Cafcass & Court Service offices, as there are many parents and practitioners who remain stuck in the mindset of the ‘absent’ parent, and parent ‘with care’ – such terms that, by their own definition, create an imbalance in the parent relationship dynamic. Sad to say, even some Judges still don’t seem to appreciate that parenting responsibilities continue beyond separation - and, as in recent cases that cross my desk, are prepared to sever child contact, often on whim; or, on the basis of a misleading court welfare report.

Such labels, historic in origin, stem from a not too distant time when Law viewed such matters quite differently – and a time when it became the ‘norm’ for the future of children in Family Proceedings to be decided on reports crafted by Criminal Probation Officers seconded to Family Court work. The fact that such staff had no guidelines or training in family work, despite migrating between probation & family, beggars belief. Moreover, child-centred guidelines crafted by the FCWS only professional association were rebuffed, in favour of none at all is scandalous. Child-parent severance in approx. 50% of cases was considered the ‘norm.’

Such welfare reports were accepted by the Judiciary as a document of weight, and recommendations therein routinely endorsed in an estimated 95% of cases – according to an article published in ‘THE LAWYER’ ( ‘Govt to shake up the Family Court Welfare Service’: 03/03/1998).  It quotes the Chair of the SFLA (Solicitors Family Law Association) saying there had been disquiet for some time among SFLA members about having family court work under Probation Service control; that he attacked the probation service policy of moving staff in and out of family work; and stated, “this type of specialist, sensitive work needs officers with proper training and experience.”

Cafcass is unfortunately burdened by the same malaise, having inherited most of the procedural deficiencies and staff of its beleaguered predecessor, the FCWS. It not only confuses matters of ‘contact’ with matters of ‘care’ – but categorically refuses to install a child-centred framework, with reference to the apportionment of time, that would ensure child-centred outcomes, and bring about accountability and consistency; thereby, raising the profile of the Service in the public eye. Cafcass, in its present form, potentially fails to consistently protect the interests of children, as well as undermining the worthy spirit of the Law.

Where the Court Service ‘grasps the nettle’ – laying out the consequences of frustrating child arrangements before an intransigent parent, then all that is left to dispute is the apportionment of a child’s time. Once quantum is decided there is little if anything left to dispute. Such decisions not only protect the child’s parenting time, but ensure a continuance of parenting in separate homes for the remainder of childhood. Essentially, “in the child’s best interests”.

But there must be consistency concerning disputes involving children to deliver a strong message to intransigent parents that ‘the game is now up’ – and that, should such disputes reach the Court’s door the outcome will be known, and could potentially involve a transfer of residence to the more reasonable parent, mindful of the child’s welfare and needs. Mediation and Collaborative Law firms would also become services of choice.

To this end, outdated parent labelling must be condemned to history, and a child’s time apportioned on the basis of what ‘good enough’ parents will agree in the median case, for the sake of their child.

As this worthy article sets out, a separated parent who no longer lives at home is not ‘absent’ – as he or she is still a parent, and will continue share ‘parent’ responsibilities (in the absence of good reason to the contrary) for life. Whilst the ‘adult’ relationship may end, the ‘parent’ relationship continues.

Clearly a step-change in attitudes is needed among parents and practitioners and this could be kick-started with a post separation parenting framework, already utilised by progressive countries for decades. Once in place, benefits to children and society will flow. 

By Kenneth Lane on Thursday March 12, 2015

Thank you for taking the time to read and comment on my article.

It sounds such a small thing but I do believe that if we change our words we change our attitudes.

I am pleased to say that I am seeing some very child centred welfare reporting and decision making, certainly in my local Court but, as you point out, the issue is consistency.  I have had some incredible pieces of work done by CAFCASS and Social Services where the reporter has clearly taken time and is committed to understanding the child, understanding the issues and making recommendations as to what is best for that child in line with their wishes and rights.  I have also seen some very flimsy, ill thought out reporting where quite serious changes have been recommended and judgements formed after very short periods of time.

And time is often the issue.  Judges don’t have time to get to grips with cases and keep hold of them, CAFCASS reporters don’t have time to spend on individual children and parents can only access the amount of lawyer’s time they can afford.

The danger is that, where we do not have enough time, we become lazy, accepting that we can only do what we can do and then it is easy to fall back on assumptions, stereotypes and prejudices to get the job done rather than done well.

Only a magic wand or a money tree can fix this.  And as much as I would love all legal professionals, CAFCASS officers and Judges to have the time and resources to make decisions beautifully tailored to each and every individual child, I am a realist.

However, if we change our words and our presumptions so that the fall back is co parenting and shared care obviously continue post separation, the consequences of not having enough time are much less serious for that child.  The only issue then, as you say, is quantum.

By Kathryn McTaggart on Thursday March 12, 2015

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