Subject : Article: Family law in disarray
Date : Sat, 22 Sep 2001 10:36:35 EDT
Family law in disarray
The 2001 World Congress on Family Law and the Rights of Children and Youth (Sept 20-22) was meant to take place concurrently with the United Nations Special Session on the Rights of Children in New York, now abandoned for obvious reasons. It opened with Lady Butler-Sloss, head of the Family Division, congratulating British lawyers on what a fine job they are doing. Outside the conference venue, a gathering of around thirty protesters, mothers, fathers and grandparents who have gone through the mill of British family justice, are waving placards and shouting "Children Need Both Parents." They stand as a noisy reminder of the failures of the British family court system: their message to the 500 conference attendees, from 38 countries, ranging from Vietnam and Nigeria to China and the United States is "do not base your system on ours."
David Truex, chair of the UK host committee for the congress, is an Australian lawyer now practising family law in the UK. In our interview he emphasises that parental responsibility, currently extended in the UK only to married fathers and unmarried fathers whose application is accepted by the courts, should be extended to all fathers, wed or unwed, as a matter of right.
The burning issue for British parents is that courts should uphold their rights of contact with their children. Mr Truex explains that this congress covers a wide range of equally critical issues, including the rights of children in war- and poverty-stricken lands.
However, Professor Bolaji Owasanoye of the Nigerian Institute of Advanced Legal Studies and Human Development explains that from the viewpoint of a country which has daily experience of these evils, the thinking is the exact opposite, stating "there is an assumption that children's rights have nothing to do with parents, but in our country the aim is to strengthen parents' ability to give their children rights." He continues: "the job, the responsibility of public institutions like courts and social welfare offices is to assist parents to carry out their God-given responsibility of bringing up children. These institutions are not supposed to hijack this responsibility."
As jurists attending the conference pass between protesters outside, they express wide accord with them on almost all the grievances at failures in the system raised. A leading English family barrister snickers quietly at a poster characterising one of his judicial colleagues as "The Keeper of the Asylum." Over the megaphone, Matthew Mudge, a family rights activist from Cardiff, enjoys fierce support as he quotes a series of politicians and opinion formers. "'A child needs the care and attention of both parents,' says Tony Blair. 'The distress and damage done to children when parents separate can be reduced if they retain strong and loving bonds with both parents' states Paul Boateng. Well, Mr Blair, well, Mr Boateng, we agree with you. What are you doing about it?"
Implementation is key, both sides agree. As those inside the conference embed themselves in the the minutiae of bureaucratic procedure and fine legal points, parents outside who have experience of the rough end of the law demand equal parenting, a presumption that children will be able to spend up to 50% of the time with each parent where parents are separated and fail to agree upon the key issues. To them, without fundamental family rights, the family court system which results
in "150,000 divorce orphans every year in England and Wales" will simply continue with business as usual unless judicial discretion comes within a framework of clear parental rights. Even Jack Straw, when Home Secretary, has said "too many people in judicial positions protect their inefficiency and sometimes their incompetence under the cloak of judicial discretion." As Matthew Mudge puts it "going from a seven-day-a-week parent to a once a fortnight parent can depend, quite arbitrarily, on the whim of the judge."
When the leading Australian judge Stewart Fowler, also co-chair of the Bath Family Law Congress and his colleague, New York Family Law judge Marjory D. Fields are interviewed, they assert the principle of the "paramount interests of the child" as the justification for judges taking decisions out of parents hands when they fail to agree. Judge Fowler points out that thepreambular passages to the United Convention on the Rights of the Child mention the special position of parents in relation to their children. Judge Fields is disparaging about the concept of children's rights to both parents, saying that the issue is not rights but responsibilities, although she is unable to clarify how parental responsibility is to be exercised if one does not see or care for one's child and this remains in the gift of the judge. Earlier, however, David Truex has expressed interest in the favourable evidence beginning to accrue from state legislatures, such as Oklahoma in the US, where presumptive equal joint custody legislation was introduced in 1999. As more data feeds through, he says, we will be able to begin to form an opinion about whether such legislation can work in practice. In the meantime, few seem to be addressing the fate of the millions of children and parents who have already lost each other through the present system.
Julian Fitzgerald 22sep01
Thanks to everyone who attended the protest on 20 September.
Particular thanks to our fearless National Protest Leader, Mark Harris, for all the preparations and media briefings. Matthew Mudge did a fantastic job, and on the day, made the Equal Parenters' presence felt. He set up a table in front of the Congress building and set out materials from the various organizations in the EQUAL PARENTING COALITION. He had prepared EQUAL PARENTING purple lapel ribbons - all v. professional, thank you so much Matthew.
Anson Allen brought the public address system and the judge's costume. Peter Weaving played the part of the judge - a visual that was mentioned by many of the overseas visitors. He and Margaret McClaren attended the protest despite having had a hard couple of days in court securing a shared residence order. They were both exhausted after the hours of preparation and court room ordeal, yet they still made the effort to attend.
Michael Cox and many other prominent campaigners came along way carrying banners bearing polite but powerful messages. These are the ones that do us good - the disrespectful ones do the opposite, by the way, believe me!
Forgive me for not mentioning everyone, but this email is already too long, and I'm barely started. You were ALL brilliant! I was especially grateful to my wife, Christine, for supporting the protesters outside while I attended the conference itself. And it was super to have the representatives from MATCH. I can't stress enough how important it is for the excluded mums to come out and show that this is not just a male issue.
Oliver Cyriax, veteran campaigner for the Cause, was a key member of the protest delegation. He handed out 200+ information papers to conference delegates.
DID WE DO ANY GOOD?
Yes, yes, yes, yes! This conference was attended by top family court judges and lawyers from all over the world. Most significantly, it was attended by the UK's top family court judges. The impression our judiciary were trying to give was that the UK was the model to follow. Without our protestoutside, and our influence inside the conference, the overseas guest would have left with the clear impression that the UK had it right!!!
The protest was mentioned at numerous conference sessions. Many overseas judges came up to me and were fully supportive. The conference delegates were overwhelmingly supportive. There was comment about how well behaved the protesters had been. We got great media coverage locally on BBC and in the press, better even than the event itself.
I put our case at every opportunity, many times by addressing the meeting. Our position was supported robustly by a Canadian judge who spoke of the importance of enforcing contact orders with determination. "Judges are too soft, she said. I tell them to bring their toothbrush, cause they're going to jail next time. My contact orders are to be obeyed. Everyone knows it, so they obey them!" Pretty obvious stuff, isn't it, but not to our judges.....yet!!!
The crowning glory came at the final session (yesterday, Friday) I attended, which the Chair, another Canadian Judge, opened by referring (a) to Maureen Freely's article "When can I see my children?" in The Times (Sept 17) and (b) to the protest outside. He said that they had come thinking that the UK was the model to follow, but clearly it was not working to everyone's satisfaction. Wow! Did we ever make an impact!
Sending me as a delegate was a major expense for EPC £750 approx. in direct expenses which it cannot afford; but was it ever worth it!
(Bear in mind, EPC does not charge a sub. nor do we get a penny in public funding. Your kind donation, if you make one today, will help make sure we can continue our good work at HQ. We are v. much in the red on this, so please don't assume someone else will donate instead of you.)
I had the chance to speak personally to virtually every one of our top family judges. Lord Justice Wall told me EPC's was one of the most powerfully argued submissions in response to MAKING CONTACT WORK. It had impressed the committee and would be influential in their recommendations.
I was thanked at the end by the conference organizers for registering for the conference and participating fully in the
discussions. What a turnaround! When I first arrived, they had people follow me around to watch my every move! By the time I left they were telling me how grateful they were for EPC's participation in the conference.
It was disappointing that other like-minded organizations did not send a delegate to this conference, nor members of their
leadership even to join the protesters on the outside. What an opportunity missed! The impression given is that this is not a
big problem. It is only a few cases! That is what they believe.
If you want to see this problem fixed within the foreseeable future, you simply have to come to protests. I know not everyone is comfortable with protesting, but it is clear to me that they are making their mark. How fast they work is directly proportional to their size, it's that simple.
There is much more I could say, but will save it for my full report which will follow in due course. I wanted to get
something out to you all on my return from Bath (late last night).
Once again, congratulations and many thanks to all those who attended. If you could not attend, please send a donation to
help offset expenses.
Best wishes, Tony
Tony Coe, President, EQUAL PARENTING COUNCIL
Speaking Out for Children of Broken Homes
Direct Line 020 7590 2701 - mobile: 07768 366 100
"Children need BOTH Parents!" www.EqualParenting.org