Today’s news from the Telegraph is that a Ministerial Group to review the Children Act 1989 is about to be announced. Coming ahead of the response to the Norgrove Review of Family Law, expected to be released early next week, this news signals a long awaited potential for change, at least amongst groups supporting fathers.
The Government is rumoured to be ready to reject Norgrove’s Review, or at least the part of it which omits the inclusion of the phrase ‘children have a right to a meaningful relationship with both parents’. The rumours suggest that Iain Duncan Smith and Nick Clegg are both supporters of the inclusion of the phrase. Watching Iain Duncan Smith on Andrew Marr’s programme last week, it was very clear that this man, at least, ‘gets’ what has been missing from the UK support for separated families in the past four decades. His sensitive use of language – never calling fathers ‘non resident parents’ throughout the whole of the interview, for example -and his ability to debate the reality that parents too often get pushed apart by our legislation, rather than helped to work together, tells me that if there are others like him in government, change is indeed on its way.
The Children Act 1989 has been sacrosanct since its introduction. Whilst many have debated the need for change, others have felt that the key phrase contained within the act that ‘children’s needs are paramount’ (also called the paramountcy principle), is sufficient to safeguard the well being of children affected by private as well as public law. Those who have criticised the Act are largely fathers, who have felt that the ‘paramountcy principle’ does not go far enough and that a rebuttable presumption of shared care should be included in the Act. Resisted massively by the single parent lobby groups, this review is almost certain to be fiercely debated and it will, without doubt, polarise each side of the argument.
In the weeks and months to come, we can no doubt look forward to a monumental fight between those representing mothers and those representing fathers, with dirty linen being washed, allegations being hurled and a furore surrounding what is best for children. A bit like the scenario of the separated couple I suppose, but writ large and played out on the public stage. Those of us who work with family separation should get our seat belts buckled now, this will, without doubt, be nasty.
But why is it going to be so nasty and why does it matter so much to each side of the argument? For fathers, the need for change within the Children Act comes because of their disadvantage at the point of family separation and beyond. For mothers, what matters is that they retain the control, the choice and their relationship with their children. The Children Act 1989 was a piece of legislation that further enshrined the notion that children need their mothers after separation, whilst fathers are more disposable. The Act itself does not say that, but the way in which it is translated into action, by those who must refer to it, CAFCASS for example, effectively means that mothers come first.
The problem with the Children Act 1989 is that the way in which it is worded means that it can be interpreted to mean pretty much anything. The principle that the child’s welfare is paramount can mean that a child must a) have a primary relationship with a mother and a secondary relationship with a father, or it can mean that a child must be protected from a dangerous father (rarely a dangerous mother) or it can simply mean that a child must have a relationship with both parents. Lawyers and others have argued that the presumption that a child will have contact with a ‘non resident’ parent is also played out in the principle and there, for me, the problem lies.
The Children Act 1989 is gender neutral, which is generally held up as a good thing as it is supposed to work for either mother or father. A gender neutral piece of legislation however is particularly useless when it comes to delivering equality of opportunity and equality of outcome. For the past decade, the Centre for Separated Families has been saying that all family separation legislation should be underpinned by Gender Mainstreaming, which means that all laws should be analysed for the way that they impact differently on mothers and fathers and the way in which they interact with a largely gender biased society.
The Children Act 1989 is a typical example of a gender neutral piece of legislation delivering a gender biased outcome. It is no accident that 90% of ‘parents with care’ in our society are women. The law was designed to deliver that outcome through the Child Benefit system which is used to denote the status and paid overwhelmingly to mothers. This already biased outcome is further deepened when the separated family interacts with other agencies, such as social workers or CAFCASS officers. No strangers to gender biased opinions, these people assume that family separation means that mums have been left holding the baby and dad has run off (and is avoiding his child maintenance payments alongside abandoning his family). Implement the Paramountcy principle with these assumptions, as so many CAFCASS people do (adding a dash of ‘dads are not safe’ just to make sure) and its easy to see why so many fathers end up short changed in terms of their relationships with children after family separation.
But now we come to the crux of the matter and when we review and make changes to the Children Act 1989 we have to get it right. There is no point now throwing the baby out with the bath water so to speak, if we are going to change, lets get it right for our children this time.
Fathers’ groups are going to go all out at this point to get a rebuttable presumption of shared care written into the legislation. Mothers groups are going to oppose it. With my mediator hat on I am looking at it from the children’s perspective. What has been done so far since 1989 has not worked, the massive loss of fathers in children’s lives attests to that. Something has to change, but what? What is there between one side and the other that could bring about better outcomes for children in terms of their ongoing relationships with both parents after separation?
It seems to me that the starting point for legislation has to be a gender analysis of how it is enacted in the everyday lives of separated families. The myth that dads run off and leave mothers to cope alone has to be challenged. Our work, with early years staff in Children’s Centres tells us that, on the ground at least, this myth is very much understood. Children’s Centre staff know exactly how many mothers as well as fathers end relationships and exactly how horrible each can be to the other. This myth, though, is alive and well in other areas and the single parent lobby groups are happy to promote it wholesale in order to keep the status quo. The Lords fell for the myth hook line and sinker last week, when they voted against the charges to use the new Statutory Maintenance Scheme, whilst parents and on the ground family practitioners know the difference, we still have a lot of people in power who do not.
Gender analysis of legislation is not a difficult task. It is simply a matter of understanding how a law impacts upon men and women differently. From there it is possible to identify gender biased practice and put it right. A gender analysis of the Children Act would point directly to the people who use it to make decisions, namely the Judiciary and CAFCASS and it would be there that we would start by improving gender awareness and increasing the understanding of the importance to children of both parents. Basically, what I am advocating here, is the rewriting of our understanding of family separation to show that men and women are equally capable of ending relationships, equally capable of being horrible to each other and equally important in their children’s lives. When that is understood, putting into practice the paramountcy principle becomes a matter of practical arrangements and ensuring that parents know how to operate an effective parenting agreement that works for children.
But the rewriting of the story is going to be difficult in the coming weeks and months as we witness the best and the worst of what mum and dad have to offer. Mums’ groups are going to play out the victim role for all they are worth and we will hear tales of men as ‘annihilators’ and other such terrors. On the other side of the fight we are likely to hear fathers’ desperation being played out and then interpreted as being examples of the dangerous behaviour that men can display. In short, mum will cry and dad will shout and we, in the middle of this, will have our sympathies played upon and our anxieties raised until we no longer know which side we are on.
But we are on BOTH sides, we should all be on both sides. Every man and every woman in the land should be on both sides of this fence because this is not a gender war, it is a debate about how to change the law so that children have meaningful relationships with both parents. That way, we will begin to unpick the generational problem of family separation and our children will have balanced lives and will look forward to balanced relationships of their own. One of the biggest losses of my generation is, in my view, the understanding that as men and women we are interdependent and, as a result, missing out on the satisfaction of working TOGETHER as parents instead of believing that we have to do it all on our own.
The news in the Telegraph brings the winds of change to family separation. The debates in the Lords on the charging system for the use of the Statutory Maintenance Scheme and the interview with Iain Duncan Smith, make these winds a breath of fresh air. There is a battle ahead of us and it won’t be pleasant, but the possibilities of finally starting to unpick the rigidity of legislation that has delivered fatherlessness in generation after generation are here. We can get it right and whilst I am certain that Batman and Robin are readying for the fight and Superwoman is dusting off her lasso of ‘truth’, I firmly believe that the time is right for change. At stake is the future of all of our children, a new generation in urgent need of a new way forward. The Ministerial group in charge of this process has a big responsibility. I hope that when the dust settles and the details of a modernised Children Act are announced, the balance we need will have been restored.