Really excellent blog post on keeping gender (and some of the heat) out of post-separation parenting support’
I have spent the last few months or so looking at the wide variety of self-help and support organisations and groups that exist to help parents when experiencing family breakdown. For the last 7 years my work has been, and continues to be advising people on all aspects of family law, but mostly parents who are faced with issues relating to arrangements for their children, – that’s both mothers and fathers. My approach is simple; treat each person as an individual regardless of gender, regardless of whether they are the resident parent or not, and to tailor my advice according the emotional needs of the client – it’s both counselling and factual legal advice. I promote non-adversarial methods and encourage parents to use mediation services, use parenting agreements, and above all, keep everything focused on their children.
The main issue I found while looking at the various groups who support…
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This is a very exciting moment for Ruth and myself.
Today we publish our book The Family Law A to Z, a work which has been gestating for a number of years, and which will finally be available on Amazon Kindle for a very modest £7.50.
The book contains around 500 items of English/Welsh family law jargon, and explains their meaning clearly, adding discussion about how they are used, relevant case precedents, etc.
We hope that the book will become an indispensable guide for all litigants, especially those representing themselves, for their advisors and McKenzies and for law students.
We recognise that there has been a huge increase in litigants representing themselves (to 62% by June this year), that negotiating the family courts on one’s own is a nightmare, and that there are very few books and resources available. We hope that this guide will prove a worthy addition to the literature.
By making it available on Kindle we intend that it will be downloaded to people’s phones, pads and laptops, and become a handy reference for them at all times.
It also means we can easily update it and keep it current.
We welcome any corrections of factual errors, formatting errors, or suggestions for new content. A Scots version is in the pipeline.
Please have a look and tell us what you think.
An excellent post by Nick Woodall demonstrating why FNF has long been despised by many in the shared parenting business, and Ken Sanderson in particular.
Just as former smokers make the most evangelical campaigners against smoking, so it takes a former feminist to warn against the dangers of feminism, as Yvette Cooper plans to turn the education system into a machine of mass ideological indoctrination. Here is Karen Woodall’s open letter to the MP.
It was with a heavy heart that I read your article in the Independent this week. Writing about abuse in schools, you headline your piece ‘why we must educate our sons to save our daughters‘ and continue it with the most flagrant disregard for the truth that I think I have recently encountered.
You write of the hurling of insults and the way in which teachers are concerned for the well being of girls and you use as your evidence this –
According to the Children’s Commissioner there is clear evidence that violence in young relationships is growing. The British Crime Survey shows girls aged between 16-19, are most at risk of domestic violence – over 10 per cent had been experienced violence or abuse in a relationship.
Examining the evidence that you seek to rely on to convince us of this, however, it is clear…
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2. The Director’s Brief
Sometimes getting useful information about a production from the director can be challenging, they may know what the production will look like in their head but conveying their ideas to others is beyond them. On this occasion, however, there is enough detail at least to get a lighting design started.
The phrase ‘post-apocalyptic’ has been used; and this establishes a harmonising theme for set, properties, costumes and lighting.
Of course, many will groan at this, and ‘post-apocalyptic’ has been done to death in the cinema since long before Mad Max (Wikipedia lists more than 230). In Macbeth it may even be more inappropriate, since the apocalypse occurs during the action of the play.
References to biblical language abound in Macbeth; it begins with the Sergeant’s lines,
Except they meant to bathe in reeking wounds,
Or memorise another Golgotha.
This idea of a second Crucifixion is particularly unsettling and anathema to Christian thought, though it also conveys the second coming of Revelation: the Apocalypse. The weird sisters then greet Macbeth in the words of Judas when he identified and betrayed Christ.
The unearthly knocking would have recalled for Shakespeare’s audience Christ’s arrival told in Luke 12.36 when the Lord ‘cometh and knocketh’ or the prophecy in Revelation 3.20 that He will ‘stand at the door and knock’, calling upon the sinner to answer for his sins. The Porter imagines himself ‘porter of hell-gate’, admitting sinner after sinner, while Lennox’ description of the night of Duncan’s murder echoes Christ’s description of the end of the world in Matthew 24.6. Duncan’s murder is an analogue to that of Christ: it is a crime against God (kings rule by divine right), and Macbeth has doomed himself. When Lady Macbeth hears the alarum bell she imagines it is the final trumpet which shall call the sleeping dead to judgement; when Duncan is called to judgement his ‘virtues / Will plead like angels, trumpet-tongued’. Ross asks, is it ‘the day’s shame / That darkness does the face of earth entomb?’ and again recalls the Crucifixion (Matthew 27.45),
Now from the sixth hour was there darkness over all the land unto the ninth hour…And, behold, the veil of the temple was rent in twain from the top to the bottom; and the earth did quake, and the rocks rent; and the graves were opened.
Macbeth’s eventual fall from grace is likened to the fall into hell of Lucifer, ‘Angels are bright still, though the brightest fell’; and Macduff continues the imagery, ‘Not in the legions / Of horrid hell can come a devil more damn’d / In evils to top Macbeth’. As his earthly end approaches, Macbeth knows the record of his life must soon be prepared for his own judgement, ‘Creeps in this petty pace / To the last syllable of recorded time’. Too late he realises he has been taken for a fool, ‘I pull in resolution and begin / To doubt the equivocation of the fiend / That lies like truth’, and he knows he is damned, ‘But get thee back; my soul is too much charged / With blood of thine already’.
The director referred me to the film The Book of Eli to get a ‘feel’ for what she was after. The particular apocalypse in this post-apocalyptic film has been a war fought 30 years before over the Bible, and the book of the title is the last surviving copy, in braille. Its survival ensures that there will be a repetition of the war and the continuance of man’s inhumanity. The film is shot in an almost monochromatic style with filters of sepia, and steel blues and greens, washing out any real colour. It represents a palette I think I shall borrow. I also like the hazy use of a similar palette in the low-budget Welsh sci-fi film The Machine.
Similar washed-out, greenish palettes are utilised in other post-apocalyptic films such as the Matrix series and the Children of Men. It is common in film – where the colour cast can be added post-production – but less so in theatre where the cold colours inevitably warm up when they are dimmed. The last time I used these sort of colours was in Marat/Sade, back in 2004, though that was relieved by some pale lavenders and even some Lee 111 pink!
A comparable palette is employed in the filmed version of the Chichester Festival Theatre production of Macbeth – which featured Patrick Stewart in the title role. The atmosphere is full of haze and smoke, and the actors are often sharply back-lit or lit from above in cold whites.
Unusually the director is allowing me to use smoke or haze – or possibly both – and there are a number of reasons why that is appropriate. For one thing, haze allows the beams of light to become visible, and thus to become almost a structural element of the set. The director intends to use LED torches – for their brightness – and haze enables their moving beams to become an extension of the torch, like a Star Wars light-sabre, as she put it. She proposes to use the moving tangle of beams to represent Birnham wood, so that will be an added interest, though it might be necessary to augment them with a few pin-spots.
Smoke is essential to convey the confusion of the Act V battle scenes, and Shakespeare’s fast, almost cinematic cutting, as well as the supernatural elements of the scenes with the weird sisters. As with the lighting effects we noted in the first post of this series, the text is full of references to smoke and fog. At the opening of the play the sisters ‘Hover through the fog and filthy air’; Macbeth’s sword ‘smoked with bloody execution’; Lady Macbeth prays, ‘Come, thick night, / And pall thee in the dunnest smoke of hell’; heaven may not ‘peep through the blanket of the dark’; ‘dark night strangles the travelling lamp’; the light ‘thickens’; the air is ‘infected’.
1. The Text
Lighting Macbeth is a lighting designer’s dream. Not only is it perhaps the greatest play in the English repertoire, but its text is also strewn with hints and pointers for a designer to follow. In this short collection of four posts I shall consider the director’s brief, the set and the design itself, but I shall start, as I always do when putting together a design, with the text.
The word ‘night’ occurs a remarkable 38 times in the play. Its symbolic use is fairly obvious: the night in Macbeth’s own soul, the darkness of the deeds he commits, the darkness of his reliance on the weird sisters, the darkness of Lady Macbeth’s pact with the ‘spirits that tend on mortal thoughts’, and so on.
Shakespeare presents night not so much as the absence of night as the smothering and concealment of anything that emits light: the sun, the stars, a candle. Lady Macbeth invokes ‘thick night’ to conceal the act she commits; she summons spirits to prevent ‘heaven’ (i.e. the sun) ‘peeping through the blanket of the dark’; and when she dies, her husband imagines her death as a candle snuffed out. So too is Banquo’s torch extinguished at the moment of his death. An ephemeral flame is a consistent metaphor for the fragility of a human life.
The play opens with a stage direction: ‘A desert place. Thunder and lightning’. The text repeats the scene-setting for the benefit of the audience:
When shall we three meet again
In thunder, lightning, or in rain?
The reply gives the lighting designer another useful hint he can employ in the next scene – it will be just before sunset. The next two scenes continue the storm imagery, ‘Shipwrecking storms and direful thunders’.
Macbeth’s first entrance reminds us again of the stormy weather conditions, ‘So foul and fair a day I have not seen’.
Thus the first scenes establish the dark and stormy character of the play. The theme of concealing and covering of any light source begins with Scene IV as Macbeth realises he can only achieve the weird sisters’ prediction by killing Duncan, ‘Stars hide your fires, / Let not light see my black and deep desires’.
This theme is taken up by his wife in what is surely the dark heart of the play and the source of the many superstitions surrounding it as she sacrifices her fertility and femininity to the ‘spirits that tend on mortal (i.e. murderous) thoughts’ and conjures up an unnaturally dark night,
Come thick night,
And pall thee in the dunnest smoke of hell,
That my keen knife see not the wound it makes,
Nor heaven peep through the blanket of the dark,
To cry ‘Hold, hold!’
Duncan’s arrival at Forres promises to introduce some light – ‘This castle has a pleasant seat’ – but both the messenger and Macbeth have already made clear that his arrival takes place at evening and the guests are quickly fed and escorted to their beds.
Act II opens in total darkness, lit only by the torches of Banquo and Fleance; it is after midnight, the moon has set and the stars are hidden – ‘there’s husbandry in heaven; / Their candles are all out’. The darkness and silence of the night are unnatural – the product of Lady Macbeth’s pact,
Now o’er the one halfworld,
Nature seems dead, and wicked dreams abuse
The curtain’d sleep; witchcraft celebrates
Pale Hecate’s offerings…
In this near total darkness hearing becomes preternatural: a bell rings, an owl shrieks, the grooms snore, crickets cry, voices are hard to identify, ‘Didst thou not hear a noise?… Did not you speak?’ In the silence Macbeth hallucinates: ‘Methought I heard a voice cry ‘sleep no more! / Macbeth does murder sleep’, while his own voice is strangled,
But wherefore could I not pronounce ‘Amen’?
I had most need of blessing, and ‘Amen’
Stuck in my throat.
A strange knocking begins which carries us into the next scene and morning, and further descriptions of the strange sounds in the night, chimneys blown down, ‘Lamentings heard I’the air, strange screams of death,… the obscure bird / Clamoured the livelong night’. A bell clangs, associated by Lady Macbeth in her agitated state with the final trumpet.
Though it is morning there is still no light, ‘by the clock, ‘tis day, / And yet dark night strangles the travelling lamp’. This is the result both of the unnatural murder of a divinely appointed king and of Lady Macbeth’s earlier prayer, ‘O never / shall sun that morrow see!’ The king, the divine sun, has been extinguished.
By Act III Macbeth is already king but only some 24 hours have elapsed since the opening of the play and though we are hastening towards evening again, the lighting designer may be excused some artificial light. Lady Macbeth plans a banquet and Macbeth devises his next murder with two cut-throats, instructing, of course, that the murders of Banquo and Fleance must take place under the concealment of night. The imagery of strange sounds returns,
Ere to black Hecate’s summons
The shard-borne beetle with his drowsy hums
Hath rung night’s yawning peal, there shall be done
A deed of dreadful note.
And again Macbeth summons up an unnatural darkness to hide the deed, ‘Come seeling night, / Scarf up the tender eye of pitiful day’,
Light thickens, and the crow
Makes wing to the rooky wood:
Good things of day begin to droop and drowse:
While night’s black agents to their preys do rouse.
Banquo’s murder takes place appropriately as the sun sets – ‘the west yet glimmers with some streaks of day’ – but torches are needed for identification and in the confusion Fleance flees. Back inside for the banquet in the next scene the lighting designer must relieve the darkness with some welcoming artificial light but the festive mood is soon cut by the gory apparition of Banquo’s ghost, which is usually marked by some eerie lighting.
This is the mid-point of the play – ‘I am in blood / Stepp’d in so far that, should I wade no more, / Returning were as tedious as go o’er.’ – and the lighting designer will be feeling under some pressure to raise the lighting levels a little, in order to relieve the unrelenting darkness. The next scene provides the opportunity as we are taken in our imaginations over the border to sunny England, ruled by ‘the most pious Edward’.
Immediately afterwards, however, we are back with the weird sisters, grouped around a bubbling cauldron. Once again the imagery is of darkness and shrouded light sources – ‘Silver’d in the moon’s eclipse’. Macbeth’s speech is full of storms and unnatural and unholy phenomena – ‘Though you untie the winds and let them fight / against the churches… though the treasure / Of nature’s germens tumble all together’. There follows a truly nightmarish sequence of apparitions dragged up from hell and Macbeth conceives his next set of murders: of Macduff, ‘his wife, his babes’, which is attempted in the next scene, before a return to England in the long, and rather tedious, scene after which ends Act IV. Here again the light levels need to be lifted before the final darkness of Act V.
The final act opens again at night and in darkness as the Doctor and a gentlewoman await the appearance of Lady Macbeth, sleep-walking and carrying a taper. We are told that she keeps ‘light by her / continually’, presumably to ward off the spirits she has invoked; it is also a metaphor for her fragile life. Once again Shakespeare fills the darkness with strange noise, ‘Foul whisperings are abroad’.
After a brief moment outside – again, at night – we are back in another room of Dunsinane castle with Macbeth buckling on his armour and preparing for battle with the English. Cut to the attacking army disguising their numbers behind hewn branches from Birnham wood. Cut back to Macbeth, a ‘night-shriek’, and the final extinguishing of Lady Macbeth’s candle. Birnham wood begins to move, an alarum bell rings, and a storm wind gets up.
Cut to the English troops; cut back to Macbeth: the imagery is of hell and ghosts: there is fighting, killing, noise, confusion. Finally Macbeth and Macduff confront each other and Macbeth learns that the trust he placed in the weird sisters has been betrayed,
And be these juggling fiends no more believed,
That palter with us in a double sense;
That keep the word of promise in our ear,
And break it to our hope.
They exit, more confusion, then Macduff returns with Macbeth’s severed head, and surely no lighting designer can resist a sunrise:
The time is free:
I see thee compass’d with thy kingdom’s pearl.
The movement for equal/shared parenting has just suffered a devastating defeat. Very few of the usual news outlets have picked up on this, and you won’t find mention of it on the normal fathers’ groups websites, though individuals like Jeff Botterill and Nick Woodall have spotted it and Tweeted accordingly.
I am not referring to the gaoling for six months of Tim Haries, for vandalising an especially awful portrait of the Queen, which should surprise no one, but to an amendment to Clause 11 of the Children and Families Bill.
This amendment was introduced by Lord Nash – a schools minister – and Baroness Butler-Sloss – former President of the Family Division – following successful lobbying by the self-styled Shared Parenting Consortium, in reality a cynical alliance of organisations and individuals ideologically opposed to shared parenting, including the NSPCC, Resolution, Young Minds UK, Barnardo’s, Gingerbread, NYAS, Relate, the Children’s Commissioner, Coram’s Children’s Legal Centre and Butler-Sloss herself.
Section 11 had read,
A court… is to presume, unless the contrary is shown, that involvement of that parent in the life of the child concerned will further the child’s welfare.
The Shared Parenting Consortium had made the familiar claim that this clause would conflict with rather than enhance the paramountcy of the child’s welfare and that it implied in some way an equal division of parenting time. Butler-Sloss explained,
I… worry about those who would go to court with an erroneous view of what this clause actually means, and with an inbuilt sense of their rights rather than the best arrangements for the children. The purpose of this amendment is to give some clarity to the clause and to help the public come to terms with putting the welfare of their children first.
The amendment reads,
In subsection (2A) ‘involvement’ means involvement of some kind, either direct or indirect, but not any particular division of a child’s time.
This is significant and damaging for two reasons: first, it introduces the idea of indirect involvement, so that “involvement” can now be taken to mean, as now applies, a mere letter every month; and secondly it ensures that “involvement” cannot be taken to mean any division of a child’s time.
The reason this is so damaging is that the division of a child’s time is really the only thing a court has any influence over when making any order for Contact, Residence or the new Child Arrangements; it can have little influence over how that time is used or the quality of parenting during that time. Removing the time element from the concept of “involvement” strips it of any significance.
The clause began life in the Government’s Response to the Family Justice Review and had some teeth,
The Government believes that there should be a legislative statement of the importance of children having an ongoing relationship with both their parents after family separation, where that is safe, and in the child’s best interests.
The final version of Section 11 represents the final nail in the coffin for any hope of a legal presumption of shared parenting to be introduced into English/Welsh law. This is despite the fact that there is overwhelming academic evidence that equal shared parenting promotes children’s welfare and that a legal presumption is the best way to achieve it.
Let us be clear – there are only two options for dividing up parenting after separation: the first is equal shared parenting and the second is sole mother custody. There is nothing else, and even where an unequal form of shared parenting is ordered the tendency is for it to revert to sole mother custody. This amendment ensures that the Consortium’s favoured demographic will continue to get the lion’s share of custody and that children will continue to lose fathers. It has nothing to do with children’s welfare and everything to do with elevating the rights of one party over those of all others.
Baroness Butler-Sloss also said this,
The groups of parents whom I worry about in relation to Clause 11 are those who try to settle the arrangements for the children without going to court. In the absence of lawyers to advise either side, the stronger, more dominant parent may insist on an arrangement based on equality, or at least on disproportion which is not appropriate for the welfare of the children…
Given that these groups represent at least 75% of separating parents with children (and the official figure is 90%), demanding that all separating parents go to court to slug out their child care arrangements would put enormous additional pressure on the courts while at the same time provide a huge increase in business for lawyers and judges. What is best for children and their families is to stay out of the courts, not to be sucked into an adversarial battle which can last years and cost tens or even hundreds of thousands. The Shared Parenting Consortium is revealed as an alliance inimical to the interests of children.
It is high time that the organisations truly supportive of shared parenting woke up to what is happening and formed their own alliance. The forces ranged against them are enormously powerful, well-funded and organised. They are well-represented both in the Commons and in the Lords. The NSPCC derives more than 70% of its annual income from the taxpayer, falsely positioning itself as a charity promoting the welfare of children; Barnardo’s derives 78% from the taxpayer.
Meanwhile the supporters of shared parenting are disorganised, lack funding and lack any common aims or any common understanding of what it is they are fighting. We allow ourselves to be distracted by conspiracy theories and disputes over individual egos which block the formation of effective alliances and block progress. This is an absolute disaster for the children and future generations who look to us for a solution.
Sending criminals to prison even for long periods is one thing. Permanently removing their children is on an altogether more serious scale of importance.
Sir Paul Coleridge (Coleridge, 2011)
The year 2000 saw publication of the Waterhouse Report which uncovered the systematic physical, sexual and emotional abuse of hundreds of children in North Wales care homes between 1974 and 1990 and identified major failings in the child protection system. Tony Blair, the Prime Minister, reacted by announcing a major review of adoption policy,
The whole purpose of this is to clear away the clutter of rules that stop children having a decent home. We have got to get some common sense back into the system. No matter how good a care home is, it isn’t as good as having a loving family (The Guardian, 2000).
In December a White Paper was published (Department of Health, 2000), leading to the Children and Adoption Act coming into force five years later. In addition to the new legislation Blair introduced substantial financial rewards to councils if they managed to place children from foster homes for adoption. The target was for a 50% increase on 1999-2000 figures by 2006 (Department of Health, 2002). The targets also aimed to speed up the adoption process once a decision was made. Meeting the targets would be generously rewarded. The unintended consequence was that social service teams, unable to find adoptive homes for older, more impaired children, resorted to taking new-born babies from their unwilling families in order to meet the targets. The number of babies under 1 year old placed for adoption rocketed by 123%, while the number of children over the age of 7 moved from fostering into adoptive homes actually fell. The number of children aged over 10 fell by 67%.
Where were these babies coming from? Not from the care homes which had an inexhaustible supply of abused and damaged children. Instead they were being taken from parents who had never been proved to have harmed their children. Because there was pressure to take children as babies, social services were coerced into making decisions early in a case without the necessary evidence. Some of the excuses for removing children look very weak indeed; claiming without evidence that parents are too stupid to look after their children adequately, or that mothers who have themselves been abused in the past will abuse their own children in the future. Babies and toddlers are easy to place because demand greatly exceeds supply and councils can more easily meet their targets.
Because a contested case can delay adoption for longer than two years (though rarely prevent it) there was pressure on councils to bypass the court procedure; the Government wanted to reduce the delay to a maximum of 6 months. This led to councils targeting vulnerable parents who had learning difficulties and who could not therefore instruct a solicitor or had to be represented by the ‘Official Solicitor’, a lawyer or paralegal who works for the state. In January 2008 a forced adoption case created considerable press interest because the judge, James Munby, had ordered the local authority in Nottingham to return the child on the grounds that his abduction just two hours after the birth had not lawfully been carried out. The council promptly obtained the prerequisite court order and re-captured the child; Nottingham had decided the fate of G’s baby even before he was born, incurring Munby’s condemnation,
There was no question of any medical justification for the intervention, let alone any medical emergency. G’s son was removed simply because of the ‘Birth Plan’ (Re G (R on the application of) v Nottingham City Council, 2008).
In 2006 Rachel Pullen’s daughter Laura (not her real name) was born 13 weeks prematurely with breathing problems and requiring operations to her bowel, eye, heart and throat. She was taken into care before she left hospital as her mother was judged by social services to be unfit to care for her. Rachel was considered – but by only one ‘expert’, employed by the local authority – to be insufficiently intelligent to instruct a lawyer and was represented by the Official Solicitor who could not represent her views to the court and, as in the case of Alessandra Pacchieri, had to follow what social services recommended; her real deficiency seems to have been her hostility towards social services and an alleged expression of racist views. Against Rachel’s wishes and without consulting her, Laura was placed for adoption. Once you are judged to ‘lack capacity’ there is no right to a second opinion and no legal aid available to challenge the finding.
By June 2009 ‘Laura’ (or Baby K as she was known), then three, had recovered fully and Nottingham County Council had found an adoptive family for her. Rachel was allowed to visit every two weeks prior to the adoption. Again she was told she lacked the intelligence to cope with her daughter’s medical needs and was not able to instruct her own lawyer; again the Official Solicitor ‘represented’ her, and again refused to go against the council’s wishes. An independent psychiatrist found Rachel had ‘good literacy and numeracy and her intellectual abilities appear to be within the normal range’. Rachel was backed by MP John Hemming to take her case to the European Court of Human Rights (Dolan, 2009); the case was heard in October 2012 (RP and Others v United Kingdom, 2012) and went against her. In an interview with ITN Rachel had reasonably observed, ‘They say I have no parenting skills; nobody’s born with parenting skills, parenting skills come gradually’. She argued that she should at least be given a chance to look after her child, and if she failed to look after her adequately, as she said the council wanted her to fail, then it would be reasonable to take the child away. The case exposes social services ignoring their statutory obligations to keep families together by supporting parents and their propensity to take children away without giving parents the opportunity to prove themselves and without gathering evidence of risk. The story of the outwardly articulate mother judged too stupid to care for her own child attracted considerable press attention, a sign of the public concern surrounding this issue, which was turning social workers from well-meaning professionals keen to protect vulnerable children into despised and feared pariahs.
Suitable children are advertised for adoption in the press, often while still subject to court proceedings, and yet their parents are forbidden by court secrecy to discuss these cases. They are also prevented from taking their cases to the Court of Appeal because of time limits and because the courts refuse to release transcripts of judgements (Leapman, 2007) and deny parents access to their court files (Burgess, 2009). Even if Rachel Pullen had won in Strasbourg she wouldn’t have got her child back.
Who benefits from this trade? A profitable business has grown up providing foster homes for children taken into the care system. Fostering is one of the few reliable ways to earn a living if you have no qualifications and want to work from home; between 30% and 40% of foster carers have no educational qualifications and can receive over £600 per week per child – much more than the £20 the child’s parents would get. For a severely disturbed child up to half a million a year can be paid out. Councils have offered foster parents free loft conversions worth up to £30,000 (Evening Standard, 2005). Fostering agencies charge local authorities £1,500 per week for finding foster homes.
Local authorities no longer get the huge rewards they once did, but it is still financially advantageous for them to get children adopted rather than spend money on supporting parents or on having the children fostered, and fostering in turn saves £100,000 per year for each child taken out of residential care. Foster Care Associates, the largest fostering agency in the UK, had a turnover in 2003 of £56 million; the social workers who acted as its directors paid themselves £285,000 each (Ibid.). By 2011 the group’s turnover had reached £138 million. Even more profitable is the lucrative adoption market always hungry for new children. This trade provides rich pickings for lawyers: each case costs an average of £70,000 in legal and court fees with some cases costing up to £500,000 including the local authority’s costs and the parents’ legal aid (Dyer C. , 2006); in 2008 lawyers’ average annual earnings from family legal aid work were £140,000 (Times on Line, 2008). Councils have their own preferred ‘expert witnesses’ who can be relied on to produce reports in favour of removing children and who typically charge £30,000 per report. Agencies can charge a £27,000 fee for finding adoptive parents; many adoption charities are little more than fronts for government and local government agencies; Barnado’s, for example, which turns over £234 million, is 78% state funded; National Children’s Home 88% (Seddon, 2007). Their boards are made up of senior social workers, local authority mandarins and family lawyers. The board and management of the British Association for Adoption and Fostering (BAAF) are dominated by local authority social workers; its chairman is none other than Anthony Douglas, chief executive of CAFCASS, and himself a former director of social services (and the BAAF president is a former family court judge).
CAFCASS is supposed to be strictly impartial, yet through his links with BAAF its chairman is linked at a policy and activity level with the sordid business of abducting children from their families. BAAF doesn’t simply wait to receive children; BAAF actively campaigns for more children to be taken – it supported the targets enthusiastically – and immediately comes to the defence of local authorities who are criticised for their adoption policies and conduct. In 2005, BAAF Chief Executive Felicity Collier wrote to every MP in response to a Daily Mail article on forced adoption; she denied there were financial incentives behind adoption but at the time this was untrue. The financial rewards introduced by Blair officially ceased in 2006, but the culture continued, and other financial incentives remained in place. In September 2007 the Minister for Communities and Local Government, John Healey, responded to a written question from Conservative MP Tim Loughton that 30 local authorities had met their Local Public Service Agreement targets on adoption and placement and had been rewarded. The total pay-out was over £18.5 million, and the highest payment was of £2,469,200 to Essex County Council (Hansard, 2007). In 2001 Kent Council had been awarded £21 million for meeting performance targets including those for adoption (Kent County Council, 2007).
The Children’s Minister Kevin Brennan was forced to write to the Times and Daily Mail in January 2008 claiming the targets had only applied to children already in care, and they had ended in 2006, the date they were supposed to be met. Neither statement was entirely honest, and both conflicted with an announcement quietly released just over a week earlier that the Labour Government was planning to scrap the targets that April (Leapman, 2008a). Hammersmith and Fulham Council admitted in April they had received £500,000 for meeting targets over the previous 3 years (Leapman, 2008b). Nearly all of the children were adopted compulsorily against their parents’ wishes; a spokesman justified this by saying the children were more likely to ‘achieve economic well-being’, but this is not a legitimate reason for taking children and we have already identified social workers’ enthusiasm for a little social engineering: just because you are better off than your neighbours does not entitle you to steal their children.
As late as 2010 allegations were still being made that councils received bonuses for meeting targets, and the charity Barnado’s was advocating setting new targets to boost falling adoption rates. Tim Loughton, briefly the Coalition Children’s Minister, rejected the demand, ‘It is the wrong way to go about things’ (Pemberton, 2010b). In February 2011 the Government launched new guidelines rejecting ‘political correctness’ and designed to increase levels of adoption by eliminating discrimination based on age or race; ironically new legislation with the aim of ending discrimination against homosexuals had forced the closure of all Roman Catholic adoption agencies, ensuring many children would remain in care. In July 2011 the Government unwisely appointed former chief executive of Barnardo’s, Martin Neary, as its ‘adoption tsar’. He promptly advocated more children to be taken into care, a return to the targets culture, league tables and the naming and shaming of local authorities which failed to comply; predictably there were further rises in the taking of very young children. Harriet Harman’s solicitor sister Sarah said,
Secrecy breeds bad practice, it breeds suspicion. It feeds parents’ sense of injustice when they have their children removed that they’re not able to talk about it. They’re not able to air their grievances. Children have been removed from their families unjustly. There’s no two ways about that (Metro, 2012).
Adoption continued to be a focus of the Coalition which introduced new guidance, new adoption scorecards, an adoption tsar, an adopters’ charter, an expert working group on redesigning adoption, an action plan for adoption, an adoption green paper and a House of Lords select committee inquiry into adoption. This led eventually to the Children and Families Bill which sought to increase the number of adoptions and reduce delay through use of a stick rather than Blair’s carrot. Tragically, the essential lesson had not been learnt that imposing arbitrary rules forces social workers to concentrate on cases which best enable them to comply with government dictat and avoid the more complex cases in which children may be at greater risk.
Even more alarming is the allegation that the threat of child removal is used as a tool of social control. Parents who question a doctor’s integrity, or challenge the authority of a police officer, or educate their children at home suddenly find the social services on the doorstep. People in positions of power find social services useful as an all-purpose threat to intimidate anyone who challenges them. It is a perfect tool for inducing docility. Some argue that the parents who suffer the worst systemic abuses do so because they have challenged or otherwise caused offence to an important member of the local power-structure (consider the case of Nevres Kemal in the next chapter). Suddenly they find their children have been placed on the ‘at risk’ register, for feeble reasons it is nevertheless impossible to challenge. Teenager Winona Varney described how she had been forcibly adopted at the age of 7, together with her younger sister, because they were deemed to be at risk of ‘emotional abuse’ (Lawrence, 2010). Aged 16 she had tracked down her mother through the internet and the family was reunited; Winona said,
They told us they loved us, but it was not an affectionate, cuddly relationship. We looked the part, with a three-bedroom semi-detached house and family holidays in Spain, but there were a lot of rows and tension. I felt more like a pet than their daughter.
Winona’s adoptive parents both worked for the local authority – as a housing manager and police clerical worker. Were the two sisters adopted to order? Would anyone else actually want these children if they knew where they had come from?
In 2003 Maureen Spalek, wife of a naval officer; took her eldest son to Alder Hey hospital with a broken leg from a hit-and-run accident. They were made to wait 28 hours before the hospital would treat him. When Maureen complained about the attitude of one of the doctors social workers were called in. When she complained about their hostility, matters escalated to the point where her three children were taken away; Maureen believed this was to meet the targets which then still applied. The ground given was that she had ‘problems working with professionals’; this is regarded by social workers as unacceptable behaviour, and the punishment is to reallocate the children. Sometimes this is expressed as parents being ‘unable to put the needs of their children over their own needs’; Rachel Pullen was accused using this formula. Entirely normal behaviour in the face of an immensely powerful and irrational bureaucracy is considered evidence of mental instability or deficiency. Within 6 weeks of being taken into care the children were placed for adoption; although they had been taken unlawfully from their grandmother, a judge ruled the adoption process had gone too far for it to be reversed. While in the care of Newcastle social services the children were abused. Maureen was threatened that if she went public with this manifest miscarriage of justice she would lose her house as well. She might even be sectioned.
The removal of all three children was based on a single report from Alder Hey hospital concerning the eldest; the threshold criteria were never met for the younger two. One child ended up living with the father; the two others were adopted. By a social worker from the same department that had taken them into care. Subsequently Maureen was arrested by 5 police officers for the crime of sending a birthday card to one of her children, she was handcuffed and thrown into a police cell for 24 hours. On release she had to pay £150 to recover her impounded car. Maureen was never accused of harming her children emotionally or physically, indeed it was agreed in court she was an ‘excellent mother’; social services merely made the standard prediction that she would be a potential risk of harm in the future.
Understandably, parents are reluctant to engage with this system, and will even flee abroad if they fear their children will be taken. In June 2009 John Hemming encouraged a couple to move to Ireland in order to keep their child (Alderson, 2009). An allegation had been made that their oldest child had been sexually abused; despite the lack of evidence, she was taken into care and adopted. The same thing happened to their second daughter. Hemming advised that their only hope of keeping their soon-to-be-born third child was to flee the country. They sold everything, bundled clothes into black bin liners and took the ferry from Fishguard to Rosslare. Within 24 hours of the child being born in County Wexford General hospital, she was taken into care, though Hemming claimed the couple stood a better chance of winning her back in the Irish courts. The father, a former serviceman, said,
I am very angry. I fought for my country but now I have been forced to leave it. We are not baby factories for these people just so they can get their quotas up.
Under family law in England, you are guilty until proven innocent – and you can never prove your innocence.
Whereas social services should be seen as supportive of parents and families, their behaviour has led to their being universally feared. Within social services the permanent removal of children is considered an option preferable to providing assistance to parents which will enable them to care for their children at home. The UK system would rather punish failing parents when what is required is a rapid-response, short-term intervention at a time of family crisis. For parents who genuinely cannot cope with raising a child and who need the additional help and support which social services are meant to provide the situation is more serious; some mothers conceal the birth of a child, so the child’s very existence is not registered. Many mothers drop off the social services’ radar at just the moment when they most need support, withdrawing children from school and barring the door to social workers. It is at this point that children are most vulnerable; indeed, it is not too far-fetched to say that infanticide is the natural consequence of a child protection system which chooses to remove children rather than support parenting.
The problem is exacerbated by the near collapse of the guardian system – thousands of children go through the care system without a guardian, or with a succession of ‘duty’ guardians under the Revised Private Law Programme – and by the loss of legal aid lawyers who will represent parents. Only between 0.1 and 0.2% of care applications are refused, while some courts approve 100% of applications. Allegations of judicial ‘rubber stamping’ are bolstered by the published judgements. These reveal how briefly judges and magistrates scrutinise cases before approving them, showing the scantest regard for the welfare checklist and dispensing with parents’ consent with extraordinary flippancy. Few of these judgements exceed a single page of A4. An extraordinary case in 2014, published under James Munby’s new rules on openness, revealed that local authorities were writing magistrates’ ‘Facts and Reasons’ reports for them, in exchange for having their applications approved (Re NL (A child) (Appeal: Interim Care Order: Facts and Reasons), 2014). The ‘Facts and Reasons’ reports are supposed to be written by magistrates after the case in order to provide a rationale for the decision taken. Mrs Justice Pauffley said,
It is difficult to view the Justices as having been independent and impartial if, as happened here, they simply adopted the local authority’s analysis of what their Findings and Reasons might comprise. The Court of Appeal has recently made clear that the wholesale incorporation of such a draft is impermissible.
Whilst I might be able to understand why such methods may have been developed, I am profoundly alarmed by their existence. Informal inquiries reveal, anecdotally, that the practices I have described are not confined to this area but are widespread across the country.
There were process failures in this case which significantly interfered with the most basic requirements for openness and transparency. There was, apparently, an established but largely clandestine arrangement between the local authority and the court which, to my mind, has considerable repercussions for justice and, equally importantly, the perception that justice will be done. It is fundamental that nothing is sent to the judge by one party unless it is copied simultaneously to every other party.
Just because there may be tacit acceptance on the part of many professionals within the family justice system that the practice which operated here exists, that does not mean it is right.
It should always be remembered that in public law proceedings the local authority is the applicant. It is not and should never be seen as the decision maker. That is the role of the court. There is no room for confusion. Justice must be upheld. There is no scope for any dilution of that most fundamental concept.
Local authorities clearly do not support parents who need help caring for their children or try every alternative before opting for care: the system does not observe existing legislation or perform its role diligently. The need for judicial oversight was demonstrated by James Munby who’d found it necessary to clarify,
Local authorities and social workers have no power to remove children from their parents unless they have first obtained judicial sanction for what they are proposing to do. Only a court can make a care order. Only if a court has authorised that step, whether by making an emergency protection order or by making a care order or an interim care order or in some other way, can a local authority or a social worker remove a child from a parent. And the same goes, of course, for a hospital and its medical staff.
As I said during the course of the hearing, no baby, no child, can be removed simply ‘as the result of a decision taken by officials in some room’ (Re G (R on the application of) v Nottingham City Council, 2008).
In order to hasten the process, Clause 1 of the Children and Families Bill will remove the safeguard which obliges local authorities to consider placing children with their wider families; children will be placed on the adoption register before there have been any court proceedings and before a judge has approved the child for adoption. A child temporarily taken into care could be placed with potential adopters, making return to the parents less straightforward: by the time the parents find legal representation and the case comes to court, the child will have become ‘settled’ in its new family and courts will be unwilling to remove it. As under Labour, it will be easier to meet targets by taking babies than to find adopters for older children.
Not all judges are as scrupulous as Munby: if local authorities’ applications are rubber-stamped, what need is there for parents to be legally represented at all? This seems to have been Nicholas Wall’s thinking in the notorious case of P, C & S. The mother, P, had had a child from an earlier relationship taken into protective custody on the evidence of an ‘expert’ on Münchausen’s Syndrome by Proxy (MSbP) who had neither met nor interviewed her. When a daughter, S, was born to P and her new husband, C (who had written a thesis about women falsely accused of MSbP), the local authority, Rochdale, tipped off by P’s ex-husband, removed S and offered her for adoption. The freeing for adoption proceedings were to be held a week after the care proceedings; P, who had a valid legal aid certificate, asked for proceedings to be deferred to allow her to find legal representation but Wall declined, seemingly on the grounds that the decision was already made and representation would make no difference. He dismissed her claim that the stress of her situation made it hard for her to represent herself in extremely complex proceedings over a period of 20 days; the couple’s objection to adoption was unreasonable and Wall refused leave to appeal.
P and C complained to the European Court of Human Rights that they had not been sufficiently involved in the pre-birth decision-making process and had not had access to court in respect of the freeing proceedings, in breach of their Article 6 rights (P, C & S v the United Kingdom, 2002). The court agreed: the haste was ‘draconian’ given that S was already in foster care and P should have had access to legal assistance at both hearings; the adoption hearing could have been adjourned. They complained also that the freeing order was draconian and irreversible and the lack of provision for any future contact breached the Article 8 rights of parents and child to respect for their family life. They were unaware they could have applied for contact during the freeing proceedings, and the transcript of the care proceedings, essential for any lawyer acting for them, was not yet available. The court ruled that removal of S at birth was without justification and the procedural shortcomings breached Article 8. Wall went on to be appointed President of the Family Division.
P, C & S v the United Kingdom, 56547/00 (European Court of Human Rights July 16, 2002).
(2008, June 19). Retrieved from Times on Line.
Re G (R on the application of) v Nottingham City Council,  EWHC 152 (Admin) (High Court 2008).
RP and Others v United Kingdom, 38245/08  ECHR 1124 (European Court of Human Rights August 2012).
Alderson, A. (2009, June 6). British baby seized in Ireland after parents flee social workers over custody row. Sunday Telegraph.
Burgess, K. (2009, April 29). Family courts system accused of hiding evidence from parents. The Times.
Coleridge, P. (2011). Does Family Law Shape Society or Vice Versa? Westminster: Care.
Department of Health. (2000). Adoption: a New Approach. London: Stationery Office.
Department of Health. (2002). Improvement, Expansion and Reform: The Next Three Years (Priorities and Planning Framework 2003-2006).
Dolan, A. (2009, May 31). ‘They stole my little girl,’ says mother judged too stupid to care for her baby. Daily Mail.
Dyer, C. (2006, March 17). Council must pay £500,000 for wrongly taking girl into care. The Guardian.
Evening Standard. (2005, October 2). Firms cash in on shortage of foster homes. Evening Standard.
Hansard. (2007, September 3). Written Parliamentary answers.
Kent County Council. (2007, June 14). Memorandum submitted to Select Committee on Treasury.
Lawrence, J. (2010, September 3). ‘I was stolen from my mother’: The deeply disturbing truth about forced adoption. Daily Mail.
Leapman, B. (2007, August 8). Courts won’t reveal rulings in adoption cases. Sunday Telegraph.
Leapman, B. (2008a, January 20). Labour’s adoption targets to be scrapped. Sunday Telegraph.
Leapman, B. (2008b, April 13). Cash prize for council that hit adoption targets. Daily Telegraph.
Metro. (2012, April). Targets claim over forced adoptions. Retrieved from Metro.
Pemberton, C. (2010b, November 1). Minister identifies too much “political correctness” in adoptions. Community Care.
Seddon, N. (2007). Who Cares? Civitas.
The Guardian. (2000, December 21). Blair: ‘Why adoption is close to my heart’. The Guardian.
A Common Form of Arrangement
I cannot even say the words. A huge emptiness would well in my stomach, a deep loathing for those who would deign to tell me they would ALLOW me ACCESS to my children – those I loved above all, those I created, those who gave meaning to everything I did, those who were the very best of us two and the absolute physical manifestation of our once blinding love. Who the hell are they that they should ALLOW anything? REASONABLE CONTACT!!! Is the law mad? Am I a criminal? An ABSENT parent. A RESIDENT/NON-RESIDENT parent. This Lawspeak which you all speak so fluently, so unthinkingly, so hurtfully, must go.
Bob Geldof (Geldof, 2003)
The new orders introduced by the Children Act 1989 were designed to allow for various shared care arrangements. Residence and parental responsibility were treated as entirely separate concepts so that a non-resident parent could maintain an involved role in his child’s upbringing. Giving one parent residence would not take away parental responsibility from the other. Presenting the Act to the Commons, David Mellor said the orders ‘reflect our emphasis on encouraging parents to participate fully in the child’s upbringing’ (Hansard, 1989). On the 10th anniversary of the Act Lord Irvine repeated this philosophy, ‘The underlying philosophy of the Children Act is that parents have a shared responsibility for the upbringing of their children even after the parents’ relationship has broken down’ (Irvine, 1999). The background to the Children Act is provided by the Law Commission’s Report on Guardianship and Custody (Law Commission, 1988) introduced in Chapter Three,
It was never our intention to suggest that children should share their time more or less equally between their parents. Such arrangements will rarely be practicable, let alone for the children’s benefit. However the evidence from the United States is that where they are practicable they can work well and we see no reason why they should be actively discouraged… More commonly, however, the child will live with both parents but spend more time with one than with the other… It is a far more realistic description of the responsibilities involved in that sort of arrangement to make a residence order covering both parents rather than a residence order for one and a contact order for the other (my emphasis).
The Law Commission proposed the introduction of the orders with which we have grown familiar. The new ‘contact’ orders replaced the old access orders and were intended to be viewed from the perspective of the child rather than that of the parent. They are orders ‘requiring the person with whom a child lives, or is to live, to allow the child to visit or stay with the person named in the order, or for that person and the child otherwise to have contact with each other’. Like the child’s welfare, contact is not defined; the word ‘otherwise’ allows for contact to be either direct or ‘indirect’, thus ‘contact’ regularly indicates a level of communication – by letters or cards – entirely insufficient for maintaining a relationship.
‘Residence’ orders were intended to replace the old custody orders and settle ‘the arrangements as to the person or persons with whom the child is to live’. By the time the Act was drafted, however, the crucial words ‘or persons’ had been omitted, sending a clear message to judges that the new residence orders were not to be made in favour of both parents. During the Lords debate Lord Kilbracken queried this point and called for an amendment. The Lord Chancellor, Lord Mackay, replied that under Section 6(c) of the Interpretation Act 1978 ‘words in singular include the plural and words in the plural include the singular’, though he omitted the clause, ‘unless the contrary intention appears’, which was surely intended in the Children Act. Lord Kilbracken withdrew his amendment, but not without observing, ‘what is said in your Lordships’ committees on the record is in fact never brought up again in any court’ (Hansard, 1988).
Official guidance from the President of the Family Division, Elizabeth Butler-Sloss, noted that, ‘a shared care order has the advantage of being more realistic in those cases where the child spends considerable amounts of time with both parents, brings with it certain other benefits, and removes any impression that one parent is good and responsible whereas the other parent is not’ (Butler-Sloss, 1989). Nevertheless, she promoted the ideology that a child should have only one home,
it is not expected that it would become a common form of order, partly because most children will still need the stability of a single home, and partly because in the cases where shared care is appropriate there is less likely to be a need for the court to make any order at all.
Solicitors typically recommend that fathers apply for contact rather than residence on the grounds that they are more likely to be awarded it (and solicitors don’t like to challenge convention); the difficulty is that innocently applying for a contact order holds the implied request to be treated as a second-rate parent. These orders are routinely flouted, and do not achieve their objective of facilitating or sustaining proper relationships between children and their non-residential parents. Probably the most common myth spread about fathers by their detractors is that they are denied contact by the courts; in fact the real problem is that contact orders aren’t enforced.
The flexibility of the orders has enabled judges to order the most minimal interactions between parents and their children, and has spawned a whole new industry of ‘contact centres’ in which fathers and their children, surrounded by formica furniture and broken toys, are expected to sustain fragile relationships, often under the suspicious gaze of the profiteers of this system, who are supposed to ‘supervise’ the contact to ensure it is ‘safe’. Fathers are expected to pay for this privilege, often at extortionate rates.
It has been a long and slow process to persuade the courts themselves to reject the earlier mistrust of shared residence and order it more often. In 1994 Francis Purchas articulated the prevailing orthodoxy that such an order ‘would rarely be made and would depend upon exceptional circumstances’ (Re H (A Minor) (Shared Residence), 1994). In the same year Elizabeth Butler-Sloss said such an order should only be made if there were something unusual about a case and a positive benefit in making an order which was not a conventional order, and that it was unlikely to be made if there were unresolved issues between the parents (A v A (A Minor) (Shared Residence Order), 1994). Yet in 1995 Nicholas Wall hoped that shared residence orders
may gradually win more grudging approval from the courts if the Judges begin to acknowledge that such orders can reflect practical arrangements made by parents and their children which work well in putting into satisfactory practice that purpose promoted by the Act which emphasises that parenting is a continuing and shared responsibility even after a separation (Re H (Shared Residence: Parental Responsibility), 1995).
Butler-Sloss was forced to back-pedal following the introduction of the Human Rights Act 1998. On 20th November 2000 she and Brenda Hale produced a contrary judgement which established that a shared residence order could be made where there was conflict and animosity (D v D (Shared Residence Order), 2001); Hale said,
Contrary to earlier case law, it is not necessary to show that exceptional circumstances exist before a shared residence order may be granted. Nor is it probably necessary to show a positive benefit to the child. What is required is to demonstrate that the order is in the interests of the child, in accordance with the requirements of s.1 of the Children Act 1989.
If it is either planned or has turned out that the children are spending substantial amounts of their time with each of their parents then [the shared residence order] may be an entirely appropriate order to make.
Thus at the turn of the century this type of order came to be seen as a way of defining an on-going situation (the children spent 38% of their time with the father) rather than prescribing a new one, and the sole-residence-plus-contact paradigm remained the rule; Hale confirmed this in Re A in 2002 and revealed the fundamental weakness of the order which is that it shares only residence and not responsibility,
But the law is that parents already have shared parental responsibility for their children… A residence order is about where a child is to live. It is very difficult to make such an order about a child who is not only not living with one of the parents but is, for the foreseeable future, unlikely even to visit with that parent. The court’s order has to be designed to reflect the real position on the ground (Re A (Shared Residence), 2002).
Mathew Thorpe showed a growing acceptance of the order and a rejection of the winner-takes-all convention, referring to D v D in 2003,
There is a need for courts of trial to recognise that there may well be cases that are better suited by a joint residence order than by residence order to one parent alone. Where there is a proximity of homes and a relatively fluid passage of the children between those two homes, the judicial convention that the welfare of the children demanded a choice between one parent or the other as a guardian of the residence order in order to promote the welfare of the children no longer runs as it used to run (Re A (Children) (Shared Residence), 2003).
Thus by 2003 a shared residence order could be used prescriptively where the parental homes were close together. Thorpe went further in Re F by demonstrating that shared residence could also be appropriate where the parents lived far apart, in a case where the mother moved from Hampshire to Edinburgh in order to thwart contact,
The fact that the parents’ homes are separated by a considerable distance does not preclude the possibility that the children’s year will be divided between the two homes of the separated parents in such a way as to validate the making of a shared residence order (Re F (Shared Residence Order), 2003).
Nicholas Wilson concurred,
Will an order for shared residence be valuable to [the children] as a setting of the court’s seal upon an assessment that the home offered by each parent to them is of equal status and importance for them?
These three cases, D v D, Re A and Re F, were cited by Nicholas Wall the following year and showed how a prescriptive shared residence order could be used to affirm the importance of a child’s relationship with both parents and their equality in the eyes of the law even in a case involving tremendous conflict and false allegations against the father,
This case has been about control throughout. Mrs A sought to control the children, with seriously adverse consequences for the family. She failed. Control is not what this family needs. What it needs is co-operation. By making a shared residence order the court is making that point. These parents have joint and equal parental responsibility. The residence of the children is shared between them. These facts need to be recognised by an order for shared residence (A v A (Shared Residence), 2004).
Wall’s 2006 judgement in Re P demonstrates how far judicial thinking had moved since 1989: the father’s appeal against the decision of the trial judge was allowed on the grounds that an order for shared residence reflected the reality of the situation and that there were no compelling reasons not to make it. A shared residence order could at last become the default position:
Good reasons are required if a shared residence order is not to be made. Such an order emphasises the fact that both parents are equal in the eyes of the law, and that they have equal duties and responsibilities as parents. The order can have the additional value of conveying the court’s message that neither party is in control and that the court expects parents to cooperate with each other for the benefit of the children (Re P (Children), 2006).
The next step was to make shared residence an acceptable order when the applicant was not biologically the child’s parent, in order to confer parental responsibility. The first case concerned two girls conceived through anonymous donor insemination within a lesbian relationship (Re G (Residence: Same Sex Partner), 2005). The biological mother intended to relocate with the children to Cornwall to move in with her new partner. The appellant partner (Miss W) applied for a shared residence order as the only way by which she could acquire PR for the children. Mathew Thorpe granted the order,
But perhaps more crucial for me was the [lower court] judge’s finding that between the first and second days of the hearing the mother had been developing plans to marginalise Miss W… The CAFCASS officer had expressed a clear fear that unless a parental responsibility order was made there was a real danger that Miss W would be marginalised in the children’s future. I am in no doubt at all that, on the judge’s finding, the logical consequence was the conclusion that the children required firm measures to safeguard them from diminution in or loss of a vital side of family life.
Within a month the biological mother sought her former partner’s approval for the move to Cornwall. The partner refused but the mother moved the children anyway, in secret and in clear breach of the order. Miss W commenced proceedings both to locate the girls and for sole residence. CAFCASS recommended defined contact instead, but it was a ‘fine balance’ and the officer had little confidence the mother would obey future orders. Joyanne Bracewell had no confidence in the mother; she rejected the CAFCASS recommendation and preserved the shared residence order while reversing the time allocated to each parent. The mother appealed; Brenda Hale reversed the reallocation of time in Bracewell’s order. She also made an order for Family Assistance, and warned the mother against further breach. She quoted from an Australian case,
…the fact of parenthood is to be regarded as an important and significant factor in considering which proposals better advance the welfare of the child. Such fact does not, however, establish a presumption in favour of the natural parent, nor generate a preferential position in favour of the natural parent from which the court commences its decision-making process (Hodak, Newman and Hodak, 1993).
The importance of the case was that it established the legitimacy of making a Shared Residence Order in respect of a non-biological parent – a social and psychological parent – in order to confer Parental Responsibility. Further litigation followed in the Court of Appeal and in the House of Lords; Miss W spent in excess of £200,000 before acting in person. Orders for contact were not obeyed and the Guardian recommended sole residence in the mother’s favour and no contact; the trial judge agreed. Miss W appealed (Re G (Children)  EWCA Civ 1434): she had received the Guardian’s report only 3 days before the trial; she had not been allowed to adjourn to introduce an expert who advised increased contact and therapy; correct procedure had not been followed: the mother had made no application to vary the shared residence order; the Guardian had been less than proactive in a case involving two LIPs and was not alive to the manipulation of the children by their mother,
A subtle but familiar strategy is for the primary carer to declare that it is for the children to decide, and they may go whenever they please, whilst at the same time projecting a clear message that she does not wish or expect them to go.
The expert was re-engaged and the case remitted for re-trial.
The second case revolved around paternity fraud (Re A (A Child: Joint Residence/Parental Responsibility), 2008). A father had brought proceedings for and obtained a parental responsibility order. A CAFCASS report recommended joint residence and defined staying contact. The mother cast doubt on paternity and a DNA test duly confirmed the father was not the biological father. The mother was unable to accept the father should have PR or any say in his child’s upbringing. The case became protracted and persisted for more than 4 years. The mother planned to move away, threatening to disrupt what had become, despite her opposition, regular contact. The father obtained a prohibited steps order and sought shared residence on the grounds that he would otherwise be marginalised; the mother objected.
In December 2007 the court awarded joint residence with defined generous contact and PR, but allowed the mother to move. She was also barred from introducing the child to his biological father without the court’s consent, and both parties were barred from making further applications. The mother appealed on two grounds: firstly, that the Recorder had erred in principle and in law, had inappropriately linked the father’s PR to the mother’s relocation, had unduly favoured the ‘social and psychological’ father over the biological mother and thus undermined her as biological parent. Secondly, the court had not sufficiently considered the child’s biological parentage, perpetuating a lie and excluding the biological father (who did not wish to be involved in his child’s life).
In rejecting the appeal Sir Mark Potter emphasised the shared residence order was made, not to give the father undue rights – the mother remained the primary carer, but to affirm the father’s responsibilities and ensure he was not marginalised; it was the only legitimate means by which to confer parental responsibility on an individual who could not otherwise apply for it. Potter also assessed the case law and current policy on shared residence orders; he made an important distinction,
The fact is, Mr A is not H’s father or parent either in common parlance or under any definition contained in the Children Act or other legislation. He is not a father by biological paternity or adoption, nor a stepfather by marriage. He is a person entitled, by reason of the role he has played and should continue to play in H’s life, to an order conferring parental responsibility upon him. He is thus a person who, jointly with the mother, enjoys the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to that child but he does not thereby become the father of that child.
Potter went on to summarise the status of the shared residence order,
The making of a shared residence order is no longer the unusual order which once it was… It is now recognised by the court that a shared residence order may be regarded as appropriate where it provides legal confirmation of the factual reality of a child’s life or where, in a case where one party has the primary care of a child, it may be psychologically beneficial to the parents in emphasising the equality of their position and responsibilities.
This contradicted Hale’s 2002 opinion that ‘a residence order is merely about where a child is to live’ (Re A (Shared Residence), 2002); this was the intention of the Act which Hale, after all, had co-written; Potter, who had never been a family judge, was making up new law. Both cases show that a shared residence order is now the most appropriate order to make when a parent tries to marginalise the other, regardless of conflict, regardless of geographical separation, regardless of one parent continuing to be the primary carer and regardless of biology. The father’s biological status is a factor and an important one, but should not trump the child’s welfare. There is still, however, a long way to go before the judiciary and CAFCASS willingly accept that a presumption of shared residence is in the best interests of the child, and at present these orders are being made predominantly for older children and where there is an established history of shared care. Contrary to the expectations of the Law Commission, contact remains a far more common order than shared residence. In Chapter Thirty-One we shall explore the Government’s proposals for reform of residence and contact orders.
Hodak, Newman and Hodak,  FLC 92-421 (1993).
A v A (A Minor) (Shared Residence Order),  1 FLR 669 (1994).
Re H (A Minor) (Shared Residence),  1 FLR 717 (1994).
Re H (Shared Residence: Parental Responsibility),  2 FLR 883 (1995).
D v D (Shared Residence Order),  1 FLR 495 (2001).
Re A (Shared Residence),  1 FCR 177 (2002).
Re A (Children) (Shared Residence),  3 FCR 656 (2003).
Re F (Shared Residence Order),  2 FLR 397 (2003).
A v A (Shared Residence),  (2004).
Re G (Residence: Same Sex Partner),  EWCA Civ 462;  2 FLR 957 (Court of Appeal 2005).
Re P (Children),  1 FCR 309 (2006).
Re A (A Child: Joint Residence/Parental Responsibility),  EWCA Civ 867 (Court of Appeal 2008).
Butler-Sloss, E. (1989). Children Act 1989 Guidance and Regulations (Vols. 1, Court Orders).
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