Complaint
regarding the violation of Article 9 of the UN Convention on the
Rights of the Child to the Human Rights Council
The original complaint was made with reference to the violation of Article 9 of the UN Convention on the Rights of the Child to the Committee on the Rights of the Child. However according to the letter dated 22 May 2014 Ref; G/SO CRC-IC GBR (GEN) from the UN Petitions & Inquiries Section the application was inadmissible because Great Britain is not a State party to the Optional Protocol to the Convention on the Rights of the Child.
Nevertheless a complaint to the Human Rights Council can be made under the Complaint Procedure previously known as 1503 procedure which was adopted under resolution 5/1 entitled “Institution-Building of the United Nations Human Rights Council”.
This complaint procedure was established to address; (1) consistent patterns of gross and reliably attested violations of all human rights and all fundamental freedoms occurring in any part of the world and under any circumstances, as well as, (2) communications submitted by individuals, groups, or non-governmental organizations that claim to be victims of human rights violations or that have direct, reliable knowledge of such violations.
It is in accordance with the criteria for this new procedure the complainant respectfully resubmits the substance of his complaint made to the Committee on the Rights of the Child which was made in five parts;
PART ONE - PETITION TO
EXAMINE THE UK VIOLATION OF ARTICLE 9 OF THE UN CONVENTION ON THE
RIGHTS OF THE CHILD; This gives specific details of the violation. In
particular it goes to show how progressive legislation which would
have reinforced the child's right to a relationship with both parents
post separation, in the form of Shared Parenting, was rejected in the
House of Lords by an amendment made by a retired judge and former
President of the Family Division, Baroness Butler-Sloss. The
amendment now states that involvement post separation between
children and their parents can be either 'direct' or 'indirect'.
('Indirect' usually means by correspondence or telephone).
PART TWO – DISPUTES
IN ONE IN FACT WHICH INVOLVES LEGAL ARGUMENTS; Includes a submission
by the complainant to the Court of Appeal in 2000 made before Lady
Justice Hale, now Baroness Hale Deputy President of the Supreme
Court. This document cites a reference which states,'current judicial
thinking (2000) displays a tension between the earlier maternal
preference and a less priori, open minded approach to whatever is in
the best interests of the child'.
PART THREE –
CHARITIES & THE VIOLATION OF THE RIGHT OF CHILDREN IN THE UK;
Demonstrates how political pressure was brought to bear to change the
Children & Families Act 2014 in favour of the 'earlier maternal
preference' despite the government consultation process intended to
implement Shared Parenting legislation.
PART FOUR – THE
WELFARE OF CHILDREN IS PARAMOUNT; Refers to the progressive ideas of
the 'architect' of the Children Act 1989, Baroness Hale, which are
cited in contrast to the regressive views of Baroness Butler-Sloss
who tabled the amendment to the Children & Families Act 2014
taking away the child's right to
direct contact with his or her parents post separation.
ADDENDUM – After the
submission to the Committee on the Rights of the Child, Baroness
Butler-Sloss gave an interview in which she described how the new
Children & Families Act 2014 would operate in private family law;
I
would like to see I must say, mothers who flout contact orders
required to do all sorts of things that don’t actually send her
inside. I can see absolutely no reason why she shouldn’t do
community service. I should like to see her penalised in all sorts of
inconvenient ways as long as it doesn’t have any impact on her care
of the child. So as long as the child is over 5 or goes to a child
minder, then there is no reason why she shouldn’t be required to go
and clean the streets, whatever it may be. I would make her do
something really unpleasant so that she understands the consequences
of this. But to send her to prison is counter productive, because the
child will not want to know the man who has sent his mother to
prison, particularly when she comes back and tells him about it.
This statement
publicly acknowledges the 'Tender Years' doctrine as the basis of
changes made in private family law and demonstrates how the 'tension'
in 'judicial thinking' described in 2000 was resolved in the Children
and Families Act 2014 in favour of the 'earlier maternal preference'
instead of the 'less priori, open minded approach to whatever is in
the best interests of the child' as advocated by Baroness Hale,
Deputy President of the Supreme Court. Yet separation in private
family law should not give the judiciary the right to remove children
from either parent.
Furthermore because
Family Courts are not open to the public it is impossible to say the
extent of these gross and reliably attested violations of family life
but the words of the former President of the Family Division
demonstrate that the judiciary in Great Britain have operated
contrary to the Human Rights of parents and children for many years,
despite the protestations of the complainant.
RIDER
TO THE COMPLAINT TO THE HUMAN RIGHTS COUNCIL
“Institution-Building
of the United Nations Human Rights Council”
In
response to letters addressed to Her Majesty the Queen and the
Secretary of State, since making the submission to the Human Rights
Council, the complainant has received the attached correspondence
from Edward Timpson MP (24 June 2014) as the minister with
responsibility for children and families.
The
complainant is extremely grateful for the trouble taken by the
Parliamentary Under Secretary of State for Children and Families who
is known to be a supporter of Shared Parenting legislation.
However
as the correspondence shows he has let his heart rule his head
because he singularly fails to deal with the specific concern
regarding the Children & Families Act 2014 which removes the
child's 'right' to a relationship with both parents post separation.
This
'right' was removed by the amendment made by the retired judge and
former President of the Family Division, Baroness Butler-Sloss, in
the House of Lords.
In
his letter the Parliamentary Under Secretary of State for Children
and Families states,
The government firmly
believes that children benefit from a relationship with both parents,
when it is appropriate and in the child's best interests, and the
'parental involvement' provision in the Children & Families Act
2014 reflects the importance of this.
But it does not follow
that if the government firmly believes that children benefit from a
relationship with both parents post separation the State party should
remove the child's 'right' to a relationship post separation.
If
the welfare of children is paramount the logical recourse and redress
for the State party is to change the Children & Families Act
2014, in the House of Commons, to restore the child's 'right' to a
relationship with both parents post separation.
The
Parliamentary Under Secretary of State for Children and Families goes
on to state,
I'd like to reassure
you that the legislative framework that governs family law cases is
gender-neutral and focussed on the welfare of children, not on the
'rights' of parents. However we recognise that there is a perception
of bias in the courts. One of the aims of the parental involvement
clause in the Act is to address this perception and help restore
public confidence in the system.
But the initial
submission to the Human Rights Council included a transcript of an
interview given by Baroness Butler-Sloss regarding her amendment to
the Children & Families Act 2014, in which she states;
I
would like to see I must say, mothers who flout contact orders
required to do all sorts of things that don’t actually send her
inside. I can see absolutely no reason why she shouldn’t do
community service. I should like to see her penalised in all sorts of
inconvenient ways as long as it doesn’t have any impact on her care
of the child. So as long as the child is over 5 or goes to a child
minder, then there is no reason why she shouldn’t be required to go
and clean the streets, whatever it may be. I would make her do
something really unpleasant so that she understands the consequences
of this. But to send her to prison is counter productive, because the
child will not want to know the man who has sent his mother to
prison, particularly when she comes back and tells him about it.
The complainant
includes with this rider a more legible copy of the original
interview given by Baroness Butler-Sloss.
It
is plainly wrong for the Parliamentary Under Secretary of State for
Children and Families to claim that one of the aims of the parental
involvement clause in the Act is to address the perception and help
restore public confidence that the 'legislative framework that
governs family law cases is gender-neutral' when Baroness
Butler-Sloss says that mothers should avoid going to prison or be
penalised until the 'child is over 5 or goes to a child minder'.
This
view of private family law by the judiciary is commonly referred to
as the 'Tender Years' doctrine and reinforce the perception that the
'legislative framework that governs family law cases' is not
gender-neutral.
To
help the Human Rights Council the complainant also includes with this
rider a copy of an article from the Daily Mail newspaper given by
another senior judge Lord Justice McFarlane, 'Separated mothers must
not get away with 'Catherine Tate justice' and ignore dads' rights,
says Appeal Court judge' from 27 June 2014. This article states,
Mothers
who fail to obey court rulings will in future be ‘brought up
short’, the judge said. The warning from Sir Andrew McFarlane, one
of the country’s most experienced family judges, follows a series
of reforms earlier this year designed to speed up cases which decide
on how separated parents will share the care of their children. It
follows years of failure to enforce orders giving fathers contact
with their children. In around 4,000 cases a year fathers go back to
court repeatedly to try to get access to their children because
mothers defy the courts. Judges have rarely fined or imprisoned
intransigent mothers because most believe that to punish the mother
would harm the children. At one point the last Labour government
considered, and then dropped, the idea of making disobedient mothers
wear electronic tags. Sir Andrew said in a speech that he hoped the
reforms introduced this spring will compel more mothers to stick to
the rules. ‘Where, post
separation, a child lives with one parent, it is hard to
underestimate the expectation that the system will now place upon
that parent to respect and to meet the need for the child to have a
good, sound, ordinary relationship with the other parent,’ he said.
This article describes
the operation the Tender Years doctrine and demonstrates that the
legislative framework that governs family law cases 'governs family
law cases' is not 'gender-neutral' because most judges like Baroness
Butler-Sloss rarely fine or imprison intransigent mothers as they
believe to 'punish the mother would harm the children'. The evidence
shows that the amendment was made to the Children & Families Act
2014 not to benefit children but to reinforce the view of the
judiciary about what is in their best interests.
The
complainant once again repeats his sincere gratitude to the
Parliamentary Under Secretary of State for Children and Families for
his attention to his concerns. But the complainant would be doing a
disservice not only to Her Majesty the Queen and the Secretary of
State for raising these concerns in the first place, but most of all
to the children who will suffer as the result of a bad law that takes
away their Human Right to family life.
It
is on this assumption the Tender Years doctrine is founded and it was
on this basis Baroness Butler-Sloss introduced the amendment to the
Children & Families Act 2014.
Once
again if the welfare of children is paramount the logical recourse
and redress for the State party is to change the Children &
Families Act 2014, in the House of Commons, to restore the child's
'right' to a relationship with both parents, post separation.
Baroness
Butler-Sloss states, 'I would like to see I must say, mothers who
flout contact orders required to do all sorts of things that don’t
actually send her inside'. But if judges take away the ultimate
sanction in this way there is nothing forcing mothers to obey court
orders. If a judge makes an alternative order for Community Service
there is nothing to oblige the parent to attend because they now know
that the courts will not put her 'inside' however many times she
fails to attend, according to Baroness Butler-Sloss.
However
this principle does not simply apply to court orders for Community
Service but also to direct involvement with the father post
separation. As the interview with Sir Andrew McFarlane shows, there
is an 'expectation that
the system will now place upon that parent to respect and to meet the
need for the child to have a good, sound, ordinary relationship with
the other parent’. But as the comments made by Baroness
Butler-Sloss show she does not believe mothers who break court orders
before the child is five years old should go to prison, so why should
they 'bother' to comply?
The
complainant uses this evidence to support his complaint to the Human
Rights Council that you cannot build an institution to protect the
human right to family life and in particular the welfare of children
if you have one judge saying one thing and another saying something
different.
The
present system of formal justice is fatally flawed because Case Laws
are based on the false assumption made by many judges that 'to punish
the mother would harm the children'.
This
contradiction will necessarily lead to some judges like Sir Andrew
McFarlane making a court order on the basis of his own understanding
of child development to allow a relationship with the father but
another judge, who thinks like Baroness Butler-Sloss, regarding the
same court order as counter-productive or not in the child's
interests and potentially punishing the parent.
Baroness Hale DBE, QC, PC, FBA (Hon), who is regarded as an 'architect' of the Children Act 1989, stated in a judgment in the petitioner's own proceedings in 2003,
He argues that one of the purposes of the Children Act 1989 was to redress the balance: to promote a more equal sharing of responsibility for children between mothers and fathers and to promote the maintenance a good relationship as possible between children and each of their parents should, unhappily, their parents not be living together. The father is correct that that was one of the principles behind the Children Act 1989, in which I take a certain amount of pride.
The father points out that he has a certain amount of pride, so I make that comment in response. He also argues that his views are not politically motivated, but they arise because of his qualifications and experience as a teacher with a professional interest in child development, child psychology and the welfare of children.
This
judgment reflects the purpose and direction of the United Nations
Convention on the Rights of the Child as expressed in UK private
family law.
Kingsley
Miller, 26 June 2014
PETITION
TO EXAMINE THE UK VIOLATION OF ARTICLE 9
OF
THE UNITED NATIONS CONVENTION ON THE RIGHTS OF THE CHILD
Kingsley
Miller MSc Cert Ed
1.1
In 2001 the petitioner made two submissions regarding the operation
of private family law and the welfare of children in the UK that were
put before the Committee on the Rights of the Child although the
protocol relating to communication of complaints only came into
effect in April 2014.
2.1
The petitioner is a qualified teacher with training in Child
Psychology and Child Sociology, as well as a post-graduate
certificate in Research Methods. Sir Matthew Thorpe, former
Deputy Head of Family Justice and Head of International Justice, said
that the petitioner has a 'history of responsible campaigning and
writing on issues relating to family relationships' which includes
the publication 'even Toddlers Need Fathers' described by Professor
Sir Michael Rutter as an 'interesting and informative guide'.
3.1
Despite progress in private family law, the implementation of the
Children & Families Act 2014 violates a fundamental article of
the Convention on the Rights of the Child. It is a long established
principle in private family law which is also accepted in many other
jurisdictions, that it is the child's right to 'direct' involvement
with both parents post separation.
4.1
This right is recognised in the Convention on the Rights of the Child
by Article 9 which acknowledges that children should, 'maintain
personal relations and direct contact with both parents on a regular
basis'.
5.1
However the House of Lords amendment makes clear that involvement
means either 'direct' or 'indirect'.
Lords
Amendment to Part 2 – Family Justice
Lords
Amendment 12*
17.
Lords Amendment 12* would amend clause 11 (parental involvement)
to make clear that involvement means involvement that is either
direct or indirect but does not mean any particular division of
the child’s time.
(Parliamentary
Note)
|
6.1
Changing a 'right' to a 'privilege' has profound and wide ranging
implications. It is also a violation of the Convention of the Rights
of the Child.
Article 9
1. States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to Judicial Review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such a determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child's residence.
2. In any proceedings pursuant to paragraph 1 of the present article, all interested parties shall be given an opportunity to participate in the proceedings and make their views known.
3. States Parties shall respect the right of the child who is separated from one of both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child's best interests.
7.1
The Convention on the Rights of the Child promises children 'direct'
involvement. It is the child's 'right' not a 'privilege' and this
change to private family law represents a significant violation.
8.1
Previously the petitioner contacted the Committee on the Rights of
the Child regarding the 'Tender Years' doctrine, that is when all
other factors are equal, custody of
a child of tender years should be awarded to the mother.
8.2
He complained that this judicial presumption violated Article 2 of
the Convention on the Rights of the Child, Non-Discrimination -
'States Parties shall respect and ensure the rights set forth in the
present Convention to each child within their jurisdiction without
discrimination of any kind, irrespective of the child's or his or her
parent's or legal guardian's race, colour, sex, language, religion,
political or other opinion, national, ethnic or social origin,
property, disability, birth or other status'.
8.3
Specifically in support for his complaint the petitioner cited the
court authority from the former Master of the Rolls, Lord Donaldson
(1992), 'At the risk of being told by academics hereafter that my
views are contrary to well-established authority, I think that there
is a rebuttable presumption of fact that the best interests of a baby
are best served by being with its mother, and I stress the word
'baby'. When we are moving on to whatever age it may be appropriate
to describe the baby as having become a child, different
considerations may well apply'.
8.4
Lord Donaldson was following the earlier court authority of Sir
Roualeyn Cumming-Bruce (1990) which mentions children of 'tender
years',
It has also been said that it is not a principle but a matter of observation of human nature in the case of upbringing of children of tender years, that given the normal commitment of a father to support the family, the mother, for practical and emotional reasons, is usually the right person to bring up the children.
9.1
The petitioner also sought to challenge these Case Laws in the Court
of Appeal and Baroness Hale of Richmond, DBE, QC, PC, FBA (Hon), who
is regarded as an 'architect' of the Children Act 1989, recognised
the influence of the 'Tender Years' doctrine in private family law
when addressing the petitioner in her judgment (2003),
The father has a point of view which he wishes to advocate. The judge described it as a political point of view, but it is not political in a party-political sense. There are many people who might call it political in the gender political-sense for there are many ways in which that word can be used. He has the view that the courts and the law have been too respectful of the relationship between mothers and their children to the detriment of the importance of the relationship between fathers and their children.
9.2
The Baroness, who is now Deputy President of the UK Supreme Court,
went on to say,
He argues that one of the purposes of the Children Act 1989 was to redress the balance: to promote a more equal sharing of responsibility for children between mothers and fathers and to promote the maintenance a good relationship as possible between children and each of their parents should, unhappily, their parents not be living together. The father is correct that that was one of the principles behind the Children Act 1989, in which I take a certain amount of pride.
9.3
This judgment shows that the Deputy President of the UK Supreme Court
recognised that the 'courts and the law have been too respectful of
the relationship between mothers and their children to the detriment
of the importance of the relationship between fathers and their
children'.
10.1
The Children Act 1989 sought to reinforce the principles of the
Convention on the Rights of the Child in private family law by trying
to 'redress the balance: to promote a more equal sharing of
responsibility for children between mothers and fathers and to
promote the maintenance a good relationship as possible between
children and each of their parents should, unhappily, their parents
not be living together'.
11.1
Why has the UK government taken this regressive step in private
family law by removing the child's right to direct involvement post
separation when other jurisdictions around the world are following
the view of the Deputy of the Supreme Court and recognising the
importance of both parents by introducing Shared Parenting
legislation?
12.1
According to the Interim Justice Review (2011) in 2006 there were
over 111,000 children involved in applications for private law
orders. In 2009 this had increased to over 137,000. This is putting
the justice system 'under strain'.
12.2
However at the time of the Final Justice Review (Norgrove Report) the
Daily Telegraph newspaper reported that plans to enshrine in law that
a child has a 'meaningful relationship with both parents' were to be
scrapped. (Fathers denied a right to see children by Christopher Hope
and Robert Winnett, 2 November 2011).
12.3
Whitehall sources said there were 'concerns that it put too much
pressure on judges to set out the exact length of time that each
divorced parent should spend with their children'.
12.4
Yet as the result of an almost unprecedented expression of public
support for Shared Parenting legislation the Queen’s Speech of 2012
included an undertaking to begin a consultation on options to change
the law in England and Wales ('Queen's Speech boosts fathers' rights
9 May 2012 by Tim Ross, Political Correspondent, Daily Telegraph).
13.1
The Children’s Minister at the time said, 'We need to clarify and
restore public confidence that the courts properly recognise the
joint nature of parenting,' and 'We intend to legislate to stress the
importance of children having an ongoing relationship with both their
parents after separation'.
14.1
The importance of both parents to the upbringing of children was
reinforced in a speech given by the Prime Minister, David Cameron, in
his own constituency at the time of the 2011 UK Riots. He said,
Let
me start with families. The question people asked over and over again
last week was 'where are the parents? Why aren't they keeping the
rioting kids indoors?' Tragically that's been followed in some cases
by judges rightly lamenting: "why don't the parents even turn up
when their children are in court?" Well, join the dots and you
have a clear idea about why some of these young people were behaving
so terribly. Either there was no one at home, they didn't much care
or they'd lost control.
Families
matter.
I
don't doubt that many of the rioters out last week have no father at
home. Perhaps they come from one of the neighbourhoods where it's
standard for children to have a mum and not a dad......where it's
normal for young men to grow up without a male role model, looking to
the streets for their father figures, filled up with rage and anger.
So if we want to have any hope of mending our broken society, family
and parenting is where we've got to start.
15.1
The government consultation listed four options for Shared Parenting
legislation;
- Option 1: requires the court to work on the presumption that a child's welfare is likely to be furthered through safe involvement with both parents – unless the evidence shows this not to be safe or in the child's best interests.
- Option 2: would require the courts to have regard to a principle that a child's welfare is likely to be furthered through involvement with both parents.
- Option 3: has the effect of a presumption by providing that the court's starting point in making decisions about children's care is that a child's welfare is likely to be furthered through involvement with both parents.
Option 4: inserts a new sub-section immediately after the welfare check-list, setting an additional factor which the court would need to consider.
15.2
The Committee on the Rights of the Child should be aware that the
government consultation did not arise from any political party or
lobby group but a genuine expression of the will of the UK public or
'vox populi'.
16.1
However it was in the face of well coordinated resistance that these
options were rejected.
16.2
In particular opposition came from the respected charity the Nuffield
Foundation. The charity has an annual expenditure of over £10m and
promoted a campaign with the slogan 'Shared Parenting Legislation is
not in the Interests of Children' based on the so-called 'Australian
experience' (2011).
16.3
The newly installed Director of the Nuffield Foundation, Sharon
Witherspoon MBE, went on record to state that in Australia 'You had
fathers using this as a way of saying, If you don't walk away with
less money than you would otherwise get then I am going to go after
my 50 / 50 rights'. Another member of the grant making committee at
the Nuffield Foundation, Mavis MacLean CBE also argued on the BBC
against giving parents the 'right' to contact with their children
citing the extreme conduct of fathers as her evidence.
17.1
However at the time, the petitioner was in correspondence with the
Attorney General's Department in Australia, with the support of the
Shared Parenting Council of Australia SPCA, and even appeared on a
radio program in that country called 'Dads on the Air'.
17.2
Shared Parenting legislation was introduced in Australia in 2006 and
has made a positive impact on private family law.
17.3
The comment regarding fathers made by the Director of the Nuffield
Foundation is totally without foundation and contrary to reports in
the UK about the 'Australian experience' Shared Parenting has led to
(1) a decrease in litigation and (2) no increase in domestic violence
with the former Attorney General, Nicola Roxon, stating that the
government would not 'roll back' the reforms.
17.4
The petitioner also mounted an unsuccessful legal challenge in the
High Court regarding the Nuffield Foundation charity, citing the many
inaccuracies in this campaign (2012).
18.1
The leader of the anti-Shared Parenting group in the Houses of
Parliament is the retired judge and former President of the Family
Division, Baroness Butler-Sloss. Her views are informed by the
'Tender Years' doctrine as expressed in Case Laws.
19.1
During her period sitting in the House of Lords Baroness Butler-Sloss
was obliged to take the extraordinary action of making a public
apology in Parliament to the campaign group Fathers4Justice.
Former
High Court judge Baroness Butler-Sloss has apologised for wrongly
claiming Fathers4Justice made death threats against her.
The
crossbench peer made the claim in December during a discussion on
the safety of judges.
Lady
Butler-Sloss said while she had received death threats 'it was not
true' they were from Fathers4Justice.
She
apologised 'unreservedly' to the organisation, in a personal
statement in the House of Lords.
Fathers4Justice
said it was 'delighted' by the public apology.
Lady
Butler-Sloss told peers she had 'not prepared' her remarks, made
in an intervention during a discussion on the Crime and Courts
Bill.
'I
referred to death threats that I had received as a judge from
dissatisfied litigants,' she said.
'Most
unfortunately, in referring to the people who had made such
threats against me, I included the unwarranted suggestion that the
organisation Fathers4Justice was among those who had made such
threats. It was not true.'
She
said two newspapers had picked up her remarks prompting
Fathers4Justice, which campaigns for fathers to be given access to
their children, to get in touch with her and request a public
apology.
Nadine
O'Connor, the group's campaign director, said: 'The making of
false allegations within the family courts is something that our
fathers have to deal with on a daily basis, so as an organisation
we were extremely upset about the allegations that were made
against us.'
(Baroness
Butler-Sloss sorry for Fathers4Justice 'death threat' claim, BBC
NEWS, 28 February 2013)
|
20.1
The petitioner argues that similarly the House of Lords was
incorrectly briefed by Baroness Butler-Sloss in the debate on the
Children & Families Act 2014.
20.2
In the same way she inaccurately blamed Fathers4Justice, Baroness
Butler-Sloss also misdirected the House of Lords in the debate
regarding Shared Parenting legislation.
20.3
It is because her views are informed by the Case Laws that she sought
to influence the debate on Shared Parenting so that fathers would not
have the right of 'direct' involvement with their children post
separation in accordance with the 'Tender Years' doctrine.
20.4
But this is not an accurate interpretation of private family law. It
is not the father's right to direct involvement with his child or
children post separation. It is the child's 'right'.
20.5
Baroness Butler-Sloss has turned private family law on its head
because of her own misguided views.
21.1
Sir Matthew Thorpe also said that the petitioner expressed himself
with 'great courtesy and moderation' but changing private family law
so that children no longer have the 'right' to a relationship with
both parents post separation is beyond the pale.
22.1
When parents separate it is almost never because of domestic violence
and very rarely as the result of concerns for the care of their
children. The former most senior judge in the Family Division,
Baroness Butler-Sloss, must be aware of these facts.
23.1
The relationship between children and their parents should be
indissoluble because it is the foundation of family life and society.
24.1
No civilised country would treat family life in this way.
25.1
The petitioner is shocked by this violation to the Convention on the
Rights of the Child and if the members of the Committee on the Rights
to the Child are inclined to view this change to private family law
in the same way, he would gratefully welcome the opportunity for an
oral hearing so that he may be allowed to give a more detailed
account of this complaint against the UK government.
Kingsley
Miller, May 2014
'DISPUTES
IN ONE IN FACT WHICH INVOLVES LEGAL AUTHORITIES'
Kingsley
Miller MSc Cert Ed
In
support for his 'Petition to examine the UK violation of Article 9 of
the UN Convention on the Rights of the Child', the petitioner
includes this document called, 'Disputes in One of Fact which
Involves Legal Authorities' from 8 June 2000.
This
was put before Lady Justice Hale in the Court of Appeal. She is
recognised as an 'architect' of the Children Act 1989 and is now
Baroness Hale of Richmond and Deputy President of the UK Supreme
Court.
The
petitioner wishes to now put this document before the Committee on
the Rights of the Child to oppose the UK government legislation
taking away the child's 'right' to a relationship with both parents
post separation.
The
opposition to Shared Parenting in the House of Lords was led by
Baroness Butler-Sloss a former President of the Family Division who
based her arguments on Case Laws sometimes referred to as the 'Tender
Years' doctrine.
Lady
Justice Hale said,
He appends to his
skeleton argument a document entitled 'Disputes in One of Fact which
Involves Legal Authorities'. This is so well written that it could
almost be an academic article. In this the father argues that the
courts themselves have adopted some sort of maternal preference, and
in doing so they have failed to have a proper regard to the more
recent psychological literature and that, in any event, they are
wrong; gender is not an appropriate guide as to who is the most
suitable parent or as to how a child should be parented.
Disputes
in One of Fact which Involves Legal Authorities (8 June 2000)
His
Honour's remarks concerning the 'Dependency Theory' which His Honour
said was 'generally accepted' and the Appellant's background in
teaching has caused confusion and distrust which now forms the
substantive issue in this appeal.
His
Honour's remarks may be attributed to the examples of case law which
form precedents in the Family Division. It is on this body of
knowledge His Honour has relied to form His opinions and make His
orders. This body of knowledge is based on a false premise. It is the
present 'interpretation of the law' used as the criteria for making
section 8 orders which the Appellant is also seeking to appeal
against.
Dewar
(1992 Law and Family p 369) describes the current situation in the
following way, A child's emotional needs are perhaps the least
determinate factor of all. Bowlby's theory of 'Maternal Deprivation',
which stressed 'the absolute need of infants and toddlers for the
continuous care of their mothers' (Bowlby 1965, p 18), has exercised
a considerable influence over the minds of judges; 1 although
Maidment suggests that, 'current judicial thinking displays a tension
between the earlier maternal preference and a less priori, more
open-minded approach to whatever is in the best interests of the
child.' (1984, p 177).
Recent
decisions of the Court of Appeal have continued to display this
tension. For example, it has been said that although there is no
presumption that young children should be with their mothers, it is
nevertheless the case that it is, 'natural for young children to be
with their mothers but, where it is in dispute, it is a consideration
but not a presumption'.2 Other considerations, such as the
continuity of the mother-child relationship, are equally important.3
However,
it has also been said that it, 'is not a principle but a matter of
observation of human nature in the case of upbringing of children of
tender years, that given the normal commitment of a father to support
the family, the mother, for practical and emotional reasons, is
usually the right person to bring up the children'.4 This has
been reinforced by a reluctance by the Court of Appeal to permit
fathers either to share care of children with other members of their
own family, or to give employment in order to care for the children
themselves.5 Such statements are, however, also explicable,
not as an expression of a maternal preference, but as a general
affirmation of the current sexual division of labour' (Brophy 1985,
p100) in which women are primarily responsible for child care during
marriage and after. This is reflected in the fact that in uncontested
cases, as we have seen, the vast majority of couples decide to leave
the children with the mother.
In
particular it is the 'tension' displayed by judges in the Court of
Appeal which is also the focus of this Appellant's distrust and
concern.
Barton
and Douglas (1995, Law and Parenthood, p131 ) refer to the former
Master of the Rolls Lord Donaldson's general point regarding gender
in 1992,
At the risk of being
told by academics hereafter that my views are contrary to
well-established authority, I think that there is a rebuttable
presumption of fact that the best interests of a baby are best served
by being with its mother, and I stress the word 'baby'. When we are
moving on to whatever age it may be appropriate to describe the baby
as having become a child, different considerations may well apply.6
These
opinions are summarised by the account of the criteria used in making
section 8 orders given in Butterworth's Family Law Guide 1997 which
states under the heading, 'The age of the child.' (p 269)
8.8 There is no
presumption of law that a child of any given age is better off with
one parent or the other. The only legal principle involved is that
the welfare of the child is paramount. However, no court will be
ignorant of what would be the natural position if all other things
were equal. A very young baby will normally be with his/her mother.
It has therefore been held that there is a rebuttable presumption of
fact (not law) that the best interests of the baby are served by
being with its mother (although different considerations may well
apply when moving on to whatever age it might be appropriate to
describe the baby as having become a child) 7
It
can be seen from this description that over the years the cumulative
effect of a series of precedents has given the Family Division a
criteria for making section 8 orders which closely resembles Bowlby's
theory of 'Maternal Deprivation'. This explains how this theory which
stresses 'the absolute need of infants and toddlers for the
continuous care of their mothers' continues to 'exercise a
considerable influence over the minds of judges.' Both the Bowlby
theory and the Family Division's 'rebuttable presumption of fact' are
based on this premise.
His Honour described
this 'interpretation of the law' as the 'Dependency Theory' which is
'generally accepted'. According to this 'consideration' in the
Appellant's case his son should not be separated from his mother for
more than 2 hours until he is at least 4 years old and that 'any'
application made during this period must be considered vexatious or
frivolous. It is the Appellant's argument that this premise is wrong
and it follows that the authorities and therefore the orders which
rely on this premise must also be wrong.
The
Appellant uses as his well-established authority the work of Rutter.
Rutter was made an Honorary Fellow of the British Psychological
Society and the American Academy of Child Psychiatry. In 1987 he was
elected a Fellow of the Royal Society and was knighted in 1992. His
pre-eminent work on child psychology 'Maternal
Deprivation:Reassessed' states,
i.
Investigations have demonstrated the importance of a child's
relationship with people other than his mother.
ii.
Most important of all there has been repeated findings that many
children are not damaged by deprivation.
iii.
The old issue of critical periods of development and the crucial
importance of early years has been reopened and re examined. The
evidence is unequivocal that experiences at all ages have an impact.
iv.
The first few years do have a special importance for bond formation
and social development.
The
Appellant states that according to Rutter (1) there is no reason the
father should not have comparable contact time even from an early
age. (2) There is no such thing as a period during early life when
events, such as applications made to court, have a special impact.
(3) Although mothers may claim that children are damaged in some way
by contact with the father this also is not true. (4) Investigations
have demonstrated the importance of a child's relationship with
people other than the mother.
The
Appellant seeks to challenge the following authorities in the Court
of Appeal;- Lord Donaldson's general point regarding gender in 1992,
At the risk of being
told by academics hereafter that my views are contrary to
well-established authority, I think that there is a rebuttable
presumption of fact that the best interests of a baby are best served
by being with its mother, and I stress the word 'baby'. When we are
moving on to whatever age it may be appropriate to describe the baby
as having become a child, different considerations may well apply.
There
is no such 'rebuttable presumption of fact.' It is not possible to
use the sex of the parent as a guide to who is best suited to looking
after babies. As well as the work of Rutter the Appellant also uses
the pronouncements of the present Home Secretary who advised single
parent mothers to give up their babies for adoption. The Home
Secretary is responsible for The Family Court Welfare Service which
advises judges in the family section. The Home Secretary could not
make such statements if there was a 'rebuttable presumption of fact'
that the natural mother is the best person to bring up babies and
small children. Rutter states,
i.
Investigations have demonstrated the importance of a child's
relationship with people other than his mother.
There
is no reason the father should not receive comparable contact even at
an early stage. This 'rebuttable presumption of fact' is unreasonable
and represents a significant prejudice in the Family Division. The
idea that 2 two hour sessions is 'generous' contact for father and
son is untenable. The former Master of the Rolls is wrong in fact and
law.
The
Appellant seeks to challenge the authority of Sir Roualeyn
Cumming-Bruce (1992) when he stated,
It has also been said
that it is not a principle but a matter of observation of human
nature in the case of upbringing of children of tender years, that
given the normal commitment of a father to support the family, the
mother, for practical and emotional reasons, is usually the right
person to bring up the children.
He
was making a fundamental error in judgment based on superficial
observation not empirical fact. According to Rutter,
iii.
The old issue of critical periods of development and the crucial
importance of early years has been reopened and re examined. The
evidence is unequivocal that experiences at all ages have an impact.
There
is no reason disputes in the family court section cannot be settled
in the first few years of a child's life. The Children Act states any
postponement will prejudice the welfare of the child. 'The Tender
Years Theory' avoids issues or stigmatises applicants, such as the
Appellant, as vexatious or frivolous for no valid reason. It is
unreasonable and represents a significant prejudice. It is wrong in
fact and in law.
This
principle is acknowledged in Employment law. The Employment Relations
Act 1999 states that 'Unmarried father who have acquired Parental
Responsibility by means of formal agreement with the mother or by
means of a court order' should be allowed the same rights as the
mother to 'Parental Leave' of thirteen weeks for each child under the
age of five, "for the purpose of caring for the child".
This interpretation in Employment law has highlighted the
inconsistency of Family law. If Parliament felt that there was a
'rebuttal presumption in fact' that a child under five could not be
cared for by the father it would would say so. This Employment law
does not make a difference between parents on the basis of their sex
so why treat parents differently in Family law?
The
Appellant also seeks to challenge the authority of Lord sic Justice
Butler-Sloss (1991) that although there is no presumption that young
children should be with their mothers, it is nevertheless the case
that it is,
'Natural for young
children to be with their mothers but, where it is in dispute, it is
a consideration but not a presumption'.
It
does not follow 'in fact' or 'in law' that the sex of a parent is an
accurate guide to who is best suited to caring for even small
children. According to Rutter's research the defining quality of
either adult is the love and affection they share for their
offspring.
i.
Investigations have demonstrated the importance of a child's
relationship with people other than his mother.
The
law is clear that both parents should be encouraged to bring up their
children. According to the present 'interpretation of the law' a
'consideration' in the Appellant's case means that his son should not
be separated from his mother for more than 2 hours until he is at
least 4 years old and that 'any' application made during this period
must be considered 'vexatious' or 'frivolous'. This is unreasonable
and represents a significant prejudice. Lord sic Justice Butler-Sloss
is wrong in fact and in law.
Rutter's
research is recognised by the European Convention on Human Rights,
Protocol 7 Article 5, which states,
Article
5
Spouses shall enjoy
equality of rights and responsibilities of a private law character
between them, and in relations with their children, as to marriage,
during marriage and in the event of its dissolution. This Article
shall not prevent states from taking such measures as are necessary
in the interests of children.
This
Article does not represent an unattainable Utopia. It is not
something a few politicians dreamt up. It is a simple yet clear
affirmation of the important contribution both parents can make to
the upbringing of their children. The question that must be posed is
why has the United Kingdom not ratified this Article? It is because
spouses do not enjoy equality of rights and responsibilities because
the Family Division still believes in Bowlby's theory of 'Maternal
Deprivation', which stresses 'the absolute need of infants and
toddlers for the continuous care of their mothers'.
Does
this mean the welfare of children suffers in Europe because they are
allowed to have a proper relationship with their fathers? Of course
it does not. It only seeks to highlight the difference in attitude to
the family on the Continent and in this country. The tension and
confusion created in the Family Division in the UK is caused by the
attitude of successive judges to reaffirm Bowlby's theory based on
superficial observation rather than empirical fact.
A
problem with Bowlby's work is that it helps judges to feel good about
their decisions by pretending they are made for the welfare of the
child which allows judges to simply dismiss applications in a routine
way by saying that the 'Dependency Theory' is 'generally accepted'.
It is easier to go this way than to change. Here lies the greatest
danger.
According
to Rutter the first few years do have a special significance but it
is for 'bond formation and social development'. By seeking to exclude
or limit contact with the father to a meaningless level whether
wittingly or unwittingly this 'interpretation of the law' is really
damaging the welfare of children who appear in the family court
section by ignoring the contribution of both parents to the
psychological and sociological well being of the child especially in
early life.
Rutter
called his book 'Maternal Deprivation Reassessed' not because he is a
plagiarist. He gave it this name so he could make as bold a statement
as possible about the work of Bowlby. The greater encompasses the
lesser and for his work with children Rutter was knighted in 1992.
The overall effect of these precedents is to reaffirm the work of
Bowlby. It should be Rutter's research which informs the law, not the
'Dependency Theory', as it does in Europe.
It
is also not sufficient to argue each individual case on its merits.
This would act against the principle of natural justice in Family
law. It is important to look at the cumulative effect of these
precedents taken together as summarised in Butterworth's Family Law
Guide 1997. This 'interpretation of the law' represents a 'Glass
Ceiling' to the hopes and aspirations of fathers who appear in the
family court section.
According
to Section 1, Article 6, of the European Convention on Human Rights,
Article
6
1.
In the determination of his civil rights and obligations or of any
criminal charge against him, everyone is entitled to a fair and
public hearing within a reasonable time by an independent and
impartial tribunal established by law. Judgment shall be pronounced
publicly but the press and public may be excluded from all or part of
the trial in the interests of morals, public order or national
security in a democratic society, where the interests of juveniles or
the protection of the private life of the parties so require, or to
the extent strictly necessary in the opinion of the court in special
circumstances where publicity would prejudice the interests of
justice.
The
Court of Appeal is a court of appeal. It seeks to overturn decisions
in single cases which are 'plainly wrong.' The general effect of this
process is that no single judge is able to see the overall picture.
It is assumed that judges in family courts act in 'the best interests
of the child'. Judges are authorities in law not child psychology.
They rely on the experience and expertise of judges in higher courts
to form their own opinions to make decisions which 'may be considered
proportionate in the circumstances and compatible with the pursuit of
this aim'. If as a result of the judicial process or a lack of
expertise these precedents or this body of knowledge can be shown to
be faulty it must follow that the decisions made in the lower courts
must also be faulty or unfair.
The
Court of Appeal should not be seen to endorse or promote in word or
deed a theory which is plainly wrong. It is for this reason the
Appellant is seeking recognition in the Court of Appeal for the work
of Rutter and a change to the 'interpretation to the law' so that it
is stated,
'There is no longer a
rebuttable presumption of fact in Family law that the best interests
of the baby are served by being with its mother. That the gender of
the parent should not be used as a consideration in the criteria for
making section 8 orders. 'The Tender Years Theory' ( or similar )
should not apply to any decision made in the Family Division'.
The
Appellant has shown how the judge in this case has based his opinions
on these precedents and why this body of knowledge is based on a
false premise which is damaging the welfare of the child. (The
Appellant states that not a single child in the family court section
will suffer as a result of the Court of Appeal setting this precedent
and recognising Rutter's work.)
Notwithstanding
the section 91 (14) order imposed in this case the Appellant should
be very grateful if the Court of Appeal would hear this application.
References
1.
See, eg, Re W (a minor) (1982) 4 FLR 492. For empirical evidence,
which does not strong support for the existence of a 'maternal
preference', see Eekelaar and Clive 1977, Ch 6 and Maidment 1984, Ch
3; but see Priest and Whybrow 1986, paras 4.20-4.27.
2.
Per Lord sic Justice Butler-Sloss in Re S (1991) 2 FLR 388, CA.
3.
See, eg, Re A (a minor) (1991) 2 FLR 388, CA.
4.
Per Sir Roualeyn Cumming-Bruce in Re H (a minor) (1990) 1 FLR 51, CA.
5.
Per Lord Justice Ormand in Plant v Plant (1982) 4 FLR 305 at 310;
Dicocco v Milne (1983) 4 FLR 247.
6.
Lord Donaldson MR (1992) 2 FLR 332, 336.
7.
See Re W (Residence Order: Baby) (1992) 2 FCR 332, (1992) 2 FCR 603.
See also, eg Re A (1991) 2 FLR 394, (1991) FCR 569 and RE S (1991) 2
FLR 388., (1991) FCR 155
ADDENDUM
This
document was included in the petitioner's publication 'even Toddlers
Need Fathers' described by Professor Sir Michael Rutter as an
'interesting and informative guide'.
Kingsley
Miller, May 2014
CHARITIES
& THE VIOLATION OF THE
RIGHTS
OF CHILDREN IN THE UK
Kingsley
Miller MSc Cert Ed
Introduction
This document, 'Charities & the Violation of the Rights of Children', is submitted in further support for the petition to the Committee on the Rights of the Child regarding the violation of Article 9 by the UK government.
The
petitioner complains that even though the UK public are in favour of
a more enlightened approach to private family law, the previous
document entitled 'Disputes in One of Fact which Involves Legal
Authorities' from 2000, showed how the judiciary are wedded to the
'Tender Years' doctrine, as advocated by Baroness Butler-Sloss in the
House of Lords.
Yet
taking away the child's right to a relationship with both parents
post separation is indicative of not just an historical trouble with
the judiciary but an endemic difficulty with academics and charities
from the rest of UK society.
The
Family Justice Review (Norgrove Report)
For example, the UK government Family Justice Review from November 2011 states,
4.23. Drawing on international and other evidence we opposed legislation to encourage ‘shared parenting’. The evidence showed that people place different interpretations on this term, and that it is interpreted in practice by counting hours spent with each parent, disregarding the quality of the time. The thorough and detailed evidence from Australia showed the damaging consequences for many children. So we recommended that;
- No legislation should be introduced that creates or risks creating the perception that there is a parental right to substantially shared or equal time for both parents.
- Our opposition to legislation that might give rise to a shared parenting presumption attracted a large response in consultation. Charities, legal and judicial organisations and academics (including Professors Helen Rhoades, Liz Trinder, Rosemary Hunter and Judith Masson and the Network on Family Regulation) supported the panel’s stance.
'I am encouraged that the Review has opted against a shared care presumption. That is entirely consistent with the research evidence on what works for children' - Professor Liz Trinder, consultation response.
But
the academics cited by the Family Justice Review are well known for
their feminist views on private family law.
Helen
Rhoades working in Australia has suggested, 're-conceiving the
doctrine of the primary caregiver as a status quo principle’. In
the Family Law Journal, Judith Masson and Liz Trinder opposed
guidelines suggested by the charity Families Need Fathers ('Shared
Parenting: the Law, the Evidence and Guidance from Families Need
Fathers') and Rosemary Hunter is currently working on the 'Feminist
Judgments Project' in which a group of 'feminist socio-legal scholars
have written alternative feminist judgments in significant legal
cases'.
The
petitioner complains to the Committee on the Rights of the Child that
it follows that evidence from these academics cannot be relied upon
to be either objective or reliable.
The
Nuffield Foundation charity
Similarly the Nuffield Foundation is one of the most influential UK charities and sponsored a campaign with the slogan 'Shared Parenting legislation is not in the interests of children' based on secondary sources with particular reference to Australia.
But
over this period the petitioner was also in correspondence with the
Australian Attorney General's Department with the support of the
Shared Parenting Council of Australia SPCA and gave a 30 minute
interview for 'Dad's on the Air' on Australian radio. He was aware
that contrary to the claims made by the Nuffield Foundation charity,
the Attorney General, Nicola Roxon, had reaffirmed the commitment to
Shared Parenting legislation stating that the government had no
intention of 'rolling back' the reforms.
It
was because of this misrepresentation that the petitioner sought to
challenge the Nuffield Foundation charity by way of Judicial Review
in the High Court. As the Committee on the Rights of the Child can
see, from a copy of the application included with this petition, it
was submitted as a matter of 'urgency' because the petitioner feared
that the UK government would legislate on the basis of information
that would lead to the child losing the 'right' to a relationship
with both parents post separation.
As
part of his submission to the High Court the petitioner cited an
interview given by the newly installed Director of the Nuffield
Foundation charity, Sharon Witherspoon MBE, on how good research can
influence the development of the law with reference to the
'Australian experience'.
If
I look at family law it is understandable that whatever any current
law is, there is a background of social concern about that area of
law and one concern that is currently obviously very important is to
do with how do you divide children's time after divorce or
separation? Should it be the case that it reflects the split before
the divorce or separation? Should there be an automatic 50 / 50
split, that a child spends half its time with the mother and half
with the father? Should there be any principles that guide us at all?
Or is each case so different that we can't provide any guidance?
Now,
I think these are very complicated but one growing move has been to
have a default 50 / 50 split, a bit like going back to Solomon's
Judgment, and what we did is convene some academics, some very
notable Australian academics who had looked at what happened when
Australia passed a similar law, so had a lot of empirical information
about what really happened to ordinary families, and brought them
together with some UK academics to talk about that in the UK context
at a time when we knew that some parliamentarians were very concerned
about this, and were going to bring forward proposed legislation and
what that research showed is that it may well be that in some cases,
where it is usually mothers were obstructing access, that this 50 /
50 insured that kids saw their fathers.
But
there were lots of other consequences that were not so positive. You
had fathers using this as a way of saying, 'If you don't walk away
with less money than you would otherwise get then I am going to go
after my 50 / 50 rights'. You had cases where judges thought they had
to do 50 / 50, so even though there were serious concerns over
violence or safety things weren't dealt with as seriously as they
might be and basically there were a lot of negative social
consequences and we were able to fund work that pulled all of those
findings from Australia together and looked at the context of the
current UK law is and come out with a very clear message in the
briefing paper that said this was a step that probably sic was not in
the best interests of children, to have a blanket provision.
Now,
I can't say that alone switched things but that was certainly I think
useful to the Family Justice Review. I know they paid serious
attention to the Australian evidence that we pulled together and I
think it was influential to some of the parliamentarians and we
mailed a copy of the paper out to all the MPs that would be voting on
the issue.
This
account is not accurate, for example, the Director of the Nuffield
Foundation, stated Shared Parenting legislation led to fathers using
this as a way of saying to mothers, 'If you don't walk away with less
money than you would otherwise get then I am going to go after my 50
/ 50 rights'. But this is not so. This is a common misconception
based on anecdotal evidence. The Nuffield Foundation charity pulled
together a 'lot of negative social consequences' but as a result
provided the Family Justice Review and Parliament with a 'briefing
paper' that gave a misleading account of Shared Parenting legislation
in Australia.
'Shared
parenting boosts children's rights'
As the Committee on the Rights of the Child can also see from the application to the High Court, as an exemplar to substantiate his own argument, the petitioner used an article from the 'Solicitors Journal' by Duncan Ranton who is a lawyer qualified both in Australia and the UK and with 'no axe to grind'.
In
his article, 'Shared Parenting boosts children's rights'(13 February
2012) he states;
Last week, the Ministries of Justice and Education published a response to the Family Justice Review. One particular aspect attracted extensive press interest, namely the government’s commitment to pass legislation to enshrine a legal presumption of shared parenting. The government was responding to the recommendations of the Family Justice Review (FJR), chaired by businessman David Norgrove, which published its final report in November 2011.
In its interim report, the FJR advocated legislative change, drawing on evidence from Sweden and Australia about the real damage done to children in high-conflict disputes following parental separation. It suggested the insertion of a general statement of intent in the Children Act 1989 that reinforced the importance of children having a meaningful relationship with both parents post-separation.
Come the final report, however, the FJR had had a change of heart. Again citing the 'Australian experience', alongside contributions from individuals and groups opposed to legislative change, the review withdrew its earlier recommendation. Too great was the danger that to enshrine a child’s entitlement to have a meaningful relationship with both parents would create a perception of parental entitlement to shared or equal time. The government disagrees. Having accepted almost all of the FJR’s other recommendations, they take the view that legislative reform in this area is vital. Lessons learned from abroad will inform how the amendment is drafted they say. The message ought to be that courts will expect both parents to be involved in a child’s upbringing, save in exceptional cases.
It is not surprising that this recommendation should be the focus of so much press attention, nor that the issue has been reported along gender lines, with reform generally supported by fathers and opposed by mothers (and their respective interest groups). When parents separate, often (but not always) the children live with their mother. Parental dispute is mostly about the time they should spend with their father. My experience, both here and in Australia, has been that sometimes parents – usually mothers – have very good reasons for being concerned about children spending time with the other parent. Domestic violence and abuse cases are the obvious examples. Often, however, there are cases where parents – usually mothers – have no rational welfare reasons for objecting to children having contact with the other parent. Rather, their resistance seems fuelled by the bitterness that follows the breakdown of the adults’ relationship.
Contrary to media reports that this is the government championing father’s rights, however, the proposal to enshrine in legislation that it is important for children to have a meaningful relationship with both parents is not about parental rights. It’s about children’s rights – their entitlement to see and have quality time with both parents, save in exceptional cases. The expression ‘quality time’ is bandied about too frequently and carelessly. As a result, it has lost much of its credibility and currency. However, it has a meaning, to be found in the many longitudinal studies of children following parental separation: in short, children generally benefit hugely from seeing and spending good-quality time with both mothers and fathers.
Positive outcome
The FJR apparently shied away from its initial recommendation because of perceptions of what happened in Australia after legislative reform in 2006; that to confirm legislatively a child’s right to a meaningful relationship would translate into non-resident parents using that as a fulcrum to demand an equal division of time.
But was the legislation in Australia a disaster? No, far from it. In 2009, following a three-year study of 28,000 participants, the Australian Institute of Family Studies found the legislative reforms a substantial success. There was a decline in court filings and a shift away from parents rushing to court to resolve post-separation difficulties. A greater proportion of parents reported they were able to resolve issues themselves, supported by associated family relationship services. Nevertheless, the review confirmed that the family law system still had some way to go in responding effectively to the minority of cases where there were issues of family violence, child abuse, mental health or substance misuse. For children for whom these were not features of family life, the legislative reforms were found to have worked well.
I believe, therefore, the UK can benefit from Australia’s experience. We have seen the family justice budget decimated and access to courts to resolve parenting issues in anything other than truly urgent cases is beset by chronic delay. If parents know from the outset that a judge will approach most cases from the proposition that the child’s welfare requires a continuing and meaningful relationship with both of them, this will help promote agreement in many cases without the need to enter the court arena. That certainly seems to be the 'Australian experience'.
No legislation can ever realistically hope to cater for every permutation of circumstances. Rather, good legislation should be directed to the majority of cases, while ensuring sufficient flexibility remains so justice may be done in those that are exceptional. The government’s proposal strikes that balance. The introduction of a statement reiterating the importance of children’s relationships with both parents post-separation is appropriate for, and will assist in, the lion’s share of separated families. There will remain an important minority for whom this mission statement will be inappropriate to direct the outcome, because of child protection issues.
I welcome the government’s stance, and support it. Given the real and continuing problems with access to justice and funding, coupled with the damage research demonstrates children sustain during bitter and protracted custody disputes, we do not have the luxury of timidity or inaction. Reform is needed, and this reform is a positive one. (Issue: Vol 156 no 6 14-02-2012)
The Family Justice Review described the research evidence on Shared Parenting in Australia as 'thorough and detailed' with 'damaging consequences for many children'. Professor Liz Trinder confirmed this view and stated it is 'entirely consistent with the research evidence on what works for children'.
But Shared Parenting legislation has a 'positive outcome' and continues to work well in Australia.
The implication is that the 'Australian experience' was used as a 'straw man' by opponents of Shared Parenting legislation based on the assumption that nobody would make the necessary checks to confirm whether the claims were justified.
The evidence shows how prominent academics and well respected charities are using their power and status to promote their own feminist agenda over the rights of children.
Also in May 2012 the petitioner attended a seminar at the Palace of Westminster given by Professor Patrick Parkinson, an Australian government adviser from Sydney University, who confirmed the positive outcome of Shared Parenting legislation.
At the seminar Professor Patrick Parkinson faced hostile questioning from other academics, including Professor Liz Trinder, who disputed his account of Shared Parenting in Australia.
His version contradicts that of Professor Liz Trinder in the same way the account by the solicitor Duncan Ranton also contradicts the interview given by Sharon Witherspoon MBE.
A copy of the seminar paper was included in the bundle to the High Court but despite this evidence, as can be seen from copies of the judgments, 'on paper' and at the 'oral hearing', also attached to this petition the petitioner's application for a Judicial Review was rejected.
Above; The petitioner on the right with Professor Patrick Parkinson at his seminar held at the UK Houses of Parliament.
Fifth
Periodic Report
It may be argued that the appropriate recourse and redress for the violation of children's rights in the UK is via a submission to the Periodic Report.
But
this review was held in January 2014 with the next Periodic Report
not scheduled until 2016.
The
Department for Education takes the lead in coordinating the Periodic
Report to the Committee on the Rights of the Child, securing
contributions from the devolved administrations, which are
responsible for implementing the Convention on the Rights of the
Child in their jurisdictions.
In
line with its role in 'facilitating the participation of civil
society in monitoring the implementation of UN treaties' the Equality
& Human Rights Commission conducted a call for views on the draft
state report. The government organisation also commissioned the
Children’s Rights Alliance England CRAE to coordinate a response to
the call for views on behalf of the Children’s Sector in England.
But
CRAE was selective and although the views of feminine or feminist
organisations such as the Women’s Aid Federation were sought, those
of the charity Families Need Fathers FNF or the campaign group
Fathers4Justice were not.
This
is not an insignificant detail because it is further petitioned that
their exclusion by the Equality & Human Rights Commission from
the Fifth Periodic Report is indicative of the discrimination faced
by fathers in the Children's Sector and is a further violation of
Article 2 of the Convention on the Rights of the Child by the UK
government.
Article 2
1. States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child's or his or her parent's or legal guardian's race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.
2. States Parties shall take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child's parents, legal guardians, or family members.
Furthermore
CRAE was a member of a 'consortium' of charities that included Coram
Children's Legal Centre CCLC, Gingerbread, NYAS Advocacy, 4Children
UK, NSPCC and Action for Children who supported the amendment put
before the House of Lords by Baroness Butler-Sloss which is a
violation of Article 9 of the Convention on the Rights of the Child.
2015: International Year of Co-parenting
Since making this petition to the Committee on the Rights of the Child the petitioner has been made aware of a proposal to ask the General Assembly of the United Nations to declare 2015: International Year of co-parenting and includes the full text here;
2015: International Year of Co-parenting
After the International Year of the Family in 1994 to remind us that the family is the basic unit of society and therefore deserves special attention,
Following the resolution adopted by the UN General Assembly entitled "A world fit for children" (S-27/2, 6 May 2002) which recognizes the shared responsibility of parents in the education and upbringing of their children, and the importance of making every effort to ensure that fathers have the opportunity to participate in the lives of their children.
In noting a transformation of family patterns in recent decades characterized among other things by an increase in the number of separated families and therefore the risk of disengagement of a parent,
we ask for
An international year to increase the awareness of the general public and all the elected officials in every nation on the equal importance of the roles of both parents – be they together, separated or divorced – in the upbringing of their child(ren).
A year to create opportunities and find solutions to promote and above all value the commitment of each parent to their child(ren); a year to focus on action and results, by the exchange of good practices.
A year to rethink greater equity (particularly in parenting time) between the two parents in case of separation / divorce in the best interest of the child.
A year to recognize the prime role of each parent and celebrate the commitment of both parents towards their (s) child(ren).
A year to remember that each child has two unique parents - father and mother – with the same rights and responsibilities to provide the best possible living conditions, to give him/her affection, assistance and protection, education, to encourage the development of his/her personality, to transmit values.
In this perspective, regardless of political allegiances, social or religious beliefs, father, mother, grandmother or grandfather, or just a citizen committed to human rights, we ask the General Assembly of the United Nations to declare 2015: International Year of co-parenting.
Conclusion
The 'Tender Years' doctrine is based on Dr John Bowlby's flawed theory of 'Maternal Deprivation' as described in 'Maternal Care and Mental Health' (1952);
Almost
all the evidence concerns the child's relation to his mother, which
is without doubt in ordinary circumstances by far the most important
relationship during these years. It is she who feeds and cleans him,
keeps him warm, and comforts him. It is to the mother that he turns
when in distress. In the young child's eyes father plays second
fiddle and his value increases only as the child becomes more able to
stand alone.
It
is sometimes argued that later in his career Bowlby's view changed
but in 1986 when asked to choose his 'citation classic' he selected
'Maternal Care and Mental Health' because he said, 'It focussed
attention on the relationship of a young child to the mother as an
important determinant of mental health'.
Notably
Bowlby went on to say in the same publication, 'For a recent
evaluation of the field (by an erstwhile critic) see Rutter (Maternal
Deprivation.1972 – 1978; new findings, new concepts, new
approaches. Child Develop. 50:283-305, 1979).
In
the petitioner's own proceedings Lady Justice Hale, now Baroness
Hale, Deputy President of the Supreme Court, described the theory of
'Maternal Deprivation' and the crucial difference between the two
approaches of Bowlby and Rutter in the following way,
That theory was that children were damaged by separation from their mother or mother figure. Sir Michael pointed out that children were not invariably so damaged and that, in any event, other people, including their fathers, are also very important to children (2000).
One of the purposes of the 2015: International Year of Co-parenting is to increase the awareness of the general public and all the elected officials in every nation on the equal importance of the roles of both parents – be they together, separated or divorced – in the upbringing of their children.
The 'Australian experience' proves that Shared Parenting legislation is practical and the government consultation document, cited in this petition, shows that there is already an overwhelming desire from the UK public for co-parenting.
It is the judiciary together with academics and charities alike that knowingly or unknowingly still operate according to the theory of 'Maternal Deprivation' to the detriment of children.
The
petitioner believes that
the 'family is the basic unit of society and therefore deserves
special attention'. He would
therefore respectfully ask the Committee on the Rights of the Child
to consider using the evidence from this petition not only to restore
child's rights in the UK but to endorse the reasons given for the
proposal to the General Assembly of the United Nations to declare
2015: International Year of Co-parenting.
Kingsley Miller, May
2014
THE
WELFARE OF CHILDREN IS PARAMOUNT
Kingsley
Miller MSc Cert Ed
Introduction
This is the fourth and final document in support for a petition to complain against the UK government violation of Article 9 of the Convention on the Rights of the Child. The previous submissions include; (1) Petition to examine the violation of Article 9 of the UN Convention on the Rights of the Child. (2) Disputes in one in fact which involves legal authorities. (3) Charities & the violation of the rights of children in the UK.
The
welfare of children
It is because the welfare of children is paramount that although the petitioner is a UK citizen he contacted the Australian Attorney General's Department regarding a set of guidelines which received widespread publicity produced by a clinical psychologist, Jenn McIntosh PhD. (Shared custody a mistake for the under-2s, say guidelines, Sydney Morning Herald, December 15, 2011).
The
petitioner's book 'even Toddlers Need Fathers', described by
Professor Sir Michael Rutter as an 'interesting and informative
guide', is a critique of the 'Tender Years' doctrine which is based
on Dr John Bowlby's flawed theory of Maternal Deprivation as used in
UK family proceedings to decide court orders between children and
their parents post separation.
Baroness
Hale, Deputy President of the Supreme Court, described the theory of
Maternal Deprivation and the crucial difference between the two
approaches of Bowlby and Rutter in the following way,
That
theory was that children were damaged by separation from their mother
or mother figure. Sir Michael pointed out that children were not
invariably so damaged and that, in any event, other people, including
their fathers, are also very important to children (2000).
However
because the work of Bowlby received considerable attention it has led
some working in the Children's Sector to believe that his claim, made
in 'Maternal Care and Mental Health' (1952), is an accurate
reflection of current research in Child Development;
Almost
all the evidence concerns the child's relation to his mother, which
is without doubt in ordinary circumstances by far the most important
relationship during these years. It is she who feeds and cleans him,
keeps him warm, and comforts him. It is to the mother that he turns
when in distress. In the young child's eyes father plays second
fiddle and his value increases only as the child becomes more able to
stand alone.
It
is sometimes argued that later in his career Bowlby's view changed
but in 1986 when asked to choose his 'citation classic' he selected
'Maternal Care and Mental Health' because he said, 'It focussed
attention on the relationship of a young child to the mother as an
important determinant of mental health'.(1)
Although
professionals are usually familiar with Bowlby's theory they are
sometimes unaware of the contribution made by Professor Sir Michael
Rutter and the petitioner includes with this petition a statement
from a qualified teacher who received in-service training in 2001
which included this flawed theory.(2)
Dr
McIntosh in Australia
In Australia Dr McIntosh has made contributions to national research and associated professional development programmes but more recently produced a set of guidelines for the Australian Association for Infant Mental Health called 'Infants and overnight care - post separation and divorce'.(3)
In Australia Dr McIntosh has made contributions to national research and associated professional development programmes but more recently produced a set of guidelines for the Australian Association for Infant Mental Health called 'Infants and overnight care - post separation and divorce'.(3)
These
guidelines appear to be based on the Tender Years doctrine which was
confirmed when Dr Mcintosh was made Guest Editor for a publication
of
Family Court Review from July 2011 on 'Attachment, Separation, and
Divorce: Forging coherent understandings for family law' which
addressed these issues exclusively from a, 'Bowlby
- Ainsworth attachment paradigm'. (Emery and Schepard, Family Court
Review, 49:415–417).
This
prompted the petitioner to contact the Attorney General, Nicola
Roxon, on 3
January
2012.
(4)
The petitioner was also active on an online
forum operated by the Shared Parenting Council of Australia SPCA and
they supported his second letter to the Attorney General's Department
on 16 January. (5)
Dr
McIntosh's guidelines treat one parent as the primary attachment
figure for 'comfort and security' in the same way as Bowlby described
in his theory. In his
paper from 1958 called 'The nature of the child's tie to his mother',
(International Journal of Psycho-Analysis, 1958, 39, 350-373),
he stated,
The
tendency for instinctual responses to be directed towards a
particular individual or group of individuals and not promiscuously
towards many is one which I believe to be so important and so
neglected that it deserves a special term. I propose to call it
‘monotropy’.
Research
has shown that the idea a baby can only have a single primary carer,
usually the mother, is misconceived.In
reply, Cathy Rainsford Principal Legal Officer for Family Law in
Australia, contacted the Executive Secretary of the SPCA, Wayne
Butler, on behalf of the Attorney General on 27 February 2012. In
this letter she mentioned the petitioner's concerns and clarified the
contribution of Dr McIntosh to Australian Family Law.(6)
In
response to additional queries the Legal Officer contacted the
petitioner again directly on 3 September (7)
and
21 December (8)
to
clarify still further the involvement of Dr McIntosh and the
'effectiveness of Shared Parenting in Australia since the
implementation of the 2006 family law reforms'.
At
that time because of his involvement on the SPCA online forum, an
Australian radio station asked the petitioner to appear on a
programme and he gave a 30 minute interview for 'Dads on the Air'
which was recorded and can also be heard on YouTube.
Subsequently
Michael E. Lamb, a professor of psychology at the University of
Cambridge a student of Ainsworth who has studied attachment
to mothers and fathers, as well as the role of children in the legal
system, also produced a highly critical article on Dr McIntosh as
Guest Editor with the title, 'A wasted opportunity to engage with the
literature on the implications of attachment research for family
court professionals'. The abstract went on to state,
The
Special Issue edited by McIntosh provided a misleadingly narrow view
of attachment theory and of previous attempts to explore the
implications of that theory and related research for family court
professionals. For example, the editor chose to interview
professionals whose opinions seemed likely to accord with hers, and
when they dissented, she failed to explore the implications. She thus
represented Bowlby’s notion of monotropy as though it was an
established and accepted fact; neither the research (which shows the
idea to be incorrect) nor Bowlby’s own later disavowal of the idea
were addressed, although the implications are profound. More
generally, the extensive relevant scholarship was ignored and
unrepresented, leaving the unchallenged focus on the editor’s own
research and on opinions that accord with her own. As a result, the
Special Issue became a platform for opinion, rather than a forum for
critical examination of the literature.
This
article was followed very recently by an even more forthright
description of the work of Dr McIntosh from Professor Linda Nielsen
of Wake Forest University, NC, USA, called, 'Woozles: Their role in
custody law reform, parenting plans, and family court' (2014)
published by the American Psychological Association.
Woozling
is the term used by Professor Nielsen to compare the research by Dr
McIntosh with the machinations described in the children’s story
'Winnie the Pooh' (Milne, 1926).
The
abstract for this article states,
In
the international debates on custody law reform and in individual
custody decisions in families and in courts worldwide, social science
research is often misused and abused. In this article I describe the
process by which data can become
distorted in ways that steer policy makers, family court personnel,
and parents off course in regard to child custody decisions.
In the article
Professor Neilsen mentions the UK government consultation on Shared
Parenting legislation and connects the work of Dr McIntosh with the
statements made by Professor Trinder to the Norgrove Report already
cited in this petition;
Likewise, in the
United Kingdom the study has played a role in current debates over
custody reform. The committee that was assigned to make custody
reform recommendations to the British Parliament (Norgrove, 2011)
cited only three of the 28 studies that had compared outcomes for
shared parenting children and for other children with separated
parents. The pre-schooler study was one of the three (Rhoades, 2011).
The committee
recommended that Parliament not consider shared parenting
legislation: 'Drawing on international and other evidence we
oppose legislation to encourage shared parenting. The detailed
information from Australia showed the damaging consequences for many
children' (p. 138). Trinder, who was well acquainted with the
pre-schooler study because she had hosted McIntosh’s 2011 seminar
in London, (McIntosh, 2011e), also provided a consultation response
to the committee, stating her approval of their decision and claiming
it was consistent with the research (Norgrove, 2011, p. 138).
Even more recently in
a letter to the Prime Minister, the directors of eight counselling
and advocacy centers voiced their opposition to shared parenting
legislation, all citing the preschooler study without citing any of
the other 28 studies (CYPFD, 2012). This is not to say the
preschooler study was the pivotal factor in these policy
recommendations.
But because it was cited in all of these documents to the exclusion of almost all of the other studies that have examined outcomes for children in shared parenting families, it serves as yet another example of the extent to which the preschooler study was being presented internationally to policy makers.
In sum, as is characteristic of woozles, the findings from the preschooler study seem to have grown larger and to have become more significant with the passage of time, while its limitations seem to have all but disappeared from view.
But because it was cited in all of these documents to the exclusion of almost all of the other studies that have examined outcomes for children in shared parenting families, it serves as yet another example of the extent to which the preschooler study was being presented internationally to policy makers.
In sum, as is characteristic of woozles, the findings from the preschooler study seem to have grown larger and to have become more significant with the passage of time, while its limitations seem to have all but disappeared from view.
Baroness
Hale
Baroness Hale DBE, QC, PC, FBA (Hon), who is regarded as an 'architect' of the Children Act 1989, stated in a judgment in the petitioner's own proceedings in 2003,
Baroness Hale DBE, QC, PC, FBA (Hon), who is regarded as an 'architect' of the Children Act 1989, stated in a judgment in the petitioner's own proceedings in 2003,
The
father has a point of view which he wishes to advocate. The judge
described it as a political point of view, but it is not political in
a party-political sense. There are many people who might call it
political in the gender political-sense for there are many ways in
which that word can be used. He has the view that the courts and the
law have been too respectful of the relationship between mothers and
their children to the detriment of the importance of the relationship
between fathers and their children. He argues that one of the
purposes of the Children Act 1989 was to redress the balance: to
promote a more equal sharing of responsibility for children between
mothers and fathers and to promote the maintenance a good
relationship as possible between children and each of their parents
should, unhappily, their parents not be living together.
The
father is correct that that was one of the principles behind the
Children Act 1989, in which I take a certain amount of pride.
The
father points out that he has a certain amount of pride, so I make
that comment in response. He also argues that his views are not
politically motivated, but they arise because of his qualifications
and experience as a teacher with
a professional interest in child development, child psychology and
the welfare of children.
This
judgment reflects the purpose and direction of the United Nations
Convention on the Rights of the Child as expressed in UK private
family law. Once
again the petitioner would ask the Committee on the Rights of the
Child to note that this view of private family law was overwhelmingly
endorsed by the UK public, so much so, that the government decided to
launch a consultation process to decide the best way to include
Shared Parenting legislation in the Children & Families Act 2014.
Baroness
Butler-Sloss
However
Baroness Butler-Sloss is no less guilty than Dr McIntosh for using
her power, sitting in the House of Lords, as Professor
Lamb described to adopt a misleadingly narrow view of attachment
theory and of previous attempts to explore the implications of that
theory and related research for family court professionals.
Baroness
Butler-Sloss may believe that as a former President of the Family
Division the Tender Years doctrine represents best practice and that
research evidence provided by charities such as the Nuffield
Foundation support her own view of private family law. But there are
no grounds to support her view and as Professor Neilsen states in
reality the Baroness is abusing research to steer
policy makers, family court personnel, and parents 'off course' in
regard to child custody decisions.
In
effect the consortium of charities which Baroness Butler-Sloss
heads is using her status as a former President of the Family
Division to promote a feminist agenda and override the rights of
children.
Conclusion
Together with violating the child's right to contact with parents post separation the UK government says that the new Child Maintenance Service will use HM Revenue & Customs data to process applications and make payments more quickly than the old Child Support Agency.
Unlike
other jurisdictions around the world that are embracing Shared
Parenting legislation the new system used by the Child Maintenance
Service will take private family law back to the 1950's by making it
easier to treat fathers as 'breadwinners' in the same way as the new
Children & Families Act 2014 will encourage mothers to look after
their children.
According
to the Family Justice Review Interim Report (2011) the number of
applications to court has increased steadily in recent years. In 2006
there were over 111,000 children involved in applications for private
law orders. In 2009 this had increased to over 137,000.
If
the government was ever sincere in listening to the voice of the UK
public on Shared Parenting legislation and genuinely cared about the
welfare of children it should not be deflected from the reforms of
private family law, as originally set out in the Children &
Families Act 2014, by the 'woozling' of a retired judge sitting in
the House of Lords.
The
petitioner respectfully asks the Committee on the Rights of the Child
to hear this petition so that it can join too, with the UK public, in
seeking to influence the government to have a change of heart because
the welfare of children is paramount
Kingsley
Miller, May 2014
ADDENDUM
Kingsley
Miller MSc Cert Ed
Introduction
The 'child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding'.
It
is with respect the petitioner puts this addendum to his petition
before the Committee on the Rights of the Child because it includes a
transcript of a recent interview given by Baroness Butler-Sloss
justifying her reasons for amending the Children & Families Act
2014.
The
UK government Fifth Periodic Report
The UK government Fifth Periodic Report to the UN Committee on the Rights of the Child states (Chapter IV: Family Environment and Alternative Care);
Family Law
13. The Children and Families Act 2014 includes new measures in England and Wales to ensure the needs of children remain at the centre of the family law system. Attendance at a Mediation, Information and Assessment Meeting (MIAM) will be a requirement (with exemptions) for adults applying to court in certain types of family proceedings, with the aim of encouraging parents to reach agreement between themselves (out of court) wherever possible. When cases do go to court, the introduction of a new ‘child arrangements order’ will help to ensure that the main focus is on the needs and interests of the child.
But this statement is
misleading. The new MIAM requirement only applies to the applicant in
family proceedings, usually the father, with the judge now acting as
a 'gatekeeper' deciding whether the parent has satisfied this
statutory obligation.
Certainly
'child arrangement orders' have replaced 'contact' and 'residence'
orders but the
House of Lords amendment makes clear that a parent's 'involvement'
post separation now can be either 'direct' or 'indirect'. Therefore
once a father has satisfied the judge that he has completed the
mediation stage of the court process he has no guarantee of seeing
his child or children. Although these changes seem reasonable they
are a violation of Article 2, 'States
Parties shall respect and ensure the rights set forth in the present
Convention to each child within their jurisdiction without
discrimination of any kind, irrespective of the child's or his or her
parent's or legal guardian's race, colour, sex, language, religion,
political or other opinion, national, ethnic or social origin,
property, disability, birth or other status'.
The
former President of the Family Division
In the interview the former President of the Family Division states, 'My view is that no parent has the right to anything', seemingly oblivious to the violation of the child's 'right' to direct contact post separation as set out in Article 9.
Similarly
Baroness Butler-Sloss does not seem to realise that the 'Tender
Years' doctrine is also a violation of Article 2 which also protects
children 'against all forms of discrimination or punishment on
the basis of the status, activities, expressed opinions, or beliefs
of the child's parents, legal guardians, or family members'. Instead
Baroness Butler-Sloss states,
I
would like to see I must say, mothers
who flout contact orders required
to do all sorts of things that don’t actually send her inside. I
can see absolutely no reason why she shouldn’t do community
service. I should like to see her penalised in all sorts of
inconvenient ways as long as it doesn’t have any impact on her care
of the child. So as long as the child is over 5 or goes to a child
minder, then there is no reason why she shouldn’t be required to go
and clean the streets, whatever it may be. I would make her do
something really unpleasant so that she understands the consequences
of this. But to send her to prison is counter productive, because the
child will not want to know the man who has sent his mother to
prison, particularly when she comes back and tells him about it.
Baroness
Butler-Sloss states that mothers should not be penalised until the
child is 'over 5 or goes to a child minder' with no reference to the
father.
Again
throughout the interview there is almost a matter-of-fact assumption
by Baroness Butler-Sloss that the mother is always the primary carer
and therefore the resident parent.
But
the terms 'resident' and 'non-resident', were never intended to be
synonyms for 'mother' and 'father'. They were deliberately chosen in
response to progress in Child Development to recognise that it is the
sensitivity not the gender of the parent that is significant to the
upbringing of children.
The
attitude of the Baroness to private family law is a product of the
1950's and not 'child-centred'.
Cooperative
parenting following family separation
The petitioner also puts before the Committee on the Rights of the Child the UK government report called 'Cooperative parenting following family separation: proposed legislation on the involvement of parents in a child’s life. Summary of consultation responses and the Government’s response' in which respondents were asked to consider the potential of four different approaches to promote post-separation shared parenting, and sought views on the impact of this legislation. It is stated,
The
Government believes, however, that more can and should be done to
ensure that children are able to maintain a relationship with both of
their parents following family separation, when disputes arise about
children’s care arrangements. We made clear our intention to amend
the Children Act 1989 to place an explicit requirement on courts to
consider the benefits of a child having a continuing relationship
with both parents, alongside the other factors affecting their
welfare. Such legislation will send a clear signal to separated
parents that courts will take account of the principle that both
should continue to be actively involved in their children’s lives
where appropriate. In doing so, it will help to dispel the perception
that there is an in-built legal bias towards one parent.
After
taking careful consideration of the responses from the UK public it
is the understanding of a single retired judge who shows a woeful
disregard for the Convention on the Rights of the Child that will
determine future private family law.
Conclusion
The petitioner holds that it is a fundamental truth that the 'child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding' and for this reason again respectfully asks that this petition should be heard by the United Nations Committee on the Rights of the Child.
Kingsley
Miller, June 2014