THE REALITY OF THE CHILDREN’S ACT

It is important to understand why parents go to court for a judge to resolve issues. If parents resort to court they are in dispute about matters concerning their children; these matters will primarily be issues over contact. The purpose of the Children’s Act 1989 was to improve the position of all parents and children, but since it has been in force it has failed to do this.

This is because the act was drawn up on the basis that parents are equal, and that therefore each parent would treat the other in an equal manner. But in fact the act has created two classes of parent: the resident and the non-resident parent, and has assigned a set of rights to each.

The act has therefore removed equality between parents and created a sub-class of parent – the non-resident parent (the father in over 90 per cent of cases). The intention of the act was to enable parents to seek agreement, but it has failed to understand the basic fact that if most parents could agree they would do so outside of a courtroom, and that those seeking judicial remedy do so because of a conflict of opinion. As a result, conflict is at the root of all cases which come to the family court.

Here is the area which most divorced dads find is a fundamental flaw in the act. It was drawn up in the belief that parents should be encouraged to seek agreement wherever possible without recourse to the law. This is a marvellous ideal, but given the nature of most split ups and divorces, this is not a concept that is applicable in the real world – especially when you consider that divorces involving children are significantly more complicated than those without.

In fact, the fundamental basis of the act (encouraging parents to seek agreement) is dependent on both parties communicating with each other – and respecting each other’s position. Unfortunately, this does not happen in the real world, and many divorced dads have to go to court when communication has broken down, and mum has refused to negotiate a solution in an amicable way and maintain an informal agreement.

Areas of contention

The principal area of contention for divorced dads in the Children’s Act is that it created the concept of resident parent and contact parent. This has created two classes of parents, with the resident parent having almost total control over the affairs of the children, and the contact parent relegated to a role of visitor in the child’s life.

Another area of contention is that the act has no teeth. Let’s take the situation where your ex decides unreasonably that she does not want to let you see the kids, and makes up a spurious reason for stopping your contact. Even if you go back to court and the judge sees through her actions and reinforces the court order, the judge is in an almost impossible position to stop her doing it again. This is because their powers of enforcement are few.

Unlike the powers to force you to pay your child maintenance which are many and varied, or the Child Support Agency’s powers to enforce its decisions, the family court judge has only two things that he can do: give your ex-partner a slap on the wrist or send her to jail. No judge has yet sent a mother to jail for abusing a court order, as it would be seen to have a detrimental effect on the child for whom she is the resident parent. And as any divorced dad who has to go through this ordeal will discover, a ‘telling off’ by the judge does not necessarily cut it. In fact all too frequently the mum will re-offend. Sometimes, having learnt that she can get away with it, your ex will continue to abuse access.

The reality of the Children’s Act 1989 is clear: don’t expect justice and equal rights for most divorced dads.

Court orders and the Children’s Act

The recent DfCA study gives very clear evidence as to the level of dissatisfaction for divorced dads when matters are ordered by the court. Over 50 per cent of non-resident parents (typically divorced dads) are dissatisfied with the outcome that a court provides.

The study found that:

On the whole, responding parents who had informally agreed the contact arrangements between themselves were mainly satisfied. These parents were less likely to be dissatisfied than parents of children who agreed the contact arrangements by other methods (82 per cent of parent responses in the resident parent sample and 87 per cent of parent responses in the non-resident parent sample were either satisfied or very satisfied with the contact arrangements).

Satisfaction with contact arrangements that had been ordered by a court or negotiated by mediators or lawyers was low, especially amongst parents from the non-resident parent sample. Over half (57 per cent) of the parents of children whose non-resident parent was the respondent and 26 per cent of parents of children whose resident parent responded to the survey and had their contact arrangements ordered by court were dissatisfied with the contact arrangements.

Over a third (38 per cent) of parent responses for children whose non-resident parent responded and had their contact arrangements negotiated by mediators or lawyers were dissatisfied with the contact arrangements compared with a quarter (26 per cent) of parents of children whose resident parent responded to the survey and had their contact arrangements.

There is clearly a huge contrast between those parents who are in broad agreement, and make informal arrangements (more than 80 per cent satisfaction) and those who have to go through the courts (less than 50 per cent). This is a travesty of justice, but these are the facts.

The fact is, if you are one of the thousands of divorced dads who goes to court to obtain a satisfactory outcome to your dispute, then you have a one in two probability of ending the process very dissatisfied with the outcome, at a cost to you of thousands of pounds and many months’ hard work.