Family Law: Parents and children - Essay Example

?The welfare of the child will always come before the rights of parents. Introduction Traditionally the debate revolving around children rights centre on the friction that exists amongst concerns over children welfare on one hand and worries over crossing legal borders and encroaching over issues related to family privacy and rights of parents. The very notion of child welfare (where besides close family members’ a third party is involved) and rights for children where they are allowed to take decisions for matters directly concerning themselves is a revolutionary theory that though conceptualised during the 1970s1 was not given a legal sanction until the 1980s. The welfare rights of a child was almost unheard of in UK (and rest of the world) until the middle of the 19th century, and maintaining family privacy and supreme authority of the parents were given greater prominence. In the latter half of the nineteenth century, social activists started various initiatives that aimed at highlighting children welfare.2 These initiatives formed to be the groundwork for the present form of welfare state that accorded protection to children rights as per the provisions outlined within United Nations Convention for child rights and the ECHR. Owing to the growing number of divorces, there has been increasing number of debates between women’s rights activists and father’s rights bodies, where both groups have claimed that a child’s welfare is best compatible with their position only. This has led to the children being treated sometimes as rightful property of their fathers, while sometimes mother’s care is seen as an essential ingredient for the child.3 Until 19th century the fathers received child custodies in case of divorce or separation, however, starting from the early 20th century some states in US shifted towards favouring mothers, in cases pertaining to child access and custody.4 Thus, we find that children traditionally are viewed as rightful possessions of either one of their parents.5 It was for this reason the concept of ‘best interests of the child’ was created, where the courts determined various issues associated with a child’s well-being, in cases of separation or divorces, where both the parents tend to claim the child as their own and for its safekeeping. Recently with growing complaints regarding ambivalence in the nature and standard of the legal statute for best interests of the child,6 a new theory has been conceptualised where it has been derived that a child’s welfare as a different matter separate from (with some links to) parental rights. Presently in most of the developed nations (as in, UK, US and Australia), a new legal provision associated with responsibilty for parents, is slowly being introduced into the arena of family law. Here the most significant issue on child welfare is related to the question on the position and state of a child, after the parents separate or divorce. In this context, this article examines the contentious issue of child custody and shared parenting, and will derive that a child’s welfare is of primary concern and must be addressed even before the rights of parents are ascertained. It will support the recommendation put forth in the 2011 Justice Review that no legislation should be created that may lead to an assumption that parental right translates to equal or shared time parenting for both the partners during a separation or divorce. It will derive that each case must be reviewed separately before a ruling is passed, even though there are no doubts regarding the benefits of joint or shared custody. Discussion In last few decades, there has been growing interest in the concept of shared parenting, where couples who are divorced or are separated and no longer wish to live together, yet want to devote some time towards their children. This shared parenting or shared time varies from what is what is legally viewed as shared responsibility towards the child, and is in addition to the latter. Recently there have been recommendations and demands made from certain quarters (fathers’ rights organisations) to frame laws that would deal with cases of shared parenting, where both fathers and mothers would be given equal rights over their children.7 Amidst all the intricacies and talk of children and parental rights, legal provisions must necessarily take care to provide a situation where the divorced or separated parents are allowed to play a meaningful and responsible part in the lives of their children, with governmental and other social bodies providing adequate support to the parents.8 The present and more popular approach, where one parent wins the main custody (especially in the context where there are no instances of family violence), deprives the child from receiving love and care from the other parent,9 not considering the shared-care seen in most two-parent homes where in most cases it is one parent that takes care of the children on a daily basis.10 The current legal scenario in UK The present public services for UK children are held under the Human Rights Act (HRA) of 1998 that was framed keeping the European Convention in context. The most relevant children’s rights found within the HRA are articles 3, 5, 6, 8 and 14.11 The current legal scenario in England and Wales as regards child welfare is framed in the Children Act 1989.12 As per the section 1(1), the court must give precedence to a child’s requirements and interests under any circumstances. Keeping this in mind there has been framed a ‘checklist,’ which the courts must refer to while considering the case and ascertaining a child’s welfare: a) “The ascertainable wishes and feelings of the child concerned (considered in light of his age and understanding); b) His physical, emotional and educational needs; c) The likely effect on him of any change in his circumstances; d) His age, sex, background and any characteristics of his which the court considers relevant; e) Any harm he has suffered or is at risk of suffering now; f) How capable each parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs; g) The range of powers available to the court under this act in the proceedings in question.”13 The aforementioned list takes into account requirements and sentiments of the child concerned, and this is important to ensure that children rights are given top priority in a case under consideration. 14As per the Children Act 1989, the courts can intervenve and pass orders only where a situation demands that it is necessary to do so in the best interests of the concerned child.15 While parents have parental responsibilities after a divorce or separation, it is expected that they would make their own mutual arrangements on childcare arrangement, without seeking intervention from the courts, unless the dispute is insoluble. 16 Brian Binley (MP) introduced a shared parenting bill in 2011 with the chief objective of creating a legal presumption of equally or substantially shared parental responsibility, which works towards enhancing child welfare, except under certain specific conditions. This bill was introduced in the House of Commons on 13th July 2011 for a debate; however, was not moved by 9th September 2011, owing to which it lapsed for the second time.17 Recently a news report on 6th February 2012 shows us that UK government has decided to support the presumption of shared time, where “Fathers and mothers should be entitled to a legally binding "presumption of shared parenting" after separation.”18 However, the government clarified that it would not support any kind of legal provisions that gives rights for equal time to divorced or separated parents, nor will there be legal provisions for creating a minimum time for child interaction for the separated or divorced parents. The government further added that any changes in his regards would be made as a complementary to the Children Act 1989 (and not in conflict to it), and utmost priority would be attached to the concerned child’s welfare.19 In Australia, however there have been extensive changes in the child custody and access laws, with the establishment of Family Law or Shared Parental Responsibility Act in 2006,20 where the presumption of shared responsibilities was introduced. Under new provisions, both parents are duty-bound to share equal responsibilities, as regards important issues, like education, health matters, religious issues, or modifications in living arrangements that may affect the child’s lifestyle.21 The exceptions in such circumstances hold when a parent has a history of violence, child abuse, or when the court deems it insufficient for the child’s welfare for the parents to assume shared parental responsibility.22 Children’s needs during and after parental divorce or separation It is widely acknowledged in the field of psychology that, a child’s relationship with his/her parents play an important role in the positive development of his/her social, cognitive and emotional faculties. There are a large number of scientific literatures, which show that there is a negative impact on the psychological well-being of a child due to disruptions in normal child-parent interactions.23 Further evidences reveal that children that lack a good relationship with any one of their parents are more vulnerable to psychological problems, while children having meaningful relationships with both their parents (even if they are divorced or separated) face less psychological issues.24 The authors have presented evidences, which show that in cases where father-child/mother-child relationship that has been cut-off or minimised, a negative effect is produced on the psychology of the child, while the father’s/mother’s presence makes a positive impact on the child’s developmental processes.25 There are two detailed research studies made on the issue of a child’s needs and desires during and after his/her parent’s separation or divorce. These two experiments studied various groups of children (starting with very small children to nearly adults) whose parents had separated or were divorced.26 These children provided the researchers with all necessary information about adjustment problems and other issues faced by them during and after parental divorce or separation. Both studies revealed that the parenting aptitudes of almost all fathers and mothers declined in the first few months after divorce or separation. At the time of their separation or divorce, parents tend to attribute their own frustrations on the children, and become insensitive and unresponsive to the latter’s needs and desires. Viewing the emotional turmoil of their parents as they go through a divorce, children often consciously hide their emotions, but researches have conclusively proven that various changes associated with divorces or separations have a strong negative impact on them.27 Observations from various studies have revealed that children from broken families show low self-esteem, perform poorly at school, have behavioural problems, and suffer from depression.28 Here one can safely assume that a positive psychological development of an individual largely depends on their experience as a child of a constant and long-term caring relationship, using which they forge strong attachment bonds and develop their mental processes that allow for logical thinking and developing stable relationships in future.29 However, it must be remembered that not all instances of parental separation and childcare can be categorised under one assumption. In some cases, a child can develop bonds with family members other than his/her parents (like grandparents), or the child may be equally attached to his/her parents and grandparents. Furthermore, a child in any situation (a two-parent family or single parent family) may have different levels of attachments with his parents, where he/she may feel more secure when he is with his father, while displaying insecurity while being with his/her mother. This difference in a child’s level of attachment with his/her parents generally varies based on the nature and style of care giving of the parents (which in turn depends on the history of attachment of the parents themselves).30 Thus, we find that even though shared responsibility is necessary for a child during and after separation or divorce, there may be variations, thus making it essential that each case is separately reviewed before the court pronounces a judgement. In case of shared responsibility where the child resides 50:50 (or in some cases 70:30) of the time with one or other the parent, there is a constant sense of being ‘disorganised,’ and the child does not get adequate care from either of his/her parent.31 Since shared care involve frequent shifts from one parent to another, and with frequent differences in parenting style, it may lead to psychological insecurity resulting in the child to withdraw from all social activities. 32 Adolescents are able to handle to such situations a little better (as the strong attachment with the parents loosens up to some extent by this age) and are often seen to create strong bonds with of dependence with other individuals (besides their estranged parents). However, when shifting between conflicting parents, who reveal their bitterness in front of their children, makes them mentally disturbed and wary of the emotional condition prevailing in each home. Infants especially are vulnerable with warring parents, where the constant conflicts tend to affect parenting abilities in a negative manner that may level harsh discipline on the child, along with a remarkable show of very little emotional reactions.33 Such irrational behaviour on the part of the parents are associated with parenting behavioural disorders that are observed while coping with a divorce or separation stress, that have a negative impact on a child’s psychological sense of security.34 This makes it necessary for the courts to review the behavioural pattern of the parents during separations or divorces, instead of presuming shared parental responsibilty.35 Recent researches have focused on the positive impacts of the involvement of the fathers during and after separation or divorce and the benefits of a joint custody.36 Joan Kelly (2000) in her researches, compiled data collected for more than a decade on child welfare related to divorces or separation, derived that shared (joint) parental responsibility was better for the child.37 Furthermore, the researcher concluded that and conflicts between the parents did not affect the child, only when the conflict was child-oriented and occurred in front of the children, or when the children were directly abused, there were signs of psychological problems.38 Amato (2000) in his research papers derived that divorce as a whole had negative effects on all children. However, some of mitigating factors in such cases involved shared parental responsibilty and adjusting abilities of the children involved.39 Thus, we find that shared parental responsibilty is best for a child’s welfare, although there are frequent exceptions to this general assumption. Here it must be borne in mind while reviewing and deciding each case separately would take time, resulting in a delay in the process of granting child custody and access, which may be detrimental for a child’s psychology. Therefore, it can be concluded that for the child’s welfare it is best that the parents come to an understanding (between themselves) as soon as possible, or if the courts are involved, then after reviewing the case the court comes to a conclusion as fast as possible, to avoid causing trauma to the child. Conclusion Despite a strong demand for giving legal sanctity to presumption on shared parental responsibilty during and after separation or divorces, there are no doubts that a child’s welfare must be given utmost priority, without taking into consideration parental rights. The best applicable method is for the parents to agree on some shared arrangement for the child, however if the parents are acrimonious then the courts must review each case separately (without any presumption) and decide on what would optimise the benefits to the children concerned. References Amato, P. The consequences of divorce for adults and children. Journal of Marriage and the Family 62, 2000, 1269–1287. This article uses a perspective that is based on divorce-stress-adjustment and presents a summary of the available literature (empirical) that analyses results of divorces for both parents and children to answer five basic questions related to child welfare. The paper shows that while divorce may prove to be beneficial for some of the individuals; it may cause temporary unhappiness in some, while some may also go into a major and permanent depression over the break-up. Amato, P., and Keith, B. Parental divorce and the well-being of children: A meta- analysis. Psychological Bulletin 110, 1991, 26-46. This article discusses the impact of divorces and on children and concludes that overall divorces tend to produce negative effects on all children. However, some of mitigating factors in such cases involved shared parental responsibilty and adjusting abilities of the children involved. Bauserman, R. Child Adjustment in Joint Custody versus Sole Custody Arrangements: A Meta-analytic Review. Journal of Family Psychology, 16, 2002, 91-102. This article makes of review of cases where children had been paced in shared custody, and does a comparative analysis of the same with those placed under the custody of only one parent. The research derives that joint custody is the best solution for the welfare of a child. Bowcott, O. Government backs ‘shared responsibility’ legislation after separation, February 2012, [Online], available at http://www.guardian.co.uk/lifeandstyle/2012/feb/06/government-backs-shared-parenting-legislation [accessed 2nd March 2012] This newspaper report discusses a recent governmental decision to bring in the concept of shared parental responsibilty, in line with the Children Act 1998. Cheriton, G. Child Support, Divorce, Custody and Access, and Government Policies. Ottawa: Commoners Publishing, 1998. This book makes a detailed review of the various divorce cases, child custody laws (primarily in US) while examining the various policies implemented by the US, and Canadian government throughout the years on family and child related issues. Choudhry, S., and Fenwick, H. Taking the rights of Parents and Children Seriously: Confronting the Welfare Principle under the Human Rights Act. Oxford Journal of Legal Studies, Vol. 25, No 3, 2005, 453-492.  This article contends that notions of child welfare must dominate over parental rights under all circumstances. It further claims that the approach adopted by ECHR varies largely from the stance adopted by the UK courts as they try to strike the right balance between parental and child rights. Eekelaar, J. Beyond the Welfare Principle. 12 Child and Family Law Quarterly, 2002, 237.  This research paper looks beyond the concept of welfare principle and examines issues that relate to inter-cultural parental conflicts. The research brings forth the views of children in such cases, which had been previously ignored by the UK government and courts. While making decisions in divorces that involve parents of different culture the courts find it difficult to take a fixed and notional approach. This article examines various instances and suggests various ways in which the problems may be resolved. Eekelaar, J. The emergence of children’s rights, Oxford Journal of Legal Studies Vol. 6 (2), 1986, 161-182. It discusses the emergence of concept of children rights in the English society, giving a detailed historical overview. Farson, R. Birthrights London: Collier Macmillan, 1974. This book focuses on children rights with special emphasis on the rights of the mother. It examines various childcare policies and the effects of in-house care and out-of-house care on psychology of the child and the influences of these arrangements on the later life of child as an adult. Foley, P. “The Development of Child Health and Welfare Services in England (1900-1948).” In, P. Foley, J. Roche and S. Tucker (eds.) Children in Society Contemporary Theory, Policy and Practice. Basingstoke: Palgrave, 2001. This article traces the history of the development of child welfare system in England starting from the early twentieth century until the end of the WWII. It gives us a detailed historical view of how social norms and perspectives on childcare during and after divorces changed, and how care policies shaped up as per these changing perspectives. Fonagy, P., & Target, M. Bridging the transmission gap: An end to an important mystery of attachment research? Attachment and Human Development, 7 (3), 2005, 333-343. The authors contend the ‘attachment relationships of infancy’ play a role in evolution where it is ensured that human brain that help to develop social cognition are well organised for a co-existence with others in the surrounding. Thus, gene expression, according to the authors, translates to be the direct extension of a mental state that is created by the caregiving atmosphere provided to the child. Gunnoe, M., and Braver, S. The effects of joint legal custody on mothers, fathers, and children controlling for factors that predispose a sole maternal versus joint legal award. Law and Human Behavior 25(1), 2002, 25-43. This article examines varies legal scenarios pertaining to maternal custodies and joint custodies and derives from its studies that joint custody is the most suitable for the welfare of a child, in most cases. Haugen, G. Children's Perspectives on Everyday Experiences of Shared Residence: Time, Emotions and Agency Dilemmas, Children & Society Volume 24, 2010, 112-122. This article takes into account the views put forth by children on the topic of shared responsibility. This article reveals that most young children do not want the parents to divorce and would prefer to live in a house having both parents, while older children cope better with parental divorces but would like to remain in a good relationship with both their parents. Harrist, A, & Ainslie, R., Parental discord and child behaviour problems, Journal of Family Issues 19, 1998, 140-163. This research paper discusses the problems faced by children that come from broken homes with conflicting parents. The authors contend that children from acrimonious parents tend to show behavioural and adjustment problems thus supporting shared parental responsibilty. Hetherington, E., Cox, M., and Cox, R. “The Aftermath of Divorce.” In, J.H. Stevens, Jr. and M. Mathews (eds.), Mother-Child, Father-Child Relations. Washington: National Association for the Education of Young Children, 1978. This article reviews the necessity of having a balanced relationship with each parent for obtaining optimal child welfare, when the parents are separated. It shows that loss of either one of the parent’s love and care tends to create a negative effect on the child, hence a shared form of responsibilty (except under special circumstances) is better than giving the custody to only one parent. House of Commons Justice Committee, Operation of the Family Courts Sixth Report of Session 2010–12, 2012, [Online], available at, http://www.publications.parliament.uk/pa/cm201012/cmselect/cmjust/518/518i.pdf. [Accessed 1st March 2012] This reports review the current legal system related to family laws in UK, and while upholding the view that both parents are necessary for a child’s welfare, rules that during a divorce presumption for shared parental responsibilty is not suitable for all cases, hence the court must review each case separately and pass a ruling after judging the best form of child welfare in that particular case. Irving, H., and Benjamin, B. Family Mediation: Contemporary Issues. Thousand Oaks, CA: Sage, 1995. This books deal with the topic of mediation, which is fast becoming popular amongst parents who are divorcing and wish to come to an agreement between themselves regarding childcare arrangement, custody and access, without taking the child to the court. The mediator is an individual who helps the parents work out a mutually agreeable solution that would work in favour of their child’s welfare and the couple would not have to adopt a process of conflict. Kelly, J. Children’s adjustment in conflicted marriage and divorce: A decade review of research, Journal of the American Academy of Child and Adolescent Psychiatry 39, 2000, 963-973. In this article, Kelly traces the pattern of children’s adjustment during parental divorces through a decade long study, and derives that joint custody is always favourable for the optimal growth of the child, though some children tend to cope better than other during separation and divorces. Lamb, M. “Non-custodial Fathers and their Impact on Children of Divorce.” In, Ross A. Thompson and Paul R. Amato (eds.), The Post-Divorce Family: Research and Policy Issues. Thousand Oaks: Sage, 1999. This article gives a detailed review on the negative impact that is seen in children that grow up without their fathers, under single parental care (mothers). This study proved that both parents must be equally involved in the upbringing of their children. Lamb, M., Hwang, C., Ketterlinus, R., and Fracasso, M. “Parent-child relationships.” In, M.H. Bornstein and M.E. Lamb (eds.), Developmental Psychology: An Advanced Textbook (4th ed.), Mahwah, NJ: Lawrence Erlbaum, 1999. This article also shows how children that are given solely to their mother’s custody tend to develop negative attributes, thus again vouching for joint custody and shared responsibilty of the parents of the child’s welfare. Lee, M. A model of children’s post-divorce behavioural adjustment in maternal- and dual-residence arrangements. Journal of Family Issues, 23(5), 2002, 672-697. This article explores the impact of caregiving arrangements on the behavioural pattern of children in a post-divorce situation where there are by conflicts between parents. The paper closely examines relationships between mothers and children while giving a detailed report on the children's feelings during and after their parent’s divorce. The research derives that the positive effect of shared parental responsibility is often marred by parental aggression, with children's reporting depression. McIntosh, J., and Chisholm, R. Shared Care and Children's Best interest in conflicted separation. Australian Family Lawyer, Vol. 20 (1), 2009, 1-11. This paper gives a detailed review of the various studies conducted on Australian children and their parents during and after divorces, and examined the reforms made in Australian family law (2006) where the presumption to shared parental responsibilty was added. It examined various research papers and legal scenarios to conclude that shared responsibilty is the best solution for child welfare, except under certain specific circumstances. McIntosh, J. Assessing attachment needs and potential in high risk infants. Journal of Family Studies, Vol. 12 (1), 2006, 57-71. This paper makes a clinical examination of infants placed in out-of-home care and examines the capability of the caregiver to provide adequate care to the child. It discusses the potential trauma for the child owing to parental separation and its psychological implications at a later stage. Mason M. From Father’s Property to Children’s Rights. NY: Columbia University Press, 1994. This book traces the history of divorces and separation, and custodial and access rights, from the time when children were seen as properties of their fathers to the modern era when children are deemed almost parallel to adults with rights to take decision in matters that are in their interest. Munro, E., and Ward, H. Balancing parents’ and very young children’s rights in care proceedings: decision-making in the context of the Human Rights Act 1998. Child and Family Social Work 13, 2008, 227–34. This article through various cases and evidences argues in favour of maintaining a balance between children and parental rights (in the context of HRA 1998 and children services) and reviewing each case in details before handing out a judgement. National archives, Children Act 1989, legisalion.gov.uk, nd., [Online] available at, http://www.legislation.gov.uk/ukpga/1989/41/part/I/enacted [Accessed 2nd March 2012] This gives the UK Children act 1998 in complete form, and allows the researcher to refer to it as and when necessary. Shared Parenting Orders Bill, Progress of the Bill, www.parliament.uk, 2012, [Online] available at http://services.parliament.uk/bills/2010-12/sharedparentingorders.html [Accessed 2nd March 2012] This link gives a pdf version of the bill that was introduced (but not tabled) by Binley (MP) in 2011 where it aimed to bring in the presumption of shared parental responsibility. Smart, C. Equal shares: rights for fathers or recognition for children. Critical Social Policy vol. 24 (4), 2004, 484-503. This article examines the fathers’ rights movement in UK (under Bob Geldof), Australia and New Zealand. This new movement has challenged the existing UK based family laws demanding equal rights of fathers and mothers in child custodial cases. The authors feel that the UK children are not consulted, and are simply transferred from one parent to the other after the sudden breakdown of their home. Smyth, B. A 5-year retrospective of post-separation shared care research in Australia. Journal of family studies, Vol 15 (1), April 2009, 37-52. This article examines the recent large-scale changes made within Australian family laws system and child care arrangements. It tries to find out whether equal parenting policy has made any improvements in the child welfare system, in the 3-4 years after the changes were made. Wallerstein, J., and Kelly, J. Surviving the Breakup: How Children and Parents Cope with Divorce. NY: Basic Books, 1980. This book discusses the experiences of the children and their parents during and after divorces. It derives that parenting capacities, of all fathers and mothers declined in the first few months after divorce or separation. At the time of their separation or divorce, parents attributed their own frustrations on the children, and become insensitive and unresponsive to the latter’s needs and desires. Viewing the emotional turmoil of their parents as they go through a divorce, often children consciously hide their emotions. The authors conclusively prove in the book that various changes associated with divorces or separations have a strong negative impact on the children. Read More