Welfare to Work

Queens speech heralds new right to shared parental leave

Queens speech heralds new right to shared parental leave

A new Children and Families bill will provide greater flexibility for parents,  allowing greater sharing of caring responsibilities when a baby is borne.

Existing rules allow mothers to take 12 months maternity leave, of which nine months is paid. Fathers can take two weeks paid paternity leave.

The new bill will offer the same amount of leave, with 18 weeks allocated to the Mother and then the rest to be shared how the parents want. Jobs will be protected whilst the parent is on leave so Employers will have to keep them open.

Some businesses have complained about the bureaucracy this proposal might entail. And some may curtail their maternity pay benefits if they feel they incur more costs.

One interesting result of this bill might be that employers may well be as interested in whether Men are likely to be parents soon or again as women.

5 Comments

  1. The Children Act of 1989 required the judiciary to serve the paramount interests of the child.

    Surely no one can disagree with this fundamental principle.

    The problem is that our senior judiciary has opted to interpret this paramountcy principle by adopting out-of-date suppositions which hark back to the 1960′s and 70′s. It has done so because of its rigid adherence to the system of ‘legal precedent’.

    Above all, a child needs the love and nurturing of its mother and the financial support of its father. Women are the emotionally weaker sex: if their wishes are thwarted by the court, their ability to parent their child will be adversely affected. A child can be raised quite satisfactorily without the nurturing of its father. A father may be permitted to share in the parenting of his child, but only if the mother is in agreement. If she is not in agreement, the father should not be involved in the parenting because this would upset the mother, and the resulting animosity would be harmful to the child. If a mother is found to have lodged false or exaggerated accusations of physical or emotional violence against a father, she should not be punished because this would harm her child.

    If these are the suppositions written into decades of legal precedent and indelibly ingrained in the minds of the senior judiciary – such as Baroness Butler-Sloss, Lord Justice Thorpe and Sir Nicholas Wall – then it is quite obvious that these judges will opt to interpret the Paramountcy Principle of the CA1989 by adopting those suppositions.

    A perfect example is Payne v Payne (2001). Butler-Sloss and Thorpe decided that the paramount interests of a child would best be served by ensuring that the child’s mother should not be upset by a refusal of her application to remove the child overseas. The unfortunate consequence – that the child would lose its meaningful relationship with its father – was not as important a factor as ensuring the happiness of the mother. In Re D (Children) [2010] EWCA Civ 50, Nicholas Wall refused to permit any challenge to the ideology of Payne v Payne, despite having being presented with a plethora of powerful scientific evidence in favour of shared parenting. Wall relegated the importance of that evidence.

    Our senior judiciary has utterly misjudged the best interests of the child by remaining stubbornly wedded to an out-of-date ideology of parenthood.

    The forthcoming amendment to the CA1989 – inserting a presumption of shared parenting – will hopefully rectify that serious judicial error.

    Regards,
    Bruno D’Itri

  2. Retired President of the Family Division, Baroness Butler-Sloss has recently expressed her strong objections to Shared Parenting legislation:

    http://www.express.co.uk/posts/view/370559/No-50-50-sharing-of-children-in-new-divorce-law-says-top-judge

    There are three major flaws in the views of the Baroness.

    Firstly, she makes the erroneous and very misleading presumption that those calling for Shared Parenting legislation want a rigid 50/50 split of parenting time.

    Most reasonable voices who have campaigned for Shared Parenting (such as Families Need Fathers and The Custody Minefield) have acknowledged for years that a rigid 50/50 split of parenting time would be impractical in many cases.

    Instead, they have called for the significant and meaningful involvement of both parents, in order that the child may benefit from being properly parented by both its parents. Theirs has always been a qualitative approach.

    Of course, in order for a child to have a significant and meaningful relationship with both its parents, it will need to spend some minimum quantum of time with both parents, but this need NOT be 50%.

    Many who are vehemently against Shared Parenting legislation are finding it extremely difficult to counter the widespread and powerful scientific evidence in favour of Shared Parenting. They have commissioned a couple of academics in an effort to discredit Shared Parenting, but the evidence in favour of Shared Parenting is overwhelming. The general consensus among social scientists is that Shared Parenting is beneficial to children. There are parallels with Oil Companies who commission selected academics to try to discredit the evidence for Global Warming.

    Instead, opponents of Shared Parenting are rather desperately (and mischievously) attempting to shift both the debate and their attack upon the notion of 50/50. The Baroness succeeded in getting the Express Newspaper to headline this 50/50 notion!

    Secondly, whilst the Baroness concedes that children benefit from Shared Parenting when their parents are behaving “sensibly”, she states that the children of parents who are not behaving “sensibly” cannot benefit from Shared Parenting, as this would be harmful.

    In the very common scenario in which the court-appointed Primary Carer (usually mum) is upset and aggrieved with any aspect of the separation or divorce, and refuses (or is emotionally incapable) to behave “sensibly” and refuses to facilitate contact , the Baroness suggests that the Secondary Carer (usually dad) should NOT be involved in the parenting of the child. The Baroness appears quite unable to perceive firstly, the injustice of her argument and, secondly, the long-term damage to the child in losing one of its parents. The Baroness gives paramountcy to the wishes and feelings of the Primary Carer mother.

    Thirdly, the Baroness appears completely out of touch with the current Zeitgeist concerning 21st century parenting. She is firmly wedded to the ideology of the 1960′s and 70′s which strongly held that children needed the nurturing of their mothers and the financial support of their fathers. In no other of the Baroness’s judgments is this out-of-date ideology so stark as in the judgment of Payne v Payne (2001).

    Regards
    Bruno D’Itri

  3. History teaches us that powerful and wealthy “special interest groups” have direct and very influential access to Government officials and that they often get their own way, irrespective of what is actually ‘good’ or ‘just’ for society.

    The raison d’etre of the Law Society is to serve the interests of the Legal Industry. Of this, there is no doubt.

    The Law Society is perfectly aware of the extensive and compelling scientific evidence demonstrating, beyond all reasonable doubt, the significant benefits for children of remaining in meaningful contact with both parents post separation or divorce.

    However, the Law Society is also very aware that Shared Parenting legislation is likely to be highly damaging to the interests of its members, as profitable litigation would significantly decrease.

    The Law Society thus faces a real dilemma…

    Should it stand up for the interests of children and support Shared Parenting legislation or, instead, should it stand up for the interests of its members and oppose Shared Parenting legislation?

    It has opted firmly for the latter, and is using all of its sophistry and guile to try to convince our Government that Shared Parenting legislation will be harmful to child welfare.

    Some Government officials, such as Alan Beith, have been taken in. Other Ministry of Justice officials have also been seduced and have stated recently that Shared Parenting legislation is NOT actually expected to alter outcomes in family justice cases. The sole purpose of any new legislation, they have said, is simply to try to dispel the widely-held (but, according to them, quite unjustified) “perception” of anti-father bias in the system! Apparently, hundreds of fathers are only imagining that they are not able to see their children!

    We must do ALL we can to expose the shockingly immoral and self-serving behaviour of the Law Society in order to serve the genuine best interests of thousands of children.

    Bruno D’Itri

  4. When parents separate or divorce, the court automatically seeks to anoint one parent (usually the mother) with the legal status of ‘primary carer/resident parent’. It then bestows upon that parent a grossly disproportionate degree of power and control over the children vis-à-vis the ‘secondary carer/non-resident parent’ (dad).

    In many acrimonious cases an embittered resident parent uses this power to exclude the second parent from the lives of the children. The courts are reluctant to punish this abhorrent behaviour, their rationale being that to punish the primary carer is tantamount to punishing the children. With no deterrence, this behaviour is set to continue.

    Quite naturally, an unjustly excluded parent will employ the very costly (£200 plus per hour) services of solicitors and barristers in a desperate effort to regain contact with his children. Truly obscene sums of money begin to flow from broken families into the coffers of the law firms. The Family Justice Industry feeds upon the love an excluded parent has for his children.

    A presumption of Shared Parenting would permit a loving parent to be fully involved in the parenting of his children, post separation or divorce, without the need for costly and lengthy litigation. In Australia, for example, litigation reduced by circa 30% following the introduction of Shared Parenting legislation. Of course, in those relatively few cases where there is a serious and proven risk of harm, contact can and should be restricted.

    Plainly, a similar reduction of circa 30% in British family court litigation would prove extremely damaging to the Family Justice Industry. It is little wonder, then, that the Law Society is vehemently against a presumption of Shared Parenting. Family lawyers are not saints; we should not naively assume that their leaders would place genuine justice for parents and children ahead of their desire to maintain their income stream.

    The judiciary is no better. Sir Nicholas Wall – the former President of the Family Division – sought to blame parents for “using their children as weapons”, without accepting in the least that it is the System itself which facilitates, encourages and fails to deter such abhorrent behaviour.

    The real scandal is that the Law Society and the judiciary appear to have succeeded in persuading our Government to significantly dilute its original Shared Parenting proposals. There is now a very serious risk that the unsatisfactory status quo is set to continue.

    Shame on the Law Society.
    Shame on the judiciary.
    Shame on the Government.

    Bruno D’Itri

  5. An open letter to Tim Loughton MP, Parliamentary Under Secretary of State for Children and Families, 24 June 2012:

    The Government now recognises that the paramount interests of a child are served by facilitating and safeguarding its close and meaningful relationship with both its parents, post separation/divorce. In reaching this conclusion, the Government has taken into full and careful account the wishes of its electorate, the realities of 21st century family life, and a plethora of irrefragable psychological and sociological evidence and research, collated over the last decade or so, which plainly demonstrates the emotional, developmental and educational benefits for those children who are permitted to enjoy a shared parenting regime. In short, ‘paramount interests’ equates to ‘shared parenting’ (except, of course, in cases where there is a proven risk of harm).

    The will of our elected Government is clear. It considers that the Children Act (1989) – as well, perhaps, as some judge-made laws which followed in its wake – does not serve the paramount interests of the child in its current form and therefore requires modification and improvement.

    However, regardless of whatever modification the Government makes to the CA, it will be the eventual application of the law by the judiciary which will determine whether or not the will of the Government is enacted in practice.

    What, then, is the best way to ensure that the will of the Government is enacted in practice by the judiciary? In my view, the Government should tap unashamedly into the vast legal knowledge and experience of Sir Nicholas Wall, the President of the Family Division, and of his colleagues in the Family Division of the High Court. The Government should, I would suggest, posit the following very specific question to Sir Nicholas: “In order for the will of the Government to be enacted in practice, what modification to the CA can you suggest?”

    Of course, it may well be the case that the judiciary actually opposes the proposed change! Sir Nicholas has, in the past, voiced his personal objections to a number of Government proposals. Nevertheless, it is imperative that Sir Nicholas provides a comprehensive and constructive reply to the specific question above, rather than simply expressing his personal opinion as to whether or not the CA should be modified in order to promote Shared Parenting. Plainly, it is not for the judiciary to make that decision. That legislative power is for our democratically-elected Government. The duty of the judiciary, I would venture to suggest, is to apply the will of our elected Government – to obey Government – to the best of its ability. For it to do otherwise, either proactively or by omission, would be very wrong.

    Sir Nicholas is fully aware of the scientific evidence in favour of shared parenting. He is fully aware of the benefits to a child of maintaining a close and meaningful relationship with both its parents. We know this because, in the case of Re D (Children) [2010] EWCA Civ 50, Sir Nicholas was presented with a plethora of contemporary scientific evidence and research, which demonstrated, beyond all reasonable doubt, the veritable benefits for children of maintaining a close and meaningful relationship with both their parents.

    To his credit, Sir Nicholas reserved judgment in Re D and gave himself three weeks in which to carefully read and digest this very extensive scientific evidence, running to several hundred pages.

    To his further credit, in his eventual written judgement Sir Nicholas accepted the argument put forward by the litigant-in-person that current family law potentially relegates the harm done to children by giving insufficient weight to the importance of maintaining a close and meaningful relationship between children and both their parents.

    In summary, the judiciary is very aware of the serious harm which can be inflicted upon children when they are denied the right to maintain an on-going, close and meaningful relationship with both their parents.

    However, as was shown in Re D, the judiciary was hand-tied and constrained to apply current law. It could not, itself, introduce the new legal principle of Shared Parenting into the CA. Sir Nicholas has made it very clear that only Parliament has the power to do so.

    Those of us who have lost meaningful contact with our children due to current family law – and who live, day by day, in the soul-destroying knowledge that, according to the science, our children’s futures will be significantly blighted as a direct consequence – very much welcome our Government’s initiative on Shared Parenting.

    However, crucially, the Government should do all that it can to ensure that any modification to the CA will be robust enough to be effective in practice. The best person who can advise the Government on this specific point is Sir Nicholas Wall.

    I respectfully request that you advise me whether or not the Government will be seeking the input of Sir Nicholas on this very specific point.

    Yours Sincerely
    Bruno D’Itri

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