C4 DOCUMENTARY SERIES TO HELP SEPARATING FAMILIES
A major three-part television series for Channel 4 is being made about separating parents who cannot agree about the care of their children, focussing on the child’s perspective as much as possible and need your help.
Karen Hamilton Productions have contacted EPC with the following message:
“We are an award-winning independent television production company with a reputation for integrity and honesty, that specialises in intelligent, sensitively handled programmes.
This is the first time television has had the opportunity to see what happens when families come in contact with the legal system in an effort to resolve their differences. We have unprecedented access including to the work that CAFCASS does with families. We realise this is a difficult time for parents and children, but would like people to share this common experience in an effort to improve the situation for themselves and also for millions of other families now and in the future.
In order to make an informative and accurate documentary series it is important we speak to parents who are having trouble agreeing about the care of their children who are thinking about or are currently attending family court proceedings in either London or South East England with children of 7 years plus. Each person has a different story and each story we listen to helps us to become better informed about what the situation is like now and the possibilities for change.
After nearly two years of background research and preparation we are now at the stage of talking to parents and would appreciate your input. Any conversation we have would be confidential and would greatly assist with the project. You can contact Lara Leslie directly on 020 7503 1640 (or email lara@khpl.co.uk ) and we can call you back to save your phone bill. Talking to us in no way commits you to taking part in the series. Many thanks in advance for your help."
Please contact Lara direct.
www.EqualParenting.org
Thursday 7 December 2006
Saturday 2 December 2006
Family Court Secrecy - legal position reviewed
SUMMARY OF WEBSTER RULING (Mr Justice Munby)
The birth parents applied to have media attendance at the care proceedings for their fourth child as they claim that serious miscarriages had occurred with the adoption of their previous children and that reporting the issue would help to prevent further injustice. In his judgment, Munby J reviews all the key authorities covering the reporting of family proceedings and concludes that the proceedings should be opened to media representatives.
John Hemmingway MP has looked at Munby's Judgment and analysed what he thinks it means.
John Hemmingway MP says:
"This is important as it means that people can talk publicly about the cases they were involved in - when it has finished - as long as they don't use any of the court documents or discuss what actually happened in court. That is without applying for permission.
The amended information rules from 2005
http://www.opsi.gov.uk/si/si2005/20051976.htm
mean that you can send a copy of the judgment to any elected representative or Peer. Elected representative means an MP, AM or MEP. That does not have to be your own elected representative. Anyone with concerns about a judgment can send details to me with a copy of the judgment. Remember, however, that I cannot deal with any substantial load of casework and, therefore, are working in conjunction with affiliated campaigns on casework. It does allow some central recordkeeping as to the nature of problems, however."
The birth parents applied to have media attendance at the care proceedings for their fourth child as they claim that serious miscarriages had occurred with the adoption of their previous children and that reporting the issue would help to prevent further injustice. In his judgment, Munby J reviews all the key authorities covering the reporting of family proceedings and concludes that the proceedings should be opened to media representatives.
John Hemmingway MP has looked at Munby's Judgment and analysed what he thinks it means.
John Hemmingway MP says:
"This is important as it means that people can talk publicly about the cases they were involved in - when it has finished - as long as they don't use any of the court documents or discuss what actually happened in court. That is without applying for permission.
The amended information rules from 2005
http://www.opsi.gov.uk/si/si2005/20051976.htm
mean that you can send a copy of the judgment to any elected representative or Peer. Elected representative means an MP, AM or MEP. That does not have to be your own elected representative. Anyone with concerns about a judgment can send details to me with a copy of the judgment. Remember, however, that I cannot deal with any substantial load of casework and, therefore, are working in conjunction with affiliated campaigns on casework. It does allow some central recordkeeping as to the nature of problems, however."
Thursday 30 November 2006
Save our dads, says Telegraph article
READ THE TELEGRAPH ARTICLE & THEN HAVE YOUR SAY BY POSTING A COMMENT ON THIS BLOG - DO BE SURE TO READ COMMENTS POSTED BY OTHERS!
Lifeclass Extra: Save our dads
So many Telegraph readers are impassioned by the problem of fathers losing touch with their children after divorce that I'd like to invite readers to send their views in online, says Lesley Garner
Your view: Are we guilty of ignoring fathers' rights?
In this week's Lifeclass I highlighted, with the testimony of many of you, the inequities in the law.
The current system in the Family Courts divides parents into first and second class. One parent, usually, the mother, becomes first class, by virtue of being the resident parent. The other parent, usually the father, becomes second class, by simply being allocated visiting rights. But the second class can quickly become third class and then no class at all.
Disagreements, missed arrangements, the problem of maintaining a relationship with distressed children, prolonged court hearings and mounting costs drive a wedge between a father and his children. More and more evidence is coming in from readers that the system needs changing.
Responding to yesterday's article a father writes:
"Thank you for being one of the very first to highlight the plight of divorced fathers with such balance.
"I am one of the very few lucky ones in that, although my divorce was fairly acrimonious, my wife was always very keen that I should continue to have access on a shared basis. Until there is real momentum in the exposure of how many men ( and their children's grand parents) are marginalised by unfair procedures and the ineffectiveness and lack of balance within the family division, there will be ongoing anger.
"It takes real commitment and extraordinary effort by many men to put up with the vitriol from some women which so easily dissuades them from keeping in touch with their children. Especially when the courts do not enforce their decisions. All children are the losers."
Another father writes:
"I am a married father whose wife left me within weeks of our son being born. The last ten years have been almost unbelievable. Legal action for contact with my son continued for nine years. During this period I paid my solicitor over £100 per hour while my wife was legally aided. I also had child support payments to make to the CSA as contact with your children and liability to pay are not related issues.
"I have never been accused of any form of abuse, yet I have had no contact with my son for over a year, despite having an agreement reached through solicitors for my son to stay with me every second weekend. The courts do not enforce contact orders if the mother chooses to ignore them. This is a fact.
"After my ex-wife severed all contact with me my son went to pieces in class. I will never give up my struggle to be involved with my son despite the opposition of my wife, who is backed by the State."
What gives force to these arguments from Telegraph readers is that they are expressed by people across the board. It's not just fathers who feel disgruntled. The same message comes from wives, magistrates, grandparents and children who have lost contact with a father. Everyone wants to see a new emphasis put on the rights of children to have fathers and a new emphasis on shared parenting in the courts.
These are the views of a mother:
"I have come late to your discussion about fathers and families but was very moved by your column in the Telegraph today. Maybe you have a website where the discussion is ongoing and my comments could make a difference to other people who are going through difficult times.
"More than thirty years ago my husband left me when our son was less than six months old. My first reaction, frankly, was to go as far away as possible in order to deny him access to his son. I felt he had no right to his son. It did not take me long, however, to realise that his SON had an absolute and inalienable right to his FATHER.
"The ensuing years were not easy, to put it mildly. Both of us remarried and other children were born and I don't think matters were completely resolved until our son was married at the age of 27. But resolved they were and I have always felt that my decision was justified for my child's sake.
"However badly your husband has behaved or however badly you feel he has behaved your children have a right to their father and it is your duty to keep an avenue of communication open, where possible, for their sake."
This is my position on this issue. I agree with this mother. No matter the differences between parents, children need and have a right to both parents. I think there should be mandatory mediation in all cases where there is a dispute over children, before the matter goes expensively, and pointlessly, to court.
I can see, from the evidence of your experience, that there is a powerful case for the family court system to be overhauled and for the assumption of shared parenting to replace the present system of one primary and one secondary parent.
It's over to you. What do you think?
Lifeclass Extra: Save our dads
So many Telegraph readers are impassioned by the problem of fathers losing touch with their children after divorce that I'd like to invite readers to send their views in online, says Lesley Garner
Your view: Are we guilty of ignoring fathers' rights?
In this week's Lifeclass I highlighted, with the testimony of many of you, the inequities in the law.
The current system in the Family Courts divides parents into first and second class. One parent, usually, the mother, becomes first class, by virtue of being the resident parent. The other parent, usually the father, becomes second class, by simply being allocated visiting rights. But the second class can quickly become third class and then no class at all.
Disagreements, missed arrangements, the problem of maintaining a relationship with distressed children, prolonged court hearings and mounting costs drive a wedge between a father and his children. More and more evidence is coming in from readers that the system needs changing.
Responding to yesterday's article a father writes:
"Thank you for being one of the very first to highlight the plight of divorced fathers with such balance.
"I am one of the very few lucky ones in that, although my divorce was fairly acrimonious, my wife was always very keen that I should continue to have access on a shared basis. Until there is real momentum in the exposure of how many men ( and their children's grand parents) are marginalised by unfair procedures and the ineffectiveness and lack of balance within the family division, there will be ongoing anger.
"It takes real commitment and extraordinary effort by many men to put up with the vitriol from some women which so easily dissuades them from keeping in touch with their children. Especially when the courts do not enforce their decisions. All children are the losers."
Another father writes:
"I am a married father whose wife left me within weeks of our son being born. The last ten years have been almost unbelievable. Legal action for contact with my son continued for nine years. During this period I paid my solicitor over £100 per hour while my wife was legally aided. I also had child support payments to make to the CSA as contact with your children and liability to pay are not related issues.
"I have never been accused of any form of abuse, yet I have had no contact with my son for over a year, despite having an agreement reached through solicitors for my son to stay with me every second weekend. The courts do not enforce contact orders if the mother chooses to ignore them. This is a fact.
"After my ex-wife severed all contact with me my son went to pieces in class. I will never give up my struggle to be involved with my son despite the opposition of my wife, who is backed by the State."
What gives force to these arguments from Telegraph readers is that they are expressed by people across the board. It's not just fathers who feel disgruntled. The same message comes from wives, magistrates, grandparents and children who have lost contact with a father. Everyone wants to see a new emphasis put on the rights of children to have fathers and a new emphasis on shared parenting in the courts.
These are the views of a mother:
"I have come late to your discussion about fathers and families but was very moved by your column in the Telegraph today. Maybe you have a website where the discussion is ongoing and my comments could make a difference to other people who are going through difficult times.
"More than thirty years ago my husband left me when our son was less than six months old. My first reaction, frankly, was to go as far away as possible in order to deny him access to his son. I felt he had no right to his son. It did not take me long, however, to realise that his SON had an absolute and inalienable right to his FATHER.
"The ensuing years were not easy, to put it mildly. Both of us remarried and other children were born and I don't think matters were completely resolved until our son was married at the age of 27. But resolved they were and I have always felt that my decision was justified for my child's sake.
"However badly your husband has behaved or however badly you feel he has behaved your children have a right to their father and it is your duty to keep an avenue of communication open, where possible, for their sake."
This is my position on this issue. I agree with this mother. No matter the differences between parents, children need and have a right to both parents. I think there should be mandatory mediation in all cases where there is a dispute over children, before the matter goes expensively, and pointlessly, to court.
I can see, from the evidence of your experience, that there is a powerful case for the family court system to be overhauled and for the assumption of shared parenting to replace the present system of one primary and one secondary parent.
It's over to you. What do you think?
Thursday 16 November 2006
Bill to axe troubled CSA unveiled
See EPC comment below story.
The troubled Child Support Agency is to be axed and replaced, under legislation announced in the Queen's Speech.
By July the CSA, which has been dogged with complaints throughout its 13-year history, had a backlog of 300,000 cases and debts of £3bn.
The Child Support Bill aims to replace it with a smaller body and a simpler way of collecting child maintenance.
Ministers hope it will encourage more parents to make their own arrangements, part of a more cost-effective system.
The bill ends the requirement that all lone parents with care responsibilities who claim benefits must also submit a claim to receive child maintenance, regardless of whether they already had a private arrangement.
Work and Pensions Secretary John Hutton has said the government would seek more powers to deal with parents who repeatedly fail to pay maintenance - such as suspending passports and imposing curfews.
Criticism of the CSA has ranged from accusations of snooping and unfair settlements to its failure to collect millions of pounds in unpaid maintenance.
EPC COMMENT: Both parents should be responsible for supporting their children financially. It should not fall to the State to support the cost of raising children simply because the parents neglect their obligations.
Equally, both parents should be involved in the emotional support of their children. Where the State goes so wrong is in allowing (often encouraging) one parent (the de facto custodial parent)to exclude the other parent (sometimes totally) from their children's lives. Until Government gets this vital component right they will make no progress in installing a CSA system that works!
Story from BBC NEWS:
http://news.bbc.co.uk/go/pr/fr/-/1/hi/uk_politics/6151424.stm
www.EqualParenting.org
The troubled Child Support Agency is to be axed and replaced, under legislation announced in the Queen's Speech.
By July the CSA, which has been dogged with complaints throughout its 13-year history, had a backlog of 300,000 cases and debts of £3bn.
The Child Support Bill aims to replace it with a smaller body and a simpler way of collecting child maintenance.
Ministers hope it will encourage more parents to make their own arrangements, part of a more cost-effective system.
The bill ends the requirement that all lone parents with care responsibilities who claim benefits must also submit a claim to receive child maintenance, regardless of whether they already had a private arrangement.
Work and Pensions Secretary John Hutton has said the government would seek more powers to deal with parents who repeatedly fail to pay maintenance - such as suspending passports and imposing curfews.
Criticism of the CSA has ranged from accusations of snooping and unfair settlements to its failure to collect millions of pounds in unpaid maintenance.
EPC COMMENT: Both parents should be responsible for supporting their children financially. It should not fall to the State to support the cost of raising children simply because the parents neglect their obligations.
Equally, both parents should be involved in the emotional support of their children. Where the State goes so wrong is in allowing (often encouraging) one parent (the de facto custodial parent)to exclude the other parent (sometimes totally) from their children's lives. Until Government gets this vital component right they will make no progress in installing a CSA system that works!
Story from BBC NEWS:
http://news.bbc.co.uk/go/pr/fr/-/1/hi/uk_politics/6151424.stm
www.EqualParenting.org
Sunday 5 November 2006
Blair has killed family life, says Maureen Freely
Maureen's article appears in today's Sunday Times magazine.
EXTRACTS FROM ARTICLE:
Prime suspect
Lifelong Labour supporter Maureen Freely has been at the thick of family policy for a decade as an author, academic and political commentator — and as a mother of four. But she can take no more. The government, she argues, has killed family life. And all the evidence points to Tony Blair being the main culprit
ON DIVORCE MAUREEN SAYS:
Though officially committed to shared parenting after separation and divorce, and fully aware that our family court system is a disaster – exacerbating conflicts between parents, creating conflicts where none existed, and often permanently excluding one parent, generally the father, for reasons anybody who was not a judge or a family court welfare officer would call capricious – the government has changed nothing. It has commissioned a few reports and pilot projects and left it at that. Meanwhile, families continue to travel through this discredited system at the rate of 80,000 a year.
If we calculate that the average family includes two children, we can see that family courts affect the lives of a quarter of a million men, women and children annually, and often adversely.
WITNESS: Stephen Wiser
Stephen Wiser, 55, a company director from Hertfordshire, was divorced five years ago. He has four children from his marriage, whom he hasn’t seen for six years. He is a co-founder of the parent-support group Jump
“I have pictures of my children and I kiss them every morning and every night. I have been self-employed for 35 years. I feel unsupported and let down by this government because of their inability, or unwillingness, to adequately reform the family law system. Before this election this government introduced a pilot project —“the early interventions project” — to intervene with mediation and speed up the divorce process, because what happens is you can get a court date, which may take three months, then it can be adjourned for three months. So six months have gone by and children are becoming alienated from the nonresident parent.. But the project was just another ploy to buy a year of inaction and get them past the last election without too much controversy. As predicted by everyone, it was an unmitigated disaster, and wasted millions of pounds.
“I realised the government would never be forced to change or couldn’t afford to be seen to be caving in to pressure from the likes of Fathers4Justice, which is why I started a political initiative to move matters along. The result has been effectively no meaningful response from the government. Regarding family law, I’ve supplied written submissions to the constitutional affairs committee, the Department for Education and Skills, and Cafcass (Children and Family Court Advisory and Support Service). Cafcass is the organisation that acts as expert witness — to interview the children and families and report back to the courts. Listening in on the debates in parliament, you realise that Cafcass is totally underfunded, overworked, understaffed and demoralised, and still the government doesn’t come up with any money to help them do the job properly.
“This government should be more interested in improving people’s lives, not simply maintaining the status quo and attracting headlines for what they aspire, but fail, to do. The situation is so frustrating that some solicitors have banded together. They’re now called collaborative law solicitors, which means that the two sets of solicitors work to reach an agreement before it gets to court. If they fail to reach an agreement, neither of them can act for that client. So they have a vested interest in cutting away all cost, all the delay. It’s all in the child’s best interest.
“When I started this, I didn’t expect there to be any benefit or change in my personal circumstances. I’ve done this for the hundreds of thousands of other parents, and children and grandparents who don’t get a look-in in this situation. It’s a national disgrace.”
Click here to access the full article.
EXTRACTS FROM ARTICLE:
Prime suspect
Lifelong Labour supporter Maureen Freely has been at the thick of family policy for a decade as an author, academic and political commentator — and as a mother of four. But she can take no more. The government, she argues, has killed family life. And all the evidence points to Tony Blair being the main culprit
ON DIVORCE MAUREEN SAYS:
Though officially committed to shared parenting after separation and divorce, and fully aware that our family court system is a disaster – exacerbating conflicts between parents, creating conflicts where none existed, and often permanently excluding one parent, generally the father, for reasons anybody who was not a judge or a family court welfare officer would call capricious – the government has changed nothing. It has commissioned a few reports and pilot projects and left it at that. Meanwhile, families continue to travel through this discredited system at the rate of 80,000 a year.
If we calculate that the average family includes two children, we can see that family courts affect the lives of a quarter of a million men, women and children annually, and often adversely.
WITNESS: Stephen Wiser
Stephen Wiser, 55, a company director from Hertfordshire, was divorced five years ago. He has four children from his marriage, whom he hasn’t seen for six years. He is a co-founder of the parent-support group Jump
“I have pictures of my children and I kiss them every morning and every night. I have been self-employed for 35 years. I feel unsupported and let down by this government because of their inability, or unwillingness, to adequately reform the family law system. Before this election this government introduced a pilot project —“the early interventions project” — to intervene with mediation and speed up the divorce process, because what happens is you can get a court date, which may take three months, then it can be adjourned for three months. So six months have gone by and children are becoming alienated from the nonresident parent.. But the project was just another ploy to buy a year of inaction and get them past the last election without too much controversy. As predicted by everyone, it was an unmitigated disaster, and wasted millions of pounds.
“I realised the government would never be forced to change or couldn’t afford to be seen to be caving in to pressure from the likes of Fathers4Justice, which is why I started a political initiative to move matters along. The result has been effectively no meaningful response from the government. Regarding family law, I’ve supplied written submissions to the constitutional affairs committee, the Department for Education and Skills, and Cafcass (Children and Family Court Advisory and Support Service). Cafcass is the organisation that acts as expert witness — to interview the children and families and report back to the courts. Listening in on the debates in parliament, you realise that Cafcass is totally underfunded, overworked, understaffed and demoralised, and still the government doesn’t come up with any money to help them do the job properly.
“This government should be more interested in improving people’s lives, not simply maintaining the status quo and attracting headlines for what they aspire, but fail, to do. The situation is so frustrating that some solicitors have banded together. They’re now called collaborative law solicitors, which means that the two sets of solicitors work to reach an agreement before it gets to court. If they fail to reach an agreement, neither of them can act for that client. So they have a vested interest in cutting away all cost, all the delay. It’s all in the child’s best interest.
“When I started this, I didn’t expect there to be any benefit or change in my personal circumstances. I’ve done this for the hundreds of thousands of other parents, and children and grandparents who don’t get a look-in in this situation. It’s a national disgrace.”
Click here to access the full article.
Friday 6 October 2006
Basinger on trial for breaching court orders
Kim Basinger will go to trial after pleading not guilty Wednesday to disregarding court orders concerning ex-husband Alec Baldwin's visitation rights with their daughter, a court official ordered.It is alleged that Kim Basinger ignored court orders by not letting her ex-husband know she would be out of town working so that he could take care of their 10-year-old daughter until she returned. On one occasion, Basinger also did not tell Baldwin their daughter, Ireland, was injured and required medical help, according to the court papers.
The Academy Award-winning actress faces up to 60 days in jail and a £24,000 fine if convicted of all counts. Baldwin, 48, and Basinger, 52, separated in 2000 after seven years of marriage.
EPC COMMENT:
Apparently the courts in LA, California take contact denial seriously. This is a far cry from the way British courts work. Our family courts would, of course, support Basinger in her campaign to exclude the father from their child's life and would villify Alec Baldwin for using the courts to try and stay a meaningful part of his daughter's life!
www.EqualParenting.org
Wednesday 4 October 2006
Plans to make family courts open and fair
Equal Parenting Council (EPC) and other parenting organizations have been invited to a discussion tomorrow with Rt Hon Harriet Harman QC MP on "openness and fairness in the family courts".
Harriet Harman says she plans to set out her thinking on family law followed by a discussion on the recommendations made in the consultation paper.
EPC President, Tony Coe, said that his organization was “underwhelmed” by the proposals:
Whilst we welcome any move towards ending the secrecy and unfairness that characterizes our family justice system, I’m not sure how these proposals will, in the real world, improve matters for children, parents and grandparents. He added:
1. EPC is in favour of making the family courts as open as possible. We believe that justice in a modern democracy should operate in an environment of total openness with complete public access to all proceedings and rulings. We believe that should always be the over-arching, default principle.
2. At the same time we recognize that there will be circumstances where restrictions have to be put in place to ensure a fair trial and/or the protection of vulnerable children. However, courts should be required to set out compelling reasons for imposing such restrictions after hearing arguments for and against. Such decisions should be subject to an automatic right of appeal. They ought to be the exception rather than the rule.
3. We do not believe that ordinary disputes over residence and contact should ever give rise to such restrictions. Public access is not restricted in any part of USA and, in all our research into Best Practice across USA jurisdictions, we have never heard a complaint that a child suffered harm as a direct result of publicity.
(By “ordinary” cases, we mean those where there is no genuine safety issue.)
4. We welcome the addition of the concept of “fairness” alongside that of “openness”. EPC is much more interested in tackling our family courts’ unfair treatment of non-resident (i.e. non-custodial) parents. Non-resident parents are often treated in a derisory manner by judges and CAFCASS. They are routinely awarded zero or paltry parenting time (so-called contact) simply on the say so of the resident (custodial) parent. Yet fairness demands that both parents should be treated equally unless there is proven evidence of unfitness.
5. Fairness cannot be guaranteed under the present legislation which affords the non-resident parent no presumption of ANY parenting time with their child. The Government says there should be no presumption, because that would conflict with the principle that the courts should decide whatever serves the best interests of the child. But this ignores the reality that the resident parent always has a de facto presumption of parenting time - and indeed a presumption of total control over the care of the child. In the vast majority of cases this operates against the child’s welfare.
6. In conclusion, we are much more interested in a discussion about how the system can be improved so that children can be guaranteed frequent, continuing and substantial parenting time with their non-resident parent. (Substantial means between one third and half of the available parenting time.) Openness, while essential, is something of a side issue.
www.EqualParenting.org
Harriet Harman says she plans to set out her thinking on family law followed by a discussion on the recommendations made in the consultation paper.
EPC President, Tony Coe, said that his organization was “underwhelmed” by the proposals:
Whilst we welcome any move towards ending the secrecy and unfairness that characterizes our family justice system, I’m not sure how these proposals will, in the real world, improve matters for children, parents and grandparents. He added:
1. EPC is in favour of making the family courts as open as possible. We believe that justice in a modern democracy should operate in an environment of total openness with complete public access to all proceedings and rulings. We believe that should always be the over-arching, default principle.
2. At the same time we recognize that there will be circumstances where restrictions have to be put in place to ensure a fair trial and/or the protection of vulnerable children. However, courts should be required to set out compelling reasons for imposing such restrictions after hearing arguments for and against. Such decisions should be subject to an automatic right of appeal. They ought to be the exception rather than the rule.
3. We do not believe that ordinary disputes over residence and contact should ever give rise to such restrictions. Public access is not restricted in any part of USA and, in all our research into Best Practice across USA jurisdictions, we have never heard a complaint that a child suffered harm as a direct result of publicity.
(By “ordinary” cases, we mean those where there is no genuine safety issue.)
4. We welcome the addition of the concept of “fairness” alongside that of “openness”. EPC is much more interested in tackling our family courts’ unfair treatment of non-resident (i.e. non-custodial) parents. Non-resident parents are often treated in a derisory manner by judges and CAFCASS. They are routinely awarded zero or paltry parenting time (so-called contact) simply on the say so of the resident (custodial) parent. Yet fairness demands that both parents should be treated equally unless there is proven evidence of unfitness.
5. Fairness cannot be guaranteed under the present legislation which affords the non-resident parent no presumption of ANY parenting time with their child. The Government says there should be no presumption, because that would conflict with the principle that the courts should decide whatever serves the best interests of the child. But this ignores the reality that the resident parent always has a de facto presumption of parenting time - and indeed a presumption of total control over the care of the child. In the vast majority of cases this operates against the child’s welfare.
6. In conclusion, we are much more interested in a discussion about how the system can be improved so that children can be guaranteed frequent, continuing and substantial parenting time with their non-resident parent. (Substantial means between one third and half of the available parenting time.) Openness, while essential, is something of a side issue.
www.EqualParenting.org
Sunday 17 September 2006
US courts recognise Parental Alienation damage
How Divorce Wars Take A Toll On Kids
Children Are Often Caught In The Middle Between Feuding Parents
Quote
"It's easy to teach a child to hate. Courts are now recognizing this is a serious problem."
--------------------------------------------------------------------------------
Richard Warshak, author
(CBS) Children often get caught up in their parents' divorce battles, forced to take sides. As Tracy Smith reports, "parental alienation" can take a serious toll on kids.
Experts tell Smith that a child easily picks up the hostile cues of one parent toward another. And whether those cues are subtle or intentional, either way the child suffers and can carry that burden into adulthood.
One girl who loved both parents very much but got caught in divorce crossfire is Victoria Peters.
Her parents also loved her — so much that they spent hundreds of thousands of dollars and five years battling in court to win custody.
"It was gut wrenching," remembers Victoria's father, Kevin Peters. "The whole thing was strange."
Franny Carney, Victoria's mom, says, "It's hell. It's like living in hell."
It was not an ordinary custody case.
Victoria's father claims that for years, while his ex-wife had full custody, she led a campaign to turn his daughter against him, what some experts refer to as "parental alienation."
"It's easy to teach a child to hate. Courts are now recognizing this is a serious problem," explains author Richard Warshak. "The children's affections are being poisoned against the other parent."
Kevin says the alienation campaign began with last-minute changes to his scheduled visits with Victoria.
"It was always an excuse that, on my weekend, there was some reason she couldn't come," Kevin says.
But Franny says she did not deny him visits.
"My daughter was locked in a closet when I called," Kevin tells Smith. Her mother would say, 'Lets go get in the closet. It's your dad.' "
Months went by. Kevin lost his temper. The police were called. His visits then had to be supervised. But even then, he says, his ex-wife continued to prevent him from seeing Victoria.
Franny contends that Kevin, who suffers from chronic depression, was emotionally unstable.
"I was frightened of him, ya know? When he was out of line, me and my daughter hid in the back of the bathroom," Franny says.
As charges mounted against Kevin, a court-appointed evaluator had to decide: Were these charges real or was there a concerted effort by Franny to turn Victoria against her father?
"Parental alienation is one of the common dynamics that occurs in high-conflict cases," says Daniel Stockley, a parental evaluator.
"The mother had difficulty, in this case, of letting go of, almost like an obsessive thought, that the child was at risk," says Stockley.
(At 8 years old, Victoria is skilled in the language of diplomacy. "I like living with my mom and I like living with my dad, so ..." she tells Smith.
But sometimes children are forced to take sides.
"I couldn't love my mom and my dad at the same time. I felt bad," says Michelle Martin, an adult child of divorce. Michelle says she was alienated from her father as a child.
"It shocked me how quickly and dramatically I changed my opinion of him. I would have nothing to do with him," she recalls.
According to experts, Michelle's case is typical because, when pressed, she couldn't tell anyone why she was so angry.
"He hadn't done anything to hurt me. And so, when I was asked for details, I didn't have them," she says. "I still, to this day, have to live with the mean things I said to him. The letters that I wrote to him. There are things I did purposely to hurt him."
Victoria, who was caught in a similar crossfire, had been in therapy since she was 3, frequently accompanied by her mother. It wasn't until the therapist's notes were finally subpoenaed that a disturbing pattern emerged that turned Kevin's case around.
"The telltale one is 'My mom says there's a side of my dad that I've never seen before, real mean.' And the therapist says, 'Have you ever seen that side?' 'No.' 'Do you believe it's there?' 'Yeah, I always believe my mom,' " says Kevin's attorney, Robert Fry.
Page after page of citations documented Victoria's growing fear and distress.
"The evidence was overwhelming that the relationship with the father was beginning to suffer," says Stockley.
In April 2005, in a startling decision, the court found that "an immediate change of custody appears to be in the best interest of the child" and Kevin was awarded full custody of Victoria.
"I was excited and stunned a little bit at the same time," Kevin remembers.
Ironically, it is Franny Carney, who now, because of what the court saw as alienating behavior, cannot see her daughter without a supervisor.
"I raised her for seven and a half years. I was involved in every area of her life," Franny says.
The court did not deny that she was a conscientious parent but the ruling made clear Victoria needed to see both her parents. The daughter Franny fought so hard to protect is living with her father
"I just come in to the house and I sit down and I cry," says Franny.
Victoria is reluctant to talk about any of it now. "I just mind my own business.
I love them both. It doesn't matter whose side I am on," she says.
As for Kevin, he's just happy for every moment he has with his daughter.
"I don't want her to think I'm a Superman or a hero or anything. I just want her to, you know, say 'My dad did what he was supposed to do,' " Kevin tells Smith, crying.
Experts say alienation can happen with both moms and dads. But this concept is still very controversial because charges of parental alienation have been used falsely in the past to defend fathers who really are abusive. And if the courts believe them, the abusive dads can get their children back.
www.EqualParenting.org
Children Are Often Caught In The Middle Between Feuding Parents
Quote
"It's easy to teach a child to hate. Courts are now recognizing this is a serious problem."
--------------------------------------------------------------------------------
Richard Warshak, author
(CBS) Children often get caught up in their parents' divorce battles, forced to take sides. As Tracy Smith reports, "parental alienation" can take a serious toll on kids.
Experts tell Smith that a child easily picks up the hostile cues of one parent toward another. And whether those cues are subtle or intentional, either way the child suffers and can carry that burden into adulthood.
One girl who loved both parents very much but got caught in divorce crossfire is Victoria Peters.
Her parents also loved her — so much that they spent hundreds of thousands of dollars and five years battling in court to win custody.
"It was gut wrenching," remembers Victoria's father, Kevin Peters. "The whole thing was strange."
Franny Carney, Victoria's mom, says, "It's hell. It's like living in hell."
It was not an ordinary custody case.
Victoria's father claims that for years, while his ex-wife had full custody, she led a campaign to turn his daughter against him, what some experts refer to as "parental alienation."
"It's easy to teach a child to hate. Courts are now recognizing this is a serious problem," explains author Richard Warshak. "The children's affections are being poisoned against the other parent."
Kevin says the alienation campaign began with last-minute changes to his scheduled visits with Victoria.
"It was always an excuse that, on my weekend, there was some reason she couldn't come," Kevin says.
But Franny says she did not deny him visits.
"My daughter was locked in a closet when I called," Kevin tells Smith. Her mother would say, 'Lets go get in the closet. It's your dad.' "
Months went by. Kevin lost his temper. The police were called. His visits then had to be supervised. But even then, he says, his ex-wife continued to prevent him from seeing Victoria.
Franny contends that Kevin, who suffers from chronic depression, was emotionally unstable.
"I was frightened of him, ya know? When he was out of line, me and my daughter hid in the back of the bathroom," Franny says.
As charges mounted against Kevin, a court-appointed evaluator had to decide: Were these charges real or was there a concerted effort by Franny to turn Victoria against her father?
"Parental alienation is one of the common dynamics that occurs in high-conflict cases," says Daniel Stockley, a parental evaluator.
"The mother had difficulty, in this case, of letting go of, almost like an obsessive thought, that the child was at risk," says Stockley.
(At 8 years old, Victoria is skilled in the language of diplomacy. "I like living with my mom and I like living with my dad, so ..." she tells Smith.
But sometimes children are forced to take sides.
"I couldn't love my mom and my dad at the same time. I felt bad," says Michelle Martin, an adult child of divorce. Michelle says she was alienated from her father as a child.
"It shocked me how quickly and dramatically I changed my opinion of him. I would have nothing to do with him," she recalls.
According to experts, Michelle's case is typical because, when pressed, she couldn't tell anyone why she was so angry.
"He hadn't done anything to hurt me. And so, when I was asked for details, I didn't have them," she says. "I still, to this day, have to live with the mean things I said to him. The letters that I wrote to him. There are things I did purposely to hurt him."
Victoria, who was caught in a similar crossfire, had been in therapy since she was 3, frequently accompanied by her mother. It wasn't until the therapist's notes were finally subpoenaed that a disturbing pattern emerged that turned Kevin's case around.
"The telltale one is 'My mom says there's a side of my dad that I've never seen before, real mean.' And the therapist says, 'Have you ever seen that side?' 'No.' 'Do you believe it's there?' 'Yeah, I always believe my mom,' " says Kevin's attorney, Robert Fry.
Page after page of citations documented Victoria's growing fear and distress.
"The evidence was overwhelming that the relationship with the father was beginning to suffer," says Stockley.
In April 2005, in a startling decision, the court found that "an immediate change of custody appears to be in the best interest of the child" and Kevin was awarded full custody of Victoria.
"I was excited and stunned a little bit at the same time," Kevin remembers.
Ironically, it is Franny Carney, who now, because of what the court saw as alienating behavior, cannot see her daughter without a supervisor.
"I raised her for seven and a half years. I was involved in every area of her life," Franny says.
The court did not deny that she was a conscientious parent but the ruling made clear Victoria needed to see both her parents. The daughter Franny fought so hard to protect is living with her father
"I just come in to the house and I sit down and I cry," says Franny.
Victoria is reluctant to talk about any of it now. "I just mind my own business.
I love them both. It doesn't matter whose side I am on," she says.
As for Kevin, he's just happy for every moment he has with his daughter.
"I don't want her to think I'm a Superman or a hero or anything. I just want her to, you know, say 'My dad did what he was supposed to do,' " Kevin tells Smith, crying.
Experts say alienation can happen with both moms and dads. But this concept is still very controversial because charges of parental alienation have been used falsely in the past to defend fathers who really are abusive. And if the courts believe them, the abusive dads can get their children back.
www.EqualParenting.org
Encouraging signs in Oz after family law reforms
Fathers benefit from new family law rules
Reporter: Sabra Lane
MARK COLVIN: New family law rules came into effect two months ago, designed to give children more time with their non-custodial parents, most often the father. The new regime's known as "shared responsibility".
The courts are starting to hand down judgements under the new laws. It's too early to assess overall trends, but there have been some interesting decisions and it seems fathers are getting a benefit from the changes.
A week ago, the Federal Magistrates Court ordered that a mother could not move her children interstate because it would stop the children from having a meaningful relationship with their father.
Another judge recently ruled that a father who'd previously had access to his child just once a fortnight should now have custody during school holidays, on special occasions like Easter and Christmas, and on birthdays.
Sabra Lane reports.
SABRA LANE: Family bust-ups can be really ugly with lengthy, bitter court battles costing hundreds of thousands of dollars.
Legally, reporters can't identify individuals involved in family court matters.
This man, known as BJ, was one of the first cases under the revamped family laws.
His voice has been disguised to keep his identity secret.
Before July BJ saw his child just once a fortnight.
BJ: I want to be in her life. I want to see her grow. I want to do homework. I want to take her out. I want to take her to school. I want to go to excursions. I want to do everything with her.
Just because you separate and you divorce doesn't mean the father hasn't got a right to see his child.
SABRA LANE: But the Family Court recently ruled that had to change.
BJ explains how often he sees his daughter now.
BJ: Half of school holidays, special occasions, birthdays, her birthday, Christmas, Easter, Friday, Saturday, Sunday and Monday after school.
SABRA LANE: Two years ago the Federal Government held a parliamentary inquiry into child custody.
It heard research that one in four children from broken homes only had contact with their dads once a year.
The inquiry resulted in new laws where courts had to consider giving equal time with both parents where possible, or substantial and significant time to non-custodial parents.
Barry Frakes from legal firm Watts McCray helped BJ with his case.
BARRY FRAKES: He really felt that the court had heard what he had to say and recognised the need for the child to have a real relationship with him, which was more than a visitor kind of relationship.
The court doesn't talk about 'access' any more, it talks about the time and makes sure that there is a 'meaningful' relationship.
So important events, holiday times, but also just the day-to-day stuff that happens during the weekdays is also important to kids.
And so the arrangements for that child in that case meant that the father could be really part of her life, day-to-day.
SABRA LANE: BJ battled his wife in court for three years, and until May this year he handled his case without a lawyer.
While happy with his ruling, BJ encourages other dads to resolve their problems without lawyers.
BJ: Do not go to court. It cost me $100,000 to fight in court. Communication is the most important thing. Leave solicitors out of the conflict.
SABRA LANE: Lawyers are also analysing another decision handed down last week by the Federal Magistrates Court.
It ruled a mother couldn't move her two children interstate, more than 1,000 kilometres from their father, because re-locating to another city would deprive the children any chance of a meaningful relationship with their dad.
Barry Frakes also represented the father in this case.
He says research prior to the new legislation, showed most contested relocation rulings favoured the parents who wanted to move.
BARRY FRAKES: In 76% of those cases the court permitted the relocation. In this case, the court decided that it wasn't in the best interests of the children to permit a relocation, and in the circumstances I think that reflects the direction of this current legislation, that it's going to be harder for a person who wants to move to satisfy a court that the children will still have a meaningful relationship with the other person when they're not seeing them for many months at a time.
SABRA LANE: Principal Solicitor with Women's Legal Services NSW, Janet Loughman, says she's not surprised.
JANET LOUGHMAN: We've been expecting the pendulum to swing, I suppose.
They're very difficult cases, weighing up really difficult competing interests but our experience has been that the courts are always more willing to place restrictions on the movement of the resident parent, usually a mother, than they are to place similar restrictions on contact parents, usually fathers. So I suppose, not a surprise.
SABRA LANE: Women's Legal Services NSW now wants further changes to the Family Law Act, particularly in relocation cases.
While courts place the child's needs first, Janet Loughman says they should give equal weight to the emotional well-being of the parent whose freedom is restricted.
JANET LOUGHMAN: We're pushing for an additional factor to be taken into account in these kind of cases, so that sufficient weight is given to the link between the welfare of the child and their primary carer, whether that be the mother or the father, and the effect of the refusal to allow a relocation also should be part of that decision.
SABRA LANE: Barry Frakes believes we could be witnessing a major change in Family Law, with courts now favouring fathers.
BARRY FRAKES: In some respects, people would think that the decisions might have been made under the old law in the same way, but I do think that the judgements themselves reflect that the court is taking seriously the need for fathers to have a meaningful relationship with their children.
MARK COLVIN: Lawyer Barry Frakes ending that report from Sabra Lane.
www.EqualParenting.org
Reporter: Sabra Lane
MARK COLVIN: New family law rules came into effect two months ago, designed to give children more time with their non-custodial parents, most often the father. The new regime's known as "shared responsibility".
The courts are starting to hand down judgements under the new laws. It's too early to assess overall trends, but there have been some interesting decisions and it seems fathers are getting a benefit from the changes.
A week ago, the Federal Magistrates Court ordered that a mother could not move her children interstate because it would stop the children from having a meaningful relationship with their father.
Another judge recently ruled that a father who'd previously had access to his child just once a fortnight should now have custody during school holidays, on special occasions like Easter and Christmas, and on birthdays.
Sabra Lane reports.
SABRA LANE: Family bust-ups can be really ugly with lengthy, bitter court battles costing hundreds of thousands of dollars.
Legally, reporters can't identify individuals involved in family court matters.
This man, known as BJ, was one of the first cases under the revamped family laws.
His voice has been disguised to keep his identity secret.
Before July BJ saw his child just once a fortnight.
BJ: I want to be in her life. I want to see her grow. I want to do homework. I want to take her out. I want to take her to school. I want to go to excursions. I want to do everything with her.
Just because you separate and you divorce doesn't mean the father hasn't got a right to see his child.
SABRA LANE: But the Family Court recently ruled that had to change.
BJ explains how often he sees his daughter now.
BJ: Half of school holidays, special occasions, birthdays, her birthday, Christmas, Easter, Friday, Saturday, Sunday and Monday after school.
SABRA LANE: Two years ago the Federal Government held a parliamentary inquiry into child custody.
It heard research that one in four children from broken homes only had contact with their dads once a year.
The inquiry resulted in new laws where courts had to consider giving equal time with both parents where possible, or substantial and significant time to non-custodial parents.
Barry Frakes from legal firm Watts McCray helped BJ with his case.
BARRY FRAKES: He really felt that the court had heard what he had to say and recognised the need for the child to have a real relationship with him, which was more than a visitor kind of relationship.
The court doesn't talk about 'access' any more, it talks about the time and makes sure that there is a 'meaningful' relationship.
So important events, holiday times, but also just the day-to-day stuff that happens during the weekdays is also important to kids.
And so the arrangements for that child in that case meant that the father could be really part of her life, day-to-day.
SABRA LANE: BJ battled his wife in court for three years, and until May this year he handled his case without a lawyer.
While happy with his ruling, BJ encourages other dads to resolve their problems without lawyers.
BJ: Do not go to court. It cost me $100,000 to fight in court. Communication is the most important thing. Leave solicitors out of the conflict.
SABRA LANE: Lawyers are also analysing another decision handed down last week by the Federal Magistrates Court.
It ruled a mother couldn't move her two children interstate, more than 1,000 kilometres from their father, because re-locating to another city would deprive the children any chance of a meaningful relationship with their dad.
Barry Frakes also represented the father in this case.
He says research prior to the new legislation, showed most contested relocation rulings favoured the parents who wanted to move.
BARRY FRAKES: In 76% of those cases the court permitted the relocation. In this case, the court decided that it wasn't in the best interests of the children to permit a relocation, and in the circumstances I think that reflects the direction of this current legislation, that it's going to be harder for a person who wants to move to satisfy a court that the children will still have a meaningful relationship with the other person when they're not seeing them for many months at a time.
SABRA LANE: Principal Solicitor with Women's Legal Services NSW, Janet Loughman, says she's not surprised.
JANET LOUGHMAN: We've been expecting the pendulum to swing, I suppose.
They're very difficult cases, weighing up really difficult competing interests but our experience has been that the courts are always more willing to place restrictions on the movement of the resident parent, usually a mother, than they are to place similar restrictions on contact parents, usually fathers. So I suppose, not a surprise.
SABRA LANE: Women's Legal Services NSW now wants further changes to the Family Law Act, particularly in relocation cases.
While courts place the child's needs first, Janet Loughman says they should give equal weight to the emotional well-being of the parent whose freedom is restricted.
JANET LOUGHMAN: We're pushing for an additional factor to be taken into account in these kind of cases, so that sufficient weight is given to the link between the welfare of the child and their primary carer, whether that be the mother or the father, and the effect of the refusal to allow a relocation also should be part of that decision.
SABRA LANE: Barry Frakes believes we could be witnessing a major change in Family Law, with courts now favouring fathers.
BARRY FRAKES: In some respects, people would think that the decisions might have been made under the old law in the same way, but I do think that the judgements themselves reflect that the court is taking seriously the need for fathers to have a meaningful relationship with their children.
MARK COLVIN: Lawyer Barry Frakes ending that report from Sabra Lane.
www.EqualParenting.org
Friday 1 September 2006
Times article on COLLABORATIVE LAW
We're splitting up, but need it be expensive?By District Judge Stephen Gerlis
The McCartney split throws into focus the search for an alternative to costly family financial disputes
Stephen Gerlis is a district judge at Barnet County Court
So the battle lines are drawn. Sir Paul McCartney and Lady McCartney have both instructed high-flying and highly-paid divorce lawyers and if nothing is done to stop a descent into all-out war it may well prove to be an expensive exercise for both parties, no matter how well-heeled they are. The signs are not good, given the preliminary skirmishes that have taken place in the pages of the tabloid press.
The McCartney's marriage problems have surfaced at the same time as other high-profile and highly publicised cases, the latest being that of Beverley Charman, who recovered some £48 million to the disgust of her husband, an insurance magnate. Mr Charman threatens to appeal the decision, no doubt running up more lawyers’ fees in the process.
These seemingly intransigent disputes are repeated daily in family courts up and down the country and are not limited to large money cases. I frequently tell the parties, "Costs in financial disputes are like a taxi-meter that revolves faster and faster the longer the dispute goes on and the closer to a trial. Your solicitor will get paid, your barrister will get paid, but it will come out of your pockets." Recent changes in the family costs rules means that it will only be in exceptional cases that one party will be ordered to pay the other party’s costs.
Is there any way of preventing matters from getting out of hand and keeping costs to a minimum? The court itself has a built-in mechanism for attempting to resolve such matters without the need for a trial. Known as "financial dispute resolution" hearings, they are conducted by a judge who is there to assist the parties in trying to reach an acceptable compromise. However, the hearings are the last step before a trial, which means they inevitably take place at a time when the parties may already be too far entrenched and determined on a downward slope to uncertain and costly litigation.
But a new approach is beginning to produce interesting results and may show the way forward to a quicker, cheaper, more enduring solution.
Many family solicitors have adopted a system known as "collaborative practice". Collaborative practice requires transparency, respect and a focus on constructive outcomes in the participation agreement that the lawyers and clients sign at the outset. For lawyers to become part of the process, they have to take part in an intensive initial two-day training. Each party to a family property dispute instructs a lawyer who is suitably qualified for this new procedure. All of the progress is generally achieved at meetings attended by both clients and their solicitors. While the process continues, the client must call a halt to court proceedings.
Significantly, if the negotiations break down then the lawyers are not permitted to continue to act for the clients. This operates as an encouragement for the parties to reach an amicable outcome rather than rush to court. Its stated aim is to "seek to put the client’s aspirations and values at the centre of the process and the outcome that it provides". The lawyer’s role is not adversarial, as it would be if the matter went to court; it is, rather, supportive and advisory. What the court might or might not do is not the issue – reaching a satisfactory settlement is the name of the game.
Collaborative practice has apparently been spectacularly successful with the members reporting virtually complete success. Consent orders sent to court for endorsement contain a standard paragraph confirming that consent has been reached as a result of collaborative practice.
Perhaps marriage breakdown needs a sort of United Nations approach to encourage a ceasefire between the parties. It may be that collaborative practice provides that service. It is certainly worth a try.
Click here at access article on Times site
Monday 21 August 2006
Joint Custody Bill - Michigan, USA
EPC COMMENT: do the opposing arguments sound familiar at all? Definitely, but in UK "noncustodial parents" do not even enjoy a presumption of ANY custody or contact!!! As a result, too many UK parents don't even get to see their kids.Cory D. Mackwood: Joint custody bill should receive speedy approval
The Committee on Family and Children Services of the Michigan House of Representatives soon will debate HB 5267, introduced last October by Rep. Leslie Mortimer, R-Horton.
This proposed legislation would require a "presumption of joint physical custody" after divorce unless a parent is unfit, unwilling or unable to care for their child. It makes an exception if a parent doesn't reside in the child's school district and cannot maintain the child's present schedule.
Michigan Family Courts apply a custody standard designed in 1970 that requires both parents agree to joint physical custody or it is deemed unmanageable. Ask yourself how likely it is that some parent(s) may withhold this agreement solely to deny equal custody to the other parent?
HB 5267 has stirred many organizations to use scare tactics to assert that this bill is wrong for Michigan and its children. They remind us of abusive noncustodial parents that would "gain access" to the other parent. HB 5267 wouldn't support this kind of parent as joint physical custodian.
Critics of HB 5267 claim that noncustodial parents want joint physical custody to reduce child support and to rob our children of needed money.
Forget the vileness of this assertion; HB 5267 makes no change to the current child support formula.
Lawyers opposing HB 5267 assert that it will take discretion from judges. HB 5267 doesn't take discretion from judges; it replaces 1970 standards with 2006 standards. It will, however, reduce litigation since many motions involve enforcing noncustodial parental rights being violated.
These special interest groups misrepresent HB 5267. By playing to the pessimist in mankind, they believe they can scare us into leaving things the same.
They do that not in the best interest of children or even the abused parent they purport to represent. They do that in their own best interest.
HB 5267 creates a standard of equality, and assumes both parents want and deserve to be equal in the child's life even after divorce. It also assumes that our children want and would benefit from this equality, absent evidence to the contrary.
Is this really a revelation? Over 85 percent of Michigan residents asked say joint physical custody should be the standard.
Grown adults who are products of divorce say divorce was made more difficult for them because they didn't have "equal time" with both parents.
Are there bad people who will attempt to take advantage of the system? Yes, there are.
Are there bad people that already take advantage of the present system? Yes, there are.
Children need both parents. Parents deserve the right to equal parenting without having to get permission from the other parent - permission that in all too many cases is withheld as a punishment.
It's not 1970 anymore. HB 5267 would create equality. Equality for our children and equality for parents who never intended and don't deserve to divorce their children.
HB 5267: It's about children; it's about fairness; it's about time.
Monday 7 August 2006
Alienating a Parent is easy to do, says Therapist
Alienating a Parent10:00 PM PDT on Saturday, August 5, 2006
MITCHELL ROSEN
There is no doubt in my mind that parental alienation exists, especially in cases of divorce. The scary thing is, it is not that hard to accomplish. If I were a mother and wanted to alienate my kids from their father, I would be able to do it in a matter of months. All I would have to do is convince my children that their father was the reason for any pain or suffering we might endure.
Isolating kids from their dad and then feeding them unrelentingly negative statements is all it would take to turn children against a parent they have previously loved.
"Your father is the reason we're not a family anymore. He chose his girlfriend and her children over our family. He doesn't send us the child support like he should; instead he takes his girlfriend on expensive vacations. I can't buy you the clothes you need for school because your father, and his lawyer, has tricked the judge into believing he doesn't have any money. ... Your father never cared about you, in fact, before you were born, he said he wished I would have aborted you. Yes, really, he did. But I'm sure if you ask him he'll deny it. Your father lies and lies and lies. If it wasn't for you kids, I don't know what I would do. You are my rock, my life, my reason for living."
Statements like these result in children beginning to hate their father and wanting to protect their mother. Even in situations where the father has spent an equal amount of time being with and raising the children, even then it is possible to brainwash children into believing their father is a monster.
As a therapist, I will get families referred to me for "reconciliation counseling" where the stated goal is to assist in reunifying the father with his children. Sometimes it is the other way around; it is the mother who is the "hated" parent and the father who is the "loved" relative, but in the majority of cases, the father is the parent who is vilified and demonized.
If both parents follow the orders of the Family Law Court, they know neither is supposed to talk negatively about the other parent or discuss child support. Unfortunately, a judge's order carries little weight with parents who are self-centered and vengeful. If the mother has succeeded in keeping the kids away from the father either by saying he doesn't care enough to try and visit or erasing his voicemails, then the children will settle into a new life where they believe Mom is all good and Dad is all bad.
I know if you are an alienated parent that it is heartbreaking to hear your children say they hate you. What I can offer is this: Never stop trying to see your children even though efforts may be blocked and your legal fees are enormous. Kids aren't stupid. There will come a time when they will mature and wonder why Dad wasn't there. At that time you can discuss how you never stopped trying. But if all you have to offer is, "I got so fed up I went on with my life without you," you run the risk of alienating the children yourself, by your own choice, independent of the mother.
Mitchell Rosen, M.A., is a licensed marriage and family therapist with practices in Corona and Temecula. Contact him at family@PE.com
www.EqualParenting.org
Saturday 5 August 2006
ECHR - Violation of Article 8 Right to Family Life
EUROPEAN COURT OF HUMAN RIGHTS 439 20.7.2006Press release issued by the Registrar
[emphasis added by EPC - see EPC's comment at bottom]
Chamber judgments concerning
the Czech Republic, Croatia, Greece, Italy, Romania and the Ukraine
Koudelka v. Czech Republic (no. 1633/05) Violation of Article 8
The applicant, Ji?Ã Koudelka, is a Czech national who was born in 1957 and lives in Prague. In 1990 a daughter was born of his relationship with E.P. The couple separated the following year and custody of the child was granted to E.P.
In 1993 the applicant applied to the court to gain a right of access, alleging that E.P. was preventing him from seeing their daughter. The court-appointed experts did not observe any impediment to contacts between the applicant and his daughter but reported an antagonistic relationship between the parents and a negative attitude of the mother, whose cooperation was in their view essential for the enforcement of a right of access. In a decision of 24 October 1995, which was upheld on appeal, the applicant was granted a right of supervised access: he was to have contact with his child every other Thursday afternoon in a welfare centre with the assistance of a specialised social worker.
That arrangement is still in force, although proceedings brought by E.P. to have it terminated are pending. The applicant has been trying to have his right of access enforced from the outset. The only attempt to establish contact was made in July 2002 at a specialised centre. On that occasion the experts found serious shortcomings in the upbringing of the child by E.P. and observed that contact between the applicant and his daughter would not be possible without prior therapy, as E.P. had been instilling a parental alienation syndrome in the child.
The applicant complained that the authorities had not made sufficient efforts to enforce his right of access in respect of his daughter, in spite of her mother’s resistance. He relied in particular on Article 8 (right to respect for private and family life) and Article 6 § 1 (right to a fair hearing).
Even though it had been aware, from 1995, of E.P.’s obstruction to contact between the applicant and his daughter, the domestic court had for a long time done nothing more than address a formal warning to E.P. in 1996, and that measure had manifestly remained ineffective. Subsequently, it was not until April 1999 and October 2000 that the court had imposed two fines on E.P., for about EUR 70 and EUR 7. Having regard to the circumstances of the case and the reprehensible attitude of the mother, the Court considered that such a measure could not be regarded as sufficient or adequate.
In the circumstances of the case, the Court considered that the non-enforcement of the applicant’s right of access was mainly attributable to the manifest refusal of the mother, and then to that of the child under her mother’s influence. It found, however, that the Czech courts had not taken all the measures that could reasonably have been expected of them, in the very difficult dispute at issue, in order to secure E.P.’s compliance with the applicant’s right of access, and that their action had not been sufficiently prompt or systematic. Moreover, in view of the psychologist’s conclusion in July 2002 that E.P. was not bringing the child up properly, it was legitimate to wonder whether the courts had been acting in the child’s interest.
In the Court’s view, the Czech courts had allowed this dispute to be settled by the mere passage of time, such that the resumption of relations between the applicant and his daughter no longer seemed possible. Accordingly, the Court held unanimously that there had been a violation of Article 8. It did not consider it necessary to examine separately the complaint under Article 6 § 1 and awarded the applicant EUR 13,000 in respect of non-pecuniary damage, together with EUR 2,000 for costs and expenses, less the EUR 701 already received from the Council of Europe by way of legal aid. (The judgment is available only in French.)
EPC COMMENT:
Alienated parents in the UK, who have applied to ECHR in similar circumstances, will be left wondering why their very similar cases were not even entertained by ECHR.
UK continually violates articles 8 (right to family life) and 6 (right to fair hearing) yet ECHR does nothing. Even in this case where it has found against the state, look at the nugatory consequences! This award is pathetic!!
In EPC's view, ECHR is a waste of time and money. It is a court that, in the vast majority of cases, fails to deliver justice.
Please post a comment on this blog - EPC is very interested to hear your views and experiences with ECHR.
Thursday 3 August 2006
3rd of Welsh Kids lose contact with a parent, report says
Of course, Equal Parenters well know that this phenomenon is not peculiar to Wales!!!Up to a third of Welsh divorce kids lose touch with a parent
Aug 2 2006
Darren Devine, Western Mail
UP to a third of children from broken families in Wales lose touch with one of their parents, a new report has revealed.
The findings suggest children are, in some cases, falling victim to the politics of the extended family - disputes between adults when one or both of the separated parents becomes involved with a new partner.
Up to 57% of the Welsh parents surveyed go on to form another family group, compared to the national average of 47%.
Assistant Children's Commissioner for Wales Sara Reid said in some cases, such as where the mother has been a victim of domestic violence, it is in the interests of the child to end contact.
Ms Reid said, "Children have a right to a relationship with both parents and in most cases there are really positive benefits from that.
"The difficulty is that often when a relationship has broken down there maybe particular circumstances, such as if there has been domestic violence, where it's not in the best interests of the child to have that relationship.
"It's sad that contact is lost and it often happens very gradually over a period of time."
But head of Fathers 4 Justice Wales Phil Davies
said fathers are awarded residency in less than 1% of cases where parents split and it is invariably men who then lose contact with their children.
He said, "Usually it's because the mother wants to play happy families with the new partner.
"Sometimes the mother will move around three or four times so the father cannot have contact. We're dealing with one case at the moment where the mother moved from Bedford in the South East to Swansea, to get away from the father."
Child psychologist Dr Pat Spungin, founder of Raisingkids.co.uk which conducted the research, said children find it easier to accept half-siblings than step-siblings when their parents begin new relationships.
But Dr Spungin said blended families are fraught with problems because of the difficulties in trying to find common ground between two separate and established sets of household rules.
She said, "Trying to merge two sets of rules under the one roof is one of the most problematic and stressful situations that children - and indeed their parents - can go through."
But the psychologist said relationships between children and their step-parents often changed after the arrival of grand-children.
She said, "Grandchildren can help re-connect the original parent and child relationship - and with a step-parent involved this can result in quite significant change.
"Someone previously only known to the family as Carol or John can suddenly come to be referred to as Granny or Grandad, and with it they are essentially embraced further into the family, because of their new grandparent status."
Children in Wales fatherhood development officer Tony Ivens said when a child loses contact with its father it also becomes cut off from one side of its extended family.
"Along with the child losing contact with the non-resident parent, who is normally the father, they lose contact with their extended family on that side. It doesn't just mean disruption for the father, but for the set of grandparents, aunts, uncles and cousins on that side of the family."
www.EqualParenting.org
Tuesday 1 August 2006
Pelling - legal victory on publicity
Dr M J Pelling - Litigant in Person
Ms Veronica N. Bruce-Williams – Respondent (did not appear and was not represented)
Hearing date : 14th July 2006
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Wall :
1. This unusual application reaches me as a consequence of a direction by Brooke LJ sitting alone on 9 May 2006. Brooke LJ directed that an application by Dr Michael Pelling to discharge, alternatively to set aside, an injunction made by this court on 20 June 1996, should be listed before a Lord Justice of Appeal who specialises in Family Law matters. The court had previously refused to issue the application, as I understand it, on the ground that Thorpe LJ had taken the view, when the matter was referred to him on paper, that the injunction was spent. Dr Pelling unsuccessfully sought to challenge that refusal in proceedings for judicial review, but succeeded before Brooke LJ on a different basis, namely that, pursuant to CPR 52.16(5) a party "may request any decision of a court officer to be reviewed by the Court of Appeal".
2. In his application notice, Dr. Pelling argued that this court itself had rendered the injunction nugatory by its public judgment of 1 July 2004 in the case of Pelling v Bruce-Williams [2004] 3 FCR 108, which had named the minor and the parties. He also complained that the injunction was made in breach of natural justice, as this court in 1996 had refused to hear him.
3. The circumstances in which the order complained of came to be made were as follows. On 20 June 1996, this court (Butler-Sloss, Peter Gibson and Thorpe LJJ) dismissed an appeal by Dr. Pelling and Mr. Bernard Greenwood from an order of His Honour Judge Goldstein dated 14 March 1996. The latter had refused applications by Dr. Pelling and Mr. Greenwood (who had intervened in Dr Pelling's proceeding on the question of a public hearing) that Dr Pelling's application for residence under the Children Act 1989 be heard in open court. This court's decision was subsequently reported as Re PB (Hearings in Open Court) [1996] 2 FLR 765.
4. In addition to dismissing the appeal, however, this court also made an order in the following terms: -
5. No one shall publish or reveal to anyone (other than the parties to this appeal or the Official Solicitor) the name or address of the minor child who is the subject of these proceedings or publish or reveal any particulars or other information which would be likely to lead to the identification of the said minor.
6. As I have already stated, Dr. Pelling's application to me on 14 July 2006, was for this injunction to be "discharged or set aside". I made it clear at the outset of the hearing that I was prepared to discharge the injunction. Dr. Pelling, however, despite having sought relief in the alternative, wanted the injunction set aside. He argued that it should never have been made. Discharging it, he argued, would imply that it had been properly made, and had remained properly in force.
7. As I had, perhaps unwisely, been expecting Dr. Pelling to take "yes" for an answer, I was unprepared for this submission, and given the pressure on the list on 14 July 2006, I decided to take a little time to consider the matter. This I have now done.
8. Dr. Pelling's dissatisfaction with the order against identification made on 20 June 1996 is multi-faceted. He objects to it, of course, per se. However, his two more focused objections are (1) its terms; and (2) the fact that he was not heard by the court before the order was made. Butler-Sloss LJ (as she then was), basing herself on the case of Re Z (A Minor) (Freedom of Publication) [1996] 1 FLR 191 (Re Z), gave a short ex tempore judgment in which she made it clear that it was the practice of this court to impose a direction against the identification of children involved in proceedings between their parents under the Children Act 1989. This was because such orders were in the best interests of children, and because the welfare of the children concerned prevailed over any parental rights based on freedom of expression.
9. On 20 June 1996, Dr Pelling had come to court armed with a number of authorities, which this court declined to consider. Indeed, when Dr. Pelling asked: "Are you refusing to hear me?" Butler-Sloss LJ replied, with the directness and clarity for which she was well known: "Yes, in fact we are". However, as stated in paragraph 8 above, she went on to explain why. When Dr. Pelling pointed out that the summons had still to be heard, and when he attempted to refer to the case of Mrs. R v Central Independent Television [1994] Fam 192, Butler-Sloss LJ interrupted him to say that it was not appropriate "on this direction at this stage to hear argument".
10. This court refused Dr Pelling permission to appeal to the House of Lords, but as we know, he took the open court / chambers point to the European Court of Human Rights in Strasbourg, where the practice in England and Wales of hearing children's cases in private was upheld by that court: - see B v United Kingdom, P v United Kingdom [2001] 2 FLR 261.
11. Dr. Pelling's continued efforts have, however, borne some fruit. As a consequence of the decision of this court in Pelling v. Bruce-Williams (supra), the practice of the court has changed. Anonymity directions are no longer automatic in children's cases: indeed, anonymity has to be (a) sought; and (b) justified. It was no doubt as a consequence of the judgment of this court in that case (Thorpe, Sedley and Arden LJJ) that Thorpe LJ was of the opinion, when the matter was referred to him on paper, that the order complained of by Dr. Pelling and made on 20 June 1996 had been discharged.
12. Whether or not that is so, the recent decision of this court in Clayton v Clayton [2006] 2 FCR 405, makes it clear that the prohibition against publication contained in section 97(2) of the Children Act 1989 lasts only as long as the proceedings themselves. Dr. Pelling's litigation over his son, who will be 16 later this year, is long since over, and it is, therefore, plainly the case that he is entitled to have the injunction discharged. I am not, however, prepared to set it aside, for the reasons which follow.
13. It is clear, for the reasons I have already given, that an order such as that made by this court on 20 June 1996 would not be made today without full argument. However, in this court in 1996, orders restricting publication of the names of children were the norm. There was, accordingly, nothing unusual in this court making an order against publicity in a case involving a child, particularly where it was one parent's specific wish for the proceedings to be in open court.
14. Dr Pelling criticises Butler-Sloss LJ's reliance on Re Z. He says that this was certainly not a Re Z case in which welfare was paramount, and arguably was not even a Re Z case in which welfare fell to be balanced against freedom of speech. I am not so sure about that. But even if Butler-Sloss LJ was eliding the Re Z type of case with what was then the conventional direction against identification, the fact of the matter is that the court would have made an order against publicity in any event. Dr Pelling had made it clear that he wanted the case heard in open court, and, somewhat unwisely, he appears to have told the court that he did not intend to obey the non-identification order. Accordingly, even if he had been allowed to cite substantial authority to the court, the result, I am confident, would have been the same.
15. Dr Pelling also attacks the wording of the order. He says it is far too wide. The very limit of the court's jurisdiction, he says, would have been to make an order restricting the identification of the child as the child who was the subject of the proceedings. As the order was drafted, Dr Pelling argued, he would have been in contempt of court if, in his son's company, he met a friend in the street and introduced the child by name to that friend.
16. What this argument overlooks, I think, is that in the case of Re R (Court of Appeal: order against identification) [1999] 3 FCR 213, this court (Lord Woolf MR, Butler-Sloss and Evans LJJ) upheld an order made in terms very similar to those of which Dr Pelling complains. Lord Woolf explains why such orders were made, and confirms that the court's practice in making such orders was unobjectionable.
17. The order in the instant case was, of course, made 10 years ago. Fortunately, apart from generating a substantial degree of forensic activity on Dr. Pelling's part (with the clarification and development of the law as a constituent element) nothing appears to have flowed from the particular wording of the order, and debates about its precise wording strike me as academic.
18. In my judgment, therefore, it is appropriate now to discharge the order, rather than to set it aside. It no longer fulfils any function, and is, moreover, now caught by the meaning given to section 97(2) of the Children Act 1989 by Clayton v. Clayton.
19. Another reason for discharging rather than setting aside is that I think it likely that Dr. Pelling would seek hereafter to argue that by setting aside the order I was taking the view that it should never have been made in the first place. As I have already made clear, I do not take that view. To the contrary, I take the view that an order against publicity would undoubtedly have been made in 1996, even if Dr. Pelling had been fully heard. Whilst I understand Dr. Pelling's objection to the precise wording of the order; (a) it appears to have been common form at the time; and (b) I am satisfied that had any adverse consequences been threatened against Dr. Pelling in relation to it, its wording would have been scrutinised and, if necessary, altered.
20. I am also fortified in the view which I take by the fact that Dr. Pelling, who is well aware of the nuances of legal language, sought first and foremost to have the order discharged. He only asked for it to be set aside in the alternative. In my judgment, his first approach is correct.
21. Finally, Dr Pelling referred me to the decision of the Privy Council in Grafton Isaacs v Emery Robertson [1985] AC 97. In my judgment, this decision does not assist Dr. Pelling. It confirms the well established rule that an order which is, on its face, regular, must be obeyed until it is set aside or discharged, even if it was made without jurisdiction: - see also Hadkinson v Hadkinson [1952] P. 285. In my judgment, despite the circumstances in which it was made, the order by this court dated 20 June 1996 was both lawful and in accordance with the practice in place in 1996. Times have, however, moved on, and the continuation of the order is no longer appropriate.
22. For all these reasons, I propose to discharge the order against publicity made by this court on 20 June 1996.
23. By way of footnote, it is clear that the respondent to this application has been served. She did not, however, appear. I note also that she did not appear in March and July 2004 when Pelling v Bruce Williams (supra) was heard and decided. I do not, accordingly, have any difficulty in making the order identified in paragraph 20 above in her absence.
Ms Veronica N. Bruce-Williams – Respondent (did not appear and was not represented)
Hearing date : 14th July 2006
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Wall :
1. This unusual application reaches me as a consequence of a direction by Brooke LJ sitting alone on 9 May 2006. Brooke LJ directed that an application by Dr Michael Pelling to discharge, alternatively to set aside, an injunction made by this court on 20 June 1996, should be listed before a Lord Justice of Appeal who specialises in Family Law matters. The court had previously refused to issue the application, as I understand it, on the ground that Thorpe LJ had taken the view, when the matter was referred to him on paper, that the injunction was spent. Dr Pelling unsuccessfully sought to challenge that refusal in proceedings for judicial review, but succeeded before Brooke LJ on a different basis, namely that, pursuant to CPR 52.16(5) a party "may request any decision of a court officer to be reviewed by the Court of Appeal".
2. In his application notice, Dr. Pelling argued that this court itself had rendered the injunction nugatory by its public judgment of 1 July 2004 in the case of Pelling v Bruce-Williams [2004] 3 FCR 108, which had named the minor and the parties. He also complained that the injunction was made in breach of natural justice, as this court in 1996 had refused to hear him.
3. The circumstances in which the order complained of came to be made were as follows. On 20 June 1996, this court (Butler-Sloss, Peter Gibson and Thorpe LJJ) dismissed an appeal by Dr. Pelling and Mr. Bernard Greenwood from an order of His Honour Judge Goldstein dated 14 March 1996. The latter had refused applications by Dr. Pelling and Mr. Greenwood (who had intervened in Dr Pelling's proceeding on the question of a public hearing) that Dr Pelling's application for residence under the Children Act 1989 be heard in open court. This court's decision was subsequently reported as Re PB (Hearings in Open Court) [1996] 2 FLR 765.
4. In addition to dismissing the appeal, however, this court also made an order in the following terms: -
5. No one shall publish or reveal to anyone (other than the parties to this appeal or the Official Solicitor) the name or address of the minor child who is the subject of these proceedings or publish or reveal any particulars or other information which would be likely to lead to the identification of the said minor.
6. As I have already stated, Dr. Pelling's application to me on 14 July 2006, was for this injunction to be "discharged or set aside". I made it clear at the outset of the hearing that I was prepared to discharge the injunction. Dr. Pelling, however, despite having sought relief in the alternative, wanted the injunction set aside. He argued that it should never have been made. Discharging it, he argued, would imply that it had been properly made, and had remained properly in force.
7. As I had, perhaps unwisely, been expecting Dr. Pelling to take "yes" for an answer, I was unprepared for this submission, and given the pressure on the list on 14 July 2006, I decided to take a little time to consider the matter. This I have now done.
8. Dr. Pelling's dissatisfaction with the order against identification made on 20 June 1996 is multi-faceted. He objects to it, of course, per se. However, his two more focused objections are (1) its terms; and (2) the fact that he was not heard by the court before the order was made. Butler-Sloss LJ (as she then was), basing herself on the case of Re Z (A Minor) (Freedom of Publication) [1996] 1 FLR 191 (Re Z), gave a short ex tempore judgment in which she made it clear that it was the practice of this court to impose a direction against the identification of children involved in proceedings between their parents under the Children Act 1989. This was because such orders were in the best interests of children, and because the welfare of the children concerned prevailed over any parental rights based on freedom of expression.
9. On 20 June 1996, Dr Pelling had come to court armed with a number of authorities, which this court declined to consider. Indeed, when Dr. Pelling asked: "Are you refusing to hear me?" Butler-Sloss LJ replied, with the directness and clarity for which she was well known: "Yes, in fact we are". However, as stated in paragraph 8 above, she went on to explain why. When Dr. Pelling pointed out that the summons had still to be heard, and when he attempted to refer to the case of Mrs. R v Central Independent Television [1994] Fam 192, Butler-Sloss LJ interrupted him to say that it was not appropriate "on this direction at this stage to hear argument".
10. This court refused Dr Pelling permission to appeal to the House of Lords, but as we know, he took the open court / chambers point to the European Court of Human Rights in Strasbourg, where the practice in England and Wales of hearing children's cases in private was upheld by that court: - see B v United Kingdom, P v United Kingdom [2001] 2 FLR 261.
11. Dr. Pelling's continued efforts have, however, borne some fruit. As a consequence of the decision of this court in Pelling v. Bruce-Williams (supra), the practice of the court has changed. Anonymity directions are no longer automatic in children's cases: indeed, anonymity has to be (a) sought; and (b) justified. It was no doubt as a consequence of the judgment of this court in that case (Thorpe, Sedley and Arden LJJ) that Thorpe LJ was of the opinion, when the matter was referred to him on paper, that the order complained of by Dr. Pelling and made on 20 June 1996 had been discharged.
12. Whether or not that is so, the recent decision of this court in Clayton v Clayton [2006] 2 FCR 405, makes it clear that the prohibition against publication contained in section 97(2) of the Children Act 1989 lasts only as long as the proceedings themselves. Dr. Pelling's litigation over his son, who will be 16 later this year, is long since over, and it is, therefore, plainly the case that he is entitled to have the injunction discharged. I am not, however, prepared to set it aside, for the reasons which follow.
13. It is clear, for the reasons I have already given, that an order such as that made by this court on 20 June 1996 would not be made today without full argument. However, in this court in 1996, orders restricting publication of the names of children were the norm. There was, accordingly, nothing unusual in this court making an order against publicity in a case involving a child, particularly where it was one parent's specific wish for the proceedings to be in open court.
14. Dr Pelling criticises Butler-Sloss LJ's reliance on Re Z. He says that this was certainly not a Re Z case in which welfare was paramount, and arguably was not even a Re Z case in which welfare fell to be balanced against freedom of speech. I am not so sure about that. But even if Butler-Sloss LJ was eliding the Re Z type of case with what was then the conventional direction against identification, the fact of the matter is that the court would have made an order against publicity in any event. Dr Pelling had made it clear that he wanted the case heard in open court, and, somewhat unwisely, he appears to have told the court that he did not intend to obey the non-identification order. Accordingly, even if he had been allowed to cite substantial authority to the court, the result, I am confident, would have been the same.
15. Dr Pelling also attacks the wording of the order. He says it is far too wide. The very limit of the court's jurisdiction, he says, would have been to make an order restricting the identification of the child as the child who was the subject of the proceedings. As the order was drafted, Dr Pelling argued, he would have been in contempt of court if, in his son's company, he met a friend in the street and introduced the child by name to that friend.
16. What this argument overlooks, I think, is that in the case of Re R (Court of Appeal: order against identification) [1999] 3 FCR 213, this court (Lord Woolf MR, Butler-Sloss and Evans LJJ) upheld an order made in terms very similar to those of which Dr Pelling complains. Lord Woolf explains why such orders were made, and confirms that the court's practice in making such orders was unobjectionable.
17. The order in the instant case was, of course, made 10 years ago. Fortunately, apart from generating a substantial degree of forensic activity on Dr. Pelling's part (with the clarification and development of the law as a constituent element) nothing appears to have flowed from the particular wording of the order, and debates about its precise wording strike me as academic.
18. In my judgment, therefore, it is appropriate now to discharge the order, rather than to set it aside. It no longer fulfils any function, and is, moreover, now caught by the meaning given to section 97(2) of the Children Act 1989 by Clayton v. Clayton.
19. Another reason for discharging rather than setting aside is that I think it likely that Dr. Pelling would seek hereafter to argue that by setting aside the order I was taking the view that it should never have been made in the first place. As I have already made clear, I do not take that view. To the contrary, I take the view that an order against publicity would undoubtedly have been made in 1996, even if Dr. Pelling had been fully heard. Whilst I understand Dr. Pelling's objection to the precise wording of the order; (a) it appears to have been common form at the time; and (b) I am satisfied that had any adverse consequences been threatened against Dr. Pelling in relation to it, its wording would have been scrutinised and, if necessary, altered.
20. I am also fortified in the view which I take by the fact that Dr. Pelling, who is well aware of the nuances of legal language, sought first and foremost to have the order discharged. He only asked for it to be set aside in the alternative. In my judgment, his first approach is correct.
21. Finally, Dr Pelling referred me to the decision of the Privy Council in Grafton Isaacs v Emery Robertson [1985] AC 97. In my judgment, this decision does not assist Dr. Pelling. It confirms the well established rule that an order which is, on its face, regular, must be obeyed until it is set aside or discharged, even if it was made without jurisdiction: - see also Hadkinson v Hadkinson [1952] P. 285. In my judgment, despite the circumstances in which it was made, the order by this court dated 20 June 1996 was both lawful and in accordance with the practice in place in 1996. Times have, however, moved on, and the continuation of the order is no longer appropriate.
22. For all these reasons, I propose to discharge the order against publicity made by this court on 20 June 1996.
23. By way of footnote, it is clear that the respondent to this application has been served. She did not, however, appear. I note also that she did not appear in March and July 2004 when Pelling v Bruce Williams (supra) was heard and decided. I do not, accordingly, have any difficulty in making the order identified in paragraph 20 above in her absence.
Wednesday 19 July 2006
Our Family Law Lacks Commonsense!
Yvonne Roberts, award winning journalist, has written this excellent article for the Guardian online. Emphasis added by EPC. It's all commonsense really, but unfortunately our government doesn't appear to have any commonsense at all! They continue to stumble from one failed policy to another. We have an idea! Why not try approaches that are actually working elsewhere?Rules of disengagement
Yvonne Roberts
July 14, 2006 04:43 PM
Two billion pounds in child maintenance owed by absent fathers will never be paid. Another billion pounds has been wasted in trying to reform the Child Support Agency in the past three years. Now, it is to be axed and replaced by a mish mash arrangement of bailiffs (that's really going to help ruptured family ties) and a new "streamlined body" that intervenes only in the most difficult cases where couples cannot come to their own financial arrangements.
Who on earth does the government think the CSA is supposed to help now? These are the leaked proposals of Sir David Henshaw who has conducted a review of the CSA. It was a review constrained from the outset by its limited remit - only look at the bureaucratic red tape and the question of dosh, not the lack of support for the human turmoil that precedes one wage packet being divided for two households.if these proposals have been reported accurately, Henshaw also suggests tough sanctions against "deadbeat dads" including seizure of passports; electronic tagging and community service. All of which will only lead to buckets of extra blood on what is already a post-divorce and separation battlefield. One positive suggestion is that instead of losing a pound of benefit for every pound gained in maintenance, the resident parent will be able to keep benefits up to a threshold.
At present, it costs 70p for every £1 of child support collected. The hours of anger and frustration trying to contact the CSA, typified by one of my friends who has rung without results 27 times in a fortnight, goes uncounted. This shambles, however, was all so utterly unnecessary.
Before the British CSA was set up 13 years ago, civil servants visited Australia - where the satisfaction rate of both parents with the CSA , hits over 90%.In Australia, efforts are made to discover why a father isn't paying. Is he unemployed, ill, depressed, has he a large second family, is it family conflict? Does he have alcohol or drug problems. How can he be helped to sort himself out? The approach is holistic - it's not just about cash, it's about government recognising that, if children are involved, family life has to be helped to continue even after the adults' relationship ends.
The British civil servants came home - and, did it all differently. The result has been a bureaucratic disaster outstripped only by the distress and financial hardship and frustration of mothers and fathers to the detriment of the children.
Where we go from here, however, is not a matter for Work and Pensions Secretary John Hutton - who is expected to back the review's findings. The very fact that maintenance is deemed solely a matter for work and pensions betrays the fatal flaw. One that guarantees years of further cock-ups and unpaid maintenance.
Child support; contact and access to children after separation; an understanding of how relationships work; an awareness of the emotional needs of children and the availability of appropriate help if a marriage hits difficulties, are all of a piece. The spectrum that begins when a couple get together should continue in the event of them going their separate ways if the child's interests are genuinely to come first.
It doesn't happen here because the judiciary, policies and politicians' attitudes are disjointed, out of synch and anachronistic. Too often, when the going gets rough in a cohabitation or marriage, the old-fashioned belief that mother knows best and "owns" her offspring, rules - very definitely OK .
It's time for Britain in the 21st century to junk this damaging matrimonial rag-bag (difficult because the lawyers will resist the honey pot of marital breakdown being prised from their sticky hands). The government at present is engaged in a series of timid little exercises such as the now defunct "early intervention" project. It offered counselling and mediation for warring couples to settle post-separation arrangements over children. Predictions that it would be a total flop proved absolutely correct. Why? Partly because it's based on an assumption that both partners are in a similar emotional place when they start negotiating issues such as how often Johnny and Jane stay over with dad for the night .
In truth, according to Australian research, it takes three years before the unhappy partner (in 70% of cases, the woman) announces that she wishes to end the relationship. During this time, she mourns the loss of the relationship, adjusts her life and makes plans for a different future. Then she announces her intention to her partner. He, often, is utterly bemused at such drastic and irreversible action. That quickly turns to despair, anger and grief - especially because in most cases, he will lose his day-to-day life with his children.
All of which is exacerbated by his wife's apparent indifference . She, of course, has already navigated these choppy waters. Family courts in the UK fail to take this lack of sychronicity into account - as have many projects designed to help with mediation.In Britain, two attitudes cripple the birth of a radically different approach. The first is one that says since individual fathers are some or all of the following (rresponsible, unreliable, lying, violent, tight-fisted lazy bastards) we will not accept a philosophy that assumes both parents are equally capable of caring for a child.
The second concerns the deification of the mother as the "natural" carer and the belief, often prevalent in the courts, that she is always in the right. This is in spite of the fact that research indicates that from birth, positive input from dad, can and does make a significant difference to a child's outcomes.
Child support, contact, access and the promotion of emotional literacy (otherwise known as learning how not to behave like an arse in relationships) have to be linked by the expectation that both parents are equally involved in a child's upbringing, both practical and emotional. If a man (or woman) is abusive and violent then, of course, suitability as a parent is also impaired. It's bonkers to insist, as some courts now do, that contact between a violent parent and children is maintained against their wishes. This month, Australia has attempted to adopt a different approach. It has introduced the most radical reform of family law since the "no fault" divorce in 1975. The legislation driving the change is called the Family Law (Shared Parenting Responsibility) Act. It acknowledges that while a father (usually) may not live with his child full time, he remains a parent .
Australia's goal, via a number of measures, is to keep warring couples out of court if at all possible and away from lawyers. The legal profession, needless to say, is hostile. Now, in a series of meetings in an informal setting, a couple sits with two trained counsellors and two negotiators, working out a resolution with the help of a magistrate. Before, it took up to 15 months to conclude a case and a child might see a non-resident parent damagingly little . In pilots, under the new scheme, resolution comes in a couple of months. This isn't because a miracle is at work. It's because everyone knows that the the assumption is that both adults will behave like grown-ups and share parenting. For those who refuse to accept the terms, one option of last resort is jail.
The rules of the CSA have also been changed. Now, controversially, a full time mother is obliged to find work when the child reaches six. The incomes of both parents is taken into account, as are the expenses a non-resident parent may encounter having his child every other weekend and in the holidays.
The change in the Australian law is only a small part of a multi-million dollar exercise providing more help for couples as lovers and parents. Here, Harriet Harman, minister at the Department for Constitutional Affairs, is looking at ways to improve the business of marriages falling apart.
Ministers are fond of saying that 90% of relationship breakdowns involving children don't end up in court. That's no indicator of a successful solution from the point of view of the child. What that flags up is that many men believe they don't stand a chance in the courts. So, some melt away - but not nearly as many as urban myth would have us believe. According to research well over half of fathers stay in touch with their sons and daughters, no matter what.The Children and Adoption Bill that passed its third reading at the beginning of the month will enable courts to force parents in private law proceedings to undertake parenting classes, to support contact and to punish those who breach contact orders.
The framework is all wrong - punitive and authoritarian. For the majority of parents such an approach wouldn't be necessary if the terms of disengagement caught up with the modern day - and were fair, clear, sustained throughout the system and written into the fabric of society. That's the least children deserve.
www.EqualParenting.org
Tuesday 4 July 2006
The Simon Clayton Story - Beware Judicial Spin!
INTRO - Beware Judicial Spin!EPC's blog item on June 29th [CLICK HERE] reported the Clayton Landmark Judgment. At the end of that item there's a link so that you can download the Judgment from the main EPC site.
Non-resident parents who have fought through the courts to see their children will be very familiar with just how adept Judges can be at spinning Judgments to make the non-resident parent look like the bad guy! Appeal court judges, as in this case, do that while also bending over backwards to protect their lower court brothers' past decisions in the case - even when those decisions are cleary biased and based on an unbalanced "investigation" of the facts.
EPC knows just how selective Judges can be when they "hand down" their Judgments in an effort to justify their unbalanced decisions.
But there is a heart-rending human story behind every one of these cold-hearted, self-serving Judgments. Usually, as in the case of Simon Clayton, it is a story of a parent simply wanting to remain a meaningful part of their child's life. The media coverage below gives some insight into the human story. Judges leave out the bits that don't support their decisions which so often oppress and discriminate against the excluded parent.
As you read this story, keep in mind that it only came out right in the end for the child and the father because the mother CONSENTED to shared child care.
THE SIMON CLAYTON STORY - MEDIA COVERAGE:
'My daughter is my life. But I fought not just for myself. I had to go on for all the men, like me, who have lost their hope'
(Filed: 02/07/2006)
http://www.telegraph.co.uk/news/main.jhtml?xml=/news/2006/07/02/ndad02.xml
A dozen children, dressed in a jumble of white gym kit and plimsolls, are racing along a stretch of freshly mown grass to shrieks of encouragement from their classmates. It is sports day at Llangorse Church in Wales primary school and Simon Clayton is looking for his seven-year-old daughter, Esti.
A digital camera hangs around his neck. He scans the children's faces. "I can't see her anywhere," he says, his blue eyes blinking rapidly. "At times like this, when I can't find her, my immediate thought is, 'Oh God, they've taken her into care. Some judge has come along and just taken her away'."
Simon Clayton: 'These courts have to be scrutinised'
The fear of losing Esti lurks constantly in her father's mind. For the past three years, Mr Clayton, 44, has been engaged in a legal battle to gain access to his child. It has cost him his job, his lifestyle and more than £20,000. He is, he says, one of countless men caught up in the bureaucracy and extraordinary secrecy of the family court system, which conducts all custody hearings behind closed doors. Until a successful appeal by Mr Clayton, last week, he was forbidden by a High Court injunction from disclosing any details of the case, or even discussing his daughter's care in public.
It is a landmark ruling, achieved only through Mr Clayton's terrier-like determination. "I was fighting not just for myself," he says, "but for all parents denied access to their child. Anything that obstructs reasonable access should be as socially unacceptable as drink-driving."
Little wonder then, that the small, but memorable goalposts in a child's life that other parents can sometimes take for granted - sports days, birthdays, the loss of a first tooth - are, to Mr Clayton, fragile. "I am pleased about the Court of Appeal decision - not elated, because I've been living with this for so long, but it's a victory and it's very satisfying," he says, in his first newspaper interview since the ruling.
Although the law has not been changed by the court action, the ruling means that judges will now consider long-term anonymity orders - Mr Clayton's was imposed until Esti reached 18 - more cautiously. The judgment will have an effect not only on parental-contact disputes, but also on cases involving children taken into care or adoption decisions. In each case, the balance between an entitlement to anonymity and the right to freedom of expression will have to be weighed.
A corner of the blanket of secrecy, says Mr Clayton, has thus been lifted. "There's got to be much more openness about what goes on in the family courts. These courts can, and frequently do, permanently remove children from their parents and regularly send people to jail. Yet their decisions and proceedings take place behind completely sealed doors and receive virtually no coverage in the media. These courts have to be scrutinised, so that people know what's going on, so that people can see the evidence against them."
Mr Clayton has long been determined that he should be able to talk freely about his case, both to highlight the inner workings of the family justice system and to promote the concept of "shared care"- whereby children spend equal amounts of time with each parent. His doggedness is evident: even after a hard-won court battle for shared access of his daughter in 2005, he felt the injustice of family court secrecy so strongly that he kept on fighting for the right to talk about his case.
He is not alone in calling for greater openness. Earlier this year, Harriet Harman, the Minister for Constitutional Affairs, announced a consultation on opening up the family courts to increased scrutiny. On Thursday, Lord Justice Wall, a senior Court of Appeal judge, suggested that the media should be admitted to proceedings to shake off "the canard of secret justice".
Such secrecy has led to a lack of confidence in the family courts and an increasing sense that the system has something to hide, fuelled by pressure groups such as Fathers4Justice and Families Need Fathers. In a criminal court, a defendant can be convicted only if their guilt is beyond reasonable doubt. A family court takes its decisions - sometimes involving the removal of a child from parental care - on a balance of probabilities, and few judges allow parents to call experts in their defence. [emphasis added by EPC]
"There came a stage when, every time I saw Esti, I was asking myself, 'Is this the last time I will see my child?' " says Mr Clayton. "Society believes that a man should not show his emotions, that a man does not have that natural bond with his child that a woman possesses. I find that insulting. Esti is my life. I had to keep on fighting for all the men like me, men who have lost their hope."
Back at the school sports day, Esti has been found, sitting cross-legged on the grass, chatting happily with friends. She spots her father and runs up to him, hugging his legs. "There's a dads' race soon," she says, prompting a theatrical groan from Mr Clayton. She giggles. For a child who has been at the centre of a protracted custody battle, Esti is remarkably well-adjusted and cheerful.
"The absurd thing is that it was just an ordinary little case," says Mr Clayton, after we have driven back to his grey-stone farmhouse set against the lush hills and valleys of the Herefordshire countryside, just outside Hay-on-Wye. "My ex-wife and I separated in 2000 and had already worked out an arrangement whereby Esti spent alternate weeks with each of us [Mr Clayton's Polish-born former wife, Aneta, whom he married in 1998, lives a short drive away in Brecon, mid-Wales]. Then my wife, for no real reason, ended up getting a solicitor involved. He sent me a letter, and once you've started family court proceedings, that's it, you end up in Mr Kafka's world. It's like throwing petrol on the fire. Suddenly, this case develops and the lawyers are egging you on to make more money from you and prolong it as long as possible."
The case dragged on. Mr Clayton, who had formerly been a bookseller in Hay-on-Wye after several years as a charter pilot, gave up his job to concentrate on mounting his own legal defence. The paperwork, he says, was "horrific". "I had to write out so many statements that my handwriting became completely illegible. I was under a lot of stress. I wasn't sleeping, my lips were bleeding with stress. My personality changed, because you're stuck in this adversarial system. I became somebody I liked less because I was having to fight, having to get unpleasant because people were being unpleasant to me."
By April 2003, Mr Clayton felt he could take the pressure no longer. During a routine visit from Esti, days before a custody hearing, he took his daughter "on holiday". They drove in a camper van to Portugal where, beset by engine trouble, they came to a halt and spent several days on the beach. Back home, their disappearance had sparked a police inquiry. "They said I abducted her," he says. "It was blown out of proportion. We had been on several trips abroad before then and there wasn't anything wrong with it. Esti was well used to it."
Did she miss her mother? "If she was upset, I diverted her attention, I took her emotions in another direction," he says blithely. Six weeks later, Mr Clayton was recognised by a passerby and arrested. He spent 40 days in a Portuguese jail before being extradited to Britain and serving a further four-and-a-half months. "It wasn't my lowest point. That was in the run-up: that uncertainty, where you have no idea of what you're meant to do.
"At least when you're in jail you've got no legal letters coming through the door. You also have people to talk to who can understand how evil the state could be. Most of my fellow inmates were very supportive," he says, pausing as he runs his fingers through greying hair. "I don't think a mother would have been treated like that. It broke my heart."
On his release, in December 2003, Mr Clayton faced a further custody battle to gain access to his daughter. It did not come to court until April 2004, when he was finally allowed to see Esti again. But the shared access agreed upon by the couple still needed official court approval. By July 2005, the status quo was formalised. Esti now spends alternate weeks with each parent and the couple share their tax credits. Relations between the two are cordial and, at Esti's instigation, they occasionally meet up for family meals.
Although the arrangement sounds straightforward, it is rare in British courts, which favour the mother as prime carer. "That attitude is retrograde," says Mr Clayton. "I think there should be a presumption of shared care in custody battles. I am an utterly devoted parent. I don't think you can build up a proper relationship if you're only allowed to see your child every other weekend. Our relationship is constantly growing and you develop this fundamental, unconditional love. She's an incredibly beguiling, spiritful child with a great wit."
So beguiling, in fact, that she did manage to persuade her father to run in the "dads' race". We watched as Mr Clayton lined up alongside all the other fathers. A teacher blew the starting whistle and he sprinted for all he's worth, crossing the finish line with a broad grin on his face. He didn't win or even earn a place. For Simon Clayton, simply taking part was prize enough.
My fight for every father
By TESSA CUNNINGHAM, Daily Mail 08:28am 4th July 2006
http://www.dailymail.co.uk/pages/live/femail/article.html?in_article_id=393926&in_page_id=1879
Together after the trauma: Simon Clayton with daughter Esti
Femail news
It cost his home, his job and his freedom. But this week Simon won the right to see his daughter AND a £20,000 battle to reveal the details of the case. Now, other parents can lift the secrecy that too often mars family courts:
[But not while their cases are ongoing - i.e. when it really matters - and courts continue to be free to make gag orders that extend long after the case has closed - EPC COMMENT]
Exchanging proud glances as they cheer daughter Esti on at her school sports day, Aneta and Simon Clayton look like any other happy couple. As Esti reaches the finishing line, Simon whoops for joy and Aneta runs to hug their daughter. Esti, seven, looks the picture of contentment.
Indeed, seeing the happy family it's hard to believe these devoted parents are actually divorced. It's even harder to believe that just three years ago they were embroiled in a custody battle so vicious it hit the headlines when Simon, driven to breaking point by their bitter feud, fled abroad with Esti. Police launched an international manhunt and overnight the couple's domestic tragedy was being played out in the newspapers and on television. Weeping Aneta gave a string of interviews, begging for Esti's safe return. Police blanketed European holiday spots with 'Wanted' posters. Holidaymakers were urged to report sightings.
Finally, after six nailbiting weeks, Simon was arrested at gun-point in Portugal. After two months in a squalid Faro prison, he was extradited to Britain to stand trial. He pleaded guilty to child abduction and was jailed for nine months. By that stage the warring couple couldn't even agree on the time of day.
One would have thought their relationship would be completely unsalvageable. Far from it. They now have a model divorce. And their extraordinary agreement over Esti could serve as a template for other divorced parents. Until now, family court proceedings have always taken place behind closed doors. But after winning a landmark ruling in the High Court last week, both Simon, 44, and Aneta, 32, can talk about their ground-breaking arrangements.
The judgment will have far-reaching effects and now mothers and fathers whose children are taken away from them - be it by ex-partners or social services - will be able to ask for media coverage of their plight. 'Ours was just an ordinary little case at the outset,' says Simon. 'But it got totally out of control once lawyers got involved. My story should be a warning to every parent. I'm elated I can now expose the hell our family suffered. I had to keep on fighting for all the men like me, men who have lost their hope.'
He believes that by putting what were effectively secret hearings into the open, injustices can be exposed or prevented. Not only do the Claytons share every aspect of Esti's care equally, the child even has her own bill of rights - of which more later. She's encouraged to love both parents equally while they promise only to look for the good in each other. A tall order for most parents - let alone for this couple.
Parent charter
After three years of hell, it's a charter made in heaven - but it wasn't forged without sacrifices. 'I lost my home and my job and ran up legal bills of more than £20,000,' says Simon. 'It's affected every aspect of my life. I'd love to remarry and have more children, but while this was going on, how could I commit?'
Simon was working as a pilot when he met Aneta, who now lives in Brecon with her new partner Terry, during a stopover in Warsaw in May 1997. 'She was working in the bookshop of the hotel and we got talking,' he says. 'We bonded very quickly. She was pretty and vivacious with a stunning figure and beautiful long brown hair. We seemed to have a lot in common. We both love reading and simple pleasures such as walks in the country.'
Simon returned to his cottage outside Hay-on-Wye. When Aneta followed for a holiday shortly afterwards, their romance rapidly intensified. 'With hindsight it was all too fast but, as Aneta didn't have a visa to stay in Britain, the pressure was on,' says Simon. 'We married in December 1997 and within three months Aneta was pregnant. 'It was a happy accident. Women admit their body clocks are ticking. Well, men's can too. I've always wanted children. I had an idyllic childhood in North Wales, where my father was an architect and my mother a housewife.'
Aneta had enjoyed a traditional Roman Catholic childhood in a small Polish town - her father was a policeman and her mother also a housewife - and was delighted to be a mum. Esti was born on December 28, 1998. 'Her birth blew me away,' Simon says. 'As a pilot I had enjoyed an enchanted life. I travelled the globe and even spent a year as a private pilot for the rock group Iron Maiden. But nothing compared to the exhilaration of being a dad. I knew I'd been given the greatest gift — and the most important job on earth.'
Determined to spend time with his new family, Simon quit his job. The couple set up a bookshop in Hay-on-Wye so they could spend quality time with Esti. 'We did everything equally. I changed at least as many nappies as Aneta,' Simon says.
Unravelling marriage
But, while they were united in adoring their baby, their relationship quickly unravelled. Struggling with the language and isolated in their country cottage, Aneta felt lonely and bored. Soon they were rowing constantly.
In April 2000, when Esti was just 16 months old, they separated, divorcing two years later. At first things were amicable. Simon stayed in the marital home so he could maintain the business. Aneta and Esti moved into a rented home nearby. They agreed to share childcare.
'We were devastated that our marriage was over. The last thing we wanted was for Esti to come from a broken home,' says Simon. 'But despite all the sadness, I was convinced we could stay friends. We hadn't had affairs. We hadn't been violent. We had simply fallen out of love.
'I assumed we would have a civilised divorce and organise childcare as we'd always done - equally. We were such good friends I even helped Aneta pack and drove her to her new home.'
To help arrange their divorce both hired lawyers - a decision that within months was to turn their relationship into raging warfare.
'The second you hire lawyers you throw petrol on the problem,' says Simon, who not surprisingly now campaigns for fathers' rights . 'Little niggles get magnified. Solicitors want to make money - it's in their interests to keep the dispute going.
'We would have silly tit-for-tat rows. If I was late to pick Esti up one day, Aneta might punish me by being late the next time, but left to our own devices we could have worked that out. Instead I'd receive an insensitive, rude letter from her solicitor reprimanding me. Then my lawyer would send her one. I don't blame Aneta and I know she doesn't blame me. We were pawns.
'But the toll on my health was terrible. Every morning I'd feel sick to the stomach when the post arrived - wondering what horror I'd find next.'
Despite all their problems, Esti was still sharing half her time with each parent. However, as the couple couldn't agree the finer details, their lawyers advised a court hearing. And it was then that the situation rapidly deteriorated. Aneta was advised to seek sole custody of Esti, allowing Simon regular contact. She was told this was standard procedure for mothers.
'The bottom fell out of my world,' says Simon. 'Esti was three-and-a-half. All her life we had shared her care equally. She had two bedrooms, two sets of clothes and two lots of toys. She had the best of both worlds. At my home she played with her ferret, Fifi. At Aneta's she played with Barbie dolls.
'But my lawyer told me that any decision would be entirely down to the judge. Our little girl's future was out of our hands. Anything could happen.
'From that moment I never slept properly. Every time I saw Esti I wondered if it would be the last happy time we'd enjoy. It was a living hell. I kept begging Aneta to sort things out between us but she wouldn't listen.'
Eventually, Aneta became so tired of Simon's anguished letters that her lawyer advised her to cut off all communication. And then, on April 9, 2003 - just a week before a final court hearing to decide Esti's future - Simon made his fateful decision.
Vanished
He booked a one-way ferry ticket from Portsmouth to Caen, in France, and vanished with Esti, then four.
When Aneta arrived three days later to pick Esti up, she found the house deserted and a note from Simon saying he had gone on holiday for three weeks to spend some quality time with their daughter. She was distraught.
'I feel very guilty about it now,' admits Simon. 'It was a moment of madness. But I never intended to alarm Aneta and I certainly wasn't kidnapping Esti. I just wanted to get away with her and clear the air.
'I love travelling. In the past, I'd taken Esti backpacking around America and North Africa, but relations between Aneta and me had deteriorated so badly, I knew it would be utterly impossible to agree holiday dates without months of lawyers' letters.
'Aneta knew I'd been planning a holiday in Europe. She also knew I only ever booked one-way ferry tickets. It never occurred to me she'd imagine I had abducted our daughter.'
That wasn't how Aneta saw it. She appeared on TV, begging the public to help return her daughter. 'If you know where she is, please contact me. Esti's missing me. It's time for her to come back home,' she sobbed.
Driving through France, Spain and Portugal in his VW camper van, Simon claims he was oblivious to the distress he was causing Aneta, or the manhunt back home. But surely he must have known how distressed the child's mother would have been. Moreover, having said he'd be gone three weeks, he remained on the Continent for twice that long. Who knows if he would ever have come home, had he not been spotted by a British holidaymaker in a tiny fishing village in the Algarve.
Esti was paddling in the sea when police pounced. 'A policeman smashed me to the ground and stuck a gun in my head,' says Simon. 'It was like something out of Miami Vice. When he told me, in broken English, that I was being arrested for kidnap, I was in shock.'
Simon was bundled into a police car. Esti, still in her wet bathing suit, followed in another car. At the police station Simon was allowed a final goodbye before Esti was whisked off to spend the night with a social worker before being reunited with Aneta. Simon wasn't to see his daughter for 12 months.
'Standing in the police station, saying goodbye, I was determined not to scare Esti,' says Simon. 'I cuddled her and brushed her hair - it was still matted from the sea.
'For the only time in her life I lied to her. I said that I was ill and needed to go to hospital and that she would be spending the night with a kind lady. Her lower lip wobbled but she tried to be brave for my sake. I thought my heart was going to break.'
Simon spent the next two months in a cell at Faro jail. 'The conditions were like a scene from Midnight Express - three of us were banged up for 20 hours a day in a cell barely two metres each way. Our toilet was a bucket in the corner.
'There was no fan and the heat reached 50 degrees. I thought I was going to die. I'd never even had a parking ticket. I was in a hellhole, all because I loved my daughter.'
Devastated by the distress he'd caused Aneta, Simon sent her a letter of apology. But she was so angry, she didn't even respond. Extradited to England after two months, Simon pleaded guilty to child abduction and was sentenced to nine months in jail. Taking into account the time he'd served in Portugal and on remand it meant spending another two months in prison.
'I kept thinking I'd wake up and find it was all a dream,' he says. 'I could have beaten someone half to death and had a lighter sentence. But I was advised to plead guilty to save the stress of a full-blown court case which might have involved Esti being called as a witness.
'In jail, conditions were utterly terrifying. The queue for methadone - a heroin replacement for addicts - was longer than the lunch queue. I couldn't sleep at night for the howls of inmates half-crazed as they went cold turkey.
'I blocked my mind to Esti. I didn't have a single photo of her in my cell. I knew if I thought about her, I'd go to pieces. It was a living bereavement.'
Homeless and jobless
Simon was finally released on December 1, 2003. He was homeless, jobless and with a prison record. Now he faced a further custody battle to gain access to Esti.
Finally, in April 2004 - a year after last seeing her - he was allowed a few hours with her. But he was banned from being alone with her in case he tried to abduct her.
'Esti had grown three inches. I'd missed her fifth birthday and Christmas so I'd brought her loads of presents - a doll's house and set of farm animals,' he recalls. 'She was really shy at first. I started talking about her pets and gradually she warmed.'
But Simon was still determined to fight for shared care. His hopes seemed slim, but in July 2005, Simon and Aneta found themselves at the High Court in Cardiff for a final hearing.
Against all the odds, over two days the couple thrashed out an agreement.
'It was actually Aneta's barrister, Anthony Kirk QC, who suggested it,' Simon says. 'Until then we'd been at loggerheads. But he helped us draw up an agreement which put Esti first and acknowledged that we both loved her and both agreed it was in her best interests to have a mum and a dad in her life.
[Simon was extremely lucky that (a) mother agreed to this and that (b) this barrister was involved. IT IS VITAL TO REALIZE THAT had Aneta decided to fight shared care there is not a snowball's chance in hell that the court would have ordered it. Simon would have been lucky to have been awarded alternate weekend contact and half the holidays! - EPC COMMENT]
'For the first time, Aneta and I could see we were on the same side - working for our beloved daughter. It was a minor miracle.'
'Bill of Rights'
The couple also agreed a special 'Bill of Rights' for Esti. She's encouraged to love both parents equally and both parents promise not to use her as a pawn in any disagreements.
'I couldn't believe we'd done it,' says Simon. 'Afterwards Aneta and I even had a meal together. The bitterness evaporated. It's been a year now and our arrangement works like a dream. Esti has separate bedrooms and full sets of clothes at both houses, which are 23 miles apart. She spends one week at my house, one at Aneta's.
'We are flexible. My father died a few weeks ago from a heart condition. Aneta willingly agreed Esti could come to his funeral although it was during "her" time.
'Esti has two very different worlds. At my home she goes riding and for long walks. I don't have a TV so we read a lot. At Aneta's she enjoys shopping and catching up on the soaps.
'Despite our terrible history, Esti is remarkably unaffected. She's self-confident and outgoing with a wicked sense of humour. Most of all, she feels deeply loved.
'Aneta and I talk regularly. When Esti has a doctor's appointment we go together. My only anger is with lawyers. Countless parents - usually fathers - suffer as I have. But our case shows there can be a better way.' [But only if the mother agrees! EPC COMMENT]
Estranged father's victory over family court blanket of secrecy
By Joshua Rozenberg, Legal Editor(Filed: 28/06/2006)
http://www.telegraph.co.uk/news/main.jhtml?xml=/news/2006/06/28/nfam428.xml
A small corner of the blanket of secrecy covering family cases was lifted yesterday when the Court of Appeal allowed an estranged father to discuss a ruling involving his daughter.
The outcome was a victory for Simon Clayton, from Hay-on-Wye, Herefordshire, who will be allowed to put pictures of his seven-year-old daughter, Esti, on his website and discuss the agreement he had reached with her mother for sharing their daughter's care.
However, the court banned him from involving Esti in a film he wanted to make about how he had abducted her to Portugal in 2003. Three appeal judges decided that, on matters affecting her welfare, the child's right to respect for her private life under Article 8 of the Human Rights Convention outweighed her father's right to freedom of expression under Article 10.
In an unusual move, Sir Mark Potter, who presided over the appeal, issued a press release saying that he and his fellow judges regarded their decision "as a small step towards greater transparency and rebutting the slur inherent in the charge that the family courts administer 'secret' justice".
Mr Clayton, who campaigns for fathers' rights in the family courts, said of the ruling: "Today the Court of Appeal has allowed me to speak freely."
He added: "I see the judgment as a big step forward. Until today I was not allowed to publish this information." Mr Clayton and his wife, Aneta, married in 1997 and separated in 2000, sharing the care of their daughter.
But when Mrs Clayton began court proceedings for contact and residence orders, her husband abducted Esti, living in a camper van in Portugal for five and a half weeks until he was arrested. He pleaded guilty to child abduction and spent six months in prison.
A BBC documentary about his case, Simon Says, was broadcast in January 2004. Three months later, Mr Clayton was allowed renewed contact with his daughter.
Mrs Clayton took out an injunction when she heard that her estranged husband was intending to discuss the case and revisit Portugal to make a film about their daughter's experiences.
Sir Mark said the practical effect of allowing the appeal would be that every court would have to justify continuing an order for anonymity after concluding a case. But he said this did not mean parents were free to "draw their children into an ongoing public debate about their welfare or other wider issues".
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