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12 January 2012

Why children lose out in divorce

Mahie Abey

I know this blog is supposed to be about financial issues on divorce but today one of my clients showed me, just before a round table meeting, an article from The Telegraph article on 6th January about the government’s recent proposals to have a presumption in favour of separating parents each having contact to their children. This was specifically considered by David Norgrove in his recent Family Justice Review, but not included in his final report.

I have to say I think it is essential that this becomes law and have thought so for many years. It is a really positive thing that there has been a move towards calling classic ‘contact’ arrangements ‘shared residence’. I think in this case the terminology is vital. Why shouldn’t a child ‘live’ with a parent when they are with that parent, as opposed to just visiting them, even if the arrangement is every other weekend and perhaps some mid-week time with holidays in addition? It can surely only enhance the relationship between the children and their parents if neither is seen as superior to the other in the eyes of the law.

All too often what happens is that children are used as weapons by parents who are still bitter about their separation or involved in a fight over the finances. Denied contact to one of their parents, often on the whim of the other and for no real reason. This is allowed to happen because the law in respect of children lacks teeth. Denying contact does not lead to any real sanction in most cases  - but does lead to real unhappiness for the parent who cannot see their children and most importantly for the children themselves.

This situation is not the norm but it is by no means rare. I have been involved in 3 cases this year where the father – and it is, I am afraid, usually the father – has been denied contact or messed around on contact for no discernible reason other than that it suited the mother. In each of the 3 instances there have been financial cases going on in the background - and surely this is not a coincidence. Yet there is a taboo about linking children and money. Why is that, when in many cases it is obvious that the reason that contact is refused is to gain some sort of advantage in the financial dispute by flexing muscles of control over the children as part of the power struggle going on between the parents?

And why do I think a change in the law would help? Simply because it would make things more equal between the parents.

In a finance case between a divorcing couple it often does not matter which one of them has earned the money. Therefore in a case where the man has gone out to work and the woman stayed at home to look after the kids, she is not financially penalised for doing so  - and quite rightly so.

Why then does a perfectly good dad, who does not see his kids as much as their mother, because he works more, get penalised by the family courts - who are persuaded all too often by the argument that the father’s relationships with the children is not as good  as the mother’s, and in many respects not as important.

I think this is because of the absence of the presumption that the father has as much right to see the children as the mother.

There is a real need for change  - and I for one sincerely hope that the rumours of a Cabinet divide on the issue do not push this excellent idea into the long grass.