Family Law
Dire consequences for Children
The Family Law legislation which is currently in force in Australia, the U.K.,
the U.S.A... and Canada are proving to be having disastrous consequences for
children of those countries and are often leading to serious breaches and
violations of their rights under international conventions.
The legislation is largely framed around the rights of parents and in particular
to their rights to a `Meaningful Relationship’ with their children after
separation and divorce and to `Equal and Shared parenting’. Such terms and the
general approach have meant that children are treated merely as possessions and
commodities and for their time to be split as Courts may, in their wisdom,
choose. The rights of children under U.N. Conventions are given only token
regard in the law and in court practices, especially their right to be protected
and provided with a safe and secure environment in which to grow and develop and
to have their wishes and feelings taken into consideration when decisions are
made affecting their lives.
It seems to be of no matter that a parent may not have previously enjoyed or
even sought a `meaningful relationship’ with the child prior to separation, and
may even have disliked, shunned, or been indifferent to the child and her needs.
Neither does it matter if the parent has spent very little time with the child
prior to the separation but has pursued their own recreational and leisure
activities and taken no interest in the child. The approach taken by Courts is
to ignore or disregard such conduct by a parent and simply apply a simple rule
that the parent has the absolute and inalienable `right’ to a see the child and
to have care of the child.
An even worse scenario occurs when a parent has used violence toward the other
partner – violence which has either direct or indirect consequences for the
child in that the child will at the least have suffered emotional harm from
seeing or experiencing the conflict and its effects, and often physical violence
and abuse when the violence is being perpetrated, and occasionally may suffer
sexual abuse.
Although the legislation does make some reference that such child abuse should
be taken into account in family law proceedings, the Courts tend to see the
`right to contact’ of the parent as the overriding consideration. In a large
proportion of cases where domestic violence has occurred prior to separation,
such violence continues after separation and the children are used as innocent
pawns by one or both partners to cause harassment and frustration to the former
partner as a means of exercising continuing power and control over them.
Often the abuse of the child continues during contact or with the resident
parent as illustrated by the following statements of parents who wrote to me for
advice and assistance :
A mother writes:
“I have two small boys and I always believed that as a mother I had the right,
the duty, the obligation and the absolute power to protect my children. The
reality is – I have NO power – I am totally and utterly powerless to protect my
children and keep them safe from sexual, emotional and psychological abuse and
there is no one who wants to. Assumptions are that the Family Court will do
that. What I have been given is continued
Abuse by the father, directly and through the children, and by the courts, and
the departments involved, so instead of the cycle being stopped – the system has
perpetuated the abuse”.
Or as a father wrote to me:
“My young son is being looked after by his mother and her new partner, and three
years ago I received strong evidence that he was being abused by them. When I
passed this information to the child protection authorities they flatly refused
to even investigate and for the last two-and-a-half years I have taken this
matter through the Courts but with no success. No one seems to care when a child
may be being abused.”
Many such cases of child abuse fall between the cracks in the child protection
system. Child Protection authorities refuse to investigate the allegations as
they consider that in such cases the investigations are a matter for the Family
Court and the Family Court do not have the expertise or the resources to
competently and correctly investigate child abuse allegations. In some instances
where the child protection authorities have investigated allegations of child
abuse and have found them to be substantiated, this has been disregarded by
Courts.
If a protective parent seeks to protect their child from abuse by the other
parent during contact visits and they stop or limit the contact, they risk very
serious consequences by the Courts. They risk imprisonment which has happened to
at least two mothers in Australia and other mothers in the UK and America, but
more commonly the residency of the children is taken from them and the children
are placed with their abuser. The numbers of children who have died in Australia
during the last ten years as a consequence of such decisions are unconscionable
and unacceptable.
`Shared Parenting has been seen by Courts as an inalienable right of parents yet
it is very clear in many cases that some parents should not be permitted
residency or contact with their children, where there is evidence they have used
violence within the home or have criminal records, or are known abusers of drugs
and alcohol.
This situation where the law and the Courts are clearly working in the worst
interests of children must be changed and I would suggest need to take the
following form:
Firstly I would suggest that the Family Law Act is completely re-written from a
Children’s Rights perspective. Where each child’s right to be protected from
abuse is given paramount importance. Children need to feel safe, secure, and to
have certainty in their lives.
Secondly, the term `the best interests of the child’ should be abandoned. It was
first created in Nazi Germany to justify the atrocities which were done to
children during the War years in that country. What it amounts to is the
subjective opinion of the adult making that decision. It should be replaced by a
statement that it ‘must be to the measurable and demonstrative benefit of the
child’.
Thirdly, the views and wishes of children in Family Law proceedings must be
given paramount importance and children should have the right to give their
Expressed wishes directly to the court and not for the subjective and distorted
opinions of an adult to be offered instead, professional or not.
If reforms are not made to Family law legislation, then many hundreds more
children will be condemned to suffer serious abuse and death in the future.
Charles Pragnell Dip.S.W., L.R.C.C.
Charles Pragnell has over 40 years experience in child protection work and
working with emotionally and behaviourally disordered children. He is presently
a Child and Family Advocate advising children and parents on issues in Family
Court and child protection Proceedings. He has provided expert evidence to
Courts in England, Scotland, New Zealand and Australia.
ByCharles
Pragnell
May 12, 2009
Diploma in Social Work and Letter of Recognition in Child Care
Expert Witness – Child Protection
and Social Care Consultant
and Child/Family Advocate..
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