The family law legislation which is currently in force in Australia, the UK, the USA and Canada is proving to be having disastrous consequences for the 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 UN 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 his/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 the 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 will have often experienced physical violence and abuse when the violence was being perpetrated, and occasionally may have suffered 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.

The Voices of Parents

Often the abuse of the child continues during contact or with the resident parent as illustrated by the following statements of parents who have written 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 guard their child against 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.

Reform

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.

First, I would suggest that the family law is completely re-written from a children’s rights perspective, so that 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.

Tags: Best interests of children, Child abuse, Child protection, Children's rights, Family law, Parental access