In The Best Interests of the Child: How The Courts Get it Wrong. Part 2.

 

There is no crueler tyranny than that which is perpetuated under the shield of law and in the name of justice.

Charles de Montesquieu January 18, 1689 – February 10, 1755 [1]

 

Ostensibly we have laws that purport to treat “…all persons equally before the law…” these laws are enshrined not just in the domestic legislation of common law jurisdictions [1] (Ireland, the UK, the US, Canada, Australia, New Zealand to name but a few) but in international Human Rights Instruments [2] that are applicable in these individual States and Nations.

But, while it may appear that the protections of the law apply to all persons equally, the reality is different. Part of the underlying problem is, in my opinion, a reliance on assumptions, on myths, on what Dr. Linda Neilsen comprehensively rebutted in her study, (see Part 1). Further, that by default, International Rights Instruments explicitly state, to paraphrase, that children have the right to a meaningful PARENTAL relationship with both their parents, that both parents have “parental equality” by default, and Joint Physical and Legal Custody is the optimum way for parents to exercise those default equal parental rights  – yet,  sole physical custody continues to be granted to mothers, and even in cases where joint physical custody is granted, the parents are still categorized into “the primary carer” and the other or secondary parent with this secondary parents parental status characterised as “access” as “contact” as“visitation”

“My review of 54 studies on shared parenting finds that, independent of parental conflict and family income, children in shared physical custody families—with the exception of situations where children need protection from an abusive or negligent parent—have better outcomes across a variety of measures of well-being than do children in sole physical custody. Knowledge and understanding of these findings allow us to dismantle some of the myths surrounding shared parenting so we can better serve the interests of the millions of children whose parents are no longer living together.”

(emphasis added)

Presumptions, Assumptions and Cultural Language – v – Rights Language.

No doubt, as many fathers have found when participating in “legal proceedings” in particular Family Law proceedings there is a unique language and vernacular used – not only that, there is a distinct method by which decisions are reached – (Ratio Decidendi)[4] but, for many lay litigants (which is usually the case with fathers seeking “access” to their children) this “Ratio” is incomprehensible gobbledygook, legalese and goes completely over their heads.

Part of the reason for this is because (in my opinion) the judicial atmosphere is clouded by the use of presumptions, assumptions and cultural language skewed towards a distinctly female perspective and this dictates the parameters of the judicial decision making process – in other words – the language of Rights, both parental and children’s rights is obscured in favour of taking a cultural framework approach – and – without a doubt, that cultural framework, and its language is informed by a particular ideology that has no place in the decision making process that affects the long term wellbeing, safety, and welfare of children.

The rights of children get subsumed under an ideological toxic cloud of rhetoric and mythologies about “motherhood” that serves only the interests of the person manufacturing that toxic rhetorical cloud and usually her equally ill-informed and ideologically driven counsel. (say no more)

Children’s Rights

The most obvious question is of course – do children have rights?

It might seem and appear to be a ridiculous question, but, when it comes to Family Law proceedings in this jurisdiction in particular (Ireland) and in other common law jurisdictions the default paradigm through which judicial decisions are made is NOT that children have distinct rights as autonomous human beings, but that those rights are and can only be exercised with the consent of and co-operation of a litigious parent, whose very actions in making applications for sole custody and/or limited “access” to the other parent is a stance that quite clearly indicates that the child “in dispute” most certainly does not “have rights’ distinct and separate from that parent.

Giving sole custody to mothers who present as opposed to “access” who seek to limit the amount of real time “access” fathers get to spend with their children, who go to court demanding that the court endorse and sanction them with a “gate-keeping” role in the exercise of a full and meaningful parental relationship for fathers and their children should be immediately presumed as a violation of the fundamental principles of “equal parental rights” enshrined in CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION

Article 24 – The rights of the child

  1. Children shall have the right to such protection and care as is necessary for their well-being. They may express their views freely. Such views shall be taken into consideration on matters which concern them in accordance with their age and maturity.

  2. In all actions relating to children, whether taken by public authorities or private institutions, the child’s best interests must be a primary consideration.

  3. Every child shall have the right to maintain on a regular basis a personal relationship and direct contact with both his or her parents, unless that is contrary to his or her interests.

 

Article 7 – UNCRC (United Nations Convention on the Rights of the Child)

The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and, as far as possible, the right to know and be cared for by his or  her parents.

Article 9

1 States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child’s place of residence.

2 In any proceedings pursuant to paragraph 1 of the present article, all interested parties shall be given an opportunity to participate in the proceedings and make their views known.

3 States Parties shall respect the right of the child who is separated from one or both parents to   maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child’s best interests.

(all emphasis added)

Mothers who persist in objecting to, obstructing, litigating against “access” should be immediately be viewed as suspect and in particular, being, not only in violation of the above mentioned provisions of law but if either “sole custody” is sought or a “gate-keeping” role in relation to “access” is sought, it should be presumed to be a deliberate intention to breach NOT JUST the parental rights of the other parent (the father) but the children’s rights under the provisions of the above mentioned Instruments.

Unfortunately, the Courts tend to only pay lip service to the concept of children’s rights, and while judges may make a passing reference to “the right of child to ………………., it gets lost under the blanket of toxic ideological fog generally created by the obstructionist, conflict generating, gate-keeping parent – in most cases – the mother.

The Illegitimacy of the Concepts of “Access to”, “Contact with” and “Visitation with” Your Children

Bearing in mind that it is the Right of the Child to “to know and be cared for by his or  her parents….” and the Right of the Child to have and “to  maintain personal relations and direct contact with both parents on a regular basis,” I would argue that ANY application by any parent grounded on a curtailment of, reduction of, infringement of the full exercise of those rights BY THE CHILD, is ab initio unlawful, fundamentally flawed and in breach and violation of he provisions of Article 24.3 of CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION, and is in breach and violation of Article 9.3 of the UNCRC.

I would also argue that any application to curtail, limit, disrupt and/or impose conditionality, or to award a “gate-keeping” parental authority to one parent over the other parent is also ab initio a fundamental breach and violation of, in this jurisdiction (Ireland) the provisions of:

Article 40

1 all citizens shall, as human persons, be held equal before the law.

Article 42a

1 the state recognises and affirms the natural and imprescriptible rights of all children and shall, as far as practicable, by its laws protect and vindicate those rights.

 4 1° Provision shall be made by law that in the resolution of all proceedings–

i brought by the state, as guardian of the common good, for the purpose of preventing the safety and welfare of any child from being prejudically affected, or

ii concerning the adoption, guardianship or custody of, or access to, any child, the best interests of the child shall be the paramount consideration.

The question is, what is the underlying cultural and societal fundamental hindrance to achieving a just outcome FOR CHILDREN, when their parents no longer live together?

Answer.

Myths about women – assumptions and presumptions presented as a de facto credible basis’ for skewing “custody” to women and “access’ to men.

Bit of an aside here. I took a little look see around the internet to see what the feminists were up to, what was pushing their buttons in the here and now.

Was like Deja vue all over again – same shoite different year.

Housework???? Still whining about housework. Wage gap???? Really? Notwithstanding that this particular myth has been comprehensively discredited. I Have no intention of addressing these issues – they have been more than adequately addressed by other writers and bloggers. Though the housework thing is beyond ridiculous.

I read a few studies – and nope, couldn’t be bothered giving a link – in a nutshell, the impression created was that wimmin were, to all intents and purposes working their fingers to the bone slaving over steaming tubs of water using washboards to do the laundry. Sigh.

Guess what. Two hours ago, I threw a wash into the machine, took me all of 30 seconds, 20 minutes ago, at grave physical risk and danger, I pulled the laundry out of the washing machine and fecked it into the dryer – can hear the dryer from where I’m sitting, at my laptop, writing this.  Though, the 30 seconds it also took to feck the laundry into the dryer has me only exhausted! I may need funding for a support group to be set up so I can “share my feelings” about how random men all over world “oppressed” me for a full minute!

Seriously though.

This language of “oppression” and martyred motherhood” needs to be unpicked, rebutted, discredited – in Court – and on a basic fundamental level.

Yep – I know it sounds nit-picky but think about it – “Primary Carer” being a case in point.

Childhood lasts approximately 18 years (legally speaking that is) – the first 4 – 6 years being what I suppose could be called labour intensive – that is before this putative child goes to school., with the first two years being the most labour intensive. By which stage most children are walking, eating grown up food, possibly starting to become toilet trained. By two years old, the vast majority of children are in a routine – i.e. they go to bed by 7ish pm and they sleep till 7ish am.

In other words, by the time they’re two their routines are predictable, manageable and equally able to be carried out by BOTH or either parent(s).

But, because of the promulgation of the myth of martyred motherhood, Courts continue to give credence to this discriminatory concept of “Primary Carer” based on the notion that there are some magical, extraordinary things that women can do that men are not only incapable of doing but are genetically handicapped (by being men) from ever being able to do.

The biological reality is this – there is only one thing, and one thing only that women can do and men can’t – breast-feed. And any reasonable person will tell you, that breast-feeding is unnecessary beyond maybe 8 – 10 months (babies have teeth at this point)

Conclusion

In order for States that are signatories to the ECFRF (European Charter of Fundamental Rights and Freedoms) the ECHR (European Convention on Human Rights) UNCRC (United Nations Convention on the Rights of the Child) and on individual domestic “equality” legislation to be IN COMPLIANCE with the provisions of these documents there MUST be a presumption of Joint Legal and Physical Custody of children.

There MUST be a presumption that the child is entitled to a full, meaningful and EQUAL relationship with BOTH parents, with NO CONDITIONALITY other than practical and logistical matters to make co-parenting work with the minimum of stress FOR THE CHILD.

Any parent who creates conflict around implementing a co-parenting arrangement, causes difficulties, creates obstacles should be the one sanctioned – including a loss of parenting time, and in extreme cases – loss of Joint custody, until to be blunt SHE cops onto herself, puts the child’s needs before her own selfish need to be “in control” to “set the rules” to “dictate the parameters of the other parents role” and yes I did use the word “she” deliberately – because it is nearly always “she” who causes, creates and manufactures the conflict.

Family Law judges have allowed themselves to be bullied, to be manipulated, to be hood-winked – and to be blunt – when presented with what is referred to as a “high-conflict” custody case to be emotionally blackmailed by the perpetrator – the mother, invariably.

In effect – absent mitigating factors (real credible and evidence based) Sole Custody Orders are, in my opinion – Unconstitutional, (Ireland) and in breach of the provisions of the ECHR and ECFRF.

TPAC (Toxic Parental Alienation Conflict) perpetrated by one parent against the other parent, the visible manifestation of which ARE these applications for sole custody, ARE applications for restricted “access” for the other parent, constitute sufficient mitigating circumstances to reduce parenting time, and in extreme cases loss of Joint Custody for the parent making these applications.

I draw your attention to the provisions of Section 63 of The Children and Family Relationships Act 2015, [6] at ;

(i) where applicable, proposals made for the child’s custody, care, development and upbringing and for access to and contact with the child, having regard to the desirability of the parents or guardians of the child agreeing to such proposals and co-operating with each other in relation to them;

(j) the willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent, and to maintain and foster relationships between the child and his or her relatives;

(k) the capacity of each person in respect of whom an application is made under this Act—

(i) to care for and meet the needs of the child,

(ii) to communicate and co-operate on issues relating to the child, and

(iii) to exercise the relevant powers, responsibilities and entitlements to which the application relates.

(emphasis added)

 

Part 3: In The Best Interests of the Child: Review of the Case Law.

 

References

[1] Charles de Montesquieu https://plato.stanford.edu/entries/Montesquieu/

[2] http://guides.law.sc.edu/c.php?g=315476&p=2108388

[3] European Charter of Fundamental Rights and Freedoms http://www.europarl.europa.eu/charter/pdf/text_en.pdf

European Convention on Human Rights https://www.echr.coe.int/Documents/Convention_ENG.pdf

UNCRC http://www.ohchr.org/Documents/ProfessionalInterest/crc.pdf

Ireland and the UNCRC https://www.ihrec.ie/download/pdf/ireland_and_the_united_nations_convention_on_the_rights_of_the_child.pdf

[4] Ratio Decidendi http://lib.oup.com.au/he/Law/chew2e/chew2e_BLG2_chapter1.pdf

[5] Irish Constitution 1937 http://www.irishstatutebook.ie/pdf/en.cons.pdf

[6] The Children and Family Relationships Act 2015 http://www.irishstatutebook.ie/eli/2015/act/9/section/63/enacted/en/html