Every 10 days in England and Wales a child is killed by a parent (Home office Statistics from 2006/7 to 2010/11). What could ever drive a supposedly loving parent to kill his or her own children? The recent awful case of Jocelyn Marcoux in Quebec offers one answer: he was driven to take the lives of his children seemingly through an overwhelming frustration with the Canadian family justice system. He believed that he, as a father, was not being treated fairly.
Hours before allegedly killing his two children, Mr Marcoux used Facebook to denounce the Quebec Family Court for favouring mothers' rights over fathers'. Such a complaint is not unique to Canada. In this country, there are a number of fathers' groups campaigning to address a perceived bias favouring mothers.
Does this perception have any basis in fact in this country?
First, and most importantly, our courts start from the principle that parents are best placed to decide what works for their children. Therefore, the courts only become involved if there are real concerns about a risk to the children's welfare, or else if the parents cannot reach an agreement, and one of them asks the court to help.
Relationship breakdown is always stressful. Roiling emotions may make it difficult for some parents to distinguish between what they want as opposed to what is in their children's best interests. However, if parents are able to move beyond their own perspectives and adopt a child-centred focus, they have the opportunity to put in place flexible arrangements tailored to their particular family circumstances without surrendering decision-making power to an outside agency (that is, a Judge).
But what happens when parents cannot agree? The issue is not a binary one, where the alternatives are either agree or litigate. There are options, which can be engaged before or during the court process, for example, mediation. In England, it is now necessary for most parents to attend a mediation information session prior to issuing court proceedings.
If mediation is not viable for whatever reason, and it is necessary for the court to make a decision, that decision will be informed by all the individual factors of the case and ultimately by what is in the best interests of the children.
A detailed account of the way our courts decisions in private children proceedings is beyond the remit of this article. However, it is worth emphasising that there is no presumption that children are better off with mothers than with fathers. That said, Judges deciding these cases are afforded a considerable degree of discretion. This provides the flexibility to find solutions for the myriad variations of family arrangement which confront them. This same discretion can lead to uncertainty in predicting what a Judge will decide, and in some cases lead to a concern that a party has been treated unfairly. In family law, it remains true that justice must not only be done, but it must also be seen to be done.
Presently in England and Wales, there is no presumption that both parents should spend equal time with their children following separation. However, the Government is currently looking at reforming legislation to make it clearer that both parents are equally important to children post-separation, should play an ongoing role in their lives. It published a consultation paper in June 2012 looking at:
1.How legislation should be amended in order to reinforce this principle, and
2.How to strengthen the Courts' powers to deal with breaches of Court ordered contact arrangements.
If introduced, legislation might impose an explicit requirement on courts to consider the benefits to a child having a continuing relationship with both parents, alongside the other factors relevant to their welfare, and to make decisions accordingly. Nevertheless, the child's welfare would remain the courts' overriding consideration, which ought to assuage concerns that the change could lead to parental rights eclipsing those of the children.
While the proposed change in legislation might not go as far as some (particularly fathers) may wish, it ought to be welcomed. Currently, there is evidence that many fathers' relationships with their children suffer following separation. In April this year, the All-Party Parliamentary Group on Fatherhood produced a report ("The Father's Journey: a survey of help-seeking behaviour by separating and recently separated fathers"), based on a survey of 295 fathers between 15 April and 15 May 2011. Of the respondents, 49.3% said that their relationship with their children in the year following separation was poorer than it had been previously (30% said that it was much poorer).
This therefore is the question which needs to be addressed: is deterioration in the relationship between the non-resident parent and the children inevitable, and if yes, what can be done to mitigate that deterioration? It seems to me that campaigning for parents to spend equal time with the children is too simplistic a response. It is axiomatic that all time spent with children is not equal in quality.
In the same report quoted above, 61.5% of the respondents reported that they had suffered deterioration in their mental health in the year post-separation. Where parents are struggling to cope, it is not surprising that the relationship with their children suffers.
Perhaps, rather than limiting the focus to the time that separated parents spend with their children, more emphasis should be placed on assisting parents to cope with the emotional fallout from the breakdown of their relationships. This could help to limit tragedies where parents feel that only extreme options remain open to them, as in the case of Jocelyn Marcoux. Unfortunately, in the current economic climate, investment in services designed to support separating parents at all levels seems depressingly unlikely.