In discussion, Adam Swift, from the Centre for the Study of Social Justice, raised
the point that it may not be right to infer from the data that similar self-esteem ...
POST-SEPARATION FAMILIES AND SHARED RESIDENCE: SETTING THE INTERDISCIPLINARY RESEARCH AGENDA FOR THE FUTURE MEETING 2 SUMMARY & DELEGATE LIST Child and family wellbeing in the context of post-separation families The second meeting of the AHRC Network on post-separation families and shared residence was held at the Aston Conference Centre in Birmingham on 28-29 June 2011. International and interdisciplinary in scope, it received contributions from established academics in the fields of moral philosophy, law, social psychology, social work and social policy. In addition, the network heard from a representative of the Children and Family Court Advisory and Support Service (CAFCASS), the body charged with championing the interests of children involved in family proceedings and advising the family courts in England on what it considers to be in the best interests of individual children. The aim of this two-day meeting was, in part, to examine the extent to which the welfare of the child should be the primary consideration in determining where and with whom a child lives, as well as exploring wider family and kinship relationships in the context of post-separation families. The network heard from speakers from the UK, Ireland, Canada and France. Day 1 Edward Kruk from the School of Social Work and Family Studies, University of British Columbia, gave the first paper of the event, examining the arguments for and against shared parenting, and then outlining a four-pillared approach to shared parental responsibility after separation and divorce. Kruk began by detailing what he took to be points of agreement between proponents and opponents of a presumption of shared parental responsibility. Among these were the following inter-related ideas: that the wellbeing of children must be the utmost consideration (an idea that would come to be explored in greater detail on the following day of this event); that a key factor is the maintenance of meaningful relationships; that children should be protected from abuse and violence; and that any alleged violence or abuse should be assessed and investigated. Kruk argued that the sole custody system was not serving these ends, and detailed a set of sixteen arguments in support of shared parenting. Of these arguments were: that shared parenting preserves parent-child relationships; that it decreases parental conflict and family violence; that it reflects parents’ and children’s own preferences and views about
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children’s needs; and that it offers practical assistance, as in judicial decision-making and the enforcement of parenting orders. Kruk went on to note some arguments against a presumption of shared parental responsibility, giving some voice to concerns that such arrangements could in some instances exacerbate discord and conflict within families, which could damage children due to their exposure to such conflict and by disrupting the attachments that children may have previously made to one parent as their primary caregiver. Kruk also acknowledged the concern that such a presumption could detract from considering individual children’s and families’ unique needs and circumstances. Kruk went on to argue that the fourpillared approach could accommodate all of these concerns. The four pillars of the approach would be harm reduction, treatment (including the use of mediation services, particularly in devising parenting plans before holding court hearings), prevention (essentially comprising parental education), and finally the enforcement of orders (but preferably only where mediation has failed). Kruk argued that this system would reduce family discord and conflict, and that the use of an “approximation rule” to try and match post-separation care arrangements to pre-separation care arrangements would help to tailor these arrangements to the individual needs of children and families. Kruk closed by warning that his recommendations were not to be taken as a panacea and that much care and caution should be exercised in these circumstances, but with the important note that both families themselves and the research community spoke against sole parent custody after separation and divorce, and that shared parenting presented a viable alternative. In discussion, Jon Ives from the University of Birmingham raised a question about the practical applications of the approximation rule, with particular concern about how it would account for the time that both parents had spent raising the child together. Kruk acknowledged that the approximation rule could never ensure that post-parenting situations were exact mirrors of pre-separation arrangements, but that this standard was endorsed by the American Law Institute, and that in cases of conflict we could default to an arrangement where both parents spend equal time with the children. Catherine Houlston, from One-Plus-One, raised a question about how Kruk’s approach might allow for the needs of children of different ages. Kruk responded that mediation could be used to facilitate an individualised approach to generating post-separating arrangements. Mike Coote, the National Commissioning and Partnerships Manager of CAFCASS, gave a talk introducing Separated Parent Information Programmes (SPIPs or PIPs). The programmes are court-ordered four-hour mixed-gender group sessions motivated towards helping separating or separated parents to keep their affairs out of court. Coote noted that recent research into the utility of the programmes revealed that they increased the probability of out of court negotiations between separating/separated parents in the future, but that referral processes are slow and that parents have a poor level of understanding about the programmes before entering into them. He also noted that the take-up of mediation services among these parents was low.
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In discussion, a concern was raised that such programmes did not adequately account for the voice of children, and Coote agreed that this was something important to consider for the future. It was further suggested by Kristen Skjorten, from the Norwegian Centre for Violence and Traumatic Stress Studies, that such programmes might be beneficial to many kinds of parents, not just those who have been referred to them by the courts. Coote agreed on this too and expressed his desire to extend such or similar programmes to those who do not come to court. Ann Buchanan, from Oxford University, raised the issue of legal aid and pointed out that some families with lower incomes, who would potentially be of the most needy families when it comes to such programmes, may not have the finances to go to court and thus might miss out on the opportunity to benefit from PIP programmes. Coote agreed on this also and suggested that in future they may be able to reach out to these families too. Gerard Poussin, University of Grenoble, gave a fascinating talk about his psychological study that, together with his colleague Elizabeth Martin-Lebrun examinied the correlations between family residence situations, family conflict and the self esteem of children in their sixth year of schooling. He detailed a research study undertaken in 19951996, where over 3,000 children’s scores on the Coopersmith self-esteem scale were measured to see whether there was any relationship between self-esteem and the setup of their family, with regard to factors like whether parents had separated, whether one or more parent had died, or the particular parent with whom the child resided after separation. Poussin reported that there was no significant difference between the selfesteem scores of children with separated parents and those with at least one deceased parent, suggesting that it may have been the lack of one parent rather than the process of parent separation that was associated with lower child self-esteem. Also, that among those children whose parents were separated and who lived with their mothers, the presence or absence of regular contact with the father did not appear to affect their selfesteem scores much. In 2008-2009, a follow-up study was undertaken, the aim of which was to test whether it was divorce or parental conflict that was the source of children’s psychological difficulties. It was found that the presence of parental conflict had a major impact on children’s self-esteem, and that in cases of parental conflict, low self-esteem was associated with: self-blame for the conflict; feelings of anxiety about the conflict; and children’s taking the sides of their fathers in conflict. It was found that parental conflict was associated with low self-esteem regardless of whether parents had separated or were still living together. It was also noted that self-esteem scores were the same between “united families” (ones where the parents were not separated) and “joint custody” families (ones where separated parents shared the parenting responsibilities). In discussion, Adam Swift, from the Centre for the Study of Social Justice, raised the point that it may not be right to infer from the data that similar self-esteem scores between children in joint custody families and those in united families meant that joint custody arrangements were preferable, as there may be other factors associated with joint custody arrangements that account for this similarity. It was suggested that it may have been the case that greater harmony between the parents was what led to a joint custody
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arrangement in the first place. Edward Kruk asked how the average conflict levels compared between different kinds of family arrangements, as this could help to answer the previous question, but the study showed no significant differences between these. Steve Mckay, from the Institute of Applied Social Studies at the University of Birmingham, expressed surprise that there was no correlation between socio-economic status, but Poussin pointed out that they had not tested for this in the second study. Finally, Kristin Skjorten asked about variations in the means of deciding joint custody arrangements (for example, whether they were court-ordered or parental decisions). Poussin agreed that a future study might do well to incorporate the measurement of such a variable. Ann Buchanan, Director of the Oxford Centre for Research into Parenting and Children, reminded the Network of the wider family context in which post-separation families operate by discussing some of the findings from her research into the involvement of grandparents during and after parents’ separation and divorce. The study found that, overall, grandparents had a positive effect on the well-being and interests of young people. It also found that young people felt strongly that it was ‘their right’ to maintain contact with their grandparents. Buchanan pointed out that grandparents still needed to seek ‘leave’ of court before any applications about their grandchildren being made and that this could prove expensive. Carey Baff, Operational Manager of Children’s Services, Birmingham City Council raised a question about whether the marital status of the grandparents was correlated with any other of the variables measured in the study. Buchanan noted that divorced grandparents often had divorced children. Judith Masson, Bristol University, then asked whether the health or age of the grandparents made a significant difference to their involvement with their grandchildren. Buchanan made the interesting point that many of these variables interacted in complex ways, making it harder to tease apart which was having the impact: for example, younger grandparents were usually those from a poorer background, so the youth of the grandparents was often associated with class, making it hard to tell which of these would be the factor that was affecting their involvement with their grandchildren. Another question from Adam Swift arose about situations where parents could make it more difficult for their children to be in touch with their grandparents, and that different levels of grandparent involvement could be explained by differing attitudes among parents, and that this might have an impact on the young person’s well-being, too. Thus, the connection between grandparent involvement and grandchild well-being was questioned. Buchanan noted that young people often wanted a right to see or not to see their grandparents as they wished, and Judith Masson wondered if this child-centred view would put unfair pressure on grandparents who did not want the grandparenting role and wished to prioritise other things. Finally, Jonathan Herring, from Oxford University, pointed out that a move from a moral to a legal claim from grandparents to ongoing contact with their grandchildren could be problematic.
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Mavis Maclean, from Oxford University’s Department of Social Policy and Intervention, examined whether legislating for shared parenting time would be helpful for children, noting that in addressing this question, one ought to be aware of the possibility of putting too much stock in the quantity of parenting time rather than the quality of it. She suggested that shared parenting was the best option when parents were being cooperative, but worst when there is conflict and where parents are primarily concerned with their own immediate needs. Maclean also drew on recent Australian research suggesting that shared residence could be difficult for children aged under five to cope with, and suggested that there was a lack of information on the views of children about shared parenting arrangements (which may be contrary to some of the arguments put forward by Edward Kruk earlier in the day). Maclean argued that, in the absence of evidence that one form of parenting was better than another, legislating for a particular form of parenting seemed unsupportable and counselled that the welfare of the child principle should remain the ‘pole star’ for decision making. One attendee commented that the impact of staying with the status quo may be unacceptable, and that children may not be seeing one of their parents as often as they should. Maclean responded that the popularity of this view may have arisen from overstatement of the prevalence of dissatisfied fathers who are denied access to their children. The commenter then continued that there could be such dissatisfied fathers who do not have access to finances for legal aid and who are thus stopped from seeing their children against their will. Another comment drew on some Norwegian research that found that when parents had more than one child, 20% of them said that shared parenting was good for one child but not necessarily for one or more of the other children in the family. This, the commenter felt, grounded a reason to consider individual children rather than considering families as wholes. Maclean agreed that it was important to look at children’s individual circumstances. A final comment addressed the problems of tailoring parenting arrangements to the professed view of children, as children may change their minds over time. Thus, asking them what they think “in situ”, i.e. while divorce and separation are occurring, may not be the best time, as they may think that one situation will be better for them where in actual fact another one would be better. Jonathan Herring, Oxford University, offered an account of the motivations behind “the welfare principle”, providing some explanation as to why it was common to consider the child’s welfare as being of paramount importance in questions of separation, divorce, and parenting arrangements. He talked about relationship-based welfare and stressed the importance of remembering that parental rights and responsibilities do not cease when parents separate and went on to highlight a series of pressing issues around the welfare principle, including the uncertainty it can generate, judicial prejudice, looking at its track record, looking at the nature of proceedings, children’s rights, the impact on parents and finally the kinds of messages that are being sent through it. Outlining a series of
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challenges to the Welfare Principle, Herring went on to conclude that it is here to stay, and that while the direction in the courts is to reinforce the welfare principle the role of the family courts is nonetheless becoming ever more side-lined. Tom Sorell commented that the relational understanding of responsibility raised by Herring here and elsewhere (e.g. “Farewell Welfare”, Herring, 2005) may be unstable because in order to talk about people’s interests being tied up with other people’s interests, one still has to recognise that individuals have interests that are non-relational. Thus the relational account of interests may collapse into the atomistic one.
Day 2 David Archard, University of Lancaster, began the more philosophical day of this twoday event with an examination and explication of parental rights and duties. He began by raising questions around the distribution of parental rights wherein different individuals have disputed claims to the exercise of those rights, then went on to distinguish between the right to parent (to procreate), the right to be a parent (to rear) and the right to be the parent of a particular child. Archard pointed out that some commentators have argued that there are in fact no parental rights, only duties. He went on to provide a series of scenarios through which to explore these and other arguments. Archard ended by suggesting that where custody of a child has normally rested with one person, we should: a) distinguish between a claim made on behalf of the child, and one made on behalf of the carer; and b) distinguish between an appeal to justice (e.g. recognition of past domestic labour) and one that simply asserts an enduring status. During the discussion that followed, Carey Baff addressed the question of the rights of foster parents, who seem to have a great deal of duties but greatly diminished rights over children, when compared to biological parents. The commenter also noted that children’s rights can have a bearing on parents’ rights, giving the example of a child’s putative right to know their heritage conflicting with a parent’s right to have information about them kept private from their children. Archard agreed that such conflicts can occur but proposed that children’s rights form the starting point and that parental rights should come as a consequence of these. Judith Scott, a family mediator from West Yorkshire, expressed doubts about Archard’s idea that rights and duties can be based on what a parent professes they would have done or wanted, had they known all the facts at a previous time. This idea has a bearing on situations of misattributed paternity, where a person either rejects their duties or asserts their rights because of new information arising about the true paternity of a child. The concern raised was that cases must be based on facts about what has happened, not on what a person would have wanted to happen if they had known all the facts from the start. Heather Draper, the final commenter, took up some technical points about Archard’s discussion of custody arrangements accounting for the recognition of past domestic
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labour put in by the parents, raising the question of who should be responsible for giving such recognition. She then suggested that it was coherent to describe a custody resolution that fails to recognise an individual’s past domestic labour as treating them unfairly, even if the resolution is still permissible due to overriding welfare considerations. Archard wondered how in such cases recognition could be shown. Tom Sorell, Centre for the Study of Global Ethics, University of Birmingham, presented a philosophical discussion of the welfare principle, expressing some scepticism about the special treatment of children over the treatment of parents, and considering an “ethical welfare principle” as an alternative to parents’ living solely for their children’s interests. He suggested that while welfare is an important consideration for those taking on or keeping the role of parent, too much emphasis on children’s welfare above that of the parents might demand that the children get “the icing on the cake”, i.e. that parents will be expected to maximise their children’s welfare, which could be too demanding. Adam Swift noted that children might have interests in certain kinds of relationships, and that these relationships are not necessarily ones where parents entirely devote themselves to their children anyway. This point demonstrated that children’s interests might be connected to those of parents in inextricable ways, the suggestion perhaps being that the project to establish how these interests should interact is flawed from the outset. Sorell acknowledged that common conceptions of the welfare principle did not really account for relationships of this kind. Questions were taken from Steve McKay from the Institute of Applied Social Sciences at Birmingham, who asked whether it should be seen as morally good to have children, Judith Scott, who raised the question of who should be parents, and Jon Ives, who raised a question about the relationship between voluntariness (to become a parent) and parental responsibility. Sorell suggested that involuntary parents such as those whose siblings die leaving behind orphaned children might be partly excused from being bad parents due to the involuntary nature of the way in which they become parents. Ives pressed the point and said that cases of involuntary parenting might exist for biological parents, too, and that there would be real issues about volition in cases of pregnancy where one biological parent wants the baby and the other does not. Responding to a question from Stephen Wilkinson, from the University of Keele, Sorell attempted to unpack what was meant by a “normative conception of parenting”. He disagreed with Heather Draper’s position (expressed elsewhere) on parenting, that a person who fails in certain responsibilities cannot be described as a parent at all, and suggested that such a person is still a parent, just a bad parent. In response to a question from Adam Swift, Sorell commented that he thought it was permissible for parents to perform actions that would benefit themselves rather than their children, as long as welfare in the lives of the children was above certain thresholds. Adam Swift, Centre for the Study of Social Justice, University of Oxford, offered an account of familial relationship goods, trying to describe exactly what it is about families that confers benefit on parents and children. His account made room for parental interests in situations where a family was “marginally suboptimal for children but extremely
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valuable for adults”. In the discussion, Tom Sorell raised the question of whether parents’ fiduciary duties to their children comprised being adequate parents, or being maximally good parents. Swift thought that as the right to parent a child was grounded in the adults’ interest in parenting themselves, it was conditional on being a “good enough” parent, and thus that his theory would permit suboptimal parenting as long as the parenting was above a certain threshold of goodness. An analogy was raised by Archard about a chef who, for the sake of creativity and his own satisfaction, provided suboptimal meals for his customers. Swift reframed this analogy to one that he felt made the point even more accurately, giving an example of a lawyer who fails to act in his client’s best interests. Swift acknowledged that it seemed implausible to construct the concept of a lawyer’s role as it being permissible for him/her to act suboptimally, but that the bizarreness of this did not carry over to the parenthood case. Discussion then moved to the issue of how to set limits to the needs and rights of parents if it is possible for them to override the needs of their children. The suggestion was that granting rights to parents would often automatically reduce the attention given to the welfare of children, and thus that Swift’s theory may be incomplete without an adequate account of where these limits should be set. Swift agreed that granting such space for parents grants them the ability to abuse it, but that parents may still have the right to such space without having the right to abuse it. Swift went on to talk about the implications for post-separation families. This included the issue of children’s long-term vs. short-term interests. He gave the example that perhaps 50/50 parenting with shared residence may not be in the short-term interests of children but may ‘pay off’ later in terms of relationships with both parents. Swift generated some further lively debate around when childhood ends and adulthood starts, leading Christine Skinner from the Social Policy Research Unit at York to ask when parenting ends, let alone childhood. Angus Dawson, Centre for Professional Ethics, Keele University, worried that the notion of “best interests” itself was not widely discussed, and that there was little consensus on what the term actually meant even though it was used often. He voiced a concern that where parents agree on matters, consideration of the child’s best interests may not occur, even though it should, and this echoed a comment from Adam Swift the previous day about matters that are only considered once parental disagreement reaches the context of the courts. Dawson suggested that the use of “best” in this context might be slightly rhetorical, and that we should take it to mean something like “towards the top end of the range” in terms of possible outcomes. After considering problems like whether there really are objective interests in the first place, and how we would decide what to put on a list of objective interests, he went on to argue that the notion of best interests could serve as a proxy for reasonable judgements, but that such judgements are subject to certain constraints, arising from the difficulty in knowing others’ best interests, and the demandingness of acting in someone’s best (i.e. optimal) interests rather than merely satisfying their interests to a certain suboptimal degree.
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During discussion, Adam Swift raised a question about how an account of best interests would take incommensurable goods into account. Dawson agreed that values could be contested, and that there were some problems in making judgements about how to weigh up different considerations, particularly incommensurable things, which by their nature cannot be weighed against each other in a way that might be common to judges. Swift expressed a concern that a principle of best interests would sometimes deliver the wrong answer under the light of other potentially more plausible ways of answering these problems. Tom Sorell felt that this incommensurability was exaggerated, and gave an example of the MMR scare, where there was a clash between parents’ view that they always knew best for their children, and the medical view that parents were not sufficiently informed about vaccination. Edward Kruk then asked to what degree the concept of best interests would be defined in legislation, and how this would be determined. Dawson responded that in the medical world there are already lists of criteria for determining this, so these could similarly be used to assist judges or others making decisions about parenting arrangements. Dawson stressed that best interests could still be individuated to particular children, families and contexts, and that guidelines must be there to guide only. Finally, Evelyn Mahon from Trinity College, University of Dublin, gave an overview of her recent research into post-separation parenting arrangements in Ireland. Given the fact that many of the attendees’ experience seemed to be in jurisdictions outside of Ireland, many of the questions about her talk were simply factual, resulting from people’s curiosity to know more about her sample and the Irish system itself. So, one commenter for example asked whether there were rules about who would have to pay for the child’s transport in shared residence situations. Mahon stated that it was whoever was doing the travelling with the child that would pay for it, and that this was not usually contested. Another attendee noted the contrast between this and the Norwegian system, where parents would often share transport costs like these regardless of who was undertaking the actual act of transport. Gerard Poussin inquired about how supervised access to children was organised. Mahon explained that the courts would attempt to find a responsible adult to supervise a parent’s access to their child or children, and that this responsible adult was usually someone on whom both parents were able to agree. Mahon described contact centres that had been set up in order to facilitate contact in these circumstances, and that if parents could not reach a decision between themselves, the centres would do so as a last resort. She then made the perhaps surprising comment that there tended to be longer hearings related to assets (money and property) rather than to children. There was some lively discussion about what the courts would do if one parent wanted to relocate. Mahon suggested that in Ireland, the “contact” parent (as opposed to the “residential” parent) did not need permission from the courts to relocate, but that the residential parent could use the courts to stop the contact parent from moving away if they wanted. Mahon said she did not know of any cases of this actually happening. Mahon was also asked if there were any judgements that were simply unenforceable. She answered that all judgements were enforceable to an extent, but that some were “more directive than others”.
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The meeting closed with a general discussion of how ideas from the previous two days might be taken forward in terms of proposals for future research.
Delegate list - Meeting 2, June 2011 Name David Archard
Institutional affiliation Professor of Philosophy and Public Policy, University of Lancaster Ann Buchanan Director of the Oxford Centre for Research into Parenting and Children Heather Draper Director, Centre for Biomedical Ethics, University of Birmingham Richard Collier Professor of Law and Social Theory, University of Newcastle Mike Coote National Commissioning and Partnerships Manager, Cafcass Angus Dawson Centre for Professional Ethics, Keele University Katerina Centre for the Study of Global Hadjimatheou Ethics, University of Birmingham Kiranjit Hallan AHRC Network administrator, University of Birmingham Sonia Harris-Short Law School, University of Birmingham Tina Haux Senior Research Officer, ISER, University of Essex Jonathan Herring Professor of Law, University of Oxford Claire Hickman BPP Law School Catherine Houlston Senior Research Officer, One Plus One Jon Ives Centre for Biomedical Ethics, University of Birmingham Simon Jenkins PhD student, University of Birmingham Ragni Hege Kitterød Statistics Norway Edward Kruk School of Social Work and Family Studies, University of British Columbia
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Contact details
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Ghislaine Lanteigne Mavis Maclean Evelyn Mahon Alex Masardo
Judith Masson Steve McKay Natalie Nikolina Gerard Poussin
Sarah Rogers Judith Scott Christine Skinner Kristin Skjorten Tom Sorell
Adam Swift Fran Wasoff
Ines Weyland Stephen Wilkinson
PhD student, University College London Director, OXFLAP, Oxford University Trinity College Dublin Centre for the Study of Global Ethics, University of Birmingham Professor of Socio-Legal studies, University of Bristol Professor of Social Policy, University of Birmingham PhD student, University of Utrecht Professor of Psychology, University Pierre Mendès France - Grenoble
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Family Mediator Senior Research Fellow, University of York Norwegian Centre for Violence and Traumatic Stress Studies John Ferguson Professor of Global Ethics, University of Birmingham Centre for the Study of Social Justice, University of Oxford Emeritus Professor of family policies, University of Edinburgh Family Mediators Association/Family Mediation Professor of Bioethics, University of Keele
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