Present Status of Shared Care and Parenting Legislation after Parental Separation in Europe
By Peter Tromp MsC (*), November 7, 2006
The present dominant European family law legislation and family court practice as to court ordered parenting arrangements after parental separation, is still a combination of joint legal custody legislation combined with sole physical custody court practices giving children in practice up to the sole care and residency of one parent, i.e. the custodial parent who is in allmost all cases the mother, while the noncustodial parent is made nonresidential to the children and further put at a distance and excluded from his/her own children by:
- highly limited access or contact arrangements for noncustodial parents (normally no more then one weekend every two weeks, making serious parenting impossible)
- a deliberate policy of non-intervention when courtordered access arrangements are broken by the custodial parent, usually the mother
- severe repressive legislation aimed at criminalising noncustodial parents who do not accept being excluded from their children (stalking legislation, DV legislation, abduction legislation, restrictive injunction orders, etc.)
- fiscal and welfare policies and practices geared to favouring and supporting children only when living with one half of their separated families, often combined with extraction of money from the officially designated non-resident parent for support of the "family with children" which the state itself has imposed upon that family
This legislative situation and its court practices have resulted in the Netherlands, for example, in a situation where now more then half a million of Dutch children are growing up completely without any contact with their natural father – i.e. one in every six Dutch children - while half a million of more Dutch children have contact with their nonresidential parents reduced to the minimum of one weekend every fourtnight. Every year 29,000 new Dutch children of divorce get fully excluded from their noncustodial parents this way, while another 29.000 get to see their fathers only occasionally once every two weeks. As a result 1.1 million of a total of 3.5 million Dutch children, i.e. 31% of all Dutch children, have little to no contact with and care from their fathers and their fathers families. To compare with, the USA, being at the forefront of the situation where Europe is also heading to, now already has 40% of all children growing up completely fatherless (Source: Newsweek figures from January 2006).
This situation of fatherless children after parental separation is prevalent in most European Union countries, including the new East European members. The incidence of fatherlessness tends to be still somewhat lower in Southern European countries and higher in Northern European countries.
As a result of the above family law and family court policies, through a lower birthrate and the well-documented desastrous effects they have on children's lives growing up excluded from half of their families, more and more policy makers are seeing the writing on the wall. Their reaction so far - and this can be observed as a generalised reaction to many policy situations today - is to make largely cosmetic adjustments to the present system which will take an inordinate time to have any effect, if ever, through the introduction of tentative shared parenting principles without parental rights. These types of policy already have a proven track record, in the jurisdictions they have been introduced in, of failure to make a mark on the problem.
Looking at the present trend in family law reform in EU countries (Europe)
The present general European trend within family law reform in European countries is however most definitely pointing strongly in the direction of moving away from sole physical custody and care legislation and court practices towards joint and equal physical custody and care legislation and recognizing the importance of keeping both parents and extended families actively involved in children's lives after parental separation. Let me give you brief summaries by country on the present state of Shared Parenting Legislation in European countries in 2006:
1. Italy now has a mix of joint legal custody and elements of joint physical custody since a law change that came into effect on 16th March 2006.
2. France has a mix of joint legal custody and elements of joint physical custody that came into effect in 2002.
3. Belgium on the initiative of its Socialist Party now has implemented presumptive 50/50 joint physical custody legislation (effective bilocation of the children) after parental separation in both its House of Commons and Senate which came into effect when it was formally published by the Belgian Federal Government on the 4th of September 2006.
4. The Netherlands had new law proposals running in parliament in 2004-2006 (the Luchtenveld-law-reform-proposals). The Luchtenveld proposals were originally designed to support joint physical custody and care by embracing the principle of postseparation equal parenting, but in the end they did so only on the principle of it without also factually sufficiently implementing it in the practice of the law, i.e. they ended up being a watered down version of joint physical custody, leaving every room for courts to continue sole custody orders in practice. (The window-dressing that the Luchtenveld proposals ended up in is a very usual practice within Dutch polderpolitics: that is Dutch politics often say to solve a matter by intend while in the fact and practice of the matter they then willingly do not.) As such the Luchtenveld proposals were no exception on that and were considered fully insufficient and inadequate, but they were at least embracing "equal parenting" on principle. They were however voted in the Dutch Senate last summer in June 2006 after they had allready been passed - and window-dressed - by the Dutch House of Commons.
What lies ahead now is a future Dutch parliamentary debate next December 2006 on the Donner proposals for parenting after divorce. These proposals however are even worse in trying to set back the clock in Dutch family law reform towards recodification of sole custody and care (i.e. standardly handing over the children of divorce for care and custody to onely one of its parents - usually its mother - with the exclusion of the other parent - usually its father - by non-reinforced court access and contact orders.) These desastrous Donner-proposals are - as seem to be standard practice in Dutch politics - again accompanied by window-dressing proposals. This time by the introduction of the socalled "parenting plans" in the Donner law proposals. The introduced "parenting plans" however, cannot cover up for the fact that in the Donner lawproposals one of the parents is diminished into a second class parent only given non-enforced access and contact with the children of usually one weekend every two weeks, while the children are handed over by the courts like a CD-rack for care and custody to the other parent. In this scheme "Parenting Plans", suggesting some sort of postdivorce shared care and custody, are used as a window-dressing cover up, because the fact of the matter in the Donner law proposals is that the law makes sure that there is nothing equal in it, or nothing substantial to share in it for that matter.
The tragedy of Dutch family law reform of the last decades is its complete incompetence. Time and again Dutch politics do try to keep both parents after parental separation involved in their children's lives, BUT IN NAME AND INTENT ONLY, while in the facts of the matter and the laws they being implemented time and again it is proved that they turn over the children to only one of their parents to the exclusion of the other parent.
5. Norway now has sole physical custody but its Minister of Justice has announced a complete family law review based on the principles of presumptive joint physical custody for 2007.
6. Ireland has, since the advent of Parental Equality (the Irish lobby group associated with Liam O'Gogain) circa. 1993, been considering the possibility of a change to laws of joint physical custody - wich gives some gauge of the lack of seriousness with which such laws are being considered.
7. In Germany a professional intervention model called the Cochem model, based on principles of shared parenting, is gathering strength. In this model parents are only allowed in the family courts after they have filed a shared parenting plan they both agree to. The German Minister of Justice announced a future family law reform proposal this February (2006) in which elements of the Cochem model of multidsciplinary cour orchestrated intervention will be added to the law. Which elements is as yet unknown.
8. Malta also has some form of shared parenting presumption.
9. Spain has introduced a new shared parenting law in mid-2005 which is regarded as wholly inadequate by Spanish family rights lobbyists. Government officials and professionals on their own initiative are attempting to introduce policies reintegrating alienated children with their alienated parents and there is a vigorous movement for change.
10. The UK under present Labour government has as of yet no effective shared parenting laws in existence. However the Conservative Party has adopted Equal Parenting Family Law Reform as part of its election programm for the 2005 elections. Also some judicially-motivated efforts to introduce norms of shared parenting do exist, in spite of the family-hostile parameters of the present law and fiscal framework.
Other jurisdictions:
- Australia has just passed a Shared Parenting Bill in the Senate this week of the window dressing sort - Australia is in fact a good example of the sort of jurisdiction which passes pretend laws which have no effect repeatedly, each time claiming that the present law proposal will be better than the last, and all the while children continue to grow up in a family-hostile environment. The same pattern can be observed in places like the UK, the Netherlands and Spain.
- The USA has several states having implemented shared parinting legislation. NYS/USA also has Shared Parenting Legislation that is being heavily debated right now.
(*) Peter Tromp is a Dutch child psychologist and coördinator of the European Platform Familyrights 4 Europe and FatherCare Knowledge Centre Europe.
No comments:
Post a Comment