So what rights do we parents with Bipolar have if we are not living with our children full time or any of the time?

Just because you have a mental illness does not mean that you don’t have any parental rights. If you are told that you don’t, then check out the Children’s Act 1989, section 2. Here’s the link: http://www.opsi.gov.uk/acts/acts1989/Ukpga_19890041_en_2.htm#mdiv2

My child had an accident at schoool last week, breaking a limb. The school didn’t phone me to inform me, neither did my ex-husband, neither did the nanny. The first I hear about it is my child (age 5) phoning me when she got home. I wasn’t able to be with her at the hospital to comfort her and oversee her treatment or consent to any treatment necessary because I wasn’t informed about her being there. My daughter was upset that I wasn’t there with her.

Now, why wasn’t I informed by anyone? I’m her mum, right? What about my mother’s rights? What about my childrens’ rights to have a parent with them if they go to hospital?

Well, the school felt that it was only necessary to phone the nanny, as the nanny is the nearest person to the school (I am currently living further away – not through choice – but because I am having to live with my brother at the moment having been made to leave my home by my husband). The nanny didn’t phone because she said she couldn’t use her mobile in the hospital. My ex-husband didn’t phone because he was on business abroad. So, clearly the school and the nanny thought they should deal with it between themselves. This nanny is new to the children’s lives having only worked there for around 2 months; she is not someone with whom they are very close yet.

I figure that most children, especially very young ones, usually want their mummy (and often their daddy) when something hurts or frightens them, not a nanny, no matter how much they like their nanny. But neither my child nor I were given the option to ensure we were able to be together.

So, I phoned the school to ask why on earth I hadn’t been told. The school said that they only need to phone the “emergency contact” and didn’t think they had to phone me as well. I said that I thought they should in future but the school secretary was not convinced that she had to and, reading between the lines, I think that she thought that, because the children are living with my husband during the week, she should only have to phone him or his nanny rather than me. Any lack of communication between my husband/nanny and me was for us to sort out between ourselves.

Fat chance.

So, I looked up my rights as a parent. For all of those of you in the UK who may have come across a similar kind of “marginalising” of your parental rights, look up the Children’s Act 1989, which sets out your parental rights in a concept of “parental responsibility”:

Parental Responsibility is defined in the Children Act 1989 as:

Section 3.—(1)  In this Act “parental responsibility” means all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property.

Parental responsibility for the children is given in respect of the mother and the father:

Section  2.—(1)  Where a child’s father and mother were married to each other at the time of his birth, they shall each have parental responsibility for the child.

This parental responsibility subsists irrespective of any Court Order, unless the Court Order specifically states that a particular parent no longer has parental responsibility. The only time parental responsibility can be withdrawn is if the Court makes a Specific Issues Order withdrawing parental responsibility from one or other of the parent.

That is not the case with us. I still have full parental responsibility for my children and  therefore have equal parental rights, duties etc – neither of us has more or less responsibility/rights than the other.

Information from the School

As regards to information given out to us both, I asked the Department for Education and Skills to clarify the situation regarding a school’s duties and was referred to a document which gives guidelines to schools about what information they should give out to parents and the nature of parental responsibility. It states that:

“This document is guidance to schools on who is a parent for the purposes of education legislation; provides a brief description of court orders which settle areas of dispute about a child’s care or upbringing and which can limit an individual’s parental responsibility; and sets out some general principles to guide schools as to who they must involve in issues about a child’s education and who they must keep informed about school matters.

For ease of reference I have inserted here the relevant passage:

“School and LEA staff must treat all parents equally, unless there is a court order limiting an individual’s exercise of parental responsibility. Individuals who have parental responsibility for, or care of, a child have the same rights as natural parents, for example:·         to receive information from the school (e.g. copies of the governors’ annual report, pupil reports and attendance records);·         to participate in activities (e.g. vote in elections for parent governors); ·         to be asked to give consent (e.g. to the child taking part in extra-curricular activities);·         to be told about meetings involving the child (e.g. a governors’ meeting on the child’s exclusion). Administration“Details of court orders should also be noted in a pupil’s record. Such information will be necessary when decisions need to be made about who can give parental permission for a school visit, or be contacted if the child is ill…..”20. Schools are also uncertain sometimes about the position where a child has an accident and consent may be needed for emergency medical treatment. The Children Act provision that people who do not have parental responsibility but nonetheless have care of a child may “do what is reasonable in all the circumstances of the case for the purpose of safeguarding or promoting the child’s welfare” applies in such cases. It would clearly be reasonable for the school to take a child who needs to have a wound stitched up to hospital, but the parents - including any non-resident* parent who has asked to be kept informed of events involving the child - should be informed as soon as possible. If, however, any decision needs to be made about alternative types of treatment, the hospital will need to discuss options with the parents. Schools will clearly not want to take responsibility for making decisions in relation to elective surgery - and it is very unlikely that hospitals would want them to do so..(*although I am a “resident parent” under the Shared Residency Order).

Well, it’s been about 10 weeks (its now June 07) I think since I last told you all what was happening so here it is:

I had to leave the home in April and the kids had to stay there with their father and, of course, the full time nanny who is now looking after them for the most part. Why did I have to leave? Well, because the judge had already made her mind up even before the court hearing started. She came into the court room, sat down and announced that she HADN’T HAD TIME TO READ THE COURT PAPERS of the occupation order application and supporting statements from my husband and myself. She simply said very impatiently that I should leave because obviously the children were suffering “significant harm” by my presence. Prove it? She felt she didn’t need proof – she said it was “common sense”…..( I wonder if there has ever been a legal decision which has been based on “common sense” before? My own view about “common sense” is that it’s not very common……………Moreover, I am not aware that the yardstick for evidential proof is “common sense”. I thought it had to be proven in some way, either objectively by reference to objective criteria or subjective according to a set of guidelines. But maybe my own legal training needs to be questioned; I shall go and read my text books on “evidence” again………I’ll start at the subject index “common sense”……….

My husband had issued an Application for an Occupation Order ie a Court Order to force me to leave the family home (jointly owned). My lawyers and I had spent a fair amount of time (and I had spent in the region of £10k in fees) putting together my witness statement defending my right to stay in my own home and to stay living with my children until our house was sold and my husband and I could go our separate ways.

My husband had sought fit to insist that the court issue an Occupation Order to get me out of the family home on the basis that my continuing presence in the home was causing the children to suffer “significant harm”. (See the separate post on the meaning of “significant harm”).

I naively thought that the concept of “significant harm” might be provable in some objective manner but no, it’s not. I argued with my lawyers about this insisting that there must be some objective test of significant harm and was incredulous when they informed me that there is no objective evidence which is called for when deciding whether or not the children have suffered “significant harm”. It’s obvious apparently – common sense. Really?? Let’s just consider that statement for a minute: how does anyone determine what is “significant”? How does anyone determine what amounts to “harm”? What is the “cause” of the harm? How do you measure “cause and effect” of behaviour vs emotional/pyschological “harm”?

If you ask a person those questions and compare their answer with the answer from another person, would the answer be the same? Probably not. Therefore is the concept subjective or objective? If there is a high chance that the answer would be subjective, then surely it is not just to allow one person to determine the answer. Surely there should be at least a panel of three or maybe a proper jury of 10? At least that would introduce an element of objectivity.

Surely if the legislation sets out a concept such as “significant harm” there should be a benchmark against which to measure the “harm” being suffered? Is it a child’s behaviour now as against their behaviour before the divorce? Is it how they are achieving in school? Is it whether they are sleeping at night? Is it how they are progressing developmentally in comparison with their peers?

Who is able to answer these questions? Is it the parents? Is it the teachers? Is it the neighbours, family, other witnesses?

Well, read the legislation: it’s so woolly that it’s fraught with room for argument. There are no clear guidelines and, what’s worse, there is no mechanism set out for proving that “significant harm” has been suffered.

Surely this has to be proved using objective and professionally skilled and qualified experts in the field of child psychology and development? Surely????

If this was a case on aeronautics, or building defects or fraud or a criminal case, experts would be used to determine issues of evidence that are beyond the skill and level of expertise that a normal judge should be expected to show. What judge is a child psychologist?

This judge isn’t and yet she is allowed to determine whether or not a child is suffering “significant harm”- based on what? Based on her experience as a family lawyer? That experience doesn’t give her the skill or level of knowledge of how children develop, how they suffer emotionally or psychologically? She is simply applying the law to a set of facts. That is what a lawyer does and that is what they are paid to do. They are NOT psychologists nor should they attempt to be. They should use their professional judgement and recognise and accept that they should seek expert advice from experts in a particular field when their own expertise is limited.

A FAMILY JUDGE IS NOT A CHILD PSYCHOLOGIST and should not be taking on the role of determining whether or not a child, whom they have never met nor heard evidence from, is suffering psychologically or emotionally. To do so amounts to pure “guess work” on their part or from being persuaded by one or other equally unqualified and inexperienced witnesses to the case.

This lack of  expert evidence to resolve this issue amounts to an extreme gap in the legislation and one which I am going to lobby to change.

I asked my barrister to insist that the judge should have to obtain some objective evidence before determing for herself that the children are suffering significant harm and he duly argued with the judge about how this concept was going to be proved. The judge sat down and said: “I haven’t had time to read the papers”. I was stunned: here we were, all in court: me and my solicitor and barrister, my husband and his solicitor and barrister and the judge and all the ushers – all of whom were there to decide whether or not I could continue to live in my own home AND  SHE HADN’T HAD TIME TO READ THE PAPERS OF THE CASE…………..

Right, I see. That’s ok then. We’ll all just spend a huge amount of time, energy, stress and money preparing our defence and the judge can’t find the time to read the case papers. Mmmmm.

However, she said that she didn’t need to read any more papers, after all she observed that she had sat through a 10 day hearing of the case and had heard all the evidence she needed to be able to make up her mind and it was clear to her that the children would OBVIOUSLY be suffering harm if my husband and I continued to live together under the same roof as we had done for the past 18 months of the horrendously acrimonious split. Therefore I should leave. Simple.

What about the children? Won’t they suffer “significant harm” if their mother is suddenly forced to leave and has no home to go to? Won’t they suffer from having a complete stranger move in and start looking after them FULL-TIME as their new full time nanny? A person they have never met, have no idea who she is but will now be their surrogate mother? Won’t they suffer from not knowing where they will be going when they are living with their mother as she does not have a home to go to? Won’t they suffer if their mother has a relapse in her health because of the stress of having to leave her home with no income and no job and no home to go to?

Apparently not. Apparently any situation for them would be preferable to the one they were in where their mother and father were living under the same roof arguing.

Now, I can fully understand that no child wants to hear their parents arguing – it’s horrendous there’s no doubt and I experienced that as a child myself. But equally, many couples live together for years and years and argue without ever splitting up. Should those parents be forced to split because they are causing their children “significant harm”? If they are allowed to continue living together arguing and arguing and the children are suffering as a result, are they guilty of causing their children “significant harm”. If so, what is done about it by the law? Nothing.

If these parents are not forced to split up for the benefit of their children, why was I forced to leave? I can only surmise that I am forced to leave because my husband and I have decided that we should get divorced and therefore one of us has to go. The judge decided the children would be the subject of a SHARED RESIDENCY ORDER but are to live with their dad during the week.

Now, my husband and I both own the house. We both were living there. He has a job and an income and no health problem. I have no income, no job and Bipolar Disorder. Who has to go?

 To me there is no logic in that argume: how can any person determine whether or not a child is suffering more harm from staying in a home where the parents are arguing than the harm suffered from forcibly removing their mother?

It strikes me that the only people who are truly able to judge the harm being suffered by the child is (a) the child and (b) a child psychologist. The people who are least able to judge the harm are (a) the parties’ respective lawyers and (b) the judge who has never met the children. Both sets of lawyers and the judge are hearing highly subjective views from me and my husband who both perceive the situation entirely differently.

The Judge decided however that she is able to determine the question of how much harm a child is suffering purely on the evidence of the parents and of the other witnesses and no expert evidence is required. Now the problem with this view is that of the quality of the evidence which is as follows:

1. The husband’s witnesses – all highly subjective and non of them professionally qualified to determine a child’s psychological state.

2. The wife’s witnesses – equally as subjective and not professionally qualified.

3. Expert witnesses who are experts in the wife’s psychological state and not in the children’s psychological state.

4. The CAFCASS officer whose report the judge dismissed as being chronically under-researched.

So just WHO is able to say how the children are suffering or feeling???????????????????

If you ask the children, they would tell you that they want their mum to stay and that they don’t want a nanny looking after them. They would also tell you that they hate the arguing. Fair enough if you ask me. So what’s the solution?

According to the judge, the solution is to insist that I leave, regardless of where I go. Nowhere in the family law legislation does it provide that the children’s feelings and views should be heard by a qualified child psychologist. Why on earth not? Why does the law think that family members, teachers, neighbours etc would know better than a child psychologist as to how arguing is affecting a child? Family members are likely to be highly subjective and biased and not necessarily be able to see “the woods for the trees”. Surely a psychologist would be the most reliable source of evidence for a court: objective, skilled, experienced and professional.

This just isn’t the case. The legislation doesn’t provide for this. It leaves the entire decision making up to the judge with no recommendations/guidelines as to the use of a qualified child psychologist.

Extraordinary isn’t it? I have to keep repeating here that I am a lawyer. I am not a qualified child psychologist. The judge is a lawyer, she is not a qualified child psychologist. So how can she make that assessment????

Do please comment: What do you think? Should a judge be made to rely on a child psychology report rather than on his/her own knowledge of child psychology?