Annotated Bibliography

Post-separation families and shared residence: Setting the interdisciplinary research agenda for the future

ANNOTATED BIBLIOGRAPHY – compiled by Alex Masardo

This collection of entries provides bibliographic information and annotations for selected articles, books, book chapters, reports and conference papers that are of relevance to the five themed workshops of the AHRC network on post-separation families and shared residence. The network is both international and interdisciplinary in scope. While based primarily on ethics and law, the following encompasses work from a wide range of disciplines that include social policy, healthcare, sociology, social psychology, social work and demography, as well as entries from wider practitioner and other relevant stakeholder literature. It also includes references to some non-English language publications.

The thematic sections in no sense provide an exhaustive account of the voluminous work in the area of post-separation family practices and clearly many deserving works are not included. As such, we hope the bibliography will serve as an interactive tool over the coming months and would welcome submissions and suggestions for entries from network members. If you do wish us to include a reference, either to your own work or to work you feel would be of particular interest or relevance to the network then please send a short account of between 150-200 words to us. Include the full reference to the work being cited, a brief summary of its focus and content and a short line about the author(s).

Theme 1 DEFINING THE PROBLEM: SHARED RESIDENCE AND POST-SEPARATION FAMILY LIFE...

Almond, A. (2008), The Fragmenting Family, Oxford: Oxford University Press In this book, Almond throws down a challenge to liberal consensus about personal relationships. She maintains that the traditional family is fragmenting in Western societies, and that this fragmentation is a cause of serious social problems. She urges that we reconsider our attitudes to sex and reproduction in order to strengthen our most important social institution, the family. Drawing on a wide range of studies from the US, UK and Europe, she insists that it is irresponsible not to give children a stable family upbringing, argues that liberal social attitudes and state support for non-traditional parenting have gone too far and casts doubt on the use of new reproductive technologies. Brenda Almond is Emeritus Professor of Moral and Social Philosophy at the University of Hull and Vice-President of the Society for Applied Philosophy.

Amato, P. R., Meyers, C.E. and Emery, R.E. (2009), ‘Changes in Nonresident Father-Child Contact From 1976 to 2002’,  Family Relations 58: 41-53. 41-53. To study changes in nonresident father contact since the 1970s, the authors pooled data from four national surveys: the National Survey of Children (1976), the National Survey of Families and Households (1987 – 1988), the National Longitudinal Survey of Youth (1996), and the National Survey of Americas Families (2002). On the basis of mothers’ reports, levels of contact rose significantly across surveys. Paying child support and having a nonmarital birth were strongly related to contact frequency. The increase in contact may be beneficial in general but problematic if it occurs within the context of hostile interparental relationships. Because nonresident fathers are having more contact with their children now than in the past, an increasing need exists for practitioners to help parents find ways to separate their former romantic roles from their ongoing parental roles and to develop at least minimally cooperative coparental relationships. Paul Amato is Professor of Family Sociology and Demography at Pennsylvania State University and President of the National Council on Family Relations, USA. Catherine Meyers is from the Department of Sociology,Pennsylvania State University. Robert Emery is Professor of Psychology and Director of the Center for Children, Families, and the Law at the University of Virginia.

Archard, D. (2010), The Family: A Liberal Defence, Palgrave Macmillan This is a short, philosophically rigorous but lively and accessible critical account of the nature, role and value of the family within a liberal society. It addresses the questions of what a family is and offers a definition of 'family'. It assesses whether there is a right to have a family, what rights and duties parents might have, whether the family promotes injustice, and what future there is for the family in the face of significant social and biotechnological changes. The book considers the major contemporary philosophical arguments and claims in respect of the family and offers its own distinctive, and original, defence of the family. David Archard is Professor of Philosophy and Public Policy at the University of Lancaster. He has published widely in applied ethics, political and legal philosophy. He is a member of the Human Fertilisation and Embryology Authority and Honorary Chair of the Society for Applied Philosophy.

Escobedo, A., Flaquer, L. and Navarro, L. (2012), ‘The social politics of fatherhood in Spain and France: A comparative analysis of parental leave and shared residence.’ Ethnologie Française 42 (1): 117-126. The article provides a comparative analysis of policy developments on leave for fathers and joint custody in Spain and France in the last decade. These two types of measures have been selected because they are both widely recognised as the main instruments to promote new fathering styles and consequently more gender equality in the European Union. While the rhetoric of choice has been developed in both countries in relation to maternal employment and childcare, with better results in France than in Spain, it remains to be seen to what extent choice will also be extended to fathers. Ana Escobdo, is from the Department of Sociology and Organisational Analysis at the University of Barcelona, Lluis Flaquer, Professor of Sociology, and Lara Navarro from The Institute of Regional and Metropolitan Studies of Barcelona are both based at the Autonomous University of Barcelona.

Fehlberg, B., Smyth, B., Maclean, M. and Roberts, C. (2011), ‘Legislating for shared time parenting after separation: A research review’, International Journal of Law, Policy and the Family 25(3): 318–337. This article reviews research on post-separation shared time parenting and on outcomes of legislating to encourage shared time parenting, drawing mainly on Australian experience. The research shows that children benefit from continuing and regular contact with both parents when they cooperate, communicate, and have low levels of conflict. However, there is no empirical evidence showing a clear linear relationship between the amount of parenting time and better outcomes for children. Rather, positive outcomes have more to do with the characteristics of families who choose shared time and who can parent cooperatively and in a child-responsive way. In contrast, research post-2006 legislative change in Australia encouraging shared parenting suggests use of shared time by a less homogenous group, including a marked increase in shared time orders in judge-decided cases. The research points to the complexity in legislating to encourage shared time parenting and shows that subtle changes can have important effects. Belinda Fehlberg is Professor of Law at the University of Melbourne. Bruce Smyth is Associate Professor at ANU College of Arts and Social Science. Mavis Maclean and Ceridwen Roberts are Senior Research Fellows at the University of Oxford.

Kitterød, R.H. and Lyngstad, J. (2011), ‘Untraditional caring arrangements among parents living apart. The case of Norway’, Discussion Papers no. 660, Statistics Norwayhttp://www.ssb.no/cgi-bin/publsoek?job=forside&id=dp-660&kode=dp&lang=en In spite of more symmetric parental roles in couples, shared residence is still practiced by a minority of parents following partnership dissolution in Norway, and the same is true for father sole custody. Utilising a survey of parents living apart in 2004, we find that shared residence is particularly likely when the father has a medium or high income, the mother is highly educated, the parents split up rather recently, the mother is currently married and the parents have no other children in their present households. Father sole custody is most likely when the mother has low income, the father has high income, the parents were formally married prior to the breakup, the child is a boy, the child is fairly old, the father is single and the mother has children in her current household. More equal parenting roles in couples in younger generations as well as policies urging parents to collaborate about their children’s upbringing when they split up, may lead to an increase in shared residence in the years to come, and perhaps also to new groups of parents practicing such an arrangement. Ragni Hege Kitterød and Jan Lyngstad are researchers at Statistics Norway, both working in the field of fertility and changes in family demography.

Masardo, A. (2011), ‘Negotiating shared residence: the experience of separated fathers in Britain and France’, in C. Lind, J. Bridgeman and H. Keating (eds), Regulating Family Responsibilities, Farnham: Ashgate In this work, Masardo draws on cross-national research which uses qualitative methodology to explore and compare fathers’ experiences of managing shared residence in Britain and in France. Set against the changing legal and policy backdrops of each nation, he explores fathers’ experiences of negotiating shared residence, looks at the different ways in which law and policy are giving shape to such arrangements and argues that the capacity of regulation to foster change in our perceptions of gender and caring responsibilities is particularly strong in this type of multi-residence situation. Indeed, such practices bring the nomenclature of a lone–absent parent dichotomy into question by asking where this emerging model of family life should be situated. Alex Masardo is an Honorary Research Fellow at the Centre for the Study of Global Ethics, University of Birmingham, and acting CI on the AHRC Networking Grant: Post separation Families and shared residence: setting the interdisciplinary research agenda for the future (2010-12).

Nielson, L. (2011), ‘Shared parenting after divorce: A review of shared residential parenting research’, Journal of Divorce and Remarriage 52: 586–609. Neilson reviews the existing studies on shared parenting families and addresses some of the most complex and compelling issues confronting policymakers, parents and the family court system. For example, what type of parenting plan is most beneficial for children after their parents’ divorce? How much time should children live with each parent? How do children and parents with shared parenting fare? How stable are such arrangements? In what ways, if any, do divorced parents who share the residential parenting differ from parents whose children live almost exclusively with their mother? Linda Neilson is Professor of Educational & Adolescent Psychology at Wake Forest University in North Carolina, USA. She is author of a number of books including Father-Daughter Relationships: Contemporary Research and Issues (2012).

Smart, C., Neale, B. and Wade, A. (2001) The Changing Experience of Childhood: Families and Divorce, Cambridge: Polity Press . In this book, the authors explore children’s own accounts of family life after divorce and allow us to see these changes from their point of view. They provide a sociological perspective on how childhood may be changing and how the ‘democratic’ status of children in the family may be in the process of transformation. They provide a compelling insight into the lives of children with shared residence arrangements and set out the implications for family and legal policy of listening to children’s views. Carol Smart is Professor of Family Studies at the University of Manchester and co-director of the Morgan Centre for the Study of Relationships and Personal Life. Bren Neale is Professor of Life Course and Family research at the University of Leeds. She is also Director of the Timescapes http://www.timescapes.leeds.ac.uk/ ESRC Qualitative Longitudinal (QL) study and directs the project ‘Young Lives and Times’. Amanda Wade is a Senior Research Fellow at the University of Leeds.

Smyth, B. (2009), 'A 5-year retrospective of post-separation shared care research in Australia', Journal of Family Studies 15(1): 36-59. https://netfiles.uiuc.edu/r-ferrer/VisitationSchedule/Australia/SmythAussieRev2009.pdf In recent years, sweeping changes to the Australian family law system – new services, legal processes, legislation, and a new child support scheme – have been put into place, accompanied by a large research evaluation programme. A central plank running through the recent reforms is the need for courts, and those who work with separating parents, to consider whether a child spending equal or else substantial and significant periods of time with each parent would be in his or her interest and reasonably practicable. Smyth reflects on five years of Australian research into shared care and asks whether we know much more than when equal parenting time was first given formal policy prominence. Bruce Smyth is Associate Professor at ANU College of Arts and Social Science.

Toulemon, L. (2008), ‘Two-home family situations of children and adults: Observation and consequences for describing family patterns in France’, Insitut national d’études démographiques (INED). With the increasing diversity of family situations, more people – children as well as adults – now ‘usually’ live in more than one dwelling. In this paper, Toulemon estimates the proportion of people living in two dwellings and describes the consequences of these two-home situations on basic estimates of family situations based on ‘routine’ surveys or census data. In particular, reference is made to the ERCV survey, the French part of the SILC 2004 survey to discuss the prevalence of children of separated parents sharing their time between both parents’ homes. Successive waves of the SILC panel are likely to allow a better description of the dynamics of these situations. Laurent Toulemon is a senior researcher at INED (the French Institute for demographic studies), where he heads up the research unit “Fertility, Family and Sexuality”. He is co-editor of the Journal Population.

Trinder, L. (2010), ‘Shared residence: a review of recent research evidence’, Child and Family Law Quarterly, 22(4): 475-498. In shared residence or shared care arrangements, children divide their time between parents after separation or divorce. This paper aims to review and summarise key messages from recent empirical research on the prevalence and durability of shared residence arrangements, characteristics of shared care families, satisfaction of parents and children, and the impact of shared residence on child well-being. It also summarises research on the operation of the shared parenting legislation in Australia. The author notes that there are large gaps in the knowledge base, that there are no large scale British studies of shared care, and that almost everything known about shared care is based on international research, mostly from Australia and North America. The evidence reviewed suggests that shared residence can be a positive outcome where parents are able to cooperate and where arrangements are centred around children's needs, but that it is associated with negative outcomes for children in higher conflict cases. Liz Trinder is Professor of Socio-Legal Studies at the University of Exeter.

 

Theme 2 EQUITABLE DISTRIBUTION OF PARENTAL RESPONSIBILITIES AND FAMILY PRIVILEGE...

Altar-Schwartz, S., Buchanan, A. and Flouri, E. (2011), 'Grandparents Involvement and Adolescent Adjustment: Should Grandparents have Legal Rights?' in J. Bridgman, H. Keating and C. Lind (eds) Regulating Family Responsibilities, Farnham: Ashgate Many grandparents have important caring responsibilities, even if these differ from those of parents. Yet these responsibilities do not come with correlative rights. The findings that grandparental involvement is in general associated with better adjustment in young people might suggest that it is in ‘the child’s best interests’ to ease the legal barriers preventing this involvement. At present, a major legal barrier is the requirement for grandparents to apply for ‘leave’ of court before making any application about their grandchildren. When allied to finding that most young people want ongoing contact with their grandparents, and indeed see it as their right, a strong case is made to think afresh about this law. Shalhevet Altar-Schwartz is a lecturer at the School of Social Work and Social Welfare at the Hebrew University of Jerusalem. Ann Buchanan is Director of the Centre for Research into Parenting and Children at the University of Oxford. Eirini Flouri is Professor in Developmental Psychology at the Institute of Education, University of London.

Archard, D. and Benatar, D. (2010), Procreation and Parenthood: The Ethics of Bearing and Rearing Children, Oxford, Oxford University Press This volume features contributions from leading philosophical scholars on some of the main ethical issues raised by the human activities of procreation and parenthood. An introduction by Archard and Benatar supplies an accessible overview of the current debates. Individual chapters then take up particular problems such as: the morality of bringing people into existence; what limits there might be on a person's freedom to reproduce; whether human beings need to ensure that they only create the best possible children; whether there is a conflict between justice and parents' devotion of time and money to their own children; and, whether parents acquire their role because of their intention to do so or because they are responsible for bringing children into being. Contributors include Tim Bayne, Mike Parker, Colin McLeod and Elizabeth Brake. David Archard is Professor of Philosophy and Public Policy at the University of Lancaster. David Benatar is Professor of Philosophy at the University of Cape Town.

Collier, R. and Sheldon, S. (2008), Fragmenting Fatherhood: A Socio-Legal Study, Hart Publishing The authors explore how fatherhood has been understood and regulated at different moments across diverse areas of English law and social policy. Their approach is interdisciplinary, drawing from law, sociology, politics, psychology, history and social policy. The term fragmentation is used to suggest the disintegration of an ideal type of marital fatherhood in law and a consequent ‘subdivision’, where the work of fathering is legally recognised as shared between two or more men. Moreover, they suggest that the idea of fragmentation may reflect aspects of the lived experience of many fathers today. The notion also helps preserve a sense of the diversity and fluidity of contemporary fathering practices while indicating the substantive changes that have occurred at the legal level. The authors note how the legal focus has shifted from a concentration on horizontal relationships between adult partners, towards vertical relationships between adult and child. They reject the assertion that the development of contemporary fathers’ rights activism can simply be reduced to a backlash against a perceived maternal bias. Rather, they argue that a multilayered and contradictory father-victim discourse results from a complex set of social changes. Richard Collier is Professor of Law and Social Theory at Newcastle University. Sally Sheldon is Professor of Medical Law and Ethics at the University of Kent.

Kruk, E. (2005), ‘Shared Parental Responsibility: A Harm Reduction-Based Approach to Divorce Law Reform’, Journal of Divorce and Remarriage 43 (3/4), 119-140.  This article provides a selective overview and analysis of divorce research between 2000-2005, during which time important new data on children, families and divorce appeared, much of which challenges current socio-legal policy and ‘practice wisdom,’ and includes: (1) the emergent perspective of adult children of divorce reflecting upon their experiences and preferences growing up as children of divorce; (2) studies comparing child and family outcomes in joint and sole custody families; and (3) new data on the distribution of child care tasks and responsibilities in families. These data support an approach to postdivorce

parenting based on reducing the harms attendant to divorce for children and parents, parental equality, and family autonomy as most in keeping with children’s needs and the principle of “the best interests of the child, from the perspective of the child,” which, it is argued, provides a more child-focused standard for child custody determination than current approaches. Kruk also proposes a new model of post-divorce parenting: a “shared parental responsibility” framework, in which parental responsibilities precede custodial rights, and children’s “best interests” are addressed by means of identifying both their needs and parental and societal responsibilities corresponding to these needs. Edward Kruk, is Associate Professor in the School of Social Work and Family Studies, University of British Columbia, Canada.

Munoz-Darde, V. (1999), “Is the Family to Be Abolished, Then?” Proceedings of the Aristotelian Society 99: 37–56. This article explores the justice of the family. From the perspective of justice, the family causes serious concerns, for it causes severe inequalities between individuals. Several justice theorists remark that by its mere existence the family impedes the access to equality of life chances. The paper examines whether this means that justice requires the abolition of the family. It asks whether everyone, and, in particular, the worst off, would prefer the family to a generalised well-run orphanage. This thought-experiment is used to inquire which value, if any, is such that (a) it would be menaced by the abolition of the family, and (b) in a just society, it would be prioritised over the principle of equality of life chances. Veronique Munoz-Darde is Director of European Social and Political Studies at University College London.

Parkinson, P. (2011), Family Law and the Indissolubility of Parenthood, Cambridge University Press There are few areas of public policy in the western world where there is as much turbulence as in family law. Often the disputes are seen in terms of an endless war between the genders. Reviewing developments over the last forty years in North America, Europe, and Australasia, Patrick Parkinson argues that, rather than just being about gender, the conflicts in family law derive from the breakdown of the model on which divorce reform was predicated in the late 1960s and early 1970s. Experience has shown that although marriage may be freely dissoluble, parenthood is not. Dealing with the most difficult issues in family law, this book charts a path for law reform that recognizes that the family endures despite the separation of parents, while allowing room for people to make a fresh start and prioritizing the safety of all concerned when making decisions about parenting after separation. Patrick Parkinson is a Professor of Law at the University of Sydney and an internationally renowned expert on family law. He has played a major role in shaping family law in Australia. His proposal for the establishment of a national network of family relationship centers, made to the prime minister in 2004, became the centerpiece of the Australian government’s family law reforms. He was also instrumental in reforming the child support system and has had extensive involvement in law reform issues concerning child protection.

See also, Parkinson, P. (2006), ‘Family Law and the Indissolubility of Parenthood’, Family Law Quarterly 18(2): 237–280.

Skjørten, K. and Barlindhaug, R. (2007), ‘The Involvement of Children in Decisions About Shared Residence’, International Journal of Law, Policy and the Family 21(3): 373-385. This article discusses the relationship between law and social change in connection with the child's right to participate in decisions on residence. The empirical data are drawn from a survey of parents who have arranged shared residence for their children. In line with earlier research on children's participation in court disputes over contact and residence, the authors found that the age of the child is decisive regarding the degree of influence they have in private agreements. But, surprisingly, it was found that the educational level of the parents had a major impact on children's participation in decisions about shared residence. When gender was controlled for it turned out that highly educated fathers were least likely of all parents to report that the child had been taken into a co-decision process. This result might add a new dimension to our understanding of the relationship between law and social change. Professor Kristin Skjørten is Senior Researcher at the Norwegian CenterforforViolenceand Traumatic Stress Studies. Rolf Barlindhaug is a Senior Researcher at the Norwegian Institute for Urban and Regional Research.

Herring, J.J.W. (2010), ‘Relational Autonomy and Family Law’ in J. Wallbank, S. Choudhry and J. Herring (eds.) Rights, Gender and Family Law, Routledge Cavendish. In this work, Herring considers how an approach based on relational autonomy might inform family law. He argues against the use of individualised conceptions of rights and instead in favour of an approach that seeks to respect relationships. Jonathan Herring is Professor of Law at Oxford University. He has edited several books on theoretical issues in family law and examined the way the law balances the interests and rights of children and parents. He has also analyzed legal disputes over contact between children and parents and issues surrounding children's rights.

 

Theme 3 CHILD AND FAMILY WELLBEING IN THE CONTEXT OF POST-SEPARATION FAMILIES...

Archard, D. (2004), Children: Rights and Childhood, London: Routledge This book offers a detailed philosophical examination of children and their rights. Archard, draws on a wide variety of sources from law and literature to politics and psychology to provide a clear and accessible introduction to the topic. Reviewing arguments for and against according children rights, he concludes that every child has at least the right to the best possible upbringing. Denying that parents have any significant rights over their children, he is able to challenge current thinking about the proper roles of state and family in rearing children. This second edition has been revised and updated to include a new preface and a new chapter on children’s moral and legal rights, taking into account the UN Convention on the Rights of the Child. The book is divided into three parts, covering key topics such as: John Locke’s writings on children; Philippe Aries’s Centuries of Childhood; key texts on children’s liberation and rights; defining and understanding child abuse; and the rights of parents and the state over children. David Archard is Professor of Philosophy in the Department of Politics, Philosophy and Religion, University of Lancaster.

Archard, D. and Macleod, C.M. (eds) (2002), The Moral and Political Status of Children: New Essays, Oxford: Oxford University Press This book contains contributions from thirteen distinguished moral and political philosophers on the subject of children. In the context of the UN Convention on the Rights of the Child 1989, the authors consider it timely and appropriate to ask various questions. If children do not have rights what exactly is their moral status? If they do have rights do they have all the rights that adults have? What rights if any do parents have over children and what is their justification? What duties do parents have towards their own children and towards others in society? How should we educate those who will be the future citizens and workers of our society? What values and what dispositions of character is it appropriate to instill in children? Is the family an obstacle to the realisation of full social justice? Can we in pursuit of justice contemplate the abolition of the family? The book covers the themes of children's rights, parental rights and duties, the family and justice, and civic education. Chapters include:

Brighouse, H., “What Rights (If Any) Do Children Have?”, 31–52; Burtt, S., ‘What Children Really Need: Towards a Critical Theory of Family Structure’, 231–252; Noggle, R., “Special Agents: Children’s Autonomy and Parental Authority”, 97–117; MacLeod, C., “Liberal Equality and the Affective family”, 212–30. Colin M. Macleod is Associate Professor of Philosophy and Law at the University of Victoria, Canada.

Brennan, S. and Noggle, R. (1997), “The Moral Status of Children: Children’s Rights, Parents’ Rights, and Family Justice,” Social Theory and Practice 23: 1–25. Mainstream ethical philosophy has had little to say about issues of family justice. Even feminist moral theories often focus more on questions of justice for families than on questions of justice within them. In contrast, there is a large body of literature on children's rights in sociology and legal theory. But little of this theorising rests on a foundation in moral philosophy any stronger than a vague appeal to the notion of the best interest of the child. This paper attempts to provide a philosophical foundation for thinking about the moral status of children. It is driven by what the authors think are widespread convictions about how we ought to treat children. In it, they propose several plausible claims that place constraints on theorising about the moral statue of children and discuss what their theory implies about the moral nature of parenting and about how public policies dealing with children ought to be reformed. Samantha Brennan is a Professor of Philosophy at the University of Western Ontario. Robert Noggle is Professor of Philosophy at Central Michigan University, USA.

Butler, I., Scanlan, L., Robinson, M., Douglas, G. and Murch, M. (2003), Divorcing Children: Children's Experience of their Parents' Divorce, London: Jessica Kingsley. Drawing on a three-year multidisciplinary study of children of divorced parents, the authors present a guide to understanding the experience of children who are experiencing parental separation. This book provides an in-depth account of how children are actively involved in the process of divorce and how they shape that experience. The topics discussed include how children find out that their parents are separating; how children tell other people about what is happening to them and their family; how parent-child relationships change after separation and ways in which children adapt and cope during and immediately after their parents' divorce. The authors show what children want and need to know as the process of divorce unfolds and how professionals can respond appropriately to help them to understand and adjust to their changing circumstances. The authors address the weaknesses of current legislation in family justice and suggest ways of improving the skills and knowledge of all professionals who work with children during this difficult period in children's lives. Ian Butler is Professor of Social Work at the University of Bath and is currently seconded to the Welsh Assembly Government where he is Cabinet Advisor on Children and Young People's policy. Lesley Scanlan is a Research Associate at the Law School and the Family Studies Research Centre, University of Cardiff. Margaret Robinson is a coordinator at the Family Studies Research Centre, University of Cardiff. Gillian Douglas and Mervyn Murch are both Professors of Law at the University of Cardiff.

Cashmore, J. (2010), ‘Children’s Participation in Family Law Decision-Making: Theoretical Approaches to Understanding Children’s Views’, Sydney Law School Research Paper No. 10/89 Cashmore explores children’s views about their involvement in the post-separation arrangements that were made in their families and via the court process in the light of three theoretical models. The three models include two variants of the procedural justice theory – the instrumental and the relational – and Smart’s conceptualisation of children’s ethic of care and ethic of respect. There has to date been little procedural justice research specifically with children. This paper also distinguishes between various aspects of children’s participation, a term that carries a number of meanings and is used in various ways. In particular, it examines children’s reasons for wanting to be involved or not, and the association between the amount of say children thought they had had, how much say they wanted, and the perceived fairness of the arrangements and their happiness with them.

Judy Cashmore is Associate Professor at the University of Sydney. She has worked with Professor Patrick Parkinson on an ARC project concerned with children's participation in decision-making about where they live and when they see both their parents.

Cashmore, J. and Parkinson, P. (2008), ‘Children’s and Parents' Perceptions of children's Participation in Decision-Making After Parental Separation and Divorce’, Family Court Review 46(1): 91-104

Sydney Law School Research Paper No. 08/48

Parents, and children ranging in age from 6 to 18 years who had been through parental separation, were interviewed concerning their views about children’s involvement in the decisions concerning residence and contact arrangements. The great majority of both children and parents thought that children should have a say, although this was not reflected to the same extent in children’s experiences. Older children in a number of families had considerable influence over the arrangements either in the aftermath of the separation or in making further changes over time. Both parents and children had a range of views about the general appropriateness and fairness of children being involved but children who had experienced violence, abuse or high levels of conflict were much more definite about their need to be heard than those in less problematic and non-contested matters. Parents involved in contested proceedings supported the participation of children at a younger age than those who were not. There was a reasonable degree of agreement between parents and children about the need for children to be acknowledged, and the value of their views being heard in the decision-making process. However, parents expressed concern about the pressure and manipulation that children can face and exert in this process, whereas children were generally more concerned about the fairness of the outcomes, and maintaining their relationships with their parents and siblings.

Judy Cashmore is Associate Professor at the University of Sydney. is Associate Professor at the University of Sydney. Patrick Parkinson is Professor of Law at the University of Sydney.

Greensmith, A. (ed.) (2010), Resolution Family Disputes Handbook, Law Society Publishing., Law Society Publishing. Disputed divorce cases can result in lengthy court proceedings and, potentially, further harm already damaged relationships. Alternatives to litigation can help to avoid confrontational court cases. This ‘Handbook’ provides an authoritative guide to offering non-court based solutions. Written by Resolution's ADR Committee, the contributors to the book are all leading family practitioners with a wealth of experience in the field. The handbook offers: an outline of the alternative models available, including information on how they are funded and the different ways of working within a dispute resolution framework; coverage of the procedure involved in running a practice offering collaborative law and/or mediation; examination of specific, more complex issues such as cases with an international dimension, pre-nuptial agreements, and handling communications with other professionals; and, practical features within the book such as precedents, pro forma letters, and checklists. Produced in association with Resolution's ADR Committee, this handbook provides a definitive guide to best practice.Andrew Greensmith is a former National Chair of Resolution and is a divorce and family law specialist. In 2011, he was appointed to the role of District Judge.

Engelhardt, H.T. (2010), Beyond the Best Interests of Children: Four Views of the Family and of Foundational Disagreements Regarding Pediatric Decision Making, The Journal of Medicine and Philosophy, 35(5): 499-517. This paper presents four different understandings of the family and their concomitant views of the authority of the family in pediatric medical decision making. These different views are grounded in robustly developed, and conflicting, worldviews supported by disparate basic premises about the nature of morality. The traditional worldviews are often found within religious communities that embrace foundational metaphysical premises at odds with the commitments of the liberal account of the family dominant in the secular culture of the West. These disputes are substantial and ultimately irresolvable by sound rational argument because of the failure to share common foundational premises and rules of evidence. It is in light of these fundamental disagreements that there is a need to evaluate critically the claims and agenda advanced by the Convention on the Rights of the Child. Tristram Engelhardt is Professor of Philosophy at Rice University, USA. is Professor of Philosophy at Rice University, USA.

Fehlberg, B., Smyth, B., Maclean, M. and Roberts, C. (2011), ‘Caring for children after parental separation: would legislation for shared parenting time help children?’, Family Policy Briefing 7, Department of Social Policy and Intervention, University of Oxford. This paper reviews the evidence on legislating for shared time parenting, especially the Australian experience of this. It reports serious difficulties with legislating for shared care especially in litigated cases, but also in privately agreed cases. The authors argue that the changes have resulted in an increased use of family law services as fathers have misunderstood the legislation to mean that they have a right to equal time, and to an increase in court imposed shared parenting orders. They go on to suggest that this has led to an increased focus on fathers’ rights over children’s best interests, and has increased the reluctance of mothers to disclose violence and abuse. As a result, additional legislation has now been presented by the government to the Australian parliament to deal with the safety issues. The authors suggest that the evidence indicates a need for caution before following the Australian approach of legislating to encourage litigating parents to share parenting after separation. Belinda Fehlberg from the University of Melbourne is the co-author of Australian Family Law: The Contemporary Context (2007). Bruce Smyth from the Australian National University is the author of numerous articles on post-separation families and shared parenting.

Gilmore, S. (2006), ‘Contact/Shared Residence and Child Well-Being: Research Evidence and its Implications for Legal Decision-Making’, International Journal of Law, Policy and the Family 20 (3): 344-365. This article considers the implications for legal decision-making of one aspect of research on children’s adjustment to parental separation: the significance for child well-being of maintaining a relationship with both parents, either by way of contact with a non-resident parent or by means of a shared (dual) residence arrangement. It is argued that policy-makers who have rejected recent calls for a statutory presumption of child/non-resident parent contact, or of equal division of a child’s time between parents, have acted appropriately in the light of the research evidence. Stephen Gilmore is a Senior Lecturer in Law at the University of East London.

Grandparents Plus (2009), Rethinking Family Life: exploring the role of grandparents and the wider family. http://www.grandparentsplus.org.uk/wp-content/uploads/2011/03/RethinkingFamilyLife.pdf Where the two parent household has broken down, grandparents and the wider family often step in to fill the gap, cushioning any adverse experiences that children may have. By focusing almost exclusively on the role of parents we both fail to listen to children, who repeatedly identify grandparents and other family members as key influencers in their lives, and set parents up to fail. This report brings together evidence which demonstrates that we are all living extended family lives. The report gathers existing evidence on grandparenting and the wider family and points to some of the gaps in the literature. It describes the wide range of ways in which grandparents and the wider family contribute to family life. Their role has been under-explored to date and developing a clearer understanding of this role and shaping policy to support it is the next chapter of family policy. Grandparents Plus is the national charity which champions the vital role of grandparents and the wider family in children’s lives - especially when they take on the caring role in difficult family circumstances.

Harris-Short, S. (2010),Resisting the march towards 50/50 shared residence: rights, welfare and equality in post-separation families’, Journal of Social Welfare and Family Law 32(3): 257-74. 32(3): 257-74. In recent years, a normative model of equal shared parenting post-separation has become firmly entrenched in the minds of some policy makers and legal practitioners. This has been due, in no small part, to the high-profile campaign of fathers' rights groups. In attacking what they perceive as the gender bias inherent within the family justice system, fathers' rights groups have argued vociferously for a presumption in favour of shared residence post-separation, with the child's time being split on a roughly equal 50/50 basis between the mother and the father unless the child's welfare dictates otherwise. Although the Labour government resisted calls to introduce such a presumption into the Children Act 1989, the recent case law of the Court of Appeal on the use of shared residence orders risks pushing us towards a position in which 50/50 shared residence will indeed become entrenched as the normative model for organizing post-separation family life. This article warns strongly against any such shift in post-separation parenting, arguing that greater use of 50/50 shared residence is neither supported by the empirical evidence on children's welfare nor by the vociferous rights-based arguments of disaffected fathers for equality, justice and fairness in determining post-separation parenting arrangements. Sonia Harris-Short is Professor of Law at the University of Birmingham.

Kaganas, F. and Diduck, A. (2004), ‘Incomplete Citizens: Changing Images of Post-Separation Children’, Modern Law Review 67(6): 959–81. The image of the child as the victim of separation or divorce is well-established in legal, socio-legal and popular discourse. However, the authors argue, alongside this traditional image of the child, there is a different image of the child emerging, that of the autonomous, responsible child. This is apparent in academic discourse, policy documents and legal pronouncements. This child is included in the project of 'remoralising' the family by building the 'good' post-separation family. The 'good' child of separation or divorce is responsible for safeguarding his or her own welfare and is expected to make those choices that are assumed to best protect his or her best interests. In order to ensure that the child makes the 'right' decisions, he or she, like the adults concerned, is the target of education, information and therapeutic intervention. There is a blending of paradigms in which the ideal child is both an autonomous social actor and a vulnerable object of concern.

Felicity Kaganas is Reader in Law at Brunel University. Alison Diduck is Professor of Law at University College London.

Kruk, E. (1995), ‘Grandparent-Grandchild Contact Loss: Findings from a Study of “Grandparent Rights” Members,’ Canadian Journal on Aging 14 (3), 737-754 (Canadian Association on Gerontology). http://edwardkruk.com/cja.pdf This articleexplores salient aspects of grandparent-grandchild contact loss by focusing on critical factors and events contributing to initial access difficulties, as well as on those associated with eventual loss of ongoing contact, from the perspective of grandparents. Grandparents whose adult children are noncustodial parents (mostly paternal grandparents) are at high risk for contact loss, and adult children-in-law appear to be the primary mediators in the ongoing grandparent-grandchild relationship. Disrupted grandchild access is seen as having profound negative consequences for grandparents, and this has important implications for socio-legal policy and therapeutic practice. Edward Kruk, is Associate Professor in the School of Social Work and Family Studies, University of British Columbia, Canada. See also, Kruk, E. and Hall, B. (1995), ‘The Disengagement of Paternal Grandparents Subsequent to Divorce,’ Journal of Divorce and Remarriage 23 (1/2), 131-147 (Haworth Press).

Laing, K. (2006), ‘Doing the Right Thing: Cohabiting Parents, Separation and Child Contact’, International Journal of Law, policy and the Family 20(2): 169-180. Over recent years, concern has mounted at the unstable nature of cohabiting relationships compared to marital ones, and also about the fact that any children from these relationships are more likely to experience the separation of their parents than the children of a marital union. The discourse of the Family Law Act 1996 holds that separating parents should behave in a conciliatory and reasonable way to each other, maintain contact with their children and continue to be involved in their upbringing, and ensure that financial obligations are met. This article uses data obtained through interviews with previously cohabiting parents who have attended pilot group meetings designed to educate them about the needs of their children on separation, to examine to what extent parents internalize this discourse when negotiating post-separation parenting. The article concludes that while parents may take on board the principles of this socially acceptable discourse, they have their own moral rules derived from their own histories and experiences of what it is to live their life and parent their child that they must marry with this discourse. The extent to which current family policy discourses and legislative frameworks can influence the behaviour of parents is therefore mitigated by their own interpretations within the context of their own lives.

Karen Laing is a member of the Faculty of Humanities and Social Sciences at Newcastle University

Maclean, M. (ed) (2007),  Parenting after Partnering: Containing Conflict after Separation, Onati International Series in Law and Society, Oxford: Hart Publishing. Relationships between adult partners following divorce or separation can be fragile, and the issues which have divided the parents are often hard to disentangle from the ongoing relationships between parents and children. There is a small group who have ongoing difficulty and who need professional help and legal intervention to make arrangements for ongoing parenting. This volume brings together research from the USA, Central, North Western and Southern Europe, and Australia on the nature and importance of children's relationships with parents after parental separation, and on the range of professional interventions which support them through these difficult times. Mavis Maclean has carried out Socio Legal research in Oxford since 1974. She is a Senior Research Fellow in the Faculty of Law at Oxford University and is joint Director of the Oxford Centre for Family Law and Policy.

Poussin, G. and Martin-Lebrun, E. (2011), Les enfants du divorce, Paris: Dunod (French language) This work explores the psychological consequences of parental separation for children and looks at means such as family mediation put in place to ameliorate their effects. This work, now in its second edition, brings all the material up to date, in particular concerning the recent changes in French law to the exercise of parental authority and the legislation on alternate (shared) residence. A number of chapters have been modified to take into account work permitting comparison with the results of a study carried out twelve years earlier; this reports on the findings of the impact of separation and parental conflict on the self-esteem of the children themselves. Gérard Poussin is Professor of Clinical Psychology atPierre MendèsUniversity Grenoble, France. Élisabeth Martin-Lebrun is a pediatrician and specialist in the psychology of parental separation, Grenoble, France.

Poussin, G. and Martin-Lebrun, É. (2002), A French study of Children's SelfEsteem after Parental Separation,International Journal of Law Policy and the Family 16 (3): 313-326. The authors present the results of a study carried out during the school year 1995–1996, in France, in which 3098 children, aged from 11 to 13, were included. Each child filled in a questionnaire describing his or her family situation and then completed a psychological test of self-esteem (in the presence of a physician from the school health service). Poussin and Martin-Lebrun examine possible relationships between the performances in the test of self-esteem and the age of the child at the time of parental separation (before three years or after) as well as the possible influence of the regularity of his or her relationships with the father. This study shows, similar to previous studies in other countries that, on average, parental divorce has a small but significant impact on French children. Nevertheless, self-esteem is lower for children who had experienced parental separation in their French sample. Self-esteem is, however, a complex issue in the development of the adult personality and the authors question how children with low self-esteem may be affected in the future. Reflection by all professionals on behalf of children and adolescents is necessary in order to produce a suitable response to a pervasive phenomenon which affects fundamental values of our society.

 

Theme 4 LEARNING FROM OTHER JURISDICTION...

Sodermans, A. K., Vanassche, S., Matthijs, K., & Swicegood, G. (forthcoming). Measuring post-divorce living arrangements: Theoretical and empirical validation of the residential calendar. Journal of Family Issues.
In this paper, the authors present a new method for measuring residential arrangements of children following parental divorce. They discuss the limitations of conventional methods for measuring post-divorce residential situations of children, but their principal objective is to present a promising alternative, the residential calendar. Its utility is evaluated with data coming from the Leuven Adolescents and Families project (LAGO), collected from a sample of 878 Flemish adolescents, who have experienced a parental break-up. Several substantive and methodological arguments and supporting analyses illustrate the potential value of the residential calendar for collecting policy relevant data on the consequences of divorce. An Katrien Sodermans and Sofie Vanassche are coordinators of the Leuven Adolescents and Families Study (LAGO). Professor Koen Matthijs is head of Population Studies – Leuven (FaPOS), Centre for Sociological Research, K.U.Leuven, Belgium. He is one of the promoters of the Divorce in Flanders project. Gray Swicegood is an associate professor emeritus of Sociology at the University of Illinois, Urbana-Champaign.

Glennon, T. (2007), 'Still Partners? Examining the Consequences of Post-Dissolution Parenting’, Family law Quarterly 41: 105. Parents who divorce or separate are strongly encouraged to co-parent their children. Through co-parenting relationships, whether voluntary or court-ordered, divorced and separated individuals remain closely enmeshed in each others' lives. The co-parenting approach to post-dissolution parenting conflicts with the dominant model for post-dissolution economic issues: the clean break model. Judges are encouraged to completely untangle all financial entanglements upon divorce or separation. Under the clean break model, divorced and separated parents are supposed to gain economic autonomy. In this Article, Glennon explores a context in which the tension between these two models is most acute: relocation disputes. She argues that where court intervention in post-dissolution co-parenting creates significant economic costs to one of the parents, courts should have the authority to share that cost between both parents through an income sharing approach.

Theresa Glennon is Feinberg Professor of Law at Temple University, USA.

Maclean, M. and Eekelaar, J. (2010),  Family Law Advocacy.  How Barristers Help the Victims of Family Failure, Hart Publishing.The role of the law in settling family disputes has been a matter of particular debate over the past twenty-five years. In keeping with the general public perception, the media has been largely critical about the role of lawyers in family law matters, sustaining a general lack of confidence in the legal profession, and a more specific feeling that in family matters lawyers aggravate conflict or even represent a female conspiracy. The climate in which family lawyers practise in England and Wales is therefore a harsh one. The authors of this study explore the contribution of barristers in family law cases by embarking on a careful study of the Family Law Bar, its characteristics, what its members do, and how their activities contribute to the management or resolution of family disputes. Much of the study is comprised of an in-depth examination of the day-to-day activity of members of the family law bar through observation of individual barristers as they performed their role in the context of a court hearing. In attempting to answer questions such as whether our family justice system is excessively adversarial, or whether family barristers earn too much from human unhappiness, or indeed whether those working in the front line of child protection earn enough, the authors suggest the barrister is ‘both mentor and guide for the client’ and that ‘society should value their contribution better’. Mavis Maclean is co-founder of the Oxford Centre for Family Law and Policy, Oxford University. John Eekelaar is Emeritus Fellow of Pembroke College, Oxford.

Mahon, E. and Moore, E. (2011), Post-Separation Parenting: A study of separation and divorce agreements made in the Family Law Circuit Courts of Ireland and their implications for  parent–child contact and family lives, Department of Health and Children, Government Publications. This study investigates post separation and divorce agreements made in the Family Law Circuit Courts of Ireland and their implications for parent-child contact and family lives. The study was commissioned and funded by the Office of the Minister for Children and Youth Affairs. Evelyn Mahon is a Fellow and Senior Lecturer at Trinity College, Dublin, in the School of Social Work and Social Policy. Elena Moore is a Research Fellow at the Centre for Social Science Research at the University of Cape Town working on a National cross-sectional study on ‘super diversity in South Africa’.

George, R. (2011), 'Practitioners’ Views on Children’s Welfare in Relocation Disputes: Comparing Approaches in England and New Zealand' 23 Child and Family Law Quarterly 178. Relocation is a highly contested area of child law. While it is not always easy to define, the core issue is that one parent proposes to move with the child to a new geographic location, where the move would affect the child’s relationship with the other parent. Different countries have different approaches to these disputes, with some described as pro-relocation, some anti-relocation and others somewhere in between. The law in England and Wales is generally considered pro-relocation, while that of New Zealand, although previously thought of as neutral, is now considered anti-relocation. However both jurisdictions place the welfare and best interests of the children at the centre of relocation law. This article draws on interviews with judges, lawyers and welfare advisors to explore the reality of relocation disputes in the two countries. Participants were asked to assess three hypothetical cases which covered a range of the possible issues. The analytical approach and the predicted outcomes varied; overall New Zealanders were less in favour of relocation. The author concludes by discussing the implications of these different approaches to a welfare principle in the light of calls for a more unified international approach to relocation law.Robert George currently holds a British Academy Postdoctoral Research Fellowship on a project entitled "The Realities of Relocation: Analysing Disputes Over Post-Separation Family Migration in the English Trial Courts".

Mazeh, Yoav D. (2011), 'The Function of 'Custody' in Israeli Family Law'. Working Paper Series, available at: SSRN: http://ssrn.com/abstract=1788847  In his paper, Mazeh argues that there is no clear understanding of the meaning of 'custody' in Israeli law. The custodial parent’s authority does not exceed that of the non-custodial parent, since parental authority is determined according to the laws of guardianship. Similarly, a custody determination does not indicate which parent spends more time with their child, since this issue is determined according to a parent’s visitation rights. Indeed, in certain instances, a visitation decision may grant the non-custodial parent more time with their child than it grants the custodial parent. The key question examined here is that of the function served by the notion of custody in Israeli law. Yoav Mazeh is a lecturer at the Faculty of Law at Ono Academic College, and a fellow at the Van Leer Institute. In his work he has looked at the issue of violation of visitation rights and issue of relocation and its effect on children.

Wasoff, F. (2007), Dealing with Child Contact Issues: A Literature Review of Mechanisms in Different Jurisdictions, Edinburgh: Scottish Government, http://www.scotland.gov.uk/Resource/Doc/201147/0053739.pdf The issue of child contact following parental separation and how family law and policy could facilitate the making of good child contact arrangements was the subject of much discussion during the passage of the Family Law (Scotland) Act 2006. This report presents the findings of a small literature review of mechanisms for dealing with child contact issues across jurisdictions in order to inform future discussions. The mechanisms encompass advice, information and education (including parenting plans, parenting agreements, parenting education), legislative, court-based and civil law, and relationship support and social welfare support and service mechanisms. The review looks at how some jurisdictions address contact issues where there has been a history of intractable conflict, child abuse or neglect or domestic abuse. Fran Wasoff is Emeritus Professor of Family Policiesat the University of Edinburgh. She is Associate Director of the Centre for Research on Families and Relationships (www.crfr.ac.uk).

Parkinson, P. (2008), Freedom of movement in an era of shared parenting: the differences in judicial approaches to relocation, Federal Law Review 36(2). In 2006, Parliament made major amendments to the Family Law Act 1975 to encourage a greater level of shared parenting, and to give greater emphasis to the importance of children maintaining a relationship with both parents in the absence of violence or abuse. There are major differences between trial judges in how to apply the new laws to the problem of parental relocation - where the primary caregiver wants to move a long way from the other. The central problem is determining how much importance should be given to a parent’s freedom of movement given this greater emphasis on the involvement of both parents. There are stark differences in the policy and approach of different trial judges, which have yet to be resolved by an authoritative and carefully reasoned decision of an appellate court. This article examines these substantial differences in view between judges on this issue since the 2006 amendments, and proposes a way forward based upon revisiting the leading judgment of Kirby J in the High Court in AMS v AIF. Patrick Parkinson is Professor of Law at the University of Sydney

 

Theme 5 SUPPORT FOR, AND OBSTACLES TO, SUCCESSFUL POST-SEPARATION FAMILY LIFE...

Masardo, A. (2009), ‘Managing shared residence in Britain and France: questioning a default 'primary carer' model' in Rummery, K., Greener I. and Holden C. (eds), Social Policy Review 21: Analysis and Debate in Social Policy, Bristol: Policy Press, 197–214. Despite the substantial interest in the concept of shared residence, relatively little is known within the European literature about how it functions in practice; in particular, about the relational and structural dynamics that exist in its negotiation and management. Examining how such practices manifest themselves within different national contexts can provide us with a lens through which to view responses to such developments while simultaneously contributing to a greater understanding of this phenomenon more generally. In this work, Masardo draws on research which uses qualitative methodology to explore and compare fathers’ experiences of managing such arrangements in Britain and France. He identifies areas of complexity within which different models of shared residence are becoming established, with particular reference to the legal frameworks and social policies in each national context as well as the roles of, and relationships between, the various social actors involved. Through a relational and structural analysis of what helps and what hinders fathers in negotiating and managing such arrangements, he explores some of the main challenges of parenting in multi-residence situations. Alex Masardo is an Honorary Research Fellow at the University of Birmingham and a Visiting Fellow at the Centre for the Analysis of Social Policy, University of Bath. He is co-organiser of the AHRC Network on post-separation families.

Smyth, B. and Rodgers, B. (2011), 'Strategic bargaining over child support and parenting time: A critical review of the literature', Australian Journal of Family Law 25: 210-235. Sweeping changes to the Australian Child Support Scheme were introduced between 2006 and 2008, featuring a dramatically different system for the calculation of child support. Key reforms to the Australian Scheme include changes to the number of nights at which (a) child support liability is reduced, and (b) Family Tax Benefit (FTB) can be spilt between parents. An important policy question is the extent to which thresholds in the level of care at which liability is reduced result in strategic bargaining over child support and parenting time, such that non-resident parents push for more overnight stays with children to minimise their child support payments while resident parents might deny additional overnight parent-child contact to maximise the amount of child support and FiB they receive. In this article the authors review key international and Australian studies of bargaining over child support and parenting time to explore the extent to which bargaining occurs. Despite the common perception that separated parents frequently attempt to structure their parenting arrangements for financial gain, the review suggests this type of strategic bargaining is not widespread. Bruce Smyth ( Associate Professor) and Brian Rodgers (Professor) are from Australian National University College of Arts and Social Science. The authors and their research team are currently working on an Australian Research Council (ARC) Linkage Project Grant to examine the impacts of the new Child Support Scheme.

Weyland, I. (1995), ‘Judicial attitudes to contact and shared residence since the Children Act 1989’, Journal of Social Welfare and Family Law 17 (4): 445–59. Both reported and unreported judgments on contact after parental separation and on shared residence, made since the implementation of the Children Act 1989, are examined in order to establish whether the Act has brought about changes in the criteria relied on by the courts. The judgments are evaluated in the light of research on the effects on children of divorce and of shared residence arrangements. It has been found that there is greater consistency in the decisions on contact following parental separation than before the Act came into force. The application of the principle that cogent reasons must exist for denying contact has led to a clear judicial trend towards allowing contact even in cases where a parent is implacably opposed to it. In the area of shared residence old assumptions about its unusual nature and undesirability in most cases still prevail, though it is recognized that the courts have the power to make such orders when they are clearly for the benefit of children. Ines Weyland is a family mediatorand professional practice consultant for all the Family Mediation Council approved training bodies. She gained her PhD in Jurisprudence from the London School of Economics and was previously a senior lecturer in family law at the University of North London. She has done research in legal philosophy and family law and has published on topics such as contact with children, shared residence, child abuse and maintenance agreements and consent orders