© The Sunday Star (Used by permission)
When love goes, good sense follows hot on its heels and children become casualties as their parents exchange unfriendly fire, egged on by over–zealous lawyers, in an adversarial legal system, writes SHAILA KOSHY
THE family is a wonderful institution but it can also be a nightmare straight from hell when a marriage disintegrates.
For as long as there have been codified laws, and even before that, women have been getting the short end of the stick where equality as a spouse and guardianship of the children were concerned.
Over the years, the women’s lobby has tried to level the playing field for them as individuals, wives and mothers; success has been varied, depending on the culture and religious persuasion of a country’s citizens.
Interestingly, most men’s support groups that have been formed lobby for what they see as a loss of rights where their children are concerned.
Women were once deemed the family chattel but today children have become the new chattels as an increasing number of spouses battle over who is the fit parent or better guardian for their children.
The Bar Council’s announcement of a half–day forum titled “Men’s Rights: Children need fathers too!” on Sept 23 drew predictable interest from opposing quarters.
Foo Yet Ngo, who chaired the forum and is the council’s Family Law Committee deputy chair, said in her opening remarks that she had received several calls asking indignantly: “Why men’s rights? Why not women’s rights or children’s rights?”
The organisers’ decision to have Rod Stewart crooning over the speakers was an intriguing prelude to a potentially tense forum but I’m sure his sexy voice tenderly stroking each word would have relaxed even the tautest nerve in the council auditorium.
The first part of the forum – sharing by three divorced fathers who have been trying to get custody of/ access to their children – set the tone for the rest of the session; what was heard was not so much a man’s right to have contact with his child but the fact that the development and welfare of a child was dependent on contact with both parents and extended families.
Jankins Louis, who was married for more than 15 years and has two young children, is still hoping his family will get back together.
“I started with the view to fight to save my family; broken families need help but the push from lawyers and society is to fight to win and not to keep your family together.
“We keep using the letter of the law to kill the spirit of the law,” lamented the accountant whose case has been in the courts since April 2004.
Clinical psychologist Paul Jambunathan and Sunway University College psychology department lecturer Grace Yap underscored the negative effect the absence of a parent has on children.
“Children in their early age have concrete learning. They need to feel, see and touch their parents,” said Jambunathan.
“They will become fathers as well and they are going to learn the role of absence, holding back and not getting involved in their families because they model you.
“The need for co–parenting doesn’t stop because of divorce.”
Reading the list he had asked his daughters aged 10 and 14 to make of what they needed from each parent and what they would lose if one died, he demonstrated anecdotally the different needs he and his wife met for each child, in their roles as father and mother, and at the different stages of their daughters’ lives.
Divorced for over 20 years, British–based charity Families need Fathers (FNF) representative Steven Stephenson, who was also a panellist, provided support for this fact when he told the audience that his 27–year–old daughter had called him up here and talked for 90 minutes about her boyfriend.
The basic premise for FNF, which supports both fathers and mothers, is that “children ‘do’ better when both parents can contribute to their child’s emotional, social and physical development.”
Malaysian family courts, however, don’t seem to encourage this.
“When fathers go to court on custody of children, they know they go in with odds of 60–40 against them,” said family law lawyer Chew Swee Yoke, another panellist.
She called for a review of the Law Reform (Marriage and Divorce) Act saying that while it was gender–neutral, in most respects there were three gender–biased principles in the Act and in common law.
They are: the rebuttable presumption that children below the age of seven are better off with their mother; a man has a legal duty to maintain his wife but she is only required to maintain her husband if he is incapacitated from carrying a livelihood and the court is satisfied she has the means to do so; and that it is the natural mother of a child born out of wedlock who has rights to guardianship and custody.
Stephenson pointed out that amending the laws alone was not enough.
“The Children Act in the UK is gender–neutral but gender biased in its application.”
However, it is not just the application of the law that is found wanting in ensuring the child’s interests are paramount.
Lawyers aggravate the situation by making it more combative, said Chew and Jambunathan.
“Lawyers actively, purposely, sometimes in the course of duty and sometimes unknowingly, cause one parent to alienate the other parent,” he said.
Chew said that when she started practising, she was told to try and reconcile spouses but that is not the case these days.
Could we ensure lawyers do not exacerbate the already strained relations or encourage parental alienation by making matrimonial lawyers subscribe to a code of ethics to act in the interests of the children?
Once again, Stephenson noted that while there was a code of ethics in England there was no guarantee matrimonial lawyers would adhere to it.
We need to clarify whose interests family lawyers are called to serve – the fee–paying client or the innocent children?
Are they to uphold the letter of the law (by following tenaciously the provisions of the Legal Profession Act to act in their client’s best interests) or the spirit of the law (that a child’s safety, health and welfare come first)?
For the child’s interests to be the priority in working out contact time for each parent, Stephenson said negotiations should begin at a 50:50 share.
“You can go away from it later if say the father has very heavy work commitments and needs to be away from home.”
Chew shared a unique solution her client and the husband came up with to have equal contact – live under the same roof during the divorce proceedings.
“Despite the nasty letters they exchanged through their solicitors, they were civil to each other in front of their three children. After three years, they settled their divorce amicably because both loved their children.”
In one case in Italy, the parents moved out of the house while the child stayed put, said Stephenson.
“One week, the mother moved in and the next week the father did. To me, that is truly a child–centred solution. It’s certainly much better than a child moving between two homes.”
The above solutions are perfect examples of what is possible if we shift the focus away from women and men’s rights as parents to the child’s best interest instead.
Are fathers and mothers prepared to do that?