Two feature articles in the Danish national newspaper Politiken clarifies and informs of the negative effects of the Danish Parental Responsibility Act of 2007.
The articles argue that the act is de facto blind to violence as well as gender and that the processing of the cases is inadequate.
The feature article “A scandal with implications for the children” was published in Politiken in 2008. The second feature article, “The Act on Parental Responsibility harms children”, was published in Politiken in 2014.
Read the articles below.
Feature article in Politiken on the 4th of August 2008
A scandal with implications for the children
Pia Deleuran, attorney and mediator
The Act on Parental Responsibility is gender blind and forces joint custody even where that may be detrimental to the children involved.
The battle of the children in the name of equality is on.
Forget about ‘the child’s perspective’ and ‘the best interests of the child’ in this context. It is pure rhetoric in relation to the relatively new Parental Responsibility Act, which was supposed to regulate the area in the best interests of the child. Now it is the adult’s rights, especially the fathers’ share in the lives of children, which is fought for by society.
The Act has been in force for almost a year and a unanimous parliament chose to ignore the specialists’ and children’s organizations’ warnings made in the various consultations and articles during the preparation of the legislation.
It is unclear on what grounds the State Administrations and courts minimise the very obvious problems associated with the Act – problems that are exactly as predicted before the adoption of the legislation.
Where are the doctors and nurses, teachers, school psychologists and others in contact with the children? The answer is up in the air, but these professionals should feel morally obliged to sound the alarm. They must experience that children are now being forced into prolonged periods of turbulence, conflict and frequent changes between the parents. In addition, the increased involvement of the children in the process is stressful, especially when their opinions are not seen as being reflected in the decisions made by the State Administrations and courts. The outcome will not always follow the wishes of the children, and then the adults have a problem trying to explain to the children the logic of the decision.
In the following, I will outline the situation more fully, but firstly I will address some basic problems.
The Act is partly supposed to set norms in society generally and partly supposed to regulate individual situations in order to create peace between conflicting parties in specific cases. Unfortunately, MPs seem to have forgotten this double perspective in the preparation of the Parental Responsibility Act, which in almost all cases provides for mandatory joint custody, thus only cultivating the norm. Society wants to tie children to their genetic parents – almost regardless of the prior history and nature of the conflict. Even in cases with serious conflicts between the parents the MPs envision that peace between parents warring about the children can be established by force. This is unrealistic and means that a number of specific children now have to go through childhood living in a conflict zone, and that the primary caregiver is stressed by being forced to be in contact with someone who is perceived as an opponent. In addition, new procedures have been introduced in the State Administration that are so prolonged that everyone involved in cases or case work is going to suffer during the course of the proce Some mistakenly believe that the State Administration must intervene to stop any suffering, but no: in the vast majority of cases where there is doubt about the well-being or safety of the child, the Act does not protect the child by giving it the benefit of the doubt. The harmful situation persists. Currently in relation to families in conflicts which they are unable to solve on their own, society will step in and teach them to solve their problems in a vast number of ways – at an enormous public expense. The concept behind this is the mistaken idea that a learning process will benefit the adults and that the children will become more complete as human beings just by having visitation with the two people who are genetically their parents. Regardless of the level of conflict.
Lawmakers seem to have forgotten that although women and men respectively provide the eggs and sperm to create a child, it is still the woman who carries out pregnancy, childbirth and breastfeeding. This creates a close physical connection between the mother and child in the child’s first years. This absolutely essential attachment process between mother and child is a missing dimension in the Act – to the detriment of all. Some think that by pointing out women’s special competence and the diversity of men it might make men feel inferior and give them complexes. For women, denying the attachment as a fundamental human condition is not the way forward, although for some it may be tempting.
The basis for working with conflicts in families is predicated on the above factors, which are already distorted from the start. There are shortcomings in the statutory foundation.
If you look closely at the family picture of custody and visitation, parents and children can be divided into two main groups: the lucky and the unlucky.
The lucky ones are the parents who manage to carry out the Act on Parental Responsibility’s ideals to share the children after separation. They manage to work together, and they manage to be in dialogue if there are problems – with a little assistance from various categories of experts, e.g. lawyers, child experts, therapists and others. The lucky ones belong to the group of citizens who do not experience the major problems the Parental Responsibility Act creates. This group also includes those parents who from the outset have chosen to live separately and who successfully and continuously manage to negotiate the children’s visitation arrangements. Fortunate are the children if they can manage the many shifts between the two parents that most parents of today make children face in everyday life. Frequent shifts between the parents of babies and toddlers are recommended by many experts today, to enable the child to attach to both parents – even where there are apparent conflicts between them. The result is that children are often put under extreme pressure.
Parents who manage to reach agreements regarding the children, and the children that thrive in these agreements, can be comfortable and feel good about themselves. They live up to society’s norms and statutory expectations as they have been able to reach agreement on what is best for the child. They are the living proof that dialogue is the way forward, and – in the shadow of the law – a belief in and a hope for a more peaceful world is created, even when the situation may be difficult. The existence of such parents gives peace and a false sense of security to society and the lucky. The greater this particular group is, the more difficult the conditions are for the other group.
The unlucky have problems that cannot be solved by communication between the parents. It may be a high level of disagreement about the child’s medical issues, education and choice of school, whether the child should wear a headscarf, lenient or strict parenting methods, or there may be violence, sexual abuse and other serious conditions of physical and mental harm to the child.
A way forward could be to endeavour to separate the group of high conflict cases initially in the State Administration, in order to assist these cases in the best possible way. If a parent is concerned about the child’s wellbeing, it must be proven in the new system that there are reasons for this concern. This may open an investigation. The investigation may take time. In all the time that elapses the child is suffering from the situation and the conflict. In other words, the child carries the risk. This is where the Act and the system that manage it have got it seriously wrong. Even in cases with proof of domestic violence against the mother, which the children have witnessed, the approach is: This has nothing to do with the children’s relationship with their father. An investigation may be opened but the approach remains that there is no reason to preclude contact; only if it can be proven that contact is harmful to the children and only if it is possible to prove the father is still out of balance. And how will you do that before it’s too late? What kind of signal is sent by society when there is no ‘cost’ to be violent? When the victims, who have suffered physically and/or emotionally, are not protected and provided with safety and security?
The most extreme category includes homicide. Here, the Act states that if one parent kills the other – typically the father kills the mother – the killer gets sole custody. Again, the signal value anchored in the guidelines that the child should not lose both parents is completely mistaken. Custody is generally preserved, even if the killer is imprisoned. If you think the situation through, this is a symbol of how the Act maintains visitation virtually regardless of the situation.
Society could choose to prioritise needs and young children’s attachment to the mother. This could be done based on the concepts of solidarity and appreciation of the difficulties they go through. The State Administration could seek information in new cases from the parents who are turning to them to establish whether there is violence, or any threats, sexual assault or anything similar present in the conflict. This is not the procedure. It is up to the individual to present the case from scratch.
With the politicians in the driver’s seat, we have chosen to enforce a dream of cooperation and belief in long term learning processes – the whole society being included as the teachers. Nurses, GPs, teachers etc. are expected to write statements about families for use in assessing the parties’ ability to cooperate and record their general activities in their daily life. Big Brother is watching you! With the Parental Responsibility Act in hand this has consequently created a society without any protection of personal freedom. No one knows when and what is recorded on you for later use. So the doctrine must from now on be: Be careful what you entrust to those who teach your children, or those with whom you seek advice about your children such as health care staff. Suddenly it can be turned against you. These are indeed sad dynamics to integrate into our society.
During the time in which the family is undergoing investigation by the State Administration, court or Enforcement Court to explore what they believe is best, the children must live in uncertainty and in the conflict zone between the parents. This is quite a common situation in which to find a lot of perfectly normal families living today. On an abstract level it might sound sensible in the context of the launch of a learning process, but once we get into the specific cases it is nothing less than cruel for those involved.
The child experts who contribute to the enforcement are describing this as “protecting the best interests of the child”. Even when children get psychosomatic symptoms as a result of the constant shifts between the parents and of forced visitation with one parent via the Enforcement Court, it is not certain that the authorities think it is proven that the symptoms derive from this. The authorities only intervene when there is obvious damage to a child.
The Act is not used as the specific conflict resolution tool it needs to be. The lack of conflict-brake function leads to the consequence that the children involved are exposed to insecurity, distress and failure to thrive, and that the parents are driven to despair. The conflicts are not put to an end, but left to the families themselves to deal with, providing an endless series of negotiations and misunderstandings as a result. The system itself works overtime to deal with this.
Having regard to the background that I have described, I would urge that the Act be amended within its core framework. Adjustments will not do. The child must be the actual main focus. It is excellent to write a statement of intent into the law that the child has two parents, and that it is desirable to preserve contact with both of them. It is fine that we as a society would like to advise the child’s genetic parents to cooperate, and that they should try to reach an understanding through dialogue when conflicts arise, supported by the system providing experts.
For both the lucky and the unlucky parents, legal advisers and child experts must be available in the process of negotiating their rights. Currently, however, all financial support for legal aid in cases dealt with in the State Administration has been cut. Those financially well off can of course hire independent advisers to assist on the sidelines, and this group will be better equipped to enter the negotiations than those without the same financial means. This is another built-in bias that needs to be addressed.
Furthermore we need a law that ensures stability for children in conflict situations much faster. Out with mandatory joint custody. Let the adults show they are the adults. Let the children be in the centre instead. There is a need to refine the procedures so that cases involving violence against women or children (over 30,000 women are experiencing physical violence each year by their partner, and in many cases the children witness the violence), and involving sexual abuse (about a case per week is reported), and cases with more general disagreements affecting the child’s well-being in a negative way. These cases should be identified initially and excluded when a new case is opened in the State Administration. We need to start using all of the knowledge and evidence-based research we hold about children’s need for stability, security and contact when dealing with high conflict cases. An Act cannot be built up on a bland mantra saying the child is entitled to two parents. This corresponds to basing a health care system on the expectation that we should all be healthy and free of ill health. We need health care when we fall ill. Similarly, we need conflict management and resolution when there are conflicts and problems. Likewise, we need to begin to clarify the gender aspects in the process, to reach a foundation as multifaceted as possible and not to damage the sexes or the relationships with the children involved.
A family court may be part of the answer, as we know it in other countries.
The politicians have botched this – totally and unanimously. It would be an appropriate use of the summer holiday to familiarise themselves with the many, many tragic destinies of children. The Act on Parental Responsibility must be changed.
Feature Article in the News paper Politiken the 25. August 2014
The Act on Parental Responsibility harms children
– and it has a huge impact on families and the Danish national economy
Pia Deleuran, attorney and mediator
Lone Nørgaard, lecturer, cand. mag – ( master of science )in Danish, English, philosophy, gender and culture. Author and Social commentator.
Cand. med. – Master of Science in Medicin – Bente Holm Nielsen
Midwife, cand.mag. Jytte Aa. Møller
Head of the Womens shelter board Birgit Søderberg (LOKK)
Vivian Jørgensen, attorney and mediator
Minister Manu Sareen warns us of new tightening of the Act on Parental Responsibility (APR), when the Parliament assembles in October 2014. Unfortunately, he and his officials do not consider the massively documented damage this law causes many children and parents. Therefore, it will be argued in this article that the law should be replaced by a new structure.
The APR was last amended in 2012 when the lawmakers continued along the same course as when the law was first adopted in 2007. Care and protection of children are in reality subordinated to the parent’s ‘right’ to the child. They talk about the child’s right to two parents, but the essence of the law is this: The right of the parent to the child. In the following, we present two examples of how far into the absurd the interpretation of the law leads us:
At the time of birth, a father denies paternity. The mother is given sole custody from the beginning. Later, when the father changes his mind and wants to share the custody anyway, after the paternity has been established, the city court rules that the mother should retain sole custody. The father appeals to the high court and here the following is decided: “The child, who is almost 4 years old, has only had limited contact with his father. Both parties explain that the child is scared of the father. Because the father is cooperative and because he seems to understand the stress it will cause the child to be moved away from his mother, and because the father claims that he wants the child to remain in contact with the mother, the high court finds that it will be in the best interest of the child that custody is transferred to the father.”
In other words: The child – who has always lived with his mother and brothers and sisters and who has never lived with his father and has only had limited contact with his father – has to start up a whole new life. We doubt that this gives the child a more stable foundation, knowing that the mother is functioning well as a mother; and we understand that this causes the mother such great despair that there is a risk that she ends up becoming ill.
The State Administration on establishing visitation rights: “You cannot tell in advance if a paedophile or a violent person will get visitation rights with his child or not. We have to find the best solution for the child. It may be bad for one child for instance to see his father but that doesn’t mean it is necessarily bad for another child. The father will claim that it is a whole new situation with a second child, and he could be right about that. Earlier cases should not be mixed up with current cases”, says Hroar Kolmos, Manager in the State Administration… He informs us that normally, the State Administration does not use knowledge from other cases concerning a brother or a sister regardless of whether there has been paedophilia or violence. (Quote from Altinget.dk, 11 September 2009.)
How will it affect the child to be handed over to mandatory visitation with a violent parent or a paedophile? What societal norm does rulings such as these communicate to the child and to other citizens? And what will the long-term costs of these decisions be?
These two examples are only the tip of the iceberg. Thousands of cases are said to be handled erroneously since the law was adopted, but how did things go this wrong? The answer is found in the ideological foundation of the political agreement between all parties in Parliament. The following is an extract:
“The parties in support of this law wish to underline that both parents have a responsibility for the child even if they do not live together and the child has a right to have both parents take on this responsibility together. Thus, cooperation between the parents is an important element in caring for the child and therefore an important element in the parental ability. It is the viewpoint of these parties that this shared responsibility is a significant message and a signal that should be made clear and for this reason the starting point of any amendments of the law will still have a significant influence on the large group of parents who manage to solve their conflicts without involving the system.”
If you read this passage closely it is obvious that the above description is not anchored in real- life situations, but that it is based on an illusion that dialogue is always possible. If this approach had any validity, the world would have adopted a law on mandatory global peace a long time ago.
This rhetoric ignores the fact that there are situations where mandatory cooperation means that children are systematically damaged. When the principle of equal rights in the law is adapted to real life, it first and foremost means disastrous consequences for the children and for the primary carer. But there are also other damaging effects. For instance there is an increase in the number of cases and this entails heavy expenses for the many professionals involved (lawyers, caseworkers, child experts, etc.).
In those cases where abuse is involved, the demand of mandatory cooperation is made clear in all its horror. All cases are initiated in the State Administration without lawyers or impartial party advice as a general rule. It is not possible to call witnesses. This situation makes it hard – and sometimes impossible – to lift the burden of proof. And the process does not have the normal guarantees for the rule of law. This is not sustainable and many organisations have pointed this out over many years.
In the following, we puncture 14 myths in the discussion by presenting facts about the consequences of the Act on Parental Responsibility:
Myth no. 1
It is always possible for parents to cooperate in the future best interest of the child.
In those cases where one parent subjects the other parent to abuse, most people understand that stipulating for mandatory cooperation is yet another violation of the victimised parent.
Unfortunately, the law links the ability to cooperate with parental ability, such as in the above quote from the political agreement. Professional conflict resolvers, such as judges and caseworkers, have been asked to consider only the future perspective in their decisions; that is, to predict the future (example 1 above). In other kinds of rulings, this approach would be unthinkable: rulings have proper regard to what has happened in the past. Lawyers in court are precluded from asking hypothetical questions. In family courts, the opposite is the general rule, in that the focus is not on the history or the needs of the individual, specific child, but on the parents’ stated willingness to cooperate going forward. The two genetic parents are forced to live up to the mantra of ‘a child’s right to two parents’. This mantra, however, is understood as ‘a child’s obligation to two parents’, since some parents are not beneficial to their own children. The bottom line is: Parents are obliged to cooperate, which many empirical studies show can be damaging to the children.
Myth no. 2
It is in the best interest of the child to be tied in with two genetic parents.
One out of three children experience their parents’ relationship breakdown. And some parents choose to have children through artificial insemination, so the pattern of family formation is multiform contrary to tradition. Therefore, it is not appropriate to focus solely on the idea of blood ties, which is the essence of the Act on Parental Responsibility. There is statistical evidence to support the notion that many families today are tied together through social relations such as for instance in families with adopted children.
Myth no. 3
It is in the best interest of the child to have contact with both parents regardless of whether one parent has problems with mental health, drug or alcohol addiction or offensive behaviour.
The welfare of the child is threatened because their natural, innate loyalty is put under pressure. The child is stressed because he or she tries to protect and help the parent with such problems and to make him or herself a source of support to the adult.
Myth no. 4
The child is not damaged if one parent is violent towards the other.
Comprehensive research shows that the child is damaged by one parent’s violence against the other.
Myth no. 5
It is easy for a child to have two homes (such as 7/7 or 9/5 contact arrangements, meaning that the child lives 7 days alternately with each parent, or 9 days with one parent and 5 days with the other parent on a two-week schedule).
Many children are in fact stressed out by living in two different places and when they do get to choose, they exchange the life as a nomad with a life with a permanent base.
Myth no. 6
The Act on Parental Responsibility is progressive and innovative.
The law is reactionary and enslaves the parents, so they cannot move. In practice, the parents are de facto prevented from having a divorce since they are bound together.
Myth no. 7
The Act on Parental Responsibility protects the children.
Small children are particularly at risk if a parent committing violence or sexual abuse is given visitation rights. A small child cannot speak out about the abuse.
The parent who tries to protect the child is put under suspicion and stamped as harassing the other parent if bringing up the subject. Even when there is substantial evidence of abuse, the protective parent has to cooperate on visitation with the perpetrator. If the protective parent does not cooperate, the enforcement court often picks up the child by force; and the abusive parent can apply for full custody. Instead of protecting the child, the result is a violation of the child by the parent who is forced to hand over the child to abuse.
Myth no. 8
The Act on Parental Responsibility saves the state money and there are fewer cases, because this law decreases conflict.
The number of cases has exploded since 2007 and so have the corresponding costs of these cases. This goes both for court cases on custody and the child’s residence, cases with the enforcement court and cases about visitation in the State Administration. These cases are often so stressful for the parties involved that they lead to sick leave because of stress – yet another financial burden. There is a significant increase in the number of child expert examinations and a corresponding increase in the cost. Further, there is an increase in the number of parents who ask the municipality to perform a so-called §50-examination, where an in-depth social examination is made. These examinations put the child, the primary carer and the budgets in the municipalities under pressure. Compared to earlier, there is also an increase in the number of professionals involved in making statements for the legal process: Teachers in kindergartens and school, caretakers, doctors, preachers, psychologists in private practice, social workers, pedagogical-psychological-consultants (PPR), treatment institutions as well as the staff at day-care and recreation centres. These professionals do not always understand the impact their statements will have on the destiny of the child. The time spent on writing these reports is taken away from other tasks and is a significant financial burden.
Myth no. 9
The reports from child expert examinations are credible and can be used without further scrutiny as a basis for decision-making in the cases in the courts and State Administration.
It is apparent from the decisions in the Board of Psychology that approximately 50% of the complaints about child expert examinations are sustained. Some of the psychologists even receive serious reprimands. However, these reprimands have no consequences for the psychologists involved and the cases are not re-evaluated.
Myth no. 10
When children talk to a child expert, their statements can be transferred to the case files without further interpretation or scrutiny.
Most children are very loyal, which means that they may overreach themselves in relation to their parents. Children speak from a child’s perspective and they cannot always see the full perspective or consequences of their wishes and statements.
Myth no. 11
The Act on Parental Responsibility is gentle and handles both children and parents with care.
The law is ideological and becomes a totalitarian law with its built-in elements of force, such as the mandatory cooperation regardless of the circumstances. Available knowledge about children is not put to use.
Myth no. 12
The mother and the father have the same significance to the child and can replace each other.
Biology is significant. A mother’s relation to a baby is different from the father’s. In most cases, the bond between mother and child is much closer due to the 9-month pregnancy, in which the foetus is protected and nurtured by the mother’s body. The law does not consider this dynamic carefully enough.
Myth no. 13
It is healthy for children to express their opinions in these cases.
The way these cases are handled today, children are heard in a superficial and careless way. This is apparent from the official evaluation of the law in 2012, which was made before it was revised. Often, only one hour is given to hear the child and there is rarely any follow-up. This way, the children are let down.
Myth no. 14
These cases are handled carefully.
The current law is mostly focused on the parents and their cooperation so that the child will have contact with both parents. In the matter of the safety and protection of the child, there is no rule of law in these matters. Matters of visitation rights are only treated administratively in the State Administration, which means that it is not an impartial judge who makes the decisions in specific cases. On top of that, impartial consultations are not offered in all cases on visitation rights. If one parents suspects that the other parent abuses the child, the burden of proof is unreasonably heavy and without any focus on the rights of the child to be protected. Evidence based knowledge about violence is not reflected in the law.
The following is a suggestion for how a new legal structure for this area can be organized:
The object must be to help those parents who are not able to leave each other without conflict. When conflict is present, society must immediately offer a range of voluntary solutions by way of confidential and free of charge mediation, child expert consultation, couple’s therapy and courses in parenting. If the parents do not soon agree on how to proceed, a mediation process by the court must be initiated. The perspective of the child must be at the centre of this process focusing on the child’s need for calmness and stability in life.
The following proposals put the child’s perspective at the centre:
If a matter is brought to court while the child is 0-3 years of age, the child must be placed with the mother as a general rule, unless there are compelling reasons to the contrary. The biological relation and the special bond between mother and child is the foundation for the child’s ability to form identity. Therefore, both mother and child must be shielded against conflict.
If the child is above 3 years of age, the parents must receive offers of counselling and mediation. This offer must be given immediately when notice of conflict is received and it must be initiated within 2 weeks.
If one parent applies for full custody, it must be made clear to the parents that custody can only be placed with one of the parents following a court ruling.
In case a court case is initiated, the case must be examined carefully. A full review of the child’s life must take place and it must be considered who has taken most care of the child and who the child is most closely bonded with. If there is violence, assault or sexual abuse against one parent or against the child, this prevents the abuser from receiving custody. This will signal zero-tolerance against violence, which is in accordance with the recently adopted Istanbul Convention. Court cases on custody must be completed within 3 months of filing the case. The child must be put under as little pressure as possible, it must receive an offer of support and must be heard as appropriate to age and circumstances. This must be based on a specific evaluation in each case.
It is up to the parent with sole custody to decide if there should be visitation and how much visitation there should be.
If there is sole custody, the other parent does not contribute to the material support of the child.
We think that the general population does not yet appreciate the consequences of the Act on Parental Responsibility.
When they do understand these consequences, we expect to see a significant decrease in the birth rate either because women choose lives without children or because they choose to use anonymous donors. This must be a part of the risk assessment on behalf of women.