Killing Custody

The legal position of mothers and fathers, now and in the past. 

Get to know some of the faces and names that have caused misery to millions of people like you.

By Robert Whiston FRSA. Sept 27th 2008 

Buried in a corner of the Children Act 1989 is a curious sentence the meaning of which has yet to be determined.

It is a simple sentence yet its very succinctness abruptly renders obsolete the very point of being a father. The sentence reads:-

“The rule of law that a father is the natural guardian of his legitimate child is abolished”. – Children Act 1989, Part 2 (4).

Why any government should feel compelled to remove the guardianship status of fathers has, for too long remained a mystery.

Enquires made over several years to judges, politicians and lawyers alike have drawn a blank. From their replies it was obvious that either they were unaware of the clause or they dismissed it as having no practical relevance.

But if that is true, then the question is why do people best placed to make use of it, i.e. the legal profession, remain unaware of its existence ? In the alternative, if it does indeed serves no practical purpose, the question to be posed is why bother to include it in the Act ?

In their battle to be good fathers to their children after divorce is there something we are not aware of that in some way disarms fathers and their legal advisors ? Put another way, what is it legitimising ?

Many an important clause has fallen by the parliamentary wayside in the argumentative atmosphere of getting each clause passed in the 1st reading, then at 2nd reading, committee stage and much later the final 3rd reading “in the House”.

Why did this clause survive ?

Bitter Legacy

Controversy has been a constant companion of the Children Act 1989. Since its inception arguments have raged over its intention. It has been bedevilled by accusations that its interpretation has been subject to malevolence at official level.

No other Act passed in the 20th century has so incensed one set of parents.

It has been subject to competing thinking between, on the one hand, government ministers, Whitehall and the judiciary, and on the other, fathers and grandparents groups.

Parents and grandparents groups believe in official circles no other Act has been so maliciously misconstrued when no good reason exists. They believe the position of officialdom, institutions and the judiciary alike, has been one of studious deafness, of studied indifference coupled with the pretence of being shocked at learning the Act is causing such a storm.

Fathers groups have always maintained that the Children Act 1989 gave equal weight to both ‘shared parenting’ ands residence-sole-custody arrangements. They therefore look for signs of more shared parenting awards but since 1989 there are none to be found.

Not only are there no increase, but the actual numbers of joint custody awards have vanished and court ordered  father-only custody awards have dramatically declined (ONS statistics, see also Table 2). Overall, and though the baseline has changed since 1980, the percentage of fathers involved with their children either in a shared residence, joint custody shared parenting or sole custody situation has shrunk to around one tenth of the 1980 levels.

The official government position is that the Act 1989 allowed divorcing couples the freedom to arrange their own custody terms and that the majority of them do indeed make their own arrangements without recourse to the courts. Taking the lead in this singular interpretation of the Children Act 1989 have been civil servants Sally Field and Amanda Finlay of the Lord Chancellor’s Dept (now renamed the Ministry of Justice).

Above: Amanda Finlay,the  unintentional midwife to Fathers-4-J ustice

Fathers groups are of the opinion that this ‘official position’ is far from the true reality. This is validated by extracts of the Minutes regarding shared parenting and the Act at meetings between fathers groups and Sally Field and Amanda Finlay (Lord Chancellor’s Dept).  See “Children Act 1989 – the elimination of shared parenting”, http://robertwhiston.wordpress.com/2008/06/27/11/  

Fathers groups find that when promoting fathers rights through appropriate channels, e.g. Whitehall committees, NGOs, etc, the attempt to be actively engaged in contact and parenting is persistently thwarted. Parenting by men is discouraged at court room level, at the civil service level, at State Benefit level and at ministerial level. [1] This is true of shared parenting which is almost impossible to discuss outside the Men’s Rights movement.

The frustrating of equality for fathers not confined to Britain. Pressure from fathers groups in all English speaking countries has met with sandbagging and stonewalling.

For example, throughout 2000 and 2001 Canadian fathers vigorously campaigned for better treatment. A study commissioned by the Canadian federal Justice Department utilised the findings of 10 focus groups each composed of five men and five women, based in Halifax, Montreal, Toronto, Edmonton and Vancouver. The resulting report, titled “For the Sake of the Children”, called for reform and the adoption of the concept of “shared parenting.” Anne McLellan, the Justice Minister, then angered both fathers and committee members by saying in effect she was putting their report on ice.[2]

At nearly every level imaginable there is a denial by officialdom that the Children Act 1989 was ever meant to give fathers anything but ‘contact’ for a few hours per week or per month.

Addendum – July 2010

Amanda Finlay worked for many years at the Ministry of Justice (formerly the LCD) and has recently retired from the civil service. But rather than retiring has taken new roles. She is now a public governor of Oxleas NHS Mental Health Foundation Trust and a member of the Civil Justice Council, a council member of Justice, and is a member of Lord Bach’s Public Legal Education Strategy Group. All of which would be laudable if they were not so tragic.

Amanda Finlay  was one of two the women that barred any progress for fathers rights in 2002 when the LCD convened a meeting for delegates of fathers groups. We also learn from her CV that she was in charge of the ministry’s Human Rights Department !

She is reported as having “chaired” the Working Group which recommended reforms to the conduct of public law children cases and one has to wonder whether she ever knew the difference between fathers of divorce (private law) and those where parents were by neglect or starvation a danger to their chidlren public law).

Amazingly, Amanda Finlay’s resumee includes a claim that during her time as Director responsible for family and administrative justice, she introduced customer focussed changes for children and families experiencing relationship breakdown. Apparently, she also instituted a review of delay in Children Act cases. To an outsider the workings of the Children Act 1989 never altered for clients – or perhaps when referring to ‘families’ it should more properly be restricted to the word ‘mothers’ ? More analysis of this person is listed at Annex A

As a consequence all fathers groups have been locked in a 20 year struggle with government to get to the meaning and original intent of the Children Act 1989.

But what was the original intent of the Act?  What was the original meaning ?

Tracking down where and why the key clause (Children Act 1989, Sect. 2 [4]) first surfaced has proved as elusive as hunting an enigma. The late Bruce Lidington, a veteran fathers rights campaigners and Chairman for many years of FNF, claimed in a 1996 article that it was the then Health Minister, John Bowis MP, who wrote to the judiciary ‘advising’ them that shared parenting order should be viewed as the exception rather than the natural choice. However, when John Bowis MP was contacted (July 2008) he had no recollection of such advise or letter and insisted that ministerially he was too junior to have been involved.

Over a protracted correspondence with John Bowis MP, he made it very clear that he had no knowledge of such a letter and could have had nothing to do with it as he came to that ministry at a later date. So the situation has yet to be resolved. Bowis made enquiries of the civil service but they were unable to shed any light on the topic. Other departments were approached by the author [RW]  but to no avail.

So who are the possible ‘key players’ in the devising of the Act ? We can list them as principally the Law Commission (see Reports No 91, 96 and No 172) closely followed by the permanent civil service within the Home Office, the Lord Chancellor’s Dept; the Dept of Health; and the Dept for Social Services. In such matters it is normal practice for one ministry to be nominated as the ‘Lead Dept’.

The ‘Lead Dept’ liaises with other interested Whitehall departments and arranges the co-coordinating of effort, the setting of targets and controls the agenda. The ministry chosen to lead may not be the obvious one, e.g. child deaths, sexual abuse and homicides are not Home Office or LCD concerns but are under the direct charge of the Dept of Health.

Other ‘key players’ can be individual politicians, the various Secretaries of State and ministers, but they rarely stay in one job long enough to effect change reflective of their priorities. For example, the Home Secretaries during this period were Douglas Hurd, 1985 – 1989, David Waddington, 1989 – 1990, and Kenneth Baker, 1990 – 1992. At the Dept of Health during this period were Kenneth Clarke 1988 – 1990, William Waldegrave, 1990 – 1992 and Virginia Bottomley, 1992 – 1995 (and at a slightly junior level John Bowis, 1993 – 1996.

Any proposal to alter custody would affect benefit payments and so would involve the Dept for Social Services. The Secretaries of State for this period were Norman Fowler and John Moore.

Any change would involve funding from the Treasury and the Chancellors of the Exchequer during this period were Nigel Lawson, 1983 – 1989, John Major, 1989 -1990, and Norman Lamont, 1990 – 1993.

None of the above politicians are known for extreme or radical views.

Despite initialising emails correspondence (since Feb 2008) with former ministers, with a view to eliciting information and the role each played, the picture remains unclear.

Enquiries of the civil service have been equally negative with as yet (July 2008) no paperwork found. Predictably there will be departmental denials that such guidance was ever issued while the real truth might be that the original letter may be stuck in a departmental demarcation dispute.

To compensate for this lack of progress perhaps an understanding of just why guardianship is so important, and the role it plays in law. It would be a mistake to view ‘guardian’ purely as a legal term conferring some abstract legal status – the very basis of fatherhood depends upon it.

If the power and right of guardianship has been taken away from fathers, as it was in 1989, we should know exactly what has been lost, why and its consequences for fatherhood.

Guardianship

In the centuries leading up to the present, the orphaning of children was far more common than today. Where a child was deemed to be in need of protection and incapable, by reason of age, of conducting his or her own affairs the High Court would be asked by an interested party to make a child a ‘ward of court’; some of Charles Dickens novels mention these ‘wardship proceedings’.

A person, usually, a relative (but not always), was appointed by the court and given the status and grave duty of guardian because legally the ‘ward’ was under the protection of the court.

Legal guardianship can be described, therefore, as a formalised court process used to attribute powers over the upbringing of a child by a particular individual or individuals who may, or may not, be related biologically to that child. (Law Commission No 91, Para 1.2).

A legal guardian can be defined more widely, to incorporate non-minors, in this way:

A person who has the legal authority (and the corresponding duty) to care for the personal and property interests of another person.

Some reformers within the Law Commission maintain that a parent is also a guardian “in many circumstances”. This seems to imply that sometimes they are not and that guardianship bequeaths greater powers than parenthood today.

Most people, however, would disagree with that overly narrow view. Society, the Church, all major religions and public common sense tells us that a parent is always – not sometimes – the child’s legal guardian. This view has held sway since time immemorial. [3]

Legal text books make it clear that the expression ‘legal guardian’ has been freely interchangeable with the alternative term ‘natural guardian’ for many centuries. In our present era we tend to speak of ‘parental responsibility’ and not duties or obligations.

The three words, duty, obligation, responsibility, may sound comparable but the dictionary definition displays the inconsequential nature which attends “responsibility” compared with the truly awesomely embracing definition of “duty” and “obligation”.

The Law Commission’s report No 91 describes natural guardianship and parental guardianship as close variations and highly comparable (Para 2.6, p31). It states that two forms of parental guardianship were originally recognised, a) by nature and b) by nurture. Legally and historically speaking, the former (natural) was limited to an heir apparent. It lasted until the age of majority – in those days, twenty one – and the power was restricted to fathers.

The father’s claim to guardianship (natural) usually took priority over all other claims, however the mother and remoter relatives might also be entitled (by nurture) upon, say, his death. One can best visualise guardianship by nurture as a default setting.

Guardianship’s Pedigree

In 1557, statute law appears to have extended the father’s (or failing him the mother’s) guardianship of the person of a female child up to the age of sixteen, by creating an offence of abduction.

The father, or after his death the mother, was guardian by nurture of all his legitimate children under fourteen, but this only applied if there was no other guardian and for the purposes of custody and education not the guardianship of property.

In the nineteenth century the rulings of the Mediaeval and Consistory Court regime were disputed. Questions were asked if this ancient form of guardianship had survived the Tenures Abolition Act 1660. Nonetheless, guardianship could be allocated to either parent, male or female, an aspect that will be the crux of official argument re: parental primacy, as will become apparent later in this paper.

It is difficult today to imagine the mediaeval age and the way ecclesiastical law via Consistory Courts entered ordinary peoples’ lives. It was an era where heiress were adducted and forcibly married. [4]

In so doing the interloper would have good title to the family’s property and wealth. It was therefore natural that a father or guardian should seek, and for parliament to provide redress and remedies. Indeed, even after the huge judicial and court reforms of the 19th century, courts still faced very similar problems regarding abducted heiresses’ and valid inheritances.

Similarly, male heirs could be ensnared into a marriage or into fathering an illegitimate child and without guardianship powers vested by tradition, any offspring could squander an inheritance. For this reason – and until the 1990s – a child born even to a married man could be disowned, i.e. not recognised by the husband and bastardised.  It was a power and situation rarely used but a child born of a marriage was, unlike Scottish law, not automatically considered legitimate (of his loins) and could be disinherited. Fathers, even of modest means, have in the late 20th and early 21st century seen their wealth and assets diluted in divorce settlements between married couples and CSA support. Today, fathers can no longer bastardise or disown a child born to his spouse and other legal changes have stripped men of the ability to defend themselves when asset assaults are launched.

In the various ages leading up to 19th century, only males could bring an action in court. Women were recognised as being unreliable witnesses, too prone to stray from the unvarnished truth and not adverse to committing perjury, [5] frequently their cause (suit) or evidence was therefore presented for them by an attorney or relative.  By the end of the 19th century women were allowed to give evidence in person, to represent their own causes and were less likely to be viewed as unreliable than had been the case.

The driving force for guardianship can said to have always been the promotion and preservation of a child’s safety; education; its religious upbringing; bodily and mental nourishment; the orderly transfer of wealth; the assurance of true lineage; the stewardship of accumulated family wealth; and not unreasonably for the eventual conjoining of family wealth upon marriage with another family.

Matters relating to guardianship in both the 18th and 19th centuries were decided by the Court of Chancery and the common law courts.

The reason for this, according to research undertaken by Canadian Senator, Anne Cools, is historical. Society is actually indebted to the patriarchal hierarchy for giving rise to structured child protection. Given the politics of today, most would find that assertion totally astonishing today. The patriarchal hierarchy in fact stretched from the Sheriff at grass roots directly up to the King and in the Middle Ages it was the King himself, or the King’s Court, that protected the rights of children.

We have to assume this is the de fault position and at first instance it would be the parents who would be held accountable for misdeeds at Sheriff and Magistrates court level. The prospect of a King allowing his time to be routinely absorbed by protection/wardship matters is most unlikely.

It was the King’s Court that established the principle that children have the right to both of their parents and that the King will be the protector and guarantor of that right.  It was the King’s Court (and later the Kings’ Bench) that issued Royal Prerogatives and writs either for the person concerned to attend and/or comply with the order. The Kings Court made ‘royal justice supreme over other justice’.

Over time the Lord Chancellor and his court, the Court of Chancery, assumed overall responsibility and the various doctrines originated by Kings, e.g. the doctrine “in the best interest of the child.” These have been embraced by English Common Law and every level of court ever since in one form of words or another. [6] It is the subtlety of the words that have changed, not the intent. It was never meant to routinely separate a father from his child with no good cause, as happens today.

Legal Position of Fathers

Whatever the Law Commission might believe were the possible limits of these ancient doctrines, even the Law Commission has to acknowledge that there can be little doubt that in relatively modern times, i.e. the 18th and 19th centuries, the father was recognised as the “natural” guardian of all his legitimate children throughout their infancy. [7]

The primary reason for society’s attitude towards guardianship was purely economic. Only men, i.e. a father, had the economic means to provide the requisite education, security, stability, food, shelter freedom from want that comprise the basic human requirements for life.

In a society that had still to invent a police force only a man could be expected to stand his ground against challengers and, as a last resort, physically fight to protect his progeny.

Of course, these laws were premised on the lifestyle of the wealthiest 5% of the population to whom it applied and whom were in a position to formulate and adjust laws.

The remaining 95% of the population were ‘the working poor’. They, the proletariat are rarely glimpsed in the social commentaries of Jane Austen or the Bronte sister’s. They were the disenfranchised. They did not receive the right to vote until wealthy women, such as the Pankhursts, had received their right. Though the working man did not have had the vote, nor wealth to distribute on his death, nor money to pay for a divorce, he shared with the very wealthiest of men the innate sense of protection of their children and both classes expected to be held accountable via their guardianship powers.

For families in the working poor category, wealth as it does today, determines longevity. Mortality was therefore high; wives died in childbirth or of the aftermath; husbands died young or in pitiful working conditions; children died of dietary deficiencies and of ailments we would describe today as minor. When these families suffered a loss of the bread winner destitution stared them in the face. It was starvation, ‘going on the parish’, the Workhouse, emigration or re-marriage.

It could be argued that that the need for working class fathers to have guardianship was pointless given that he had no real control over the provision of free education, religious teachings, how the town or factories were managed and could rarely afford a doctor or medicine. However, that is not the point – just because a person doesn’t or cannot exercise his human liberties doesn’t mean taken off him or that he shouldn’t have them. From the state’s perspective it simplifies matters if they can be guaranteed who is the head of household so that he may be held to account.

Upon the death of a father, it would be the sole remaining parent, the mother, or eldest brother/sister, who would take on the mantle of guardianship and have to make the choices as they arose.

In the unlikely event of a disagreement and recourse to law, it would, virtually without question, be the common law that would enforce the choice of guardianship, irrespective of whether custody was held by a mother or a father.

It would be to the common law that ordinary people would turn at first instance to protect them against the claims of strangers and belligerent mother alike. However, the numbers likely to avail themselves of this recourse would, by reason of sheer poverty, be minute.

Guardianship, in its practical application to everyday life could be seen as ethereal rather than palpable. Paradoxically it would be unconsciously enacted everyday because it was the accepted norm, it was how society worked and it fitted in so supremely well that never felt the need to challenge it.

If guardianship was challenged the judgement would most likely be heard in the Court of Chancery. It alone had the power to enforce, alter, waiver or limit the terms of guardianship. Although unusual it might intervene against a father in a case where serious misconduct or a serious inability to discharge his obligations could be demonstrated.

The notion the Law Commission has of the inviolability of a father’s right of guardianship of his child, though an efficient legal regulator for society, was not known among, nor did it impact, 95% of the population. In truth, the law and courts rarely touched their lives of the working class. They could have had no idea that what they intuitively felt, namely that a father was head of the household and that his rights therein were never be completely abrogated, but were in fact reinforced in law.

A father’s removal by a court appointing some other person to “act as” guardian in his place – and thereby restrain the father from interfering – was very rare. The point is underlined by the ability of a father to pre-empt the court in exercising his sole right to appoint a testamentary guardian to act after his death).

Modern law makes theses observations moot points.  Perhaps harshly they could be said to reflect the middle class makes up and middle class attitudes of the current Law Commission.

In theory the High Court still has sweeping powers of intervention, as part of its inherent jurisdiction but the Law Commission was of the view, in 1985, that there had been no recent cases in which those powers had been exercised in that way.

Legal Position of Mothers

Mothers had no claim whatsoever to be a child’s “natural ” guardian while the father of a legitimate child was alive. Some activists cite this as an example of mothers being treated as second class citizens and in no better position than a stranger. That assessment not only misses the point but is untrue. An illegitimate child by definition had no legal father to act as legal guardian so, by default, its mother was recognised in law as its guardian – unless she later married.

Being a guardian has always been (prior to the 20th century), no trifling matter. This hinged on the fact that there was no welfare state to take up the slack and ease any hard knocks that life might throw up. A guardian had strict obligations – not the loosely defined and almost optional ‘responsibilities’ of today.

The 1839 Custody of Infants Act, allowed a wife who was separated from her husband to petition the court and, provided she was ‘of good character’, to gain access to those children still under seven years of age during the father’s lifetime.

However, being a more ethical and moral age meant she had virtually no chance of being given temporary custody if any allegations of infidelity or adultery was made against her. In both the pre and post 1839 Act era, this could sabotage any chance of her seeing her children. It invited the conclusions that she could not be considered “of good character” and if indeed she had been found guilty of adultery it represented a complete bar.

The legacy of adultery and the concerns about ‘improper’ conduct by the spouses is evidenced well into the 20th century. Lord Justice Dunn writing of the post-1945 period states:

The main suit, as the trial of the divorce was called, was vital to the parties, since the custody of the children and financial provision for the wife depended largely upon it. Although the judges paid lip service to the statutory provision that the interest of children was paramount, in practice the `guilty’ party usually lost the children.

Great weight was given to the wishes of an `unimpeachable’ spouse. If the divorced wife was living with another man it was considered that the children would ‘be in moral danger, at least until she remarried. Custody cases were dealt with relatively perfunctorily by judges other than those who had heard the main suit, usually on affidavit evidence. – ‘Sword and Wig’ , p143.

Financially women were very badly treated under the then current divorce laws. There was no power to transfer property or to make a lump sum payment. The only financial provision available to a successful petitioner was maintenance or periodical payments as they were called. A `guilty’ wife could expect nothing for herself except a `compassionate’ allowance, a derisory sum which barely put her on a subsistence level. – ‘Sword and Wig’. page 144.

The legal position prior to the Custody of Infants Act 1839 was that if there was no other guardian after the father’s death, the mother was deemed in law as “guardian for nurture”. This continued until the child had reached the age of fourteen (Para 2.8). (See also 1886 Act, below).

So once again the inference found in Law Commission reports and legal reference books that women and wives were second class partners is not all that it appears.

In some instances (and here the Law Commission must be clutching at straws), their reports states that – and one has to assume they are still referring to the 19th century – “some courts might recognise her authority throughout infancy”. This would mean that a mother would have the legal guardianship of a child for every year up to and including the age of discretion. This is a sweeping a statement given that the status of women and their power over their children’s lives was very fluid in the 19th century.

The only ‘instances’ where this claim might be substantiated would be if the child was illegitimate, or a legitimate child and the father was in a debtors’ prison, in the armed forces, overseas, the father was dead, insane or in some other way  deemed unfit.

However, for 19th century court to give a mother ‘authority throughout infancy’ would require serious evidence of misconduct, or a physical crippling, or unfitness by reason of insanity (not wholly unknown). The proviso that this incompetence needed to be demonstrated was repealed with the advent of the Custody of Infants Act 1873. [8]

“Access” – created in 1873

The Custody of Infants Act 1873 also permitted a mother the right to apply for custody of children under sixteen, and this was later extended (in 1886) to all children under twenty-one. This was to be exercised “subject to any regulations for the access of the father or guardian” (Sect 1).

Section 2 legalised agreements between separating couples for the mother to have custody or control of the children but only where it was felt it would be to the benefit of the infant. (Section 3 repealed the Custody of Infants Act 1839).

Some years later, the Guardianship of Infants Act 1886, allowed appointed mothers as guardians upon a father’s death, for the first time, provided there was no question concerning her suitability. Before this a father could hypothetically transfer his custodial rights/guardianship to anyone regardless of a mother’s wishes (see testamentary guardian above).

Overall the Guardianship of Infants Act 1886 gave women more chances of achieving custody of their children after being divorced. The Act stipulated that the welfare of the child should be taken into consideration. Some maintain, therefore, that in conjunction with the 1873 Act it undermined for the first time a father’s sovereign rights to the custody of his children.

Thus it can be seen that overall and within the ambit of Family Law the oppression of women and wives is a fallacy. The position of women can be shown to have been constantly evolving while always keeping its stability. It is this last but vital ingredient, that of stability (and arguably, seamless continuity), that the reforms launched after 1960 totally disrupted.

It is self-evident from the preceding statutes that a shift in rights and powers between the sexes was well underway in the mid 19th century. The competence in the 19th century to successfully manage change has been lost in the 20th century with levels of misery and unhappiness on a scale hitherto never before witnessed  (Annex A).

In the 19th century it was the 1873 Act that allowed for the first time “custody” or “control” to be given to a married mother where a separation deed was agreed between her and her ex-husband, i.e. the father. (A separation deed can be viewed as a 19th century approximation to a 21st century divorce). [9]

The only bar to this was where it would ‘not be for the child’s benefit’. We can infer from this that a small number of mothers of legitimate children could be deemed unfit or incapable of discharging that duty. It did not apply to mothers of illegitimate children as her guardianship status outranked that of the putative father. If mothers of illegitimate children were unfit or incapable of discharging their duty this law would not intervene.

Married Women, i.e. who had  legitimate children, had to wait until 1925 to be given “like powers”, i.e. rights equal to those of the father, to apply to the court for any simple matter affecting a child.

However, the same 1925 Act deliberately stopped short of making the mother “joint guardian” and in the absence of litigation between them, the father remained ‘sole’ legal guardian.

The argument that carried the day was that split or joint guardianship would be a recipe for disaster. If instructions and commands were capable of being countered resulting in no clear guidance given to the child, it could also leave the court in a quandary. Additionally, it removed the primary rule in the law which demands ‘certainty’.

The laudable ambition of the Law Commission since 1965 has been to equalise rights, to remove double standards and abolish the consequences of illegitimacy and allow inheritance and other transfers to be unencumbered. The result has been a removal of clear distinctions and a muddying of the waters. Under this levelling-down process, many items that are today ranked as having the same priority and legitimacy have resulted in some unintended distortions as they compete in court for supremacy.

It was the 1925 Act that laid down the modernised doctrine (first hinted at in the 1873 Act) that in any and all court proceedings relating to a child’s custody; its upbringing; or in the administration of its rightful property, the child’s welfare was to be the first and paramount consideration for the court. The various statutes since relating to children, in particular the Children Act 1975, have built on the scope and clarity of that doctrine – albeit applied in a questionable manner.

The Modern Era

Mothers had to wait for another 50 years to elapse before the Matrimonial Causes Act 1973 gave them equal rights with fathers in relation to authority over a child’s custody, upbringing and the property of their children. The power was initially limited to legitimate children – the explosion in out-of-wedlock births had yet to materialise. The mother’s rights and authority were for the first time defined in law as the same allowed to fathers.

But despite this, the idea of making parents “joint guardians” (as opposed to equal rights and authority) over a child’s custody, was deliberately abandoned in 1973. The reason given by the Law Commission was “because of the potential difficulty of obtaining the consent of both if, for example, the child needed an urgent operation.”

No ship can hope to operate efficiently with two competing Captains. The Law Commission applied a similar test to the family was in 1973 was correct in its assessment of the logic. Why then, if equality of rights was likely to induce a stalemate, should it decide on just such a policy in its Children Act 1989 when both mother and father found neither had guardianship rights ? This has yet to be answered.

The 1973 Act departed from the convention of treating both sexes if not equitably then fairly. It was highly sexist in that it favoured women in the monetary settlement aspect of divorce. Section 25, in particular, required the court to put the parties back in the same position as they had been prior to the divorce “so far as is possible having regard to conduct.”

To achieve this, courts were obliged to consider several factors including the “needs” of the parties. However, the political ‘atmospherics’ of the time allowed the interpretation of ‘need’ to be savage – almost Marxist. Women were still seen as the ‘vulnerable’ partner in the spousal relationship.

Referring to the Matrimonial Proceedings and Property Act 1973. Lord Justice Dunn says:

For the first time, to the great benefit of wives, a wide range of options was presented in the Act. The court could transfer property, order a lump sum payment or periodical payments and effectively readjust the family assets. Apart from certain matters to which the court was to have regard, complete discretion was left to the judge to put the parties in the same position in which they had been during the marriage, `so far as it is practical and, having regard to their conduct, just to do so.’ Of course in the great majority of cases it was not practical, so the judge did his best to make an order which was just and this later was achieved by an amendment to the statute. Almost all divorces, save for those of the very rich, involve a reduction in living standards for the whole family. Basically the judge had to balance the reasonable requirements of the wife and children against the financial resources of the husband. And it was this balancing provision which Parliament had left to the judges. – ‘Sword and Wig’ page 201.

In the 1973 scenario to have truly put the parties back to more or less the same position as they had been before the divorce petition, would have seen the husband own the house or be responsible for the mortgage and for a husband and wife to have no children. Additionally, he would on average own 90% of all wealth excluding the house while the assets a wife brought to the relationship was very little. [10]

All these pertinent factors were deliberately ignored by the courts and the “needs” of the divorcing woman was interpreted as her “wants”. The overriding consideration was that her standard of living should not fall and if her sex was more disposed to looking after children then the assets and home should be hers in order that she should discharge that duty irrespective of whether she brought the divorce petition or her husband.[11]

In so doing, conduct and merit were expunged and together with the 1969 Act are perhaps the two most hostile to men Acts enacted by courts.

We know exactly what the interpretation was and why the pertinent factors were deliberately ignored:

“This criticism did not deter Roger [Lord Justice Ormrod],who had had nine years experience of trying defended divorce cases before the reforms and knew that in the great majority of cases the wife, whatever her defects of character, was the more suitable person to bring up the children, especially if they were young. It followed that she must be able to provide a home for them and must have sufficient financial provision to enable her to maintain as nearly as possible the standard of life which the familyhad  previously enjoyed. –   ‘Sword and Wig’ p 202.

To understand the dynamics of the unfolding events in the 1970s the Father’s Movement of today therefore has to realise that it was not legislation alone that paralysed father’s rights but “noblesse oblige among not simply the judiciary but fathers generally who thought they were doing ‘the right thing’ for their child and ‘playing the  white man’.[12]

Above: Lord Justice Roger Ormrod – without his wig and robes.

This is an assessment easily made but in this particular instance one that is utterly verifiable. Robin Dunn LJ, writes this of Roger Ormrod with regards “the reforms of 1970.”

“….. practically single-handed for twelve years, both in ‘the Family Division and the Court of Appeal, revolutionised the whole approach to divorce law and moulded the present law of divorce. He refused to regard the Family Division as a court of morals and was essentially concerned with the practical consequences of divorce: the custody of the children, the provision of a house and proper financial provision for the wife and children. The first difficulty was presented by the use of the word `conduct’ in the 1973 Property Act”  – ‘Sword and Wig’, p 202.

The reason why all fathers have always encounter bias in post divorce settlements can be found on the next page:

He [Roger Ormrod] was not sympathetic to husbands who maintained that they could bring up the children as well as   wives, saying that such men usually either neglected their children or gave up their jobs and became so engrossed in the children that they grew up in an unnatural environment. Women, he maintained, were much better at combining their function of a mother with an ability to lead a normal life outside the family. As Roger and I had been in chambers together were, naturally, close to one another and after I became a judge we would often lunch together in the Inner Temple and discuss our cases. I was much influenced by his ideas which I supported. – page 202 – 203

NB. Roger Ormrod never had any children of his own. He and his wife appeared to prefer (?) to foster children and appear (pending verification) to have fostered about 12 children. [13]

Notwithstanding the above comments, the 1973 Act is probably, in terms of guardianship, the last piece of legislation that was free of overt gender politics. Its draftsmen realised that although mothers and fathers were being given equal rights and authority in custody matters, there was a need for inequality to continue to exist if courtroom clashes sparked by parental self-interest were to be avoided.

An apartheid regime, one of almost-equal but separate rights, continued to successfully co-exist in the bestowing of guardianship to one parent able to exercise powers without recourse the other.

Ethically, this might give rise to theoretical disapproval but it nonetheless proved an eminently practical solution as the Law Commission had to concede (see Report No 91, footnotes 25 – 27).

Judicial Outlaws

Whereas evolutions are usually painless, revolutions frequently prove very painful. However, both forms of change can carry a substantial price tag.

That is not to say all revolutions are bloody, violent or painful. The Protestant Reformation, for instance, that revolutionised religion in northern Europe was relatively painless. If pain was caused or where destruction ensued it was, in the main, confined to institutions, leading figures associated with them, and vested interests – the the mass of the people were left relatively untouched as the old institutions were either retained or replaced by new ones.

The success of the Reformation was based, unlike other revolutions, upon a natural progression and the guiding glitterati having access to an alternative workable paradigm to replace the procedures and amend institutional power.

The changes, being evolutionary, were built on the bones of what had gone before and thus the new models were more likely to work successfully.

The guiding lights of the divorce and then the custody reforms were not so gifted. The architects of these reforms wrongly believed themselves to be visionaries and allowed a degree of smugness to affect their judgement. They forget that outside their chosen circle there was no widely held view that coincided with their view of what the natural progression should be.

Their perception of a future designed by them would turn out to be a far cry from the eventual reality.

Essentially, theirs was a campaign of ‘Slash and Burn’ – desecration without renovation or restitution. For every system and rule torn down they had no proven idea with which to replace it. A vacuous policy imitated most recent by military incursion into Iraq.

In the decade from 1965 to 1975 many of the reformers were frighteningly young and drenched in feminism, e.g. Ruth Deech, Brenda Hoggett, Mavis Maclean et al. [14]  It would take Ruth Deech nearly 30 years to recant her views and admit that she got divorce reforms badly wrong. [15] Brenda Hogget not so much recanted but torpedoed her life-long arguments against marriage and the “utter futility of the family“ when she married fellow Law Commissioner Julian Ferrand after a 20 year affair with him.

Hindsight shows these agents of reform were not too dissimilar from rehabilitated ‘hippies’ turned salaried ideologues bedecked in Mary Quant fashions. Ideologically, however, they were still “on a mission” to change the world. [16]

Left: The face of the now elderly Brenda Hoggett (aka Justice Hale) who helped devise the laws you’ve experienced; who sabotaged the value of marriage and the family for 30 years and who then married her fellow Law Commissioner ‘boyfriend’ Julian Farrand,  in 2003 after 20 years of cohabiting.

When these divorce and custody reformers, therefore, reached the levers of powers in the late 20th century they not only swept away the pre-existing regime but immaturely permitted ordinary people to have their everyday lives wrecked.

Deech and Hoggett were among a coterie of feminist academics who were also working mothers.[17]  They looked at the law in the 1970s and how it impacted their lives. The felt it could be changed to their advantage.

How it impacted men was not their concern.

The efforts of these radicals and their mentors, e.g. Julian Farrand, would have come to nought had it not been to for leading figures in the judicially who were prepared to challenge parliament and operate outside the strictures of statute law, e.g. Denning and Ormrod. Robin Dunn’s book ‘Sword and Wig’ shows them conniving in just such a manner. [18]

Lord Justices Denning and Ormrod could stand accused of fulfilling what they wanted to see and thus perverting legislation. Denning openly admits to this. The freedom of English judges are unlike those, for instance, in America who are permitted to ‘strike down’ laws passed by Congress. This puts them as much outside the law as any criminal.

The remit of judges in England is to interpret not neutralise parliament’s intentions. English judges may find against the government and its legislation but it is for Parliament to re-determine their intent. In case after case judges in the high and appeal courts, e.g. Denning, Ormrod et al, sweep away all that had gone before and parliament did nothing. All that an ordinary man would have deemed fair (see footnote Hoggett’s “courts power of adjustment” quote below).

This was not what ‘the ordinary man’ wanted from his judges. The most significant departure in the modern era with that which had transpired in former times was the radical adjustment to property allocation anonymously entitled “ancillary matters.” In the new era matrimonial property no longer belonged exclusively to the husband.

Indeed, any property and assets held or purchased exclusively by the husband before or during the marriage were deemed ‘matrimonial’ assets and therefore divisible between husband and wife. However, any property or assets held or purchased exclusively by his wife before or during the marriage remained exclusively hers (see Cohabitation Law Reform at:  http://cohabitationlaw.wordpress.com/2009/03/31/00001/).

Denning’s totally fictitious doctrine of “beneficial interest” meant that the matrimonial home had to be sold off, impoverishing both parties to the divorce. [19] The discretion given to judges by the 1969 Act and the Land Charges Act of 1972 combined to give powers to the courts to enforce this doctrine and not only seize property but allocate it to another party. [20]

An overview validating and reinforcing the manoeuvrings of the period is articulated in an address  given by the well known QC  Edward Cazalet in May 1988 entitled, “The Wit ,Wisdom and Jurisprudence of Sir Roger Ormrod” to the by Family Law Bar Assoc. [21]

Family Courts had the power to what is called “vacate the registration” of land ownership. This power was suborned by Messrs Denning and Ormrod. They devised its use to transfer the matrimonial home to the divorcing wife. This slightly illegal manipulation of parliament intent was legalised and built upon by the introduction of the Matrimonial Homes Act 1983 and the Family Law Act 1996.

Roger was the driving force behind bringing about the disappearance of the Mesher v Mesher  1980 1 AER 126 type of order when he spoke with force about “the chickens coming home to roost” as by the time he was in the court of appeal, the orders were beginning to bite . This stemmed from highly unsatisfactory earlier orders of this type whereby former wives found themselves having to submit to a sale of the homes in which they might have lived  throughout their married lives simply because the children had departed.

Before the divorce law changes were enacted in 1969 it was perfectly feasible to retain ownership of ones’ own property. This held true after 1969 until the Mesher v Mesher case of 1980 when it became virtually impossible. The dislike in legal circles for Mesher type orders is obvious from the above quotation and is symptomatic of the very chauvinistic attitude displayed by judges. It was a facet that Jacqueline Reynolds and Roger Ormrod felt compelled to comment upon in their 1984 book ‘Divorce Matters’  hinting at judicial interpretations and legislative changes (1984) about to come into force.

Arguably under a Mesher type order, while not satisfactory in every regard, both parties were at least treated equitably – each had a share in the proceeds from the sale of the property, i.e. the matrimonial home, if a sale was ordered.

Former Law Commissioner Brenda Hoggett – now Lady Justice Hale – who was one of the architects of the Family Law Act 1996, has stated that:

“The courts’ power of ‘adjustment’ of property interests are now so extensive in the long term that ordering one spouse from his own home in the short term no longer seems so drastic” [22]

In the last few years celebrities and millionaires who have divorced have felt the full impact of the legislation that ordinary men have suffered for decades. The grossness of  awards in their cases have given a much needed boost to the visibility to this running social sore.

Grabbing the public’s attention has been the Paul McCartney divorce; the Melissa Miller, £5m settlement; the footballer Ray Parlour ordered to pay his former wife a 3rd of his future income; golfer Colin Montgomerie paying an out-of-court settlement estimated at £15m. [23]

The only case on file that did not follow the convention involved a woman who had already been divorced and received a huge settlement who then had to pay out money to her comparatively less wealthy second husband. [24]

The role of Ormrod is often underestimated. Following the great divorce reforms that began to bite in 1971 the then President of the Family Division was too ill to oversee the new administration needed and the task fell to High Court judge Roger Ormrod (see citation above re: Sword and Wig’, p 202).

With a faulty compass as guide, divorce and custody were thereby put on a false heading by Ormrod’s personal idiosyncrasies. His views have been cited above and in other articles accessible on this site but they are worth re-iterating to remind ourselves of a mindset that shaped the destiny of millions:

“He was not sympathetic to husbands who maintained that they could bring up the children as well as their wives, saying that such men usually either neglected their children or gave up their jobs and became so engrossed in the children that they grew up in an unnatural environment. Women, he maintained, were much better at combining their function of a mother with an ability to lead a normal life outside the family.”  – ‘Sword and Wig’, p 202.

Ormrod is seen here giving vent to his bigotry. If he had studied the topic of child abuse and neglect statistics, he would have realised that ‘neglect’ is almost exclusively the domain of females (over 85%).

The ability to make property ‘adjustments’ (ref Brenda Hogget) is code for eviction and an increased use of Ouster Orders. Matters came to a head in 1984 when a case (Richards v Richards), was taken to England’s highest court of appeal, the House of Lords in 1984). Their verdict was that far too many ouster orders were being issued, that they were often issued on the basis of inherent jurisdiction which did not exist in fact and thus courts were operating without statutory authority. The propensity of courts to act illegally haunts matrimonial law with no signs of it ceasing.

Examination and comparison of the Wachtel v Wachtel and Rogers v Rogers cases, both from 1973 are illuminating for the apparent judicial wantonness. In the Wachtel case the Court of Appeal ruled that ‘conduct’, one of the cited factors in legislation was irrelevant in ancillary hearings, i.e. where money and assets are to be divided up.

In the same year, the Rogers v Rogers case came before a differently constituted panel of Appeal Court judges. Their verdict was that the Wachtel was “plainly wrong” and had been decided on the wrong legal premise. Both cases were reported in the learned journals but only the Wachtel case hit the headlines. To this day only the Wachtel precedence is ever used by lower courts. It is an interpretation still in use today but why ? The upper courts have remained silent on the matter and have never sought to advise lower courts on the inconvenient Rogers case.

It is the flawed competency of judges and the fatal flaws in the drafting of legislation that leaves too many fathers destitute on the streets and brings politicians and the judiciary into disrepute. Charities working with “the poor” have, over the years, reported that the majority of homeless men they try to assist were once married.

When asked, the Judicial Studies Board, who are responsible for training judges, had no set agenda to train judges on any issue whatsoever. From correspondence they appear to be totally disengaged from the process (ref email exchange between RW and Susan Samuel, Family and Civil Policy, J.S.B. dated 2005 – 06).

Is ‘Parenthood’ a Modern Invention ?

We have seen in the above commentaries that no where do English statutes describe a mother as a “guardian” in the sense of equating her position to the natural guardianship of the father. She becomes a guardian only at the point of default, e.g. death, illegitimacy.

This must mean that her role as mother and parent is defined and secured in law and that exclusive status only becomes challenged when, for some reason, the overriding rank of guardianship is invoked. This must also apply to fathers, i.e. he is both father and parent, but in addition he is also the guardian.

It is perplexingly then, that the Law Commission is of the view (Para 1.2) that the guardianship formula pre-dates the legal concept of parenthood.

To seriously promulgate the opinion that the guardianship concept is from an earlier age than parenting and that it even preceded parenting in any timescale, is an extremely dangerous notion for policy shapers to hold as a foundation for change (Law Commission Report No 91, pub’d 1985, p2.).

Brenda Hoggett was by that time a Law Commissioner and it has been said by her supporters that she was the architect of Law Commission Reports No 91 and No 96.[25]

If we assume for a moment that The Bible is merely a collection of secular sagas which stretch back into ‘the mists of time’, it is clear that the philosophical principle to ‘Honour thy father and thy mother’ abound from many of the texts in one form or another. The plea to ‘Honour thy guardian’ is studiedly absent. [26]

What we can say is that the same 1985 view of parenthood, as an afterthought and only a convenient  social construct, is not unknown today among those of leftwing or feminist persuasion  The Law Commission’s view pre-dates Hillary Clinton’s immortal catch phrase “It takes a village to raise a child”.

This view is quite mad and utterly wrong. Such a statement is no doubt made assuming there is truth to the anthropology that pre-history tribal customs are thought to have been carried over into the modern age. This assumption is false.

The Maoris, for instance, are sometimes cited as having this “village” approach to children but as Dr Patricia Morgan reveals in her book, this is more myth than fact. [27]

Maoris do not simply hand over control to the village or allow the tribe or to raise the child. The child in question identifies with its two parents and grandparents and then the village. If Maori relationships break up more often than do white couples this does not affect the child identifying with both parents.[28]

The source for the phrase used by Hillary Clinton is attributed to a children’s book containing African proverbs. [29]  The social structures of most African societies is matriarchal and would therefore make sense in that confined context. It has no currency in the industrially advanced democracies of the West.

Bob Dole at the Republican Convention in 1996, correctly retorted “ …. with all due respect, I am here to tell you, it does not take a village to raise a child. It takes a family to raise a child” [30]

The anthropological evidence from allegedly primitive or Stone Age tribes is at best patchy. The primitive Arapesh tribe is dwindling in numbers but is enthused over by some on the Left as exemplars of New Manhood. Reportedly fathers are “intensely involved throughout pregnancy” and the minute-by-minute care of their small children.

A study of the Aka tribe of hunter-gather pygmies in northern Congo, claims the male nipple offers just as much comfort to a fretful infant and that men in the region often step in to perform the task when women are not available. [31] The study also claims that Aka fathers hold their baby close to their bodies for several hours at a time and are at their child’s side around 47% of the time. [32]  Among the Efe tribe in Zaire, babies are said to be ‘multiply attached’. They spend relatively little time with their biological mothers and are breastfed by many women and cared for by men, women and children, yet they grow up capable and affectionate.

However, as one commentator points out, ‘a single tribe bucking the trend is not a good basis for a theory ?’  Anthropologist, Margaret Mead, from whom the Arapesh information was drawn, described how the extreme passivity of Arapesh males meant they were blackmailed, bullied and bribed by their more aggressive neighbours. “It is a society that makes it much more difficult to be a male, especially in all those assertive, creative, productive aspects of life on which the superstructure of a civilisation depends. The result of this matrilineal structure was that children of the Arapesh died from hunger.

The consequence of rejecting the matriarchal society option and choosing to be aggressive, assertive and creative, is a vibrant, progressive, industrialised, productive, self-sustaining and wealth creating society. It is wealth creation that distinguishes matriarchal from patriarchal societies.

Adoption

Before moving on to consider other closely related elements such as “step-children, the nature of adoption ought to be outlined for reasons of useful comparison.

In a recent newspaper article journalist Kate Hilpern of ‘The Guardian’, (Jan 15 2008) confusingly described adoption as having only existed from 1926: [33]

“Adoption was first introduced in the UK in 1926. For the next 50 years it was used almost exclusively to avoid the stigma of illegitimacy.”

This is patently untrue. “Adoption” as a process to look after orphans existed long before 1926. The word “Step” is derived from the Old English for bereavement. Adopting a child via wardship or guardianship therefore took place long before 1926 (ref Charles Dickens novels dealt with adoption, e.g. Oliver Twist, David Copperfield) and even adoption of children in the workhouse was not uncommon.

Adopting a child in 1926, or later in 1936, still left the child categorised as illegitimate. Proof of this continuing status is found within the Law Commission’s own series of recommendations and reports spanning the years 1965 to the present day, that have attempted to expunge the status and the inherent disablements that attend it.

Long before 1926, permanent ‘placements’ were made by a town’s or a parish’s ‘Guardians of the Poor’ and or the ‘Public Assistance Board’ (depending on the era in question).

The permanent placement of a child was serious enough to merit registering in the County Record Office. It is from this principal holder of information that most of those seeking to map out their family roots inevitably turn for that elusive historic document. How will today’s standards of record keeping and openness compare not just with the 19th century but with the 22nd century ?

“The pages of 19th century English novels are littered with examples of waifs, strays and abandoned children of every kind who are taken up and adopted by complete strangers.

One example is Heathcliff, brought home by Mr Earnshaw who found him on the streets of Liverpool and carried him all he way to West Riding, according to the classic tale Wuthering Heights. And another example is Mr Brownlow who takes in Oliver Twist”.  [34]

The phrase “most of those seeking to map out their family roots” could be seen as indicative that many families of today have a heritage where one member or more had to resort to the workhouse, or were subject to the Guardians of the Poor and or Public Assistance Board. However, it was the First World War and its aftermath that created the modern idiom of adoption used today.

Adoption became an issue of national significance and the adoption scandals that followed in its wake became a political question the public felt ought to be addressed.

The patriotic promise of “A land fit for heroes” [35] coined as recruitment rallying call during the war took a severe battering in the immediate post war years. Many widows whose husband had been killed on the Western Front were economically destitute and could not afford to look after all their children.

Other categories of women facing these dilemmas included young factory girls who had become pregnant during fleeting affairs with soldiers leaving for the front, never to return and married women who where in the scandalous situation of having given birth to an illegitimate child while their husbands were away at the war – something that that was to be repeated in 1945. These two categories faced not only poverty but also discrimination and social ostracisation.

There was a feeling abroad that there was any amount of abandoned infants – but no one knew exactly how many. How infants came to be ‘abandoned’ is a separate story. The reports of the time do not specify whether this feeling reflected the mood of the working population, the chattering classes or the media’s need to find a sensational topic.

A similar wave of mothers without any means of support was thrown up in the aftermath of the World War II suggesting that the same human condition creates the same human predicaments.

Barbados, the NSPCC and other agencies found it increasingly difficult to get children informally fostered, as had been the pre-World War I pattern. The reason cited for this is that neighbourhood women who had previously looked after other people’s children on an ad hoc basis could earn more in factories and offices. [36] This reasoning lacks a certain amount of conviction bearing in mind the economic rollercoaster and recession of the 1920 and 1930s. This reasoning also does not take account of the priority that would be given to male employment in those days The working class women, of whom it is now said, opted in the 1920s to “earn more in factories and offices” are the very women who would have opted for waged employment before WWI. It is more likely that following the husbands death disposable incomes were squeezed and placements/fostering became uneconomic.

Reportedly the demand for adoption is said to have stemmed from parents who, in the 1920s, wished to replace sons slaughtered on the Western Front or elsewhere in the WWI conflict. Another source, it is also said now, were single women who could never marry but who wanted a child to look after. [37]

Since, in English law, an adopted child could never lose its inherited assets but only gain additional inheritance assets from its adoptive parents, it was for some a ‘win-win’ situation.

There was thus a pent up demand by families and increased interest in the fate of orphans. Adoption seemed a ready-made solution benefiting all the parties. Unregulated demand inevitably lead to a series of scandals. This triggered the 1926 Act that encouraged the establishment of ‘adoption societies’ which regulated and channelled demand bringing scandals to an end.

Unfortunately, adoption has in the past decade (1995 – 2005) become something of a political football. [38]  Repeated Social Service failings have once again brought scandal to the process surrounding adoption and pushed adoption and fostering higher up the political agenda.

The unremitting number of children murdered annually and the relentless increase in child abuse and neglect found in both residential homes type care and fostering has resulted in a new panic.

The 1990s brought a novel dimension – one of sexual perversion and abuse on an unimaginable scale. Initially, it would be the establishment and the professions involved that would attempt to suppress this new wave of child abuse and be unaware of the circumvention of regulations. The secrets of Bryn Estyn revealed in 2000 by the Waterhouse Inquiry, set up in 1996, visibly shock minister’s confidence. Subsequently they were assured (wrongly) by their civil service that the necessary steps had been taken and that it could never happen again. [39] What was not revealed was the common practice of the 1980s and 1990s that scandalised Islington Council in 2003. Margaret Hodge, by then a Labour MP and the government Minister for Children, was revealed as the council leader who allegedly “turned a blind eye to paedophiles in positions of responsibility” [i.e. left alone with children] and allowed them to later leave Islington to work for other councils. [40]  (see also Annex B and Annex B1).

Left: Margaret Hodge, Minister for Children

Exactly the same shocking format appears to be emerging from events surrounding the Haut de la Garenne care home in Jersey (Feb 2008). Missing or inaccurate records lead some welfare experts to believe that many children have simply disappeared off the radar and that some staff members have found jobs with other councils – and are still working with vulnerable children.

Gaffe-prone Margaret Hodge, who is always reticent about being a millionaire Labour MP representing a working class and deprived constituency, was by March by 2008 back in the cabinet as Arts Minister She was publicly ‘slapped down’ by the Prime Minister when she criticised ‘the Proms’ for not appealing to ethnic minorities.

Step Parents

With divorce becoming easier and cheaper – and arguably more profitable for women – the “orphaning” of children has taken on another guise and momentum. [41]

The word “Step” is derived from the Old English for bereavement, implying an orphan-like status. Nothing could better describe a child’s loss than to be denied normal access and contact with their biological father. “The orphaning of children” conveys more aptly than we might at first think the plight of today’s children.

Statistics inform us that this happens to over 40% of children whose parents divorce. [42] The number, rather then just abstract percentages, of children that are ‘orphaned’ by the judiciary in any one year is in the region of 110,000 children (+/-).

FNF (Families Need Fathers) was called into existence in the mid 1970s. It is the oldest of the fathers campaigning groups. If no fathers or custody organisation was needed prior to 1969 this tells us events must have been taken a turn for the worse after that date.

From its early days FNF has published a magazine, ‘Access’, for its members. From it we learn that the theme of judicial orphaning recurs throughout the magazine from the early 1980s to the present day. [43] The majority of these children never get to have a permanent father-figure replacement. Until their majority they may have none or they may a have a successive number of episodic father-figures who share their mother’s bed. Adults might prefer to imagine children to be ‘blind’ to their private life but children tumble to what is going on and psychologically this can only be damaging for impressionable young minds and morals.

The Divorce Reform Act 1969 was supposed to not only free couples living in purgatory because their partners would not give them a divorce (in those days both parties had to agree that a divorce was the best option), but crucially in order to win support of parliamentary critics, it was ‘sold’ as facilitating the remarriage of said partners, i.e. a more healthy and natural option for adults.

In reality this did not happen and arguably it has taken 30 years for the re-marriage figures to haul themselves slowly upwards to a level where one could say they are making an impact.

Cohabiting, seen as the scourge of the pre-1969 era and a principal reason for voting through the 1969 Act, has been by far the most preferred option for men after the trauma and asset loss suffered in a divorce. Some argue that the trend has been bolstered by the basis on which state Benefits are awarded which discourages marriage and encourages apart-but-together cohabitation (a form of heterosexual living recognised by the DHSS and DWP). However, this would seem to be more of an argument why women would chose cohabitation than men.

The post 1969 period has seen various buzz words emerge used to describe new relationships that have occurred and to give them a gloss. Due to vigorous promotion by government and adjacent agencies we have become very familiar with the terms such as re-blended families and reconstituted families.

However, these alternative lifestyle euphemisms hide one underlying fact – all the children caught up in them are step children.

Radical feminist academics are fond of stating that in the 19th century, 40% of women, mostly working class, could expect to be widowhood and thereby enter the lone parent category. The corollary is that our present level of 40% of orphaned children either by illegitimacy women choosing divorce therefore represents no great radical change. This assertion is then usually followed up by a statement that 40% therefore, is nothing we should concern ourselves with unduly.

However, the crucial and unspoken difference is that in the 19th century orphan children knew that their mother had no control over the premature death of their father. In the 20th century, children’s violence towards their mothers explodes in their teen age years when they begin to work things out. [44]

As the figures in Table 1, below, demonstrates, at the end of the 19th century it is no longer true to assert that bereavement and widowhood accounted for 40% of lone parenthood.

Societal improvements (public health and medicine) had, by the end of the 19th century and first half of the 20th century, progressed so rapidly that widows were a minority and after tracking at a fairly constant level the numbers only doubled following World War II.

In 1901 widowhood accounted for 1 in 5 compared to married couples (5,718k v 1,246k = 20%), and had decreased further as a ratio by 1934 when married couples increased to 8,604k. The small rise in widows (to 1,802k by 1934), was more than offset by the number of married couples.

 

Note:

  • In the first half of the 20th century single / spinster status among women remains constant at around 9 million.
  • Marriage, as a status among women in the same period, almost doubled (from over 5 million to 11 million).
  • Widowhood increased 50% between 1901 and 1934 as a consequence of World War 1. It increased 35% between 1934 and 1951.but numerically involved an increase of less than 1 million. 

At the close of the 20th century (when the population had doubled), 40% of women were expected to be (and were) lone parents – not by an Act of God but by their own hand via the divorce courts (or by being unwed). Regardless of the merit for and against their choice, the effect was to ‘orphan’ their children from their father. Between 1969 and 1998 an estimated 3m children were orphaned in this way.

In 1991 the ONS estimated there to be 500,000 step-families with dependant children in Great Britain. [45] This translates into 1 out of every 15 families in Britain being, for one reason or another, step-families.  Of these newly formed family units 75% consist of a natural mother who has re-married or was cohabiting with a second husband/partner.

Analysis of these newly formed family units shows that 51% were couples who had re-married, i.e. a natural mother marrying a new husband, and 24% were natural mothers cohabiting with a new male partner. The cultural shock comes when the number of women who join the household of a single father with his natural children is examined. Only 13% of step-families had a married step-mother, i.e. a father with his biological children who then married a woman not their mother. The remaining 87% were mothers with their biological children, and only 5% of step families had a natural father cohabiting with a step-mother (ref. OPCS Population Trends, No 76).

The apparent inability of women able or feel inclined to care for another woman’s children (i.e. see 5% above) comes as a shock. This may reflect economic realities rather than any selfishness but on the other hand, when faced with the dilemma of being left alone to care for children, women have always had to make instinctive choices and may, therefore, be ‘hard wired’ to reject a man’s children.

In 1995 there were approximately 10 million children aged under 16 years in England and Wales. The number of children living in step-families totalled approx. 770,000 with an additional 280,000 dependant natural children born to the newly formed family unit, i.e. aggregate 1,050,000.

An exceptionally bad year was 1994 – over 165,000 children were ‘orphaned’ in that year alone as a result of divorce.

Royal Commission of 1912

It was Lord Gorell [46] who pointed out to the House of Lords (July, 1909), that separations were being obtained instead of divorces. This he said was having a deleterious effect on the moral standards of the working class. Women, he added, could not obtain regular maintenance payments.

A 1912 interpretation of events would imply that the women were not technically divorced but had, nonetheless, struck up subsequent ‘relationships’ with other men. In the parlance of the day, they were in the eyes of God ‘living-in-sin’. By the social mores of 1912 this was not acceptable and there was only one option – set up a Royal Commission. [47]

A secular and potentially more serious point made was that by subsequently living with another man, these women were ‘de facto’ attempting to re-establish their married status and logic would hold that in the process they would be committing the moral and criminal offence of bigamy.

As President of the Probate, Divorce and Admiralty Division, Lord Gorell was perhaps better versed in the more formalised divorce process used by wealthier citizens than the preferred option of working class couples of “separation from bed and board”. [48] Although a product of Peterhouse College, Cambridge and then the Bar, Gorell, came from a wealthy Liverpool ship owning family and this should have enabled him an insight into how the lower orders lived.

For the working class couple who could no longer tolerate one another, local ecclesiastical courts had for many centuries (i.e. from the 16th to the early 19th centuries) offered the option of ‘separation from bed and board’. This meant they no longer needed to share the same bed or had to supply household services, e.g. cooking, washing, laundry, pay for each others food or upkeep, while still living in the same house.

These arrangements were preferred at the time as they were a frugal use of both the couple’s and the parish’s sparse resources which obviated the demand for additional housing and lessened the probability of having to pay to feed the mother and the children (this again points to the age old truism of the mother-child family unit being economically not viable).

Ecclesiastical separation orders were obtainable at the many regional Consistory Courts and if a party was not content, could then appeal the separation order at the higher Court of Arches. [49] That at least was the theory.

It is perfectly possible, however, that in the expanding urban areas working class couples wouldn’t bother with what they might see as the formality (and cost) of the middle class option namely going through the local ecclesiastical court. They could have simply agreed to separate and begin afresh with someone else. “Wife sales’ were not unheard of in market towns and appear to have suited both parties (this author’s grandfather witnessed part of such a sale as a child in Bloxwich at the end of the 19th century). While literature and newspapers record few wife sales this probably reflects the moral values and intolerance of the times that would ensure it would go unreported in polite society. [50]

The fluidity of marriage among the lower orders comes to life when we read in a police statement taken by while hunting ‘Jack the Ripper’. The husband of one of his victims tells how he and his wife separated and then reunited on many occasions before her murder.

Globally, the problem of spousal maintenance payments has proven a perennial problem. It is with us today in the form of the CSA. The same problem even forced the Soviet regime to re-instate the institution of marriage in 1935 as courts became swamped and then log-jammed with hundreds of thousands of ex-wives seeking child maintenance money.

If, today, the problem is just the same, then the cause is very likely to be the same.

As a specie, even total failure adds to our understanding – if handled properly. Unfortunately, today we engineer total failures which we, as a society, are not able to handle properly and we wonder why our understanding, or lack thereof, doesn’t lead to a solution.

Couples are encouraged by state policy to more readily separate. This renders a separated man facing hard choices usually not of his making – he has to choose which family to finance.

Should he spread his money so thinly that both old and new families suffer or, in an age of equality, should he be allowed to get on with his life, find a new partner and start a second family leaving his first partner to find a job and or a new mate to take up any slack ?

The dilemma in 1912 was probably very similar to that of today, that is to say, which family to finance – but without the political rhetoric and moral blackmail of today.

Academic writing of the era almost forgets that most working class women went out to work. The ‘freedom’ to work as a man is not a liberty earned by 1960s feminists Women had gone out to work even in the Pre-Industrial Revolution eras. Initially, the Contagious Diseases Acts 1864 – 69 were aimed at women living or working in garrison towns but due to the 1 in 3 level of STDs among troops was earmarked for expansion into the northern industrial regions. This would indicate that women were working in all branches of society and that it was only wealthier women from the newly emerging professional and trading classes who needed to legitimatise their desire to work and avoid examination.

Melanie Philips details the dilemma faced by this new class of women in her book “The Accent of Women”. It was female snobbery within that echelon of society – not men, per se – that governed what jobs were considered “respectable” for a lady and which were thoroughly disreputable and would lead to shunning in polite society. [51]

For the aspirational middle class and upper middle class, the fate of being placed outside their own social circle would be intolerable and would dash all their hopes.

Women from aristocratic backgrounds (and who, therefore, didn’t need to work), had long ago found respectable, ways of occupying their vacant hours. Aristocrats are notable by their absence from the Suffragette movement. Ambitious middle class women desperately wanted to replicate this respectability but the middle classes found themselves effectively crowded out of the labour market by the working class at one level and the upper class at another. It is for this reason that the Suffragette movement was predominantly composed of the frustrated and the aspirational middle and upper middle class women.

Although the basic problems surrounding divorce and maintenance were the same in 1912, e.g. child maintenance payments, the scope of the dilemma was much smaller than today. Markedly, there was in 1912 no welfare state.

Court ordered divorce was too expensive for most citizens. Many did not either divorce or separate but ‘lived in sin’. Others, in reaching a modus vivendi acted in such as way that bigamy was unavoidable. It is said by some commentators that religion became a stranger to the urban poor in their rat infested hovels. In short, Society was oppressive and seemingly uncaring. Men lived out their lives in savage working conditions. To endure and survive that regime meant that many did not care very much about the propriety of what we might describe as their ‘sleeping arrangements.’

They certainly did not see why their private lives were anybody’s business but their own.

How Divorce Changed

Proselytising emerged afresh and reinvigorated in Victoria’s 19th century. It was seen as a Godly duty of the fortunate to uplift their unfortunate brothers back into the love and fear of God. It made perfect sense that government should join in and seek to remedy the situation of the unfortunate wretches ‘for their own good’ (just as it made perfect sense that government in the 1980s should join in the crusade to cast marriage as bad for us and a constraint on the humans spirit).

Society viewed separations, when they were unavoidable, as preferable to divorce or abandonment because separation from bed and board avoided putting a further burden “on the parish” rates (the parish being responsible for the well being of widows and orphans as well as the upkeep of roads etc). Encouraging divorce would also call into question the validity of marriage itself (a point not lost on latter day feminists who, arguably, have no liking for heterosexual relationships).

The drawback in the 19th and early 20th centuries was that but for very rare exceptions, there was no right to re-marry – hence the complication of bigamy (and until 1857 no standardised marriage service had been devised, so who was validly married was a moot point).

The lack of cases referred to the Court of Arches (the precursor to the Court of Appeal) would seem to indicate that the majority of separations orders were by common consent and were mutually beneficial. In the decade leading up to The Restoration a total of 2,400 cases were ‘appealed’ (an average 240 pa), a figure that had dramatically declined to 200 in the following ten years (average 20 pa) by 1680. [52]

In the following decades the number of cases hardly varied from this level. This sounded the death knell for ecclesiastical courts and the work they provided for lawyers. The Judicature Acts of 1873-75 and the Matrimonial Causes Act 1857 swept away not only all the church courts but the ancient Kings Bench, Probate, and the Court of Common Pleas. They were replaced with a structure we broadly recognise today – except that the Family Division was then called Probate (including all Admiralty and maritime work) and the division became known as “Wills, wives and wrecks.”

When Lord Gorell expressed his concern for the large number of wives seeking maintenance from the courts we can see why – the number of successful divorces had risen from 141 (in 1861) to 801 (in 1911). [53] The contemporaneous rapid growth in the population partly accounts for the relatively rapid increase in the 19th century but a five fold increase in divorce to 801 must have been unexpected.

By 1899, records show that among ‘the lower orders’ there were 14,000 maintenance and separation orders per year being processed by Magistrate’s Court. If we assume that all former husbands were not in a position to pay maintenance and at the same time fund their own existence – given wage rates at the time- the 14,000 could possibly represent the approximate total of separations. However, some wives may have known there was point (as he had no money), or perhaps some of the applications were serial ones, i.e. the same application unsuccessfully made over and over again. Alternatively, many or most ex-husbands could have been paying maintenance, in which case the numbers seeking separations would be greatly in advance of 14,000 recorded as going through the court.

The 14,000 level is given by Prof. L. Stone using Lambeth Palace records, but is contradicted by the work of O. R. McGregor (“Divorces in England”) who found that in the year 1900, only 700 divorce applications were made and judicial separations totalled only 100. [54]

At the turn of the 20th century “deserted” wives accounted for perhaps 88% of court applications – today it is closer to 1%.

Right: Prof. Lawrence Stone, one of the “good guys” (died 1999)

The total number of divorces then was far fewer than today’s 145,000 pa. Today, few couples choose to separate. The reason for this is not ethical or child-centred but overwhelmingly financial. The prospects of wealth transference and asset division are more certain and advantageous if divorce is the chosen path by the mother rather than the separation option.

If providing financially for both the new and old family was difficult but manageable for men in 1912 when assets were retained by their original purchaser (the rightful owner), the situation has become suicidally impossible since 1973. From that date Family Courts have had the ability to, in effect, ‘confiscate’ property of one person and give it to another (ref Ormrod, Denning & Hoggett).

The other dynamic, of course, that must be borne in mind is that the working poor and the unemployed poor of 1912 had no assets which could be shared. Their standard of living could therefore not be adversely affected in that way.

Leaving aside the difference in numbers re: Stone and McGregor, the question remains who exactly were those women referred to by Lord Gorell as seeking maintenance ? What sub-set of society did they represent – working class, or middle class, or both ?

  • Had their husbands been ‘lost at sea’ (in commerce or in war) ?
  • Were they abandoned wives with no idea where their former husbands were ?
  • Were they wives seeking compensation from their dead husbands employer ?
  • Were they abandoned ‘women’ who were seeking maintenance from their former partner (not husband) who they knew to be alive and knew his new address ?
  • Were they unmarried girls who’s boyfriends had moved address or had since died ?
  • Or were they unmarried mothers seeking maintenance from the father of their child who was an otherwise married man ?

The answer to the above scenarios is today not readily to hand and the possible permutations as to numbers, scale and sub-set categories are not too clear.

The outbreak of World War I prematurely ended the Royal Commission’s work, but enough contradictory evidence had been seen and heard to ensure its final recommendations were split. The majority report concluded that there should be courts set up all around the country to deal with divorce; that divorce should be seen as merely mopping up dead marriages; and divorce should be made available to all – regardless of sex or wealth. (a theme revisited when easing divorce restrictions re-emerged in the 1950s). Finally, the 1912 majority report suggested that sexual immorality and illicit sex was in no way linked to divorce.  However, the minority report authors stated that easier and quicker divorce would only lead to more divorce, not simply the mopping up ‘dead’ marriages, and a slide towards looser morals would be inevitable (presumably, cohabitation, living in sin, prostitution etc).

Clumsy Custody Reform

Looking back at 20th century matrimonial reform is depressing. Where wrong turns existed they were taken; where the smart option was available the dumb option was instead chosen. With hindsight the authors of the 1912 Royal Commission’s minority report proved to be more right than the majority view. This has been the hallmark of 20th century reform. Where there was a choice between hiring the right or the wrong people, the wrong people were hired. Where recommendations were sought from committees, those committees were made up of the wrong people with an ideological agenda. [55]

Since last mentioning the connection between guardians and parents nothing in the intervening paragraphs (above), has cast any doubt on the need for a father to be a child’s legal guardian and that failing his availability, it should pass to the next/nearest biological relative.

All the sections immediately above have dealt with adults being parents – not solely the legalistic niceties of guardianship status. In the light of this, the claim by the Law Commission regarding parents and guardians – and their expendability and marginality – is all the more difficult to comprehend.

Prior to the Law Commission’s buccaneering activities, the law and society had both tacitly agreed that parenthood and guardianship was the presumed social preference to be conducted in monogamous relationships, albeit serial or transient.

One explanation that emerges for the Law Commission interventionist policies and the desire to sever the link between parent and guardian – and which fits the various scenarios – is that of politicised goal setting by a coterie with a fixed ideology.

If the intent is to sever the link it is not evenly applied. For instance, if we speculate for a moment not about private law but public law cases we see that in ‘adoption’ cases the non-biological adopting parents (couple) instantly become both the child’s legal guardians and its parents.

It therefore suggests that being a natural, i.e. biological parent gives no rights of guardianship and incites the idea that the judiciary sees “the state” as the omnipotent guardian of all children.

The other possible explanation that has emerged in 2008 is epitomised in the abduction case of 9 year old Shannon Mathews. Her mother had seven children in total, fathered by five different men.

In those circumstances giving each father guardianship of his child might prove awkward not to say impracticable.

Not that this is an isolated scenario. Within the same month it was revealed that Fiona MacKeown, the mother of the 15-year-old girl murdered in Goa, had produced nine children by five different fathers. With state paid Family Benefits and CSA payments for each of the children, Fiona MacKeown is reported to have been able to pay for the holiday to the Indian sub-continent costing £7,000 (possibly topped-up with under-the-counter money from the various fathers with or without the CSA knowing).

Both cases underline the statistical fact that children in the care of single mother households (SMH) are far more likely to be abused or murdered, or both, than when a father is present.

The Children Act 1989 Act was promoted and voted for against a background in the mid 1980s of increasing joint custody, i.e. ‘shared residence’, across the nation. [‘Twenty Wasted Years’ and “The elimination of shared parenting” http://robertwhiston.wordpress.com/2008/02/05/5/ and http://robertwhiston.wordpress.com/2008/06/27/11b/ respectively ]. The intention of the Act was to build on the successful foundations already laid by parents and courts through the 1980s. Far from reinforcing success the Children Act dismantled joint custody overnight.

The number of joint awards collapsed immediately after the enactment. From the first page of the 1989 Act the intention has proven to be the very opposite of the sales pitch made to politicians.

From its very early days the Children Act 1989 has stumbled into the very tiger trap pointed out by the Law Commission not only in its reports (No 91 and No 96) but in its advocacy for the legislation of 1973 (see above), and the case law for that year.

Law Commission report No 91 decided that joint custody worked well but that joint guardianship, later to be called in the 1989 Act ‘shared responsibility’, did not.

Mother’s New Legal Status

Having established that joint custody worked but that joint guardianship was untenable, the 1989 Act decided, via the Law Commission, it was a good idea to abolish both joint custody and joint guardianship.

The rationale in abolishing joint guardianship was undoubtedly to avoid the pitfall remarked upon in report of 1973. However, the 1989 Act then lurches headlong into creating ‘shared parental responsibility’ which de facto means those obligations that were once reserved to guardianship are reassigned to those with ‘shared parental responsibility’. [56]

To quote the Act :-

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

The interpretation that the newly created term ‘parental responsibility’ was merely a substitute for legal guardian is validated in the very next clause where the mother alone has, for an illegitimate child, ‘sole parental responsibility’, i.e. sole guardianship (and the father none). Such a state of affairs would be very familiar to anyone coming from the pre-19th century epoch.

2. -(2)  Where a child’s father and mother were not married to each other at the time of his birth

(a)  the mother shall have parental responsibility for the child;

(b)  the father shall not have parental responsibility for the child, unless he acquires it in accordance with the provisions of this Act.

The newly created status of mothers and ‘parental responsibility’ in 2a, maps directly onto the former parameters and powers of guardianship. It complies with the age old role of guardianship in that it devolves only to woman if the child is illegitimate (the fact that the Law Commission forced through the eradication of illegitimacy as a status in English law serves only to fog up the issue).

This pattern of transferring responsibility to women is seen not only in other Common Law countries but in others nations, notably France. In the 19th century the definition of father was as “the spouse of the mother”. In the 1970s fatherhood had been reduced to the “biological” dimension. The legal concept of paternal power was removed from the texts of French Law in 1968. It was replaced by ‘paternal authority’. In turn, this was superseded in the 1980s by ‘paternal responsibility’. [57]

So that there should be no confusion on this point about the mother’s new legal status, Section 4 (Children Act 1989) states that; “The rule of law that a father is the natural guardian of his legitimate child is abolished.” If the father is no longer the child’s guardian, then who is ?

Who, then, is there to look after that child’s interests, if legitimate ?

We are left to ponder how to deduce the meaning of the new term of ‘parental responsibility’, vis-à-vis guardianship because:-

  • Parental responsibility is always given to the mother when the child is illegitimate – but we no longer have an illegitimate child status so it is said to apply only to unmarried mothers.
  • If only unmarried mothers have parental responsibility then it must equate to guardianship ?
  • If parental responsibility is shared (husband /wife) but fathers cannot be guardians, then how much less power do married women have compared to their unmarried sisters ?
  • Parental responsibility is not given to fathers even when they are married and legitimate children are involved, so why marry ?
  • Instead, ‘shared parental responsibility’ (joint guardianship) is given to a father for his legitimate children. Is this half or full guardianship ? Or is it purely nominal ?
  • Fathers are no longer a child’s legal guardian in any circumstances, whereas, a mother is.
  • Guardianship was never previously shared because of its potential for conflict yet the 1989 Act makes both parents equal/joint guardians by gifting them both shared parental responsibility.

The only reasonable deduction to be made is that overall a mother now has greater rights than a father. Since fathers are no longer a child’s legal guardian under any circumstances, it follows that a mother’s claim ranks higher, carries more weight and should therefore take priority over a father’s claim, no matter what the circumstances.

Is this the reason, or one of the reasons, why Social Services when they ‘abduct’ children from mothers do not consult the child’s fathers or offer custody to the father where the mother is thought to be incapable or pose a danger ? (Annex C).

Since 2007 an increase in dubious adoption procedures and de facto abduction by professionals, usually from social services, has caused public alarm and promoted one MP, John Hemming (Lib), to take up the issue. In this he has received the full support and localised intelligence reports from the entire fathers’ rights movement.[58]

Recent cash incentives from government are said to have encouraged a change in how local authorities behave.  Hammersmith and Fulham council (west London) admits it was paid £500,000 as a reward for placing approx 106 children for compulsory adoption. In 106 cases, the birth parents fought to keep their children but were defeated in the family courts.

The amounts paid to councils by government falls under a controversial “adoption target” scheme that rewards the removal of children from their parents. The court is told that adoption is the right thing for the child and the permanent adoption is then legalised inside the secret family courts which are closed to both the public and press. [59] To outsiders this might sound an extraordinary state of affairs but from other sources we knew that judges rely on the expert evidence of others rather then their own morals and the law. [60]

Hammersmith and Fulham council acknowledge that its social workers had “pulled out all the stops” and “cut down on the amount of bureaucracy” to boost the numbers.

In a previous age, if the child was an orphan the answer would be that the child’s best interests would best be looked after through the Kings Court, the Church Courts or the Family Courts, depending on the era.  The child in all probability would be adopted by a distant relative who would be made his or her guardian (in loco parentis). In the 21st century extended family members are not allowed to adopt the child so it its heritage and roots are expunged and the entire family tree is lost.

However, the child that interests us most is not the stereotypical orphan; the child that holds our attention actually has a living father and mother.

Even where the mother has died the right to parental responsibility should devolve automatically down to the biological father – but this no longer appears to happen. At such a juncture social workers intervene, the child is ‘abducted’ and offered for 3rd party adoption.

Similarly, in adoption cases where the mother cannot or will not raise the child (or is dead) the father has no automatic right to apply for adoption in his biological capacity.

Can we count how many times a father is accepted onto the list of prospective adopters, whether he is given no special priority in being judged alongside other applications for his child and possibly alongside applications from culturally opposites or homosexual couples ?  Is there a mechanism ?

It would have been perfectly possible to insert into the Children Act 1989 the phrase ‘parental duties’ or, ‘parental obligations’ or, ‘parental accountability’. All have very defined and stricter meanings, yet parental responsibility was chosen which, though at first sight sounds as authoritative, is actually far less laser-like in its precision than the other three candidates according to the Oxford dictionary.

The only conclusion to be reached is that The State is now every child’s guardian and parenthood is relegated to a function undertaken ‘under licence’ from the state until such time as the state feels it has cause to intervene.

This is the only way one can rationalise the perplexing statement made by the Law Commission in 1985, namely, that the guardianship formula ante-dates the legal concept of parenthood inferring that one has precedence and priority over the other (Law Commission Report No 91, Para 1.2).

Is it healthy for the natural authority of the parent over the family to be ranked lower than the state artificially creating for itself the right to regulate the affairs and conduct of every family ? Indeed, is it unhealthy and can it be sustained without corrupting the future ?

Who Pays ?

The consequence of the changes wrought by the Children Act 1989 has seen a collapse in the number of joint custody awards and arguably corresponding greater dysfunctionality among youths on our streets.

Sole custody awards, once confined to the North, are now endemic in the midlands and south. [61]

Police are no longer unique as the single public service issued with “stab vests”. Ambulance and paramedics are to be issued with stab vests for a trial period following 120 recorded knifing incidents on ambulance staff in 2007 alone.

Thirty years it was the Fire Service who first came under attack from sectarian gangs in Ulster when attending fires but in recent years the phenomenon of local groups of youths being hostile to crews tackling fires has extended ton the mainland.

Youths detached from their own society and dis-engaged from seeing their future as full of potential prospects define the dysfunctionality seen today.

Children without fathers grow up without being socialised – a fact recognised as far back as the 1930s but denied in all but the more recent progressive literature. Dysfunctionality and violence among the young has precious little to do with family income or poverty although it is invariably painted as such.

The newly diminished status of fathers, i.e. one who is unable to parent his own child (caused by the removal of his ‘parental rights’), cannot be squared with his continued strict obligation to pay for a child for whom legally he is no longer ‘parentally responsible’.

What is overlooked is that prior to, say, 1969, mothers in divorce never paid for the upkeep of their children. When fathers had automatic legal/natural guardianship the consequence was that fathers and/ or the state, or a combination, paid for everything. Today, when women are more likely than ever to go out to work and mothers have legal/natural guardian status they still pay for nothing.

Denuded of paternal rights, it is not seen as unfair that fathers are still expected to pay but not enjoy.

Perversely, legislators have, since 1991, struggled with the question whether to give ‘parental rights’ to fathers who were not married to their child’s mother. Huge amounts of time over many years have been diverted to this red herring. This is tantamount to a betrayal of those fathers who have made the commitment through marriage and yet this debasement fails to flicker in the minds of reformers bent on subverting marriage, e.g. statements by Brenda Hoggett et al.

Not a moment is spent considering whether to give parental equality to formerly married fathers.

One is left to conclude that this is an extension of an obsessive political campaign to eradicate all legal differences between legitimate and illegitimate children. After which a ‘final solution’ to the marriage question can be devised and implemented without too much public protest.

To an alarming degree one has to admit that the campaign is being successful. Unlikely as it is, fathers’ and men’s groups have focused on the topic of unmarried fathers to an unnatural extent – as if their very lives or memberships depended upon it.

Feminist academic and writer, Carol Smart’s book “The Ties that Bind” is cited in the Law Commission Report No 96 (1985). Reflecting the fashions of the day her book includes the subtitle, “patriarchal” relations”.

Above: Carol Smart

The Commission is in tune with her and the tenor of the period can be summed up as striving to abolish illegitimacy by giving all women, whether married or single, the right to give legitimacy to their children.

“The idea of abolishing marriage may sound as attractive as the classical communist call to abolish the family, but such demands are probably as unpopular as they are unrealistic. It would be far more effective to undermine the social and legal need and support for the marriage contract. This could be achieved by withdrawing the privileges which are currently extended to the married heterosexual couple.”

“Such a move would not entail any punitive sanctions but would simply extend legal recognition of different types of households and relationships, and would end such privileges as the unjustified married man’s tax allowance.

Illegitimacy would also be abolished by realising the right of all women, whether married or single, to give legitimacy to their children.”

The subsequent years have given effect to much of this ‘wish list’ – and we live with yet more as Smart tells us on page 231 (see also the Report of an inter-departmental working party on marriage guidance entitled “Marriage Matters” – below at ‘Re-defining Family’):

“So although we may agree with the Law Commission that we must look towards public funds to provide maintenance for single mothers we must recognise the role family law in creating and perpetuating the distinction between different types of families and in giving priority to the family based on the legal institution of marriage.”

Smart and her fellow travellers are not content with simply re-defining the family unit; they want to alter the whole basis of life for citizens. They want their new concept of the family to extend into definitions of domestic violence (DV), incest and rape (page 232). This can only mean that those three categories can no longer be solely perpetrated by intimates but transient shadowy figures women define as intimates or family members. Whereas DV and rape changes have been easily achieved – most DV is inflicted by boyfriend rather than spouses, and rape has always committed been by intimates – incest as a sub-set has fallen to reform in the guise of the new Sexual Offence Act 2003, whereby incest is abolished and replaced with a new offence of “familial sexual abuse” to cover not just assaults by blood relatives but also foster and adoptive parents and live-in partners.

Carol Smart’s “The Ties that Bind” looks for more extensions and more alterations when at page 235 she writes:

“This chapter has argued for the legal recognition of a wide range of households units, for a comprehensive system of state benefits to end women’s economic dependence on men, for the desegregation of family units so that individuals can claim benefits and tax allowance in their own right.”

There can be no doubt that these are the long term aim of an unrepresentative cohort. It is truer than most would like to admit and is epitomised by remarks made by the politically active journalist Polly Toynbee. When asked in a television interview at the time the Family Law Act 1996 was receiving its Royal Ascent she described it as, quote, “the culmination of 30 years of their relentless work” and how “the break-up of a marriage should be a cause for celebration.” Toynbee’s joy proved premature, the Family Law Act 1996 (FLA) was soon made defunct because it has proved to be impractical to implement (as was intended) and is not used in any matrimonial courts.[62]

The preferential status in law gifted to mothers results in an inequality of justice and the sheer scale of the numbers involved, some 3 million children in England & Wales alone, means  that the powers that once defined guardianship today routinely reside with the mothers. This renders the mother the sole custodian and arbiter of what, where and how ‘her’ children live their lives (see school truancy).

The transferring of guardianship to mothers was less onerous in earlier times. When a court found a father (the default guardian) to be unfit to exercise his guardianship powers they were transferred to his wife or another relative.

Today, when a mother is the default guardian but is found ‘unfit’ to parent, there is uproar in the press and from women’s groups at the prospect of questioning her right to raise her child. Doubting the way that a mother sees fit to raise her child is greeted with howls of sexual oppression.

How many times have we seen social services cowed into doing nothing by such vociferous antics only to find the outcome has been the homicide of a neglected and battered child ?

Today, if a mother is found ‘unfit’ to exercise guardianship her powers are not transferred to her husband or nearest relative. As we have seen in the Hammersmith and Fulham scenario (above) her status is transmuted by the alchemy of state funding with the most likely result being that the children are abducted and then totally absorbed forever within the adoption system.

Re-defining Family

The Children Act 1989 has guidelines and a check list designed to ensure that the child’s welfare is the most important consideration. It states – as every minister has repeated since 1989 – that in most cases it is best for the child to maintain a good relationship with both parents.

‘Contact’ is the child’s right to see the parent, and not the other way round they chime. [63]  Contact is to be encouraged but the ‘quantum’ is never defined, thereby making the statement an empty gesture, i.e. can a 5 year old insist its mother allows contact ? [64]

The Children Act 1989 and the interpretation given to it by Whitehall emphasises children’s wishes rather than the ‘rights’ of either parent. These wishes never make it to decision time or enactment, and one has to ask just how sound and sensible is such an attitude towards all parents ? Why are children’s wishes so routinely talked about but then ignored ?

Indeed, how fair and how accurate are the children’s wishes conveyed to the court and judge when they never make an appearance and their views are not treated as evidence but are conveyed as a court workers opinion ?  Further, why are we pretending to ask 6 year-olds about matters they are not equipped to answer and adopt the same procedure with 13 year olds ? Do children really want to be cleaved from their fathers ? [65]

How can a father be a father if he is not allowed time and is not told what quantum of time he should expect ?  A father can “access” and “visit” animals at a Zoo more easily than he can his own children. He is more able to befriend said animals because there is no time limits or curfew.

Is this what society wants for fathers ?

In the 1970s an inter-departmental committee of civil servants planned that government should take on the mantle of funding the consequences of divorce and the resulting cost of single mothers and dependent children. There was only a slow realisation that there were massive “hidden costs” in easier divorce affecting not only individuals but government departments who, working in isolation, would be unaware of costs impacting another government department. In ‘Divorce Matters’, the late Jacqueline Reynolds wrote: [66]

For example, the Report of an inter-departmental working party on marriage guidance entitled “Marriage Matters”, published in 1979, argued that the state should accept a responsibility — shared with caring individuals and independ­ent initiatives — for relieving private misery and exercising social concern by the provision of services through statutory and other public agencies to help with marital problems.

‘Marriage Matters’ was a consultative document published by a working party set up by the Home Office, the Dept. of Health and Social Security  which the British Medical Journal described as an ‘ambiguous title’ for a document focusing on marital disorder.[67] The article goes on to say;

‘About 250,000 people are divorced each year in Britain [even in 1979] and upwards of 100,000 approach the marital agencies for help. Add to this the large but unspecified numbers who present their marital distress in more covert ways and the problem becomes one which few in the helping professions can afford to ignore.’

The decision to the finance cataclysmic change was not wholly based on the premise that radical feminists had successfully ‘politicised the non-political institution of marriage’ and divorce – though this is partly true – but on the echoes of the 1912 Commission, namely the ending of ‘dead’ and unhappy marriages. The impact on children of family break-up was not even a consideration.

In 1969 it was possibly far too early to wholly ‘politicise’ marriage or for such a claim to be viable. However, it was possible, amidst all the anti-patriarchal rhetoric of the time and the claims of oppression by a hierarchy of institutions, to destabilise marriage and the social adhesive it provided. The female zealots pushing for change held to the tenet that it was a means-to-an-end; the bringing to an end of one normality and substituting their own newer normality. It is clear from reading a selection of their books and leaflets from that era that the view of society and their perception of the great evil – patriarchal – look bizarre. Quite why they were so antagonistic to heterosexual marriage is imponderable but may reflect the sexual bias Melanie Phillips found among leading suffragettes.

Recapturing the flavour from any earlier period is always difficult but these paraphrases, taken from Jacqueline Reynolds book ‘Divorce Matters’, impart something of the original essence of the early 1980. The insolence of office, the arrogance of power and the consummate confidence of one convinced they hold the one true ‘world view’ is revealed in the subtext of what is otherwise a deeply mediocre exercise in thinking:

  • She dismisses all anti-divorce reformers as the usual ‘prophets of doom’ that all new ideas inevitably attract.
  • Ironically, she hails the then held view that divorce rates are portents of the entire decline of Western civilization as merely the usual repetition of said prophets (she died of cervical cancer long before the global nature became obvious).
  • She discounts those of a ‘pragmatic standpoint’ who work in the frontline of the ‘divorce industry’ as being largely unsuccessful in drawing attention to the scale, the problems, and the hidden social and economic costs of divorce.
  • Divorce reform apparently can weather short lived “moral panics” generated in the press, leaving most people believing divorce is something that happens to others and can  be safely ignored
  • She reports that attempts to heighten public consciousness about divorce have been largely un­successful.

These then are a sample of the views of a reformer flushed with the apparent success of changes already implemented and which she would construe as a vindication of her ideology. It is not difficult to imagine that, brimming with confidence, she would be unable to accurately project into the future. The inability to make predictions about collateral damage is noticeable throughout her book. Any concessions about possible negative impacts are enthusiastically countered by setting them off against the inevitable and overwhelmingly positive impacts that are bound to follow.

The inter-departmental committee recognised that prior to implementation, State Benefits would be needed to subsidise the transition from economically viable family units to economically non-viable forms of family units.

State Benefit, it was decided, would in future go straight to the parent with ‘rights’, i.e.  the parent with children. The parent making demands on the system was to be subsidised, the parent financing the system would not be.

This would entail the cross-subsidising of single mothers and illegitimate children by married couples and couples with legitimate children if the “differences” between the two were to be eliminated (as much a government target then as it is now). This impoverishment of married working couples with children has indirectly led to the need for the Working Family Tax Credit of today but which still does not recognise the extra costs of married couples.

It was recognised at the time that Radical Feminists were political animals but the full extent ferocity and permanence of their determination to alter society was gravely underestimated by a civil service, steeped as it was in convention.

In attempting to engage with the politics of the Radical Feminist lobby the civil service was innocent of how high the stakes were. The civil service could have had no idea of the political significance that the definition “the family” held for feminists.

It was in the 1980s that the impact on the wider policy context began to be felt. By the 1990s Radical Feminists and their supporter were, according to Melanie Phillips, firmly ensconced in almost every government ministry. [68] By then not only were the support systems for ‘the family’ continually under attack from government measures but the very definition the family’ was being questioned.

To quote Stuart Birks, of Massey University, New Zealand:- [69]

The definition of family not a minor technical matter:  It has very significant consequences. The additional move to a “social definition” of family is one that should have only been undertaken after widespread public consultation and discussion.

By defining a sole parent family, the other parent becomes invisible. The importance and contribution of the other parent is unlikely to be considered. Solutions to problems observed in “sole parent families” are therefore unlikely to involve the other parent. Not only is research on the effects of “sole parenthood” going to be distorted if the other parent’s input is overlooked, put policy solutions may even inhibit the involvement of that parent.

As a result, we are likely to be both understating and constraining the input of a parent for children considered to be in “sole parent families”.

In alerting us to the ‘invisibility’ of the other parent (Non-Resident Parent), Birks also points us to the invisibility of children who are overshadowed by the public relations clamour to meet the needs of the SMH (single mother household).

Slowly the biological connection is being replaced in the advanced western democracies. Anne Smith of New Zealand’s ‘Otago University’s Children’s Issues Centre’ promotes an “emotional connection” view of family. Emotional connection can here be interpreted to mean that the child’s father is subservient and his identity is consumed if he wants to remain in touch. This can be seen as not just irresponsible but a very negative and unenlightened approach.

The citation she used at a ‘workshop’ on children whose parents live apart (Wellington, July 2001) was Smart and Neale (UK, 1999) that “if both want to remain engaged parents – they have to remain in some kind of relationship with each other … they cannot simply leave behind a relationship … in a way that couples without children can”. But that, surely, is the definition of divorce the leaving behind a relationship with an adult – children, or no children. What Smith, Smart and Neale are inferring is a future where polygamy or parallel fathers (visiting men) coexist around a single woman. [70]

Historically,  ….  in the West Indies, sexual activity usually began at an early age. Women traded sex for economic support and children (called “visiting” or “keeper” relationships). Visiting unions gave way to common-law unions that, when a couple was older, a church ceremony might legitimate.

The envisaged ‘kind of relationship’ and the balance in the ‘power relationships’, or sexual power politics, is essentially more akin to that of a Victorian “master and servant” status.

A confirming article comes from Shelley Day Sclater (1995), a Lecturer in Family Studies, East London and the Open University. When referring to coping strategies for separating parents she dismisses fathers’ concerns for their children by describing them as signs of ‘self-interest’ and ‘emotional inadequacy’ (prompting one to ask why a mother’s concerns for her children is not classified as self-interest’ or ‘emotional inadequacy’ ?).

Authors and Bit Part Actors

So elegant is the concept of shared parenting in the 21st century that it has become dangerous to the status quo. It has so far attracted a disproportionate amount of criticisms and an inordinate amount of heavy artillery from those in the political commissariat with entrenched ideas and precious reputations to protect. They are happy to see society staring into the abyss just so long as it buys them enough time to make it to their inflation-proof retirement pension.

Those with pension and reputations in jeopardy can be found in legal circles, Whitehall, government, academia and even wider afield.

The shameful legacy inherited from Brenda Hoggett and Ruth Deech, has already been mentioned but there are many other bit part actors in universities such as Carol Smart, Liz Trinder, Amanda Wade, Mavis Maclean, Brenda Neale, Jenifer Flowerdew, etc, and in Whitehall figures like Amanda Finlay, Sally Field and Sir David Normington (a permanent secretary), all from the Lord Chancellor’s Dept (now renamed the Ministry of Justice).

Unfortunately, where once we could depend on sound unbiased university research such studies are now suitable tainted to please their sponsors. Universities are no longer dynamic seats of learning and inquiry. We have been singularly unfortunate in having a lightweight intelligentsia, where career advancement and empire-building has taken precedent over its true function. The fact that we don’t even talk or think in terms of a contemporary intelligentsia today illustrates our general bankruptcy.

A uniformity of acceptable thought has, by default, descended over academia. Governement research funding is directed overwhelmingly to those who ‘buy into’ that uniformity of thought. ‘Difficult’ people who do not share the views of the academic commissariat have, in some cases, been elbowed out of our universities. Universities have now become, to quote Prof. Norman Dennis, ‘safe berths’ for intellectual conformity (laziness) that political correctness seems to always demand. (see also “The Closing of the American Mind”). [71] The resulting cadre in Britain is described in Melanie Phillips’ book as inculcating in the next generation the new but untried conventional wisdoms they hold dear.[72]

Progressively, over the last 40 years, a delinquent quasi-intelligentsia has successfully elbowing aside ll other voices. To compensated for its inadequacies the lightweight intelligentsia has operated against any who opposes them a rigid imposition of isolation and ostracisation as a policy. Anyone familiar with Soviet and Fascist regimens will immediately recognise the process.

“Authoritarian liberalism” is the result. It is liberalism in name only; it will brook no interference or correction. It is a liberalism that will countenance no other view but its own. It is a liberalism that believes it alone holds the monopoly on truth and that it’s truth is constant. It insists upon all men and thing being tolerant towards it. It is so liberal it insists that everyone should be tolerant of everything – even the intolerable.

An intellectual dwarfism that permits, legitimises and stimulates institutions to adopt such draconian attitudes is not mature enough to realise that ‘only in an intolerant society can tolerance survive’. [73]

Similarly, ‘only where there are barriers to communication can there be communication’; something the internet and this article prove everyday. Without barriers to father’s rights this message would not need to be communicated.

In ‘Understanding Policy Change and Culture’, Carol Smart writes about divorce in England between 1950 and 2000. [74] She states that the divorce trend was rising in the 1950s, specifically:

 a). Rates of divorce have increased considerably between 1950 and 2000, although this trend had started rising before 1950,.

b). Marriage rates also reached a peak in the 1960s but subsequently declined in the 1990s.

ONS figures show it actually fell every year throughout that decade (1950 – 59). Divorces only rose in the mid 1960s (see Fig D below).

After peaking briefly between 1945 and 1947, rates and actual numbers of divorce decreased from 1948 for 12 consecutive years (see Fig E below). With regard item b), marriage peaked in 1972 according to the ONS – not in the 1960s.

When it comes to shared parenting, Smart is worried  that “good outcomes” may be due not to the arrangements themselves, but to the quality of the relationships and that important factors, e.g. white, employed, educated, middle class, etc make them work well.

Isn’t that what we all want ? Why penalise one group of parents who can ‘make a go of it’ simply because they might be white, employed, educated, and middle class ?

Universities, as was mentioned earlier, rarely undertake social research on their own initative; their budgets do not allow for it. They instead apply to a host of charities (the most well known of which is the Rowntree Foundation), and government for funds (typically the government funded ESRC). [75] Some applications are more successful than others (see Annex D).

The sum of funded social research constitutes the “mainstream” of academic literature on any given subject. There are many published articles/paper that apparently discount or rubbish shared parenting. Few, if any, promote or admire it.  This may or may not be a function of successful grant applications. It is therefore not surprising to find meta-analysis (an average to date of the available studies / literature undertaken) coming to the conclusion that overwhelmingly shared parenting is a bad idea.

Where once the public could expect paid professionals and academics to arrive at new and unique conclusions, today the emphasis is on conformity. All the female academic that have been listed in this paper cite each others work, they never contradict one another. They use this “proof” to validate their findings – they cite it as a factor in the accuracy of their research into the same topic.

This ‘magic circle’ approach is commonly found in propagandist subject areas such as domestic violence where papers by Stanko, Hester, Liz Kelly and Radcliff, to name but four, recur with monotonous regularity. ‘Counting the Cost’ by Betsy Stanko (1998) is an early and prime example of this phenomenon. [76] (Stanko relies on Painter, McGibbon, Mooney, Hester, and Dominy & Radford).

The axiom “The truth can be adjusted” does not appear out of place in an environment where a small group of authors hold a near-monopolistic position and are given disproportionate media coverage.

The incestuous nature of these arrangements has become so gross that some academics, e.g. Tim Hope and Reece Walters, have felt compelled to question not only the accuracy but the authority of the research, (as per the Home Office). Hope and Walters also drew attention to this very point, namely the tendency for a small group of authors to ‘write’ for one another, i.e. cite each others work. [77]

At many levels this can only have a corrupting influence and those placed in charge of allocating government research funds must fall under suspicion of favouring the former under graduate colleagues who are successful their  applications.

Is it coincidence that opponents to shared parenting can be found in academia and the civil service (which historically has never readily embraced change) ? Both groupings shape government and departmental thinking – the one feeding the other with money in return for ‘suitable’ survey results.

 A Recalcitrant Lord Chancellor’s Dept 

When a reluctant Lord Chancellor’s Dept (LCD) finally agreed, in Oct 2002, to a meeting attended by all the leading men’s and fathers’ organisations in Britain, the one and only topic on the agenda was shared parenting (see Sally Field, Amanda Finlay, etc above).

The meeting with the LCD departmental managers was designed to elicit from them why government actively and perennially undermined the presumption of shared parenting contained in the Children Act.

Those responsible for the interpretation and implementation of the Children Act 1989 across all Whitehall ministries insisted that the Children Act 1989 was never about shared parenting, only sole custody. [78]  Indeed, they maintained that the main thrust of the Act was to allow “no order” orders to be made. The question of guardianship was never mentioned at the meeting in order to keep matters uncomplicated (see Annex E).

The suggestion from fathers’ organisations that a quantum of time be defined as reasonable contact and the managing of that quantum be protected – as in Scotland – was met with disbelief and an apoplectic silence (there is a requirement in Scotland for the resident parent to allow contact or the other parent to maintain it).

Why, we asked, was custody not reversed if contact was impossible due to a mother’s ‘implacable hostility’ proving too difficult for a court to handle ?

If custody could be reversed in the interlude prior to 1981, men’s and fathers’ organisations wanted to know why it not be done now ?

Ironically, it was Ormrod himself who gave joint custody a fillip in the Dipper v Dipper case of 1981 because he stated that:

“It is wrong for one parent to control the children’s education, religion and other matters in their lives. Neither parent has pre-emptive right over the other, each being entitled to be consulted and disagreements between them must be resolved by the Court”.

By the time we reach 2001 judges on the PSA-8 committees insisted, with regard an implacably hostile mother, father custody, or reversing custody, that 1). they have insufficient powers (an untruth) and 2). that they would refuse to use them even if given more power (a truer reflection of their mindset).

From the LCD’s standpoint the law starts from the position that “contact” is just one form of maintaining child parent relationships and how that is arranged is a private matter to be agreed between parents. The second part of this tenet is an interpretation that is mystifyingly not transmitted to the public. Only where parents cannot agree does the LCD accept that courts have to get involved.

Interestingly, the LCD (now the Min of Justice) believed that not only is there no statutory presumption for shared parenting but none for contact, or sole residency, or joint custody, or any other type or form of arrangement.

This begs the question why if that holds true, is sole residency orders today so prolific, and why was it thought necessary to pass new legislation to that effect in 1989 and abolish what existed before ?

Why couldn’t divorcing couples be left as they were to successfully arrange their own joint custody just as they had in previous years ? If, allegedly, it is more difficult today to reach agreement what unseen change was triggered by the legislation ?

The other dynamic conspicuously dodged by the LCD staff is that having used legislation and politics to create the conditions for inequality, injustice and conflict, they have not considered a political solution for what they admitted was a system that did not work for everyone.

Having allowed the situation to be politicised, the LCD then behaved recklessly by refusing to seek a political solution; they have adopted a Pontius Pilate attitude and unconvincingly tried to strike the pose of honest broker.

The furthest the LCD managers would concede was that the Children Act 1989 promoted the involvement of both parents through “the concept” of continuing parental responsibility. Joint residence orders (shared parenting) could be part of this – but not as a stand alone component where children could spend substantial amounts of time with each parent.

Why this didn’t already happen, if true, they couldn’t answer.

Oddly, the gulf between the demands of fathers’ rights groups and the civil service proved difficult to pin point, for despite all their words, their seeming ambivalence, the civil service always managed to find enough “wriggle-room” where none seemed to exist a moment earlier.

As we were to find out at the 2002 meeting the commitment of “shared responsibility for the upbringing of their children” (see reference made by Lord Irvine, 8 May 1999, below) translated into the status quo of both parents having the meaningless ‘parental responsibility’ status but only one having the power associated with “residence”.

One is forced to concede that broadly speaking civil servants are seen as having an instinctive fear of change or reform and are often depicted as timid, dull or unimaginative. This is not entirely true. When called upon to cope with proposed reform, a dread of the new or untested will drive them into very creative in blocking stratagems. This can prove somewhat self-defeating for government.

When forced to implement new policy civil servants will intuitively interpret it in such a way that they handle it as merely a variation on the previous model and the previous way of doing things. The result is that the civil service will only initiate variations on already known systems; systems where they have control or can predict the outcome. Arguably, the reforms radical feminists have achieved can be ascribed to couching reform to civil servants as if it were merely an extension of pre-existing models in need of a ‘make over’.

The difference between fathers rights groups and the civil service could be summarised in this way; fathers focus on the practicalities of contact (in the broadest sense) with their children. They want to be part of and share in, their children’s upbringing, hence shared parenting – this, after all, is the right given to mothers. Civil servants at the ministries, on the other hand, pretend to see this as no concern of theirs. They have provided the legal, theoretical framework and the philosophical model for the sharing of a child’s upbringing and that is where their obligation ends.

However, the above official view is at odds with published statements relating to the Children Act’s (private law provisions) whenever Green Papers and White Papers are produced. At such times governments declare they always envisage both parents taking an active role.

Below is a sample spanning 10 year:-

“New orders are introduced to reflect our emphasis on encouraging parents to participate fully in the child’s upbringing”  – The Minister introducing the Bill, 27 April 1989, Hansard.

“The Children Act 1989 ….  seeks to encourage both parents to continue to share in their children’s upbringing, even after separation or divorce” – Consultation Document, Parental Responsibility, LCD, March 1998, p 13, para 42.

“The underlying philosophy of the Children Act is that parents have a shared responsibility for the upbringing of their children even after the parents’ relationship has broken down. This reflects the Government’s belief that children generally benefit from a continuing relationship with both parents”. Rt Hon The Lord Irvine, 8 May 1999 (ref MC/99/10/1).

If confusion reigns in the sphere of guardianship and no one ‘in authority’ seems aware of the ramifications of tampering with it, exactly the same can be said of shared parenting, joint custody and the Children Act 1989.

Speaking on behalf of the LCD, Sally Field was adamant; she refused to budge; she refused to accept any interpretation of the CA 1989 but hers; she refused any meaningful compromise; she refused to accpet that teh CA 1989 allowed for /promoted shared residency orders; she offered no concession whatsoever. She refused to offer a token fig leaf that could be claimed as progress to the assembled fathers delegates.

That was when “Fathers 4 Justice” was born. Matt O’Connor had simply had enough of the verbal swerving and sidestepping of issues and walked out. The remaining fathers’ delegates before they too left offered Sally Field one last chance of rescuing the dialogue and, foolishly, she declined.

High-Conflict and Small Samples

Dame Butler-Sloss, who until a few years ago was President of the Family Division (dealing with divorce and custody), admits she and her fellow judges didn’t take too much notice of either fathers or children’s happiness in the past:

In 1970 I don’t think we recognised the importance of a child having both parents the way we do now. My thinking has certainly evolved. The important thing for a judge is never to think you know it all. – “After the Split, marrying of minds.  Dame Elizabeth Butler-Sloss interviewed by Margarette Driscoll, Sunday Times, Feb 17th   2002.

In the same newspaper interview Butler-Sloss, accepted that ‘research shows that couples tend to underestimate the value of their other half’s contribution to the family and their worth to the child’.

Butler-Sloss is reported to have said in a Feb 2002 article:

“If you ask a parent on the point of separation what their child thinks of the other   parent they’ll say, ‘Not much’,”

“Ask the child and they’ll say, ‘I want to keep both my parents. I love them both.’

“The parents don’t understand it and you can see why. But I can’t emphasise enough how important both parents are. In 1970 I don’t think we recognised the importance of a child having both parents the way we do now.  My thinking has certainly evolved. The longer I sit the more I feel I have to learn.”

Underpinning shared parenting is the concept of “shared residence” in which a child might spend three nights a week at one parent’s house, four at the other’s. to this Butler-Sloss commented (Feb 2002) that every child must have a base:

“A child should know which is his bedroom in his home and, confident of that, spend as much time as is practical with the other parent.”

A minimum, she suggested, might be every other weekend, half of school holidays and half-terms.

“Even where parents don’t get on, as long as they can be civilised and polite there is no reason why they shouldn’t share.”

“The point is to help the next generation. If you are the child of acrimonious parents it is likely to inhibit your own parenting skills.”

This ‘future view‘ was in 2002 and nothing has changed since (2008) to show the words uttered then have been wholly or partially acted upon by the rest of the judiciary.

In 2002, Margarette Driscoll in the Sunday Times dutifully towed the official line and stated that “thousands of parents come to private, amicable arrangements” (implying the majority). How true is this ? The statistics tell us that annually there are approx. 140,000 – 160,000 divorces and between 110,000 and 120,000 cases pa involve children aged under 16. The same courts hear approx. 110,000 contact and residence applications, i.e. parents who couldn’t agree custody terms.

Therefore, are the “thousands of parents [who] come to private, amicable arrangements” merely the few ‘thousands’ that fill the gap between 140,000 divorces and the 110,000 custody hearings ?

Despite a shift toward shared custody experienced in America over the last 20 years, up to half of fathers still lose contact with their kids after a divorce. Mike McCormick of the American Coalition for Fathers and Children (ACFC) says, “In 85% of divorces, fathers get just two weekends a month and a couple of hours during the week.” A figure replicated in the UK.

This is despite the work of James Cook, co-founder of the ‘Joint Custody Assoc’ (based in Los Angeles), who had by 2002 spent over 28 years persuading 40 US States to adopt joint custody. His home state now benefits from “some 90% of divorce cases in California result in joint custody.” [79]

Meanwhile in Britain, dancing on a pin head or fighting over crumbs, best describes a new legal concession that might allegedly be offered – the introduction of “proportional time.” This rather lame idea – a fig leaf of a concession – comes from those who, to their core, are utterly opposed to any form of fatherly involvement. It is based on expanding or decreasing a father’s time with his child based on the amount of time he spent with them before the divorce.[80] 

As a rule, opponents of shared parenting present a very united front and go to great lengths to maintain it. It is astonishing to see the same arguments repeated half way round the world, and in the opposite hemisphere with the very same rationale used for its rejection.

For instance, in a 2001 Dr Neale & Dr Flowerdew sought to show using a sample of 30 children, and using ‘subjective assessments’, that equality of time between fathers and mothers could result in it placing a burden on and being unfair to children.

Above: Dr. Brenda Neale

Importantly, the report failed to emphasise that;

“It was never the intention of the study to determine whether one kind of post-divorce residence was best ”

In a 2003 another study of shared residence designed by Brenda Neale PhD and Jennifer Flowerdew PhD (based at Leeds University), concluded that it could not be described as a ‘magic solution’. Neale & Flowerdew decided that ‘shared parenting’, i.e. shared residence should be seen as:-

‘novel and untested’ , , ,[and] , , “in some quarters it is viewed by some as a positively threatening development.”

Once again we read of the very real fear that grips feminist scholars regarding the possible adoption and practicalities of shared parenting. In an article entitled, “Shared residence is not a magic solution” (27 Oct 2003), Dr Flowerdew said:-

 “For the children, the key to good shared residence was flexibility, supportive and co-operative parenting, and a sense of belonging in both homes. Under these conditions, young people were very positive about their families.” [81]

Surely, no one could disagree with that and if Flowerdew sees the benefits why does she not endorse shared parenting ?

As if to underscore their phobia the narrative of this survey fails to mention that the test families were not ‘normal’ families. No prominence is given by Neale & Flowerdew that these were ‘dysfunctional families’ that had been forced into shared residence arrangements, i.e. legally imposed:-

“Where shared residence is legally imposed on families, the potential for long-term problems may be magnified. This makes the growing lobby for automatic shared residence after divorce all the more worrying. “

Is Neale’s ignorance self-imposed ? She has not gone back-to-basics to find out what is meant by shared residence/parenting and how it can only operates when a ‘parenting plan’ is freely agreed.

A key part of her rejection of shared residence/shared parenting appears to be a dread that if permitted all families will be forced into accepting it as the only option. [82] This level of manipulation of the public is inexcusable. In common with other female researchers, no serious attempt is made to comprehend shared parenting; instead they are content to bulldozer-on with shared residence and its impracticalities forgetting that ‘sole custody’ was artificially inflicted upon us, post 1989.

The professed level of ignorance of how shared parenting is arrived at immediately disqualifies sole custody advocates from passing judgement of forming any meaningful opinion. To fail to grasp that even advocates of shared parenting would not suggest the option in ‘high conflict’ situations displays either an utter disregard for truth or a terror that justifies deliberate distortion.

Several months later, in 2004, when ministers Margaret Hodge and Lord Falconer came under fire from many quarters for not making shared parenting a legal presumption, Neale & Flowerdew’s reservations about “long-term problems” were gratefully picked up and amplified by both ministers.

We have to remind ourselves that these ‘studies’ and ‘research projects’ are paid for by the tax-payer – and they do not come cheap. Every year, be it 2001, or 2004 or 2009, taxpayers money is diverted towards alleged researchers who entertain predetermined world views. For instance, the grant awarded to Neale & Flowerdew to produce “Children Creating Kinship” in Jan 2007 cost the tax-payer £64,480.70.  And every year millions of pounds are paid to researchers who fail to come up with anything that improves the situation or is novel.

The aim of the Neale & Flowerdew study was to find out “who, beyond parents, matters to children in their everyday lives, in both positive and negative ways ?”, and “In particular, who counts as family, like family, as good as or better than family ?”  Tax-payer‘s money is therefore being openly used to reinforce the view fed to government that fathers are not mandatory in family units. And to test the hypothesis that fathers can be dispensed with Neale & Flowerdew planned to interview a mere “60 children in the age range 7-11.” What sensible conclusions can be drawn from a sample of 60 children ?

It is difficult to comprehend how specialist researchers such as Neale & Flowerdew can be unaware of work undertaken by the Law Commission, some twenty years ago, i.e. Report Nos. 91 and 96.

Neale & Flowerdew (and this criticism applies equally to other modern day “scholars”) do not appear to demonstrate the depth of knowledge one would associate with supposed specialists in their field. Nor can any attempt be seen in newspaper articles written by them to present a balanced and dispassionate review of the topic. Having ‘Professor’ in one’s title, being a lecturer or a PhD used to have connotations of competence.

Rather, Neale is known to presented data in an internalised contextural format (the feminist approach to facts) in much the same way as a ‘TV soap’ genre exudes angst compared to a documentary. In her slide show ‘The Dynamics of Child-Parent Relationships after Divorce’ for instance, there is an unmistakable lack of balance and over use of anecdotal reporting. [83]

If ignorance is defined as a lack of knowledge, we are driven to conclude that this is more than just a lack of knowledge. Their reckless presentation of data and the misleading way they explain how shared parenting works strays beyond the definition into unnecessary and compounded falsehoods.

It is difficult to imagine eminent commentators such as Paul Johnson, Malcolm Muggeridge, Jacob Bronowski, Bernard Crick, Roger Scruton, Heinz Wolf, Patricia Morgan or Melanie Phillips being accused of not being in command of their chosen subject.

It is in the act of comparing the stature of these giants and the traditional empirical methods they used with the modern ‘feminist perspective’, i.e. a methodology of contextualised, qualitative and selective data, that the whole veneer of modern academic learning is ripped away and revealed for what it is.

It is quite amazing how many quoted studies in the public domain have sample sizes of less than 50 or less than 150. At best these surveys are ‘indicative’ and are far too small to be reliable. Nevertheless they are paraded in the media as if they are comparable with serious studies of many thousands. [84]

A study by Dr. Liz Trinder suffers from the same handicap of unrepresentative smallness. She measured not fractious families, not high-conflict families, but “Families[that] were facing significant difficulties, with fraught or tenuous contact, conflicted and distrustful parental relationships,…” [85] 

Above: Liz Trinder (right)

This then tends to be the pattern – unrepresentative families and unrepresentative sample sizes. Yet another of these small surveys is “Enduring Families ? Children’s Long Term Reflections on Post Divorce Family Life”, (ESRC, Project No. R000239248).

The title implies not just long terms effects but a large sample size to match. Not a bit of it. Professor Rosalind Edwards’ research was based on individual in-depth interviews of just under 50 people.

Left: Prof. Rosalind Edwards (caught by the Sunday Times distorting data)

Joan Hunt and Ceridwen Roberts’ paper “Child contact with non-resident parents” again features atypical families, that is to say “high conflict families”. [86]

Others much larger studies that should be taken very seriously receive little  exposure. A Swedish Survey, for example, which tracked one million children of single parents over a 20 year period, was published in the BMA’s journal “The Lancet” in 2004. [87]  Except for a small article carried by Associated Press, the research was lost to popular history. With the average study costing the taxpayer around £45,278, the Neale, Flowerdew and Smart axis have racked up more than more than £1.5 million in the last 10 years with no substantial public funding for the  contrary view (see citation above and Annex D).

The skewing of the resulting data and the dissemination of what some might term disinformation is not confined to Britain.

Adele Horin writing in Australia’s ‘The Sydney Morning Herald’ quotes Jennifer McIntosh, a highly respected child psychologist as casting doubt on the efficacy of post divorce shared care / shared parenting.[88]

Left: Jennifer McIntosh (La Trobe Uni)

Occasionally, someone like Patrick Parkinson, a professor of law, is brave enough to offer up a rebuttal to the Jennifer McIntosh research, by pointing to the opportunities such mini-studies present for ‘blame games’ and petty point-scoring. However, more importantly he reveals how contact at   weekends, say Friday afternoon to Monday morning, and a mid-week sleep- over at Dads, say, of one night, can be transformed into ‘shared parenting’ for the purposes of those conducting the study. Five days with the other parent (i.e. father) every 14 days apparently fits Jennifer McIntosh definition of shared parenting. [89] We shall see more of this in later chapters. It is little wonder that conflict and tension levels between parents who choose ‘share parenting’ are only little better then between those parents where sole custody rules. Norway’s Ombudsman for Children, Mr. Reidar Hjermann, has similarly succumbed to academic beliefs that shared parenting is somehow hard to arrange in every case. It is in a tiny number if instances but not in most. On that basis alone he believes shared parenting is bad for kids because it’s “inconvenient”. [90]

Academic manipulation has been at the root causes of why urgently needed reform has been frustrated for a patently failed regime. Even Nero could see the flames. Evolution in the reform of sole custody has made only slow if any progress in the past 20 years.

Other countries have already recognised these failings of slow speed of reform and need for a regime change. Australia, Holland, Belgium have all discussed or implemented changes worth the name but Britain is happy to be just a talking shop.

When the Watts area of Los Angeles was ablaze in 1965, government finally took notice.

“Riot,” explained Martin Luther King to an aghast American TV interviewer, “is the language of the unheard.”   

Britain has yet to wake up to this dynamic.

Scholastic Duplicity 

The price of security is group thinking”. There are two non-ways of dealing with threats or problems; one is the ostrich technique of burying your head in the sand and the other is ignoring it in some other way – the equally fatal ‘group think.’

Bauserman’s 2002 study of the benefits of joint custody prompted the latter in the academic world.

The interpretation of Bauserman’s 2002 study into the viability of joint legal/physical custody (what we would call shared parenting) is instructive as it typifies the Zero Sum game that the researchers routinely advising Whitehall are happy to play.

Bauserman undertook what is called a meta-analysis of 33 studies between 1982 to 1999 that examined 1,846 sole-custody and 814 joint-custody children. [91] The findings were very positive in favour of joint-custody / shared parenting. Further, compared to sole-custody family units, children in shared parenting arrangement were not exposed to more conflict but often less.

Bauserman’s American review concluded that on average children were ‘better adjusted’ in shared parenting environments than those in sole custody. [92] This, as we saw in the previous chapter, is not what advisors to government want publicised.

Opponents of shared parenting persist in stating that shared parenting does not work because it is not suitable for all families. However, they always omit the reciprocal, namely that the alternatives, including sole mother custody, do not work either “for all families”. For some reason, yet to be made clear, opponents of shared parenting are prepared to let that situation continue – happy to let families make do with second best.

Instead of stating a reasonable case, i.e. that shared parenting does not work well in situation of ‘high conflict’; opponents in effect say there should be no shared parenting at all.

Opponents major on the unworkability of shared parenting where there is a high level of ‘conflict’ – but if they were brutally honest they would also have to tell the public that sole mother custody also does not work in ‘high conflict’ situation (or that sole custody may exacerbate such conflict).

Opponents of shared parenting appear to adopt this line because they believe no system has yet been devised that successfully embraces both normal and fractious families. Their answer is that more research is needed. Would the world tolerate a total ban on flying simply because we cannot yet fully explain gravity ? The real answer is that there will probably never be just one system that can successfully embrace both types of family, but let’s go with what we’ve already got.

From Joan Hunt’s paper we learn that, “In 2001, 146,914 children in England and Wales experienced parental divorce, 68% of them aged 10 or less and 24% under 5” (using historical standards, this indicates a separation level of some 165,000 couples).

She then confirms that 28% of children before the age of 16 can in future expect their parents to divorce. This figure excludes cohabiting couples and their children.

Her study (pub’d by Oxford UniversityPress) also tells us that, “In 2002 the courts dealt with 65,192 contact applications under Section 8 of the Children Act.”

She like many others take the ONS figures on face value – in fact, the data she quotes is very similar to that used by Carol Smart (see Annex F, contact re children and non-resident fathers). Hunt writes:

“Only a small minority of parents use the law to sort out contact arrangements. A survey by the Office for National Statistics (ONS) found that around 1 in 10 parents had court orders”.

She seems not to notice that if her statement is true, namely that only 10% of parents are involved in court orders, then divorces, which number around 160,000, would result in only 16,000 orders. However, she has already stated that in ‘2002 the courts dealt with 65,192’ contact applications.

If the ONS figure is correct and only 10% of couples needed to apply to court for contact applications/ orders (and therefore approx.10% of children are affected), then the numbers divorcing would have to be in the range of 650,000. This is clearly not possible, or true.  [93] (See ‘High-Conflict and Small Samples’ above).

In the alternative, if the number she cites is dependable and contact arrangements total 65,192 and this reflects the true prevalence, then with the level of divorce at around 160,000 then it is not 10% of couples /children adversely affected but closer to 40%.

This is also the view of most fathers groups. When this data was first issued by the LCD they all thought it too low and dismissed the 10% as a fiction.

Indeed, Hunt concedes the point when she writes that, “Between half and 60% agreed contact between themselves and between a fifth and a third had no agreed arrangements (resident and non-resident parent reports differ).”  Hunt’s ‘between a fifth and a third’ actually means 20% to 33% – in other words 55% to 60% agreed contact between themselves and fathers groups are therefore vindicated when they argue they represent the case for between 40% and 50% of all divorcing couples and their children.

Hunt also points out, but without releasing the implications, another profound deviation and source of error, namely relying purely on reports from resident parents. Experience has shown that data from non-resident sharing the same topic and time etc, can differ significantly. [94]  (See also “Non-Resident Fathers in Britain”, http://robertwhiston.wordpress.com/2008/05/09/8/).

Statistics, be they ONS or Judicial Statistics, rarely agree exactly. For instance, where Hunt cites 65,192 contact arrangements, Margaret Hodge MP (see Hansard 24th May 2004: Column 1318W) puts the figure – in the same year, 2002 – at 61,356 (see Fig B).

The numbers of Residence applications, 30,006 (highlighted), and Contact applications, 61,356 (total approx. 91,300), would appear to indicate that the claim that a majority of couples, i.e. 60%, coming to their ‘own arrangements’ was unlikely. Given that approx. 140,000 couples divorced that year couples coming to their ‘own arrangements must be in the minority (see Fig B, and Annex F).

Table 2.   NB. Contact and Residence applications made under Sect 8 of the Children Act 1989. (Hansard 24th May 2004 : Column 1318W). 

The figures in the Table 2 (below) give the lie to one strand of the official arguments against shared parenting, namely that the Children Act 1989 is premised on, and geared towards, the issuing of “no order” custody orders. Only 1,652 “no orders” were issued in 2002, i.e. a mere 1% of all divorces. 

Joan Hunt also fails to quantify the effect on separating couples of seeing the trends in court decisions with regards custody awards – what politicians are fond of calling “sending a message”. Such messages can only serve to lower the expectations by non-resident fathers towards custody in any form. [95]

It would be unfair to isolate Joan Hunt’s work as singularly myopic, or confusing or to criticise it as lacking in a certain amount of rigour – it is not, some passage are commendable. Its principle Achilles heel is its lack of originality in that it simply follows the standards and current convention of like-minded inquirers that have also published their results.

Sifting through one paper after another, the enquirer soon discovers that across the whole range of apparently independent female researchers there appears a similar reliance on the same data.

As a member of the general public wishing to be accurately informed on the subject this is a worrying development.

The joint paper by Carol Smart, Vanessa May, Amanda Wade and Clare Furniss for the Dept of Constitutional Affairs “Residence and Contact Disputes in Court” is just such a case. [96]

Left: Amanda Wade (Leeds Uni)

Once past the very familiar contact, residence numbers and percentages – and the usual reasons why, therefore, shared parenting is not a good idea – the number of questionnaires returned from the original sample size of 430 is revealed as totalling no more than 112.

Look closer at the methodology and there is no indication that sampling procedure produced 430 random ‘cases’, merely that 430 were examined and absorbed into the survey.

A survey can be either balanced (representational) or random; this appears to be neither. In fact, a sentence is slid in that declares despite the ‘random’ dimension of the sample;  “ The data are skewed towards the high- conflict end of court cases, and are therefore not necessarily representative of what goes on in the majority of cases that go to court.”

Left: Vanessa May

Other obvious shortcomings were:

  • Only 5% of the sample indicated they had shared residence.
  • Over half (52%) of the questionnaires were returned by Residential Parents (PWC)
  • Over half (54%) of the respondents were mothers.

It is not surprising that “A clear majority of the cases (71%) were defined by the respondents [i.e. mothers] as disputes over contact.”  Out of a total of 61 families only 3 fathers had residence and only 2 others had shared parenting (see Table 3). Admittedly this is a small sample, yet even this data prompts women activists to idiotically claim fathers are awarded more custody than women. Table 3 underlines the mirror image of what mother’s versions tend to present to the unwary researcher in this and other fields. [97]

Note how in Table 3 above the numbers interchange between mothers and fathers for Contact parent and Residential parent.  Equal and opposite, i.e. inverse. Incredibly, it is puny studies like this (of 61 families) on which the fate of 1 million children over a 5 year period is determined in court.

The tracking and measurement of ‘high conflict’ families in all these studies is surely obsessive rather than coincidental. Combined with a lack of general rigour the woolly methodology induces a muddying of the waters. Tossing in worries about domestic violence whenever contradictory or ambiguous results threaten the predicted conclusions seems commonplace. For all these reasons the reader might be tempted – to use a popular American phrase – to discount these efforts as so much ‘Junk Science’.

Reliance on questionable data is not confined to custody issues. The pressure exerted by intellectual conformity is a worrying development and can be found in the most innocuous of papers and news reports. For example, Maxine Frith, in an otherwise excellent article about the break-down of family life perhaps depended too much on press releases issued by Whitehall.  Her report entitled “Breaking up is hard to do: Divorce the harsh truth” (Feb 3rd 2006) focused on a series of court cases involving vast settlements awarded to ex-wives.

An unrepresentative minority, yes, but these cases have served to highlight Britain’s growing reputation (regardless of income) as a place to win a generous payout following a marital split. She then went onto state that:

 “Between 1958 and 1969 the divorce rate reached almost 100,000 a year, but yet again, it took the law a long time to catch up with social changes, . . . .”

This is not true. Britain in the 1950s did not have divorce numbers approaching anywhere near 100,000. Below (Table 4) are the official divorce figures provided by parliament to MPs for the Family Law Act 1996 debate. To a public of the 1960s, then still innocent about divorce, the justification for reform was ‘Look how the numbers are increasing – we need the divorce law reformed.’

It is perfectly legitimate to accuse Table 4 of being selective in its use of data over a short span of time. However, it demonstrates that divorce increased in the 1950s and 1960s by 20,000 (from 22,000 to 51,000 but which by today’s standards would hardly merit a comment), and represented a troublesome doubling. This upward trend  masks changes on the judicial front and amendments to legislation, e.g. ‘lump sum’ payments.

If we extend further back, say 10 years to 1948 (see Table 5 below), it reveals the true trend over the longer term and Table 4 cannot be so readily accused of being selective (see Table 5). Note how after the social upheavals of the war, returning troop, extra-marital fertility etc lead very briefly to an unusually high number of divorces (facilitated for 2 years by ‘quickie’ procedures), e.g. 1948, 43,698 and military legal advice and staff (1943 – 45). The post war period of the 1950s actually saw a steady decline (approx. 30%) in divorces from 30,870 to 24,654.

The law is often criticised for being too slow to catch up “with social changes” and occasionally this is true. This line of argument is used to excuse the change reformers introduce. But isn’t the true situation of the 1950s, as seen in Table 4 and 5, the very reverse of that ? Namely that reformers introduced change and change, not surprisingly, then came about.

For at precisely the same time that the numbers of weddings, year on year, were hitting all time highs, divorces were declining and becoming a semi-static statistical fact, reformers decided to urge the law to move in the opposite direction.

 

Destiny Denied

The skewing of results, and data generally, is therefore not uncommon in this field. From the examples given above we can also see how the dissemination of disinformation is put in motion and why government funding plays a key and distorting role.

Nor should we suppose that governments only gets social policy wrong. In the totally unrelated field, for instance, of car exhaust emissions, a system to cut pollution best suited to the ambient temperature of California was, some years ago, adopted for northern Europe.

Nevertheless, it does give us a glimpse into how and why it is de riguere for institutions to vacillate, oscillate, feign empathy while being unsympathetic and generally being non-committal.

We see too that both the skewing of results and dithering is not country-specific and nor is it confined to one specialism, e.g. Adele Horin article (above) is a child psychologist’s ‘take’ on custody.

However, we should not be too harsh on any researcher. We should be charitable and given that concerns about domestic violence pop up in the text unexpectedly, we should work on the assumption that many of these surveys (funded perhaps from the official budgets) might have earmarked the money on the premise that it would include some element of domestic violence (DV) ‘research’.

It is difficult to be persuaded when reading many of these papers. Occasional gems can be found among the clutter and one realises that perhaps researchers may on occasions be forced to keep one eye on the DV element simply because this funds their budget. [98]

In some passages there are nuggets that are unrelated to the core issue of guardianship and custody that can, nonetheless, be profitably exploited to display how guardianship and custody plays out ‘downstream’ and the impact it has on the players.

For instance, the Smart paper for the DCA coins the phrase “parenting contest” which very precisely sums up the dynamics of custody battles. She writes:

“We found that the parenting contest was played for very high stakes with people’s sense of self as a good or decent mother or father being threatened and even damaged” (in residence and contact disputes in court. [99] 

No one reading this article can doubt that the stakes are indeed very high. There is an urge that overwhelms; to somehow ‘prove’ that you are a good parent while the other parent is apparently busily advertising her opponent’s (you) inadequacies or unworthiness. Crucially, Smart et al record (see pages i and ii) that they also found that:-

  • Courts would, generally speaking, not listen to parents’ complaints so their hostility was channelled into the one issue they could take before a judge, namely disputes over the children’s residence and the time they spent with the other parent.[so unreal problems or problems without foundation became real problems].
  • The parenting contest results in wholly destructive ‘do or die’ attempts by one or both parent to ‘prove’ that the other parent is inadequate or unworthy.
  • What parents want from the courts system is certainty [shared parenting would give that]
  • What parents want from the courts system is a fault-based family law system. 
  • What some parents want from the courts system is a recognition of spousal misconduct reflected in the quantum when custody is awarded.

Carol Smart, judged on the above quotes, has matured if not mellowed from her radical days of 1984. She has perhaps exorcised the demons that influenced her views of ‘patriarchal oppression’. For what she is pointing to in the above passages is that pre or out-of-court agreements/plans stand more chance of returning a couple to equilibrium (a fault-based family law system, however, will not fly with the present mindset of the judiciary).

Left:  Ms. Joan Hunt, qualified as a Social Worker before entering academic life in 1985 as a researcher in the Socio-Legal Centre for Family Studies at the University of Bristol.

Despite these conciliatory crumbs there remains across the broad sweep that is the world body of published evidence, very glaring (and damaging) inconsistencies. 

To understand some of the characters in this unfolding tragedy  it is worth noting that Joan Hunt initially qualified and practised as a social worker. It was only in 1985 that she branched out into an academic life as a family researcher (see Socio-Legal Centre for Family Studies, University of Bristol).

Not least among these – and given her privileged capacity to access data – is Joan Hunt’s insistence that:

Examination of the whole body of international research tends to show that it is the nature and quality of parenting by the contact parent that is crucial, not contact in itself: [100]  

Taken to its extreme, this logic would dictate that in any 12 months period it would be considered more than adequate for a father to have one weekend of unsurpassed joy with his child than to permit him 35 weekends of mediocre or average happiness.

Left:  Ceridwen Roberts

Why does Joan Hunt and her co-author, Ceridwen Roberts, not reverse genders to ensure their reasoning makes sense ? How politically explosive would it be if she were to apply the same reasoning to mothers ?

She can’t – and won’t – reverse genders because it makes a nonsense of her custody assertions and a prime example of gender racism.

This is in marked contrast to the government’s policy that sees This focus on fathers” as a “recognition of the significant influence their presence or absence from children’s lives has on child and family outcomes.” [101]

Left: Mavis Maclean (she began her research work in 1974 and since about 1997 has worked closely with John Eekelaar)

Hunt and Ceridwen Roberts allow themselves to quote or be swayed by the conclusions and opinions of feminist authors which immediately brings them into conflict with credible research work from non-feminists, e.g. Bauserman study. Below are three illustrations that are not borne out, or are countered by, credible studies. They contain grudging acceptance that fathers can sometimes play a role:-

1. “The mere presence of fathers is not enough … To the extent that men remain involved in parenting after separation, or assume parenting practices they have not done before, they have a positive influence. As in intact families, the most effective way they can parent is by providing authoritative parenting … It is these aspects of parenting, encompassing monitoring, encouragement, love and warmth, that are consistently linked with … well-being (Pryor and Rodgers, 2001), (see page 3).

This statement is astonishing and at odds with many modern studies that conclude that “the mere presence of fathers” is enough to have measureable beneficial effects.

2. Nor is even good contact likely to be the most significant factor affecting children’s overall welfare: the care provided by the resident parent and the financial position of that household are the major influences (Hunt, 2003). This does not mean that the policy of promoting contact is mistaken. (page 3).

Here Hunt reveals the true agenda – ‘good contact’ is one of the most significant factor affecting children’s overall welfare. But it is money, the financial position of the resident parent that most interests her and which she seeks to reinforce by erroneous conclusions.

3. A simple question to which it is hard to give a definitive answer. It depends on which study is relied on, what is being measured, and who is asked: resident mothers typically report less contact than non-resident fathers; formerly married parents have more contact than ex-cohabitants or those who have never lived together (Maclean and Eekelaar, 1997), (p 3).

This phenomenon, i.e. of mothers always understating the father’s engagement, is recorded and explained in the University of York interim report (see ‘Non-Resident Fathers in Britain’ http://robertwhiston.wordpress.com/2008/05/09/8/).

The third example uses a citation from work by Mavis Maclean and John Eekelaar in 1997 (neither are friends of fathers or the Father’ Movement) signals when a change – a realisation – took place with regard the accuracy of the data they had been using.

Left: John Eekelaar

Maclean and Eekelaar have collaborated on many papers over a good many years (circa 10 years). Maclean’s career began in 1974 and by the time of the debate  leading up to ill-fated Family Law Act 1996 was an established force for negativism.

By 1997 it must have become clear that results were compromised by the biased/non-honest answer of those they had questioned. At about this time (March 1997) Jonathan Bradshaw’s team at the University of York noted irreconcilable difference in responses from resident mothers and non-resident fathers with regard duration and frequency of contact visits etc. [102] (See ‘Non-Resident Fathers in Britain’,  abridged Interim Report http://robertwhiston.wordpress.com/2008/05/09/8/ )

In a paper titled “Child contact with non-resident parents”, Hunt and Ceridwen Roberts note: [103]

”Some resident parents argue that their concerns about the non-resident parent, particularly about domestic violence, child abuse and abduction, are not sufficiently taken into account.

This is difficult to believe given the pressure and influence exerted every week on judges at all levels and, given that the sample revealed violence in only a minority of cases. Since judges have the ‘paramountcy principle’ at the forefront of their minds this accusation is difficult to square.

However, the accusation does fit neatly into the strategy and ambitions of the domestic abuse industry.

Too late to limit the damage done, only later in their report do the authors’ hint that women’s comments about partner violence (see above) were, in most instances, probably unfounded.

The Hunt & Roberts paper goes on to suggest that a strengthening of the law, with regard compliance with UN and European Convention on Human Rights., vis-à-vis the welfare/rights of children and its parent, i.e. fathers, “would be welcomed by groups representing non-resident parents (NRP).

They express concerns that what is reported to have happened in Australia, could result in the safety and well-being of children – and their resident parent – being compromised (Rhoades, 2002).”

Hunt & Roberts do not identify which of the two Rhoades’ 2002 papers they are referring. One was titled “The Rise and Rise of Shared Parenting Laws – A Critical Reflection”, (2002) 19 Canadian Journal of Family Law, 75-113, and the other 2002 paper was entitled, “The ‘No-Contact Mother’: Reconstructions of Motherhood in the Era of the ‘New Father’” (2002) published in International Journal of Law Policy and the Family, 71-94.

Notwithstanding that abstract point, female scholars once again attempt to trump change with the threat of possibly compromising a child’s safety and well-being. This has been a recurring theme on all the few Whitehall committees men have been allowed to join. The spectre is used as a veto to any progress towards more involvement by fathers and a more equal society. Activist groups have used this for over 5 years to make erroneous and outrageous allegations, e.g. Women’s Aid.

They were told their figures were wrong by some within the Fathers Movement. The LCD staff told them they were false, and finally in a special report by Lord Justice Wall demolished their argument.

Taken in conjunction with NSPCC child homicide figures, Wall inadvertently pointed to women as the most likely perpetrator of child abuse and child homicide.

There is an undeclared urgency to shift custody from a stand alone subject within the ambit of women’s rights, to one that falls under the thrall of domestic violence – where success has been spectacular and well funded by government in recent years.

For members of the public not affected by divorce or custody worries, the issues raised here could be discounted as an over-reaction. Yet that view should be tempered with an appreciation of a parallel society that gives rise to unhealthy information and the production of divisive books and ideologically negative literature. Any discounting should be set against a cultural background that sees nothing wrong with “A Feminist Family Agenda: Putting the Mother Back into Sole Parenting” (by Elizabeth Branigan, & Shannon Keebaugh).

Another is example is “Implacably Hostile or Appropriately Protective?: Women Managing Child Contact in the Context of Domestic Violence” by Christine Harrison, University of Warwick, which can be found on sale and on the web in the USA and Australia. Hundreds of similar messages appear every year in pamphlets, websites, college tutorials and books.

Some articles appear to break ranks but the promise is short-lived as they quickly sink into regurgitating the expected patois. In the quote below where contact is enforced (echoing earlier instances we have cited of ‘enforced’ shared parenting) we soon learn that no reliable conclusions can be drawn in such an environment. Helen Rhoades, [104] (University of Melbourne) describes the arc of her works as: 

“ ….. examines the production of new narratives of ‘selfish motherhood’ in family law, in the context of disputes about parent-child contact after separation. In the first section, I draw on my empirical research of contact enforcement litigation to tease out the contradictions and gaps between the dominant, or ‘stock’, stories of contact disputes, and some ‘counter’ stories that have emerged from the study.

The second part of the article looks at the ways in which recent shared parenting reforms have combined with particular features of the Australian family law system to create a new classification of ‘bad’ parent – the ‘no-contact mother’. The analysis focuses on the constraining effects of this reconstruction upon women who raise concerns about a father’s capacity to care for the children.” – International Journal of Law, Policy and the Family, 2002.  [105]

Indeed, it is the alleged ‘safety and well-being of children and the resident parent’ that has added another layer of the resistance encountered by fathers. To this charge Hunt also puts the counter point:

“Are adults ready to take children seriously ? Research suggests that professionals and parents are struggling to adjust to the new concepts of children as citizens, with rights to have their views taken into account (Lowe and Murch, 2001). This may be particularly apposite in the context of contact where, some argue, children who say they want contact are taken seriously, those who refuse, are not (Smart et al, 2001), and even where there are safety issues (Saunders, 2003).”

This is a valid point. If the paramountcy principle is to be overturned and the yardstick of Human Rights adopted in its place (which will recognise the rights of both the parents and the child) there will be occasions where a child’s preference will emotionally hurt one of the parents. Men have had to cope with this problem for 30 years so it will be women who will find the new experience painful.

The growing disquiet in the academic world that the paramountcy principle may not be in tune with society and may even be obsolete or counter-productive e is a real breakthrough for the fathers’ movement. It has lead to a flurry of papers and articles. The reverberations of such a crisis in confidence will be dealt with in another article.

Joan Hunt‘s answer, in true civil service tradition, is to defer making a decision that might prove her wrong. More research rather than deciding to make a change is her preference which would, in terms of time, not pose a threat to her successfully acquiring her retirement pension. Publicly she states that we need to establish where the balance of advantage lies in families that fall between these two extremes of ‘low’ versus ‘high conflict’.

Who really cares ?  Isn’t it  purely ‘academic’ – the number of ‘high conflict’ families is minute ?

Haven’t we already had enough research ? Years ago the men’s movement accepted that 5% of couples would, for numerous reasons, prove problematical. This was a view shared by senior management inside CAFCASS  (2002).  Their caseload contained what they termed “intractable problem families” and also put at 5% (i.e. 20% of the 20%).

Better by far that we delay no longer and act for the 95%. We need no new legislation but the new freedom to think using what we already know. Our programme for change needs to ask:

  1. Why should the 95% of the population of ‘good enough’ parents have to wait on the 5% of trouble-making families ?
  2.  Why can’t there be a two tier system with one tier rewarding those who compromise, plan and work together for the good of their children ?
  3. Shouldn’t researchers declare their financial and careerist interests ?

Alternative policies and programmes for reform abound. In a variety of formats and in a host of specific arenas and all are available to government. There is no dearth, no shortage, no insurmountable barrier to change which is how the situation is often portrayed.

Many if not all the alternatives are immediately workable because they are based on, or are hybrids of, existing solutions that work (unlike the CSA genre of policy). Many man-years have been spent by dedicated teams analysing and searching the world for paradigms that work. All of them would   command respect and would positively affected 80% of their target market within 12 months.

The real problem is that government chooses to be deaf.

Take one example; a very modest but exceedingly detailed and viable initiative was created by Oliver Cyriax in 2004. Using his legal training he cautiously defined the problem at the core of ‘contact’, namely that no ‘quantum’, i.e. amount of time, was defined as fair and reasonable in the CA 1989.

With no guarantee of ‘quantum’, fathers could not be rewarded and could not be incentivised to join in any post- divorce co-operation in regards custody. The lack of a quantum had a negative effect on mothers – they had no incentive, and no minimum or maximum target. All the options open to a court were measures to dis-incentivise both fathers and mothers.

Lord Filkin and the civil servants surrounding him, were most enthusiastic of the Cyriax plan – at first. Cyriax’s plan, though not radical enough for fathers groups, nonetheless won their backing – they expected government to respond favourably to what was in effect little more than a change of words and emphasis.

The workable proposal, the “Early Intervention” Project (E.I) was submitted and accepted and by Lord Filkin. With that agreement in place New Approaches to Contact’ (NATC), a more refined, slightly more comprehensive model was developed with input from lawyers, judges and members of the Coalition for Equal Parenting. But at the 11th hour (29th April 2004) the promise of immediate implementation vanished (see Annex G).

Without warning the whole project was handed over to ‘a design team’ recruited from CAFCASS and DfES (Department for Education and Skills).

Despite assurances that the new ‘Family Resolutions’ was the same article, merely re-named, it was obvious to the NATC group that it was a very different beast.

CAFCASS and DfES subsequently trialled it in a few choice areas they had selected. It failed miserably for the reasons predicted by the author of the original EI project. [106]

The institutions, CAFCASS and DfES, and the feminist academics involved, e.g. Mavis Maclean, lacked modern thinking and the detailed knowledge of why contact arrangements fail. Family Resolutions’ sank, never to be resurrected.

Although it can be said to have failed, in developing the EI project it was realised that the doctrine and process of treating each custody arrangement as unique, and that ‘every case is different’, was in effect preventing custody from ever working.

Mavis Maclean’s ‘Family Resolutions’ was the very antithesis and therefore had no room to allow for progress. (Annex G contains a fuller account of the ‘Filkin-Maclean EI’ debacle)

Mythology of the Children Act 1989

The Children Act 1989 has achieved near mythical status. It is quoted by all parties, often wrongly, who despite this handicap of semi-ignorance of what the Act conveys are left free to operate as if competent. The two opposing sides have not only very different interpretations of the Act’s intent but also have different interpretations of the wording.

However, a dispassionate examination of the Act reveals that it is not so much directed at assisting divorcing couples (termed ‘private law’ cases) as guiding local authorities through a maze of duties they have for custody (termed ‘public law’ cases). Indeed, local authorities have obligations under the Act not only toward orphans but all children judged at risk or in a vulnerable position.

The Act contains 12 ‘Parts’; each Part contains many sections, clauses and sub-clauses. In addition, there are 15 Schedules each containing many more sections. Critically, and some would find this surprising, only Part 1 focuses on private law, i.e. divorcing parents. Thereafter, private law is touched upon only in passing in other Parts and Schedules, e.g.  Schedules 14 and 15. A rule of thumb estimate would be 95% of the Act is devoted to public law and 5% to private law.

The entire Act can be accessed at : –http://www.opsi.gov.uk/acts/acts1989/Ukpga_19890041_en_1.

One of the oddities of the Act must be where it states that when a father is deemed a parent and to have parental responsibility:

‘Where the courts grant a residence order and where the two parents both have parental responsibility of the child, then that residence order ceases to exist when the parents live together for a continuous period of more than 6 months’. (see CA 1989, 5a and 5b).

It would appear that custody has been replaced by ‘parental responsibility’. Confusingly, unmarried or separated parents are not allowed a residence order and parental responsibility if they later live together for more than 6 months. Whether the non-married father acquires or continues to enjoy parental responsibility, i.e. custody, is an unanswered question.

This is odd given that in former times every unmarried women had full guardianship rights of their illegitimate children but now after the 1989 Act these are lost and replaced with the fuzzy term parental responsibility. Equally, married fathers are no better off; they have lost their guardianship rights and have only parental responsibility to chose whether they be marred, divorce or cohabiting (and even that can be denied them if divorced or cohabiting).

It should come as no surprise that the 1989 Act is geared towards ‘public law’, given the Cleveland child abuse scandal of the previous year (at the subsequent Official Inquiry chaired by Butler-Sloss, the allegations of sexual abuse of 121 children could not be substantiated). [107]

The history leading up to the Children Act 1989 is seen very differently by those opposed to shared parenting and those who promote shared parenting and joint custody (many of the former were still pupils receiving their formal education in 1989, unlike many of the second group).

Prior to the 1989 Act the facts, as acknowledged by the Law Commission and paraphrased here were:-

Joint custody was a feature common in the Midlands and South of England. Upwards of 55% of all awards were joint custody, [ i.e. shared parenting ]. Only in the North did this level taper off and ‘sole mother custody’ begins to predominate. – Law Commission Report No 96, 1985, research supplement to working paper, page 90.

An overview of Law Commission Report No 96 and its conclusions can be found at “Twenty Wasted Years http://robertwhiston.wordpress.com/ , and “Eliminating Shared Parenting Children Act 1989, http://robertwhiston.wordpress.com/2008/06/27/11/ .

The academic world and the anti-shared parenting lobby hold that prior to the introduction of the Children Act 1989 there was a great deal of hostility between separating parents. They believe that legal procedures and legal terminology, probably confused parents and contributed to that overall hostility. Law Commission Report No 96, or the Supplementary Working Papers, is never cited.

Allegedly, one of the key reasons why the terms ‘custody’ and ‘access’ were removed from English divorce law was because the adversarial attitude promoted during divorce and this inevitably lead to a contest between parents. To paraphrase Hayes & Williams (1999), it was felt that the terms ‘custody’ and ‘access’ in themselves suggested that one parent had ‘won’ the children and the other had ‘lost’ them. The work of Hayes & Williams is cited in “Residence and Contact Disputes in Court”, Vol 1 & 2. (University of Leeds, Leeds, 2004), undertaken by Smart, May, Wade, & Furniss, as part of the DCA programme of research and is cited elsewhere in other papers.

Had Hayes & Williams embraced the shared parenting model or the joint custody regime of 10 years earlier they would have seen how shallow was their conclusion about winners and losers.

This strikes at the viability of such papers. The need of subsequent ‘researchers’ to repeat citations from the same menu of papers/studies limits credibility and authority. The gain, however, is that it can then be claimed that ‘a body of knowledge’ has been built up all pointing in one direction.

The misguided hope in 1989 was that by using different words parents could be cajoled into feeling better about what was happening to them, i.e. they weren’t losing custody but gaining parental responsibility.

If the term ‘custody’ was deleted (as was guardianship), and it no longer had a legal status, and replaced by parental responsibility then there is no need to award ‘custody’ to one parent or the other. Problem solved ! At a stroke this would quench the fire of custody battles. Without the elements that fuelled the fire, so it was complacently reasoned, custody battles become a thing of the past.

If the anti-shared parenting lobby adopted their attitude for these sincerely held reasons they must today re-assess their position as very wrongheaded. Society must firmly point out to such reformers that their naivety and misplaced optimism was induced in no small measure by not thinking through matters.

The counter arguments can be simply and quickly put as (in reverse order):-

1.       Abolishing the term ‘custody’ without replacing it with an equivalent or realising it would impinge on guardianship, and much more, was slovenly thinking.

2.       Sole mother custody has replaced joint custody as the favoured judicial award and the alternative ‘win-win’ situation for both parents is further away than ever.

3.       Abolishing the term ‘custody’ without realising that joint custody was not only possible but already hugely successfully and widely implemented, was a grave ‘miscalculation’.

4.       Abolishing the term ‘custody’ without realising that it was a phrase well understood by the public was an act of intellectual vandalism.

5.       Abolishing the term ‘access’ and replacing it with contact, or ‘zoo time’, improves nothing and changes nothing. If anything contact is a more distant term than access.

6.       Legal procedures have not changed and the whole process is still adversarial and fraught.

7.       The hostility between separating parents remains. The reformers have failed to reform what they said they would reform.

If Hunt and other colleagues believe, as they state, that; “ …. the Children Act was also a call to parents to rise above whatever distress or anger” they might be feeling then they badly misjudged the dynamics of families and separation.

They have not accurately measured or made allowance for the frustration of dealing with seemingly systemic bias built-in at every level. They should not have assumed that all solicitors would assume the role of a pro bono, i.e. honest broker.

Divorce and custody are inherently adversarial; the best one can do is attenuate any clashes not by more or shorter combats periods but by smarter management.

Not having experienced the rigours and strictures of divorce leaves too many academics untutored as to the full sense of impotency that can overwhelm parents (see Smart’s faintly surprised findings in ‘Destiny Denied‘, above).  Female academics are further disadvantaged in that many have they not married or, if the have, have not divorced. Additionally, as females, should they decide to divorce they are never going to face the problems faced by fathers and the torments outlined in this paper.

It is therefore refreshing that Scott Altman, professor at USC Law, does not tread exactly the same path as most academics.

Right: Scott Altman

At first glance Scott Altman, professor at USC Law, makes some seemingly tangential remarks but they prove piercing and pertinent.[108] 

Firstly, Altman believes that divorce might constitute a breach a duty to protect children from harm and to provide them with a stable home. That duty comes not just from the law but at the deeper more important level of blood ties, morality maturity and culture. He is not fashionable in that he is prepared to be ‘judgemental’ in a world awash with advocates insisting non-jugdmentalism (i.e. moral relativism) is the only acceptable way of discussing social ills. The inference that might be drawn is that since mothers apply for 80% of all divorces those mothers shouldn’t be granted automatic custody because they have breached their social duty something that is more often termed today a breach of trust.

He is against child welfare taking precedence over parents’ entitlements at divorce, i.e. against the paramountcy principle.

Those that advocate paramountcy, such as the late Lord Justice Roger Ormrod, who also epitomised the judicial stance, always assume parents to be guilty of some wrongdoing somewhere along the line. His colleague, Robin Dunn, describes this assumption in legal circles as the maxim that, “Its takes three to commit adultery”, namely the cuckolded husband is assumed to be as equally culpable as the other two transgressing parties.

Scott Altman finds as quite implausible, the argument that parents cannot expect to takes precedence over their children’s rights because their earlier (presumed) guilt / wrongdoing would demand further sacrifices of the process victims, i.e. the children.

Denying a tangible right to be with one’s child because of some ‘imagined’ guilt, conceived inside a legal fiction, lacks any persuasiveness.

Should Child Custody Rules be Fair” states the blindingly obvious (but always ignored), namely the jurisprudence aspect that insists upon the right of the accused (in this case the parent) to ‘due process’ and of ‘equal treatment before the law’. These tenets are immediately and utterly violated as soon as the family courts swings into action re: the rules of custody.

Altman extends his pro-judgemental views by asking whether it is fair for less blameworthy spouses to give up his or her claims to justice ? In some instances both spouses can be said to be equally guilty of causing the rift – but is that the majority ? Altman believes that divorcing spouses are not always equally responsible for an unhappy relationship.

Additionally, he finds that no value is attached to those spouses and parents “who strive but fail to save their marriage” and who therefore can be adjudged not in violation of their duty of care towards the children. This violates the first principles of any cogent legal system.

The views he expresses chime with much of the work and the conclusions reached by the Father’s Movement.

Why must we always have to assume that children’s and parents views are mutually exclusive ? Why can’t the debate begin by acknowledging that children’s interests and fairness to both parents can coincide – and more to the point, can be made to coincide for more couples by being even-handed ?

The Intellectual Deficit

As one by one the obstacles to shared parenting have been overcome, each one seemingly to answer the last remaining reservation, opponents have conjured up yet new ones.

One of the more recent is the somewhat bogus and disingenuous claim of wanting to reassess the safety of the child.

The profoundest change in the past 30 years has been the tussle over the amount of (contact) time with children after a divorce. This has replaced custody as the new battleground as custody has slipped to 95% in favour of mothers. [109]  Essentially the same battle is being fought by the same parties but in another place and under another name.

In essence fault-based divorce and custody were yesterday’s battles. The law has changed and forced fathers to change but why does that mean that the ‘innocent party’ still has to loose so completely ?

The double bind is that divorce, by definition, involves male and female protagonists in an atmosphere of public expectation and everywhere political rhetoric must be seen to uphold the guarantee of gender equality. Until very recently custody disputes were seen as a straightforward male/female gender equality issues. Since 2004 heterosexual men and women no longer have the monopoly of custody battles. Translated into plain English, the gender equality issue was the cause taken up by women activists to keep mothers in the driving seat and custody within their jurisdiction (and out of the hands of ordinary fathers who wanted to spend time with their children). Homosexual ‘rights’ to child adoption puts the existing  an unenviable position when separation occurs. Where will the bias be seen bewtwen two of the same sex ?

Which side of the fence will be better served by the judiciary in future custody awards, lesbian couples or homosexual couples, is still unclear. One group – or possibly both – will sooner or later become dissatisfied with the trend they see and it is at that point that the Father’s Movement (for political advantage) should consider joining with them to push for change.

Compared to its predecessor, No-Fault based divorce excludes the concept of fault and precludes any legal inquiry into guilty or gross misconduct. The rationale of such a regime is that henceforth the    resulting hardships of divorce should be borne equally but separately by the two parties.

Whereas considerations of “the vulnerable spouse” concept excused judicial misconduct in the pre-1969 era, it’s equal and opposite replacement is child safety. This is not a new consideration or concern – it predates World War II, but it has been given a new lease of life.

To pretend that this dimension had never been properly considered before by the courts is utterly false (Law Commission Report No 96,  and “Twenty Wasted Yearshttp://robertwhiston.wordpress.com/ ).

This was at the heart of the opposition’s case during the deliberations of the various PSA-8 committees and why its remit, i.e. to increase contact between fathers and children, was ultimately destined to fail.

When child safety is not available as the feigned excuse to slow progress the equally formidable danger of imagined or potential domestic violence risk to parents with residence, i.e. mothers, is used.

It is an ‘inconvenient truth’ that children are safest from harm when they live with their fathers and more at risk of homicide and abuse when they live solely with their mothers. [110]

Among opponents of shared parenting there is a belief that it increases the danger of actual child abuse. Evidence that it is diminished is rejected. The penny does not appear to have dropped that one of the by-products that helps explain this outcome is that with more contact/visits there is less, not more, to fight about and with an equitable share of time far less reason for conflict to arise.

Or has the penny already dropped and it has been calculated that it will put them in an invidious position if child abuse and homicides figures should suddenly be shown to fall ?

Much is occasionally conceded, albeit obliquely, as the quotes below from the texts of some studies by feminist authors demonstrate. It can be fleetingly glimpsed in the text, but one fears it is always there accidentally or for the wrong reasons. Occasionally the experience of fathers groups coincides with feminist researchers. For instance, both sides agree that real or imagined hostility leads to unnecessary situations:

Courts would, generally speaking, not listen to parents’ complaints so their hostility was channelled into the one issue they could take before a judge, namely disputes over the children’s residence and the time they spent with the other parent. [111]

This observation suggests that privately hostile parents acknowledged that there were no real problems and/or that the stated problems were not that insurmountable.

Were courts to specify parental time by duration and enforce and endorse a voluntary Parenting Plans by sanctions or custody reversal for breaches, a more harmonious coexistence after divorce could be expected to develop. But while courts maintain the charade that they have no such powers, conflicts will erupt between the parties. (See Dipper v Dipper case 1981, Ormrod above).

The study  “Residence and Contact Disputes in Court” (Volume 2), by Smart & Wade is surprising and welcome in that it is by far the most insightful for a number of reasons, though its authors may not care to acknowledge how useful it is to fathers groups. Itemised below are some of the more worthy and helpful observations:

  1. As we saw in an earlier chapter, divorcing parents often channel their hostility into the one issue they can take before a judge in the hope of ending the bickering. The bickering is often about custody and or the quantum and frequency of contact.
  2. One or both parents, but usually it is one, can sometimes not get over the matrimonial betrayal and residual bitterness can persist.
  3. That one parent then use the children to spite the other when this bitterness or resentment spills over into recriminations.
  4. Recriminations can lead to the making of false allegations of abuse or misconduct with a view to exerting a level of control she, or he, enjoyed while they were married to each other.

Smart & Wade make it clear they are not suggesting that parents fabricated stories but fathers groups can vouch for the fact that this routinely occurs.

Smart & Wade’s “Residence and Contact Disputes in Court” found that a common complaint was that having gone through the whole system, attended court, appeared before a judge etc, the final order was a ‘standard’ or formulaic one, meaning that the father got alternate weekends with a Wednesday night award..

Smart & Wade make the observation, and it is one echoed by fathers groups, that parents felt they had “earned” a more tailored order that would better fit with their children’s specific needs.

In other words parents wanted an ‘individualised solution’ – something that only shared parenting can give parents through the introduction of a Parenting Plan.

Concessions by Joan Hunt also point to the same area and to her credit she lists more, including:-

  1. typically women get residence and thereafter control the father’s future involvement
  2. that although legal remedies may be available, fathers are discouraged by costs; deterred by legal advice about the prospects of success and disadvantaged by having to represent themselves against a legally-aided mother.
  3. court orders provide for insufficient meaningful contact; courts are too ready to limit contact.
  4. mothers can easily flout court orders; courts do not act decisively to ensure compliance.

We cannot draw comfort let alone be jubilant at what might be only throw incidental remarks. If the authors do not mean them to be acted upon we cannot excuse or rationalise their misinformation.

The price a democratic society pays for the vain and inept judgements of individuals and the clumsy choices of institutions is no different from the price society pays living under the heel of a totalitarian regime, be it Fascist or Marxist.

Adherents to rigid ideologies and fanatical fringe thinking exact human misery on biblical proportions for the rest of society. Academia could be said to be gripped by a conformist Khmer Rouge mentality.

There can be no doubt that the sum of human happiness today. irrespective of the direction one looks has markedly declined since 1969 and on every scale one can imagine.

We have been ‘conned’ into thinking that we all have equal rights and have been ‘tricked’ into believing that somehow that makes us all equal with one another. Nothing could be further from the truth. A new category of people cannot be given the same set of rights and not expect the rights of those who previously enjoyed them exclusively to be unaffected.

We began this paper by asking why a simple sentence in a piece of legislation that had abruptly rendered fathers obsolete had been firstly included and secondly not removed. [112]

We then discussed the contemporary legal thinking of the time that brought this clause into existence. The possible reasons why government felt compelled to remove the guardian status of fathers were also outlined. The government’s extraordinary behaviour in defending its position since is itemised in some detail in separate papers including (‘Twenty Wasted Years’ and ‘Eliminating Shared Parenting -Children Act 1989’).

At the beginning we also asked why most of the best placed people, i.e. academics, civil servants and the legal profession, seemed either not to know of this clause or dismissed it as an irrelevance. The public who have not been up close and personal with civil servants cannot be expected to know that the civil service rarely manages and barely steers events. To some of us, who have seen how they operate and the calibre of staff involved, see it as something of a mystery that anything ever gets done.

What cannot be emphasised enough is the systemic involvement of academia in both guiding the civil service and influencing an easily impressed judiciary. Is there some force that the fathers’ movement is unaware of that inadvertently disarms fathers in their push for reform was a question which can now be answered. The reason why obstacles forever strewn across their path is the role and power of academia in setting policy. It pervades the civil service and judiciary but crucially it acts as a legitimising force for policy and has expanded in width, depth, and sheer quantity since the 1960s.

Reference has already been made to a selection of researchers (above) at universities but they are by no means unique. [113] Their style and research endeavours, applications for grant funding etc, are multiplied a hundred fold across Britain. If researchers who make up this academic commissariat  acknowledge fathers and intend to influence their lives, then fathers should be more informed about these forces of darkness, their ambitions and their plans for change.

No society cannot expect to survive and prosper without a vigorous and vibrant intelligentsia prepared to input for the common good. The intelligentsia of the 1930s and 1940s made a lasting impression and was still influential into the 1950s. It set in motion the welfare state, NATO, EEC and much else.

In the politically dark decade of the 1930s there were at least two competing schools of thinking and each had what they thought were the best interests of the people at heart.  We have been singularly unfortunate for the last 40 years in having what is essentially a monoculture.

The Cold War did not allow for two competing ideologies to cohabit within nations – states had to choose one or the other. The intelligentsia became constrained; was not readily identifiable, robust or sovereign. The political activists produced in the 1960s had, by the 1980s, in the main become respectable citizens and civic leaders, e.g. former Pres. Bill Clinton. All that remains today in the consciousness is the sterile Existentialism propounded in the 1930s and reworked in the late 1940s

The upshot is that today (2008), there is an absence of intellectual competition; there is a lack of two or more competing ideologies and consequentially an overwhelming sense of dumbing down (See “All Shall Have Prizes”, 1996 and “The Closing of the American Mind”, 1987). The only vigorous examinations undertaken of current affairs today are not by those with diametrically opposed views but by those who already share the same values and have the funding to express hair splitting views with their colleagues. With no funding available, all other voices are elbowed aside.

We thereby arrive, by default, at a society which nourishes not just intellectual dwarfism but provides sustenance for seats of learning where delinquent intellectuals distort government polices.

“Rights” have unremittingly been bestowed on perceived minorities for 30 years without a thought being given to the consequences. Privilege may accompany rights, but rights demand responsibility.

Increased rights for one sector or class cannot but directly and proportionately affect another sector or class. For example, votes for the working man and universal suffrage benefited the mass of people who had till then been disenfranchised but affected, if only by dilution, the impact and influence of the rights of those who had always had those rights. More recently the right to abort adversely affects men’s rights and another sector might see the unborn child’s rights compromised. The same can be said of civic unions diluting the exclusivity of heterosexual marriage.

Adrienne Burgess organised an informal meeting of all the leading Men’s Rights figures at the IPPR (Institute for Public Policy Research, London), in April 1998, the position of men and fathers was put to her in these terms:

  • Every social policy has its own individual and inherent costs. Recent decades have seen the emergence of what is termed “paving” legislation. This characteristic means that change becomes incremental – almost imperceptible – and virtually inevitable.
  • However, put together and over time they are very effective. Current social policies are detaching men from their families. This appears to be a deliberate and conscious choice made on our behalf. If we accept that men are, or soon will be, totally de-coupled from their children and society, then we must ask “Where is the gain; where is the benefit ?”
  • If there is no obvious answer then we must ask “Who else stands to gain or benefit ?”
  • The State is replacing men as husband, protectors, breadwinner, family financier and his role of fathering and caring for his children.  Social Security enables women to marry the state which provides the relevant roles previously played by men.

The incremental process of eroding the pre-existing rights found in almost every sector of society has been allowed to build up a momentum all of its own. The decision 10 years later by David Davis MP, to stand for re-election as a protest against encroaching terrorist legislation and loss of civil rights is but one example of a trend recognised in 1998.In the process it has not been uncommon for the language of liberty and freedom to become twisted out of all recognition.

The trump card played by all reforming and minority groups is ‘equality’. Under this flag ‘all’ they ask is for society to treat all parties to the same as everyone else – but it is in the getting of this ‘equality’ they achieve a privileged position. Columnist, Melanie Phillips describes this form of equality as “another debasement of the language”:[114]

“Equality once meant the equal worth of persons expressed through fellowship, shared experience and mutual respect. Now it has come to mean instead identical material ends and outcomes. Yet people are not identical. Their behaviour and circumstances are very different from each other. To treat them as identical may therefore be unfair or harmful.”

She is of the view that there is a widespread culture in Britain that permits rights to be elevated as if absolute entitlement, regardless of the consequences upon others. Tolerance in these circumstances suddenly becomes ‘non-negotiable’. A leading British political philosopher, John Gray, believes that far from creating tolerance, demands by “splinter groups” are likely to lead to more intolerance since the mind-set permits only victory or surrender, compromise is not an option. [115]

Religions were once pilloried for being dogmatic, out of touch, and altogether too rigid. It was seen as the overbearing force constraining the human condition. Five hundred years ago religions could be rightly accused of lacking tolerance, of suppressing, but also inadvertently creating innovating “splinter groups” e.g. Plymouth Brethren pilgrims create Massachusetts. Today, this overbearing role has been supplanted by a new form of militant secularism – state secularism. It is this secularism that flexes its muscles with righteous indignation at the sight of the spiritual and the honourable.

There is now a culture intolerant of any view that challenges its supremacist position. It sees nothing wrong with foisting its views onto those who hold diametrically opposed views. Hypercritically, it embraces ‘diversity’ but does not value divergent beliefs and indeed has a visceral hatred of them.

The recent example of forcing Catholic Adoption agencies to provide homosexuals couples with babies to adopt, something the church abhors, is a case in point.

A much more recent example (June 2008) is the possible approval of women to become bishops in the Church of England. One can predict that this has nothing to do with women – they are used as a smoke screen – and everything to do with masking the next stage which will be lesbian and homosexual at the next Synod demanding to also become bishops, in the name, not of the Father, but equality. That has been the homosexual pattern of behaviour and advancement since the mid 1970s.

The Classical interpretation of liberty and freedom, born of ancient Greece and born again in the age of ‘The Enlightenment’ is not the version we enjoy today but a twisted and unrecognisable one.

Today’s deformed Enlightenment is a creature known as “Authoritarian Liberalism.” It is liberty and freedom brought into action by a secularist fatwah.

Conclusion

Into this maelstrom of political sniping, gamesmanship and jockeying for position, stumble fathers simply looking for a fair deal. Fathers find themselves caught in the crossfire of Depts. and NGOs self-interests who are competing to preserve their position. The message fathers’ bear for change is effectively obliterated. Without realising it a father apartheid society is generated.

Putting it more unkindly, fathers simply do not figure in the political commissariat or the academic commissariat; fathers  are ‘non-persons’, fathers are simply cannon fodder. There to be legislated against.

If we accept that in matters of divorce and custody, behaviour and circumstances in individual cases can be very different from each other then we must accept that to treat each case as unique is not practicable.

A forensic examination of each case, however satisfying it might prove to be for the self-esteem of each of the parties – and worthy in terms of justice – is simply not viable in terms of hours in the day, the quantity of cases and the sheer expense involved were enough courts and judges to be found.

This was the clinching argument used in 1946 for the temporary introduction of ‘quick procedure’ divorces as troops came home to compromised marriages. The sheer quantity argument was again used successfully to bring about the implementation of No-Fault divorce. How ironic, therefore, that the very opposite (that we do have enough courts and judges) is argued today and that each chid custody case is unique and worthy of being examined forensically ? 

Put into today’s  “reformist speke”, divorce in 1969 had to be brought up to-date by introducing ‘no-fault’ – the law was old and needed to be replaced. Since 1997 this has been the favourite ploy of government ‘spin doctors’ whenever legal changes were contemplated, followed by assurances that the law can be brought up to-date by bringing the regulations in question, quote, “ into the 21st century”.

In actuality, that solves nothing. If policy was wrongheaded in the 20th century there is no reason to suppose the same people devising policy will get it right in the 21st ?

For a solution that is viable we must turn to shared parenting and define the quantum of contact time the child has with each parent (note the shift here, not a father’s contact time but a child’s contact time).

We must assume, unless it is shown to the contrary, that all parents are “good enough” (certainly if they were ‘good enough’ to parent before divorce there is little reason to think they shouldn’t be after divorce). Fathers must insist that this default standard is accepted by all institutions.

We must also assume, as the Children Act does, that children are invested with certain inalienable rights, i.e. to have access to both of its parents.

We should recognise that at a certain age they can exercise those rights regardless of any court order.

There should be a wider appreciation, certainly among fathers, that any court order, e.g. for contact, applies only to the parents and never to the child. It is an oddity of law that divorced parents’ rights can be violated but not a child’s.

Whereas the current fashion is for radical individualism which worships autonomy and deems any obligation, however trivial, as oppressive, father are unfashionable in stating that they actually want obligations; they want to see their children; they want to raise them and be a part in their growing up.

In the age of sperm-banks, children should not be disadvantaged by a woman deciding upon an adventure in experimental motherhood. If a woman wants a pregnancy but doesn’t want a man ‘complicating’ her life or wants different fathers for subsequent children then where and who will provide the final Safety Net for such children ?

Who will have contributed the money, via National Insurance Contributions, to fund that child’s birth, medical treatment, schooling, dentistry etc etc, and the lifelong costly services of unemployment, ill health etc, that a welfare state provides to all citizens all the way into retirement age ?

If fathers have no rights over conception, none over abortion, none over births, none over adoption and if fathers are no longer the permitted to be the final safety net, i.e. the child’s guardian, why should they subsidise female lifestyle choices through the taxes they are forced to pay ? Taxation without represent-ation triggered two revolutions that changed the course of world history (1 Britain, 2 America).

If there is an unwritten covenant between any government and its people that is mutually beneficial, then it must, by definition, be a covenant between men and fathers with the state that both find mutually beneficial.  If there is a covenant with women, what is it ?

The modern, western, industrialised democratic states are products of a male covenant. Where are the modern, western, industrialised democratic states that are products of a female covenant ?

In the final analysis men and fathers are the most dependable engines of, wealth creation, technology and progress. They are the paymasters who bankroll all governments.

For that commitment, there should be some reciprocal obligation by the state – some tangible dividend.

The fact that there is none points to future instability.

Do men and fathers eschew future instability, or do they embrace it ? By restoring the role of guardian to fathers government could again make fathers feel engaged with the society they pay for.

On the one hand, if government were to ‘pander’ to fathers’ groups the necessary social evolution needed would most likely be avoided.

On the other hand were government to continue to reject men’s and fathers’ demands for change, a future social revolution would be more likely.

When the equilibrium is once again restored the bitter legacy spoken of in the opening paragraphs, the deception and punitive actions by the civil service will not be forgotten.

By restoring the role of guardian to fathers the perennial complaint made by women’s activists, namely that all modern fathers lack commitment could be tested. Within a few short years they could be proved right or wrong – but that is not really what they want.

Were a mother who treated the whole reproductive process as if she were dealing with a sperm-bank suddenly to be rendered incapacitated, who could step in ? Who could take up the slack were she to suffer a mental breakdown, drug or drink mis-usage, imprisonment, or car accident (or is simply overwhelmed by life because of her career demands) ?

If she was too confused to give vital medical approval or permissions, the child’s safety could only be assured if power became vested in the biological father. Waiting for the local council to assess the situation and agree to go to court might be too late.

In the Shannon Mathews case we see what can happen when too much power is vested in a mother who can hardly take care of herself, cannot form lasting relationships and certainly cannot cope competently with 6 children.

It could be argued that the state could step in. That may be possible in some circumstances but even if there were enough social workers etc, can it act decisively, quickly or for that matter, competently ? Experience tells us the state makes a poor parent and in far too many instances of safety is simply not good enough. [116] Most runaways, druggies and prostitutes found on the street are from residential care homes administered by the state.

The probabilities that government removed the guardian status of fathers as part of an agenda (linked to an ideology) have been mapped out above. However, what cannot be fully revealed in this article because of a lack of evidence are the forces that first allowed such an agenda to gather momentum.

Perhaps there was a degree of blissful ignorance on the part of some ministers at pivotal times when decisive choices were being made at the political level ? This is more likely than deliberate collusion. Perhaps there was unscrupulousness on the part of other players – academics or advisors ? This looks to be more likely, both in the past and the present.

Perhaps there was belief at the time that the final destination would not be where we find ourselves today, i.e. the future would be a lot more harmonious ? This is also very likely.

The merging of the political commissariat with the academic commissariat makes for an awesome weapon of social control which, by its reach and variety of operation, can humble the mightiest.

It is a mechanism that is intrinsically undemocratic and anti-democratic, for its raison d’etre is to usurp the democratic process and substitute its own agenda.

It was for this very reason that Lenin, at the birth of the new workers soviets, created commissariats for worker education, higher education, as well as the more normal overseas and internal police measures. Creating a commissariat, as the Stalin era exemplified, allows the state covert military-type rigidity of policy implementation into all the social arenas while all the time ensuring adherence to the ideology chosen by the Central Committee. The great benefit of this regime is/was that it gave the appearance of democracy while all roads led back to, and were monitored, by Stalin and the staff in his political office (See Annex H to H2).

Whatever the reasons for politicians ignoring previous warning signs we should be cautious that history does not repeat itself.  Sadly, given the proposed new measures to alter cohabitation rights, this looks highly probable. Proposed legislation looks as if it is going to once again fall under the influence of crusading secularism.In a decade from now it might be possible to say that the wheel has turned full circle and if it does, it will have vindicated the position adopted by fathers and men’s groups. If so, these observations might be useful:

  • The academic and ‘liberal’ divorce expert Prof. Lawrence Stone has warned that the present anarchy in personal relationships might take us right back to the pre-modern period.
  • French thinker Alain Minc believes that if the nation state is to be viewed as an anachronism, we may enter what the he calls a new middle Ages characterised by tribal conflicts and hostilities.

A once silent judiciary appears to be finding its public voice, albeit occasionally. Thorpe began by writing of mismanagement by court officials which was followed up by Mr Justice Coleridge extraordinary criticisms of the law and the family division in particular. His prediction of a ‘meltdown’ in family life made at the Resolution National Conference (5 April 2008), made national headlines. [117] At last judges were speaking out against legal and policy failures.

  • “ , , , I am afraid that the time has come for family judges to speak out publicly in protest at the way in which the Family Justice system in this country has been and is being mismanaged and neglected by government.”
  • “  , , , , Consider for a moment what the circumstances of our society are about which I now speak. The circumstances are none other than the state of family life in our land, the very backdrop for the work of all those involved in the Family justice system. It’s very stock in trade. For as long as history has recorded these things, stable family life has been co-extensive and co-terminus with a stable and balanced society.”
  • “, , , ,, In some of the more heavily populated urban areas of the country Family life is, quite frankly, in meltdown or completely unrecognisable . What is certain is that almost all of society’s social ills can be traced directly to the collapse of the family life. We all know it.”
  • “, , , ,, Behind every contact dispute is mismanaged parental separation.”

We all know it but far too many leaders cannot bring themselves to acknowledge it. Without first recognising the problems there is no hope of it being tackled.

The genealogical family tree is no longer characterised by neat forking branches shaped by the centuries of birth, death and marriage but resembles tumble weed. Genealogy has become a bramble growing wild ready to snag the unwary. The only certainties that remain are death and taxes.

What emerges from this tangle is a tragic landscape of social breakdown, weed-like relations and feral children. The Daily Mail is in no doubt:

“…. families who once stood on their own feet [are] being replaced by single parenthood, multiple partners, reliance on State benefits…and inevitably, children being looked after by the local authority.”

An article in the same newspaper by Richard Pendlebury (April 16th 2008), exposes the shocking higgledy-piggeldy tangled web of uncles, aunts, step brothers and sisters, transient father-figures and biological fathers that look set to become the ‘norm’. [118]

The easy solution would be to reach for a social  Bill of Rights, or a family Magna Carter. However, this ‘fix’ already partially exists with the Human Rights Act. It also exists in UN and European Conventions – the right to family life. This is observed more in the breach than in the compliance. There is no guarantee that any more legislation will bring about the change that is needed.

The chattering classes are keen to secure the rights of minorities and for the past 30 years have applied themselves solely to this. For example, the Equality Act 2006 is only the latest in along line of equality measures. In common with other new statutes it is a complete misnomer. It is not concerned with equality but with bestowing rights on Gay, Lesbians and Transsexuals (GLT). There is provision in the Act for equality to be extended to women “as a minority”, but nothing for normal men. In terms of legislation there has been nothing in the past 30 years that has enhanced or benefited the life of the ordinary working man, father and family. All one can point to is punitive legislation and selective subsidies that men are expected to pay.

The political glitterati are only now accepting that their cosy but fictitious world of “multi-culturalism” created by Roy Jenkins MP, is crumbling before their eyes. The entire political establishment was visibly shaken by the outrages wreaked on London streets by ‘home grown’ terrorist.

The spate of 6 deadly stabbings within 48 hours this week (July 12th 2008) has left them literally speechless. The usual excuses and political stock in trade rationalisation of the situation, e.g. poverty, social deprivation etc is triggered but no one talks about fatherlessness as a factor. It is impolite if not down right upsetting bad mannered to point out that both victim and perpetrators usually originate from fatherless families.

This ‘denial’ can only be the product of a political consensus selecting only what it wants to see and hear. It chooses not to see the ghetto-ism that ethnic funding created under multi-culturalism and chooses not to listen to protests.

They have forgotten that freedom never tires, never grows old and never becomes passé. When they die their oppression will die with them for it is not self-sustaining and can never be justified. They have  forgotten that the freedom they currently enjoy is guaranteed only by the majority.

Or are the political illuminati implicitly saying that the defence of the realm and the defending of heritage and national standards, the spilling blood in some distant foreign land to protect our cultural values can safely be put in the hands of women and minority interests who reside in Britain but who do not feel part of Britain ?

A smart government is a government that knows when the ‘tipping point’ has been reached. It knows that protest is one level higher than demonstrations and one level lower than open resistance. The latter presents the real danger and is the situation a smart government should seek to avert at all costs.

A Bill of Rights or Magna Carter, if designed in today’s politically fragranced air, would carry no hope or ambition for a better environment. Instead, it would have the whiff of the staid baggage we already live through. We have only to look at the Equality Act 2006 to realise that it is not intended to bring equality to all.

There is a dislocation between ideals and interpretations; a dislocation between words and meanings.

State secularism and its acolytes are every bit as dogmatic as any Church canon and its cardinals. It is blind to the progression of fathers groups from tame demonstration to militant protest or to the next phase which will be overt resistance, interference in the administration of the state, vicious compliance, short circuiting, and thwarting state interdiction wherever the opportunity presents itself.

State secularism sets both the ideals and how those ideals are to be interpreted in its brave new world. However, it assumes a peaceful environment will prevail so that the goals may be accomplished.

It dictates what the agenda will be, and listens not to the ordinary man in the street and what he wants from his brief moment on this earth.

The imbalance in power between people and state cannot continue. What if the ordinary man doesn’t listen to the agenda, doesn’t like the goals and is aren’t prepared to provide a peaceful environment ?The two power blocs are on a collision course.

END

 

Addendum

On the eve of completing the above analysis my attention was drawn to “The Washington State Parenting Act and Mediation, Fifteen Years On”, an article by attorney, Porter Kelley (Nov2003).

(Washington State Bar Association, WSBA http://www.wsba.org/media/publications/barnews/2003/nov-03-kelley.htm).

The following selected paragraphs give only a flavour of the article:

“ ….. I’m going to tell a story of how the 1988 Parenting Act came into being. Most memories are short (mine is); stories have to be retold. This is a story of how a handful of lawyers changed family law in Washington.”

“In late November 1982, I was mad. I had just settled a custody case mid-trial.”

“….. Returning to my office, fuming in frustration, I wondered, “Why can’t we get rid of ‘custody’? Why not just call it ‘parenting’ and be done with it?” My law partner, Bob Prince, liked the idea.”

“ …… Our central idea was to change the focus of the law from “custody” to “parenting.” We all sensed that we were onto something new. But we had no idea we would set a revolution in motion. We were lawyers, after all. We thought we were working on a new legal way of guiding our clients through the divorce process.”

“Seeking to replace “custody” with “parenting,” we were de-legalizing the process of how couples separated their households and made arrangements for parenting their children. Thus the actual legal forms (comparable to deeds of title) would be duly prepared and given proper authority. Now, in most cases, parents themselves prepare the parenting plans, except in the more contentious cases. So, whenever lawyers, and even judges, use the term “custody” now, they are using an irrelevant word.”

“ …. When divorces occurred, the custody of children naturally went to the fathers.” Yet women, throughout human history, have been seen as the primary caregivers of children, particularly in their first years. In the early 20th century, with changing attitudes and increasing divorce, mothers, as primary caregivers, were presumed to get custody of the children, unless it could be proved they were unfit.”

“ …. By the 1970s and 1980s, lawyers were worn out. Law practice being essentially the art of compromise, “joint custody” became an instrument for settlement. But what is “joint custody”? I never met anyone who knew.“

The conclusions are interesting if not surprising. The article validates some key components found in the above analysis and underwrites speculation of how the change process might have evolved.

The surprising aspect in Porter Kelley’s article is the absence of any thought given to the legal conflicts created if custody and guardianship are abolished and replaced by a vague, ill-defined ‘parenting’ status.

The Law Commission recognised in the 1980s that though the concept might be attractive, sharing or joint guardianship, which is at the heart of Washington Parenting Act 1988, could lead to an equal number of squabbles in court albeit differently premised.

The dates -1983 to 1988 – when change occurred in the US, coincides with Law Commission Reports 91 and 96 in England and thereafter both guardian custody were changed in England.

Another item that will be of interest to the reader is this :-

“Towards a Structure of Indifference: The Social Origins of Maternal Custody”

Book reviews in the Journal of Social History, Summer, 1996 by Linda W. Rosenzweig.

http://findarticles.com/p/articles/mi_m2005/is_n4_v29/ai_18601004

“In this volume Debra Friedman examines the historical origins of contemporary child custody arrangements. She argues that during the forty-year period from 1880 to 1920, the presumption that fathers should be awarded custody of their children was changed in all Western countries where divorce was permitted. New legislation supported the equal claims of both parents, a new set of working rules favoring maternal custody emerged, and judicial decisions clearly reflected these developments. Prior to the late nineteenth century, Roman, German, and Anglo-Saxon law had assigned responsibility for the protection, support, and education of children to their fathers; paternal claims to custody had followed from those obligations. The transition to maternal custody represents a fundamental alteration of the traditional pattern.  , , , , , / , , , , , ”

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Annex A

Amanda Finlay has recently retired from the Ministry of Justice, and rather then retiring has taken new roles, e.g. a public governor of Oxleas NHS Mental Health Foundation Trust and a member of the Civil Justice Council, a council member of Justice, and is a member of Lord Bach’s Public Legal Education Strategy Group. All of which would be laudable if they were not so tragic.

Amanda was until recently the MOJ Director responsible for legal services reform and for legal aid strategy. She led the arrangements to set up the Legal Services Board, headed the Fundamental Review of Legal Aid, chaired the Working Group which recommended reforms to the conduct of public law children cases, and negotiated a settlement of civil legal aid issues  with the Law Society following their successful Court of Appeal judgement.

During her time as Director responsible for family and administrative justice, Amanda introduced customer focussed changes for children and families experiencing relationship breakdown, instituted a review of delay in Children Act cases and took forward the programme of work to establish the Unified Tribunal Service. She worked jointly with the Home Office, the judiciary and lawyers to speed up asylum appeals and decisions.

Amanda led the work on the Human Rights Act in the Lord Chancellor’s Department, working with human rights lawyers to ensure that the scheme of the Act was workable in the courts and leading ten all day “walkthroughs” to test out compatibility with judges, lawyers and human rights experts in courts from the magistrates up to the Court of Appeal. She was Secretary to Lord Woolf’s Inquiry “Access to Justice”, working with the judiciary, lawyers, academics  and lay people to devise improvements to the civil justice system.

Earlier in her career she was engaged in work to open up legal services to more competition, including work with the Advisory Committee on Legal Education and Conduct on rights of audience applications from solicitors and employed lawyers, and the establishment of the Legal Services Ombudsman. She was secretary to the Legal Aid Advisory Committee; worked with Richard White and Cyril Glasser (founder members of the Legal Action Group) on their report on unmet need for legal services in the 1970s; and was engaged in the work to set up the Crown Court and the Court Service following the Courts Act 1971

 Annex A1

Hodge bows to demands of abuse victims

By Philip Webster, Political Editor (c) The Times, Nov 2003  

TIMES-ON-LINE http://oneinfour.org/news/news2003/hodgebows/

MARGARET HODGE last night bowed to the demands of the child abuse victim she previously described as “disturbed” as she fought to save her ministerial career.

In an attempt to retain her job as the Government’s Children’s Minister, Mrs Hodge has agreed to make a full public apology in court to Demetrious Panton, who is now a government consultant, to pay his legal costs and to make a donation to charity.

 After talks lasting several hours between lawyers representing both sides, Mrs Hodge delivered a statement that amounted to a capitulation to Mr Panton’s wishes. She concluded that, however humiliating the climbdown, a full response to his demands was the only way of removing the cloud over her future and stopping him from asking for more concessions.

She said that a statement would be made in court reiterating the apology that she had made to Mr Panton last Friday. She had also agreed to make a donation of £10,000 to the National Association for the Care and Resettlement of Offenders. Finally she had agreed to meet Mr Panton’s legal costs. Ministerial sources` refused to disclose the size of the bill, but a figure of £20,000 would not be surprising.

Although colleagues believe that Mrs Hodge has made mistakes in

her handling of the matter, there has been growing sympathy over the past 48 hours for the way that she has been forced to “grovel” to avoid being plunged into a legal battle that would undoubtedly have meant the end of her political career.

After her original apology, Mr Panton, 35, who was abused in an Islington care home as a boy, called on Mrs Hodge to pay £10,000 to a charity or be sued.

Tony Blair has continued to offer his full support to Mrs Hodge, who is a strong Blairite. Aides say that he believes she is a good minister and should not be hounded out.

But he believes that she made a mistake in writing to Gavyn Davies, the BBC chairman, to try to discourage the corporation from pursuing an investigation into her role as leader of Islington council in the aftermath of a 1970s child abuse scandal.

Last night Mr Panton said: “I am delighted that Mrs Hodge has met all my requests. I’m really proud of what I have achieved.”

Annex B

Victims of child abuse say Hodge did not listen to paedophile claims by senior social workers 

By Paul Waugh, Deputy Political Editor, The Independent, Thursday, 13 November 2003

http://www.independent.co.uk/news/uk/politics/victims-of-child-abuse-say-hodge-did-not-listen-to-paedophile-claims-by-senior-social-workers-735581.html

When Margaret Hodge was appointed to the newly created post of minister for Children just five months ago, she told friends that at last she had her dream job.

Yesterday, as two victims of child abuse threatened legal action and a third demanded the resignation of the former Islington council leader, the dream looked like it had turned into a nightmare.

The decision by Demetrious Panton, 35, Douglas Fitch, 28, and Yvonne Williams, 40, to come forward throws into doubt how long Mrs Hodge will remain in post. The three, who were subjected to abuse at the hands of different paedophiles in Islington children’s homes, have horrific stories of the suffering they endured in the 1970s and 1980s.

Mr Panton, who had been placed in care at the age of 10, was one of the many victims of Bernie Bain, a notorious paedophile who was head of one of the borough’s care homes. He complained about Bain on three occasions, in 1979, 1985 and 1992, but no action was taken by the council. Bain, whose predilection was for boys aged seven or eight, was never brought to trial in Britain. Unlike many abuse victims, Mr Panton went on to university and a good job. He is employed as a consultant on urban renewal with clients that include SureStart, the Government’s under-fives project under Mrs Hodge’s control.

Mr Fitch and his brother, Michael, were harassed by Roy Caterer, a sports instructor at a boarding school used by Islington. Caterer was sent to prison for seven and a half years for abusing seven boys and two girls.

Mr Fitch claims that Mrs Hodge should have listened to senior social workers who raised suspicions about paedophiles and has approached lawyers to sue her. He said: “I hold Hodge responsible for what happened to me and I will not rest until I get justice.”

Ms Williams was sexually abused every day from the age of 10 for six years by Jeffrey Wildjones, the superintendent of her Islington- controlled home. Ms Williams said: “For the sake of all the children she did wrong by … it’s high time she resigned.”

Mrs Hodge made her political reputation at Islington, where she was leader for 10 years from 1982. A moderniser before New Labour was created, she was a close neighbour of Tony Blair. Her husband, Henry Hodge, was a solicitor who gave Cherie Blair her first brief as a barrister.

The Islington child abuse scandal has dogged her since 1992 when the London Evening Standard exposed how, for two decades, children in the borough’s care homes were molested, driven into prostitution and raped by people in positions of trust. Mrs Hodge initially derided the reports as “gutter journalism” but, within two years, accepted that there had been abuse and blamed her initial response on “misleading information” from officials. Meanwhile, she was elected MP for Barking in 1994. The Standard was vindicated in 1995 by an independent report which recommended drastic change in the way the council operated. The whole issue appeared to have died down as the years went by and was not raised when she was appointed as an Education minister in 1998.

The chaos of Mr Blair’s reshuffle this summer obscured Mrs Hodge’s elevation to minister for Children, a job that brought together areas such as youth justice, child care, SureStart and teenage pregnancy units.

But, within a fortnight, the Standard published testimonies from two former Islington social workers, who claimed publicly for the first time that Mrs Hodge failed to back them over allegations that children in care had been subjected to sex abuse.

Mrs Hodge insisted she did not ignore a single allegation of abuse. She went further, declaring that her experience in Islington made her “well equipped” to learn the lessons of past mistakes. Her supporters claim she has done invaluable work in pushing a national childcare strategy and other areas, and is the victim of a media witch-hunt.

However, it is Mrs Hodge’s belief that she was being unfairly harassed over her past that has, itself, brought the issue to its climax.

Mr Panton is threatening to sue Mrs Hodge for libel over her complaint to BBC Radio 4’s Today programme, in which she described Mr Panton as “an extremely disturbed person”. The programme brought into question Mrs Hodge’s role when she was leader of Islington council. Some of Mrs Hodge’s allies doubt whether legal action will really go ahead or simply be threatened.

Tony Blair is thought to be reluctant to offer his friend’s head on a plate to the press. But Mrs Hodge’s future as minister for Children is undoubtedly in the balance

Islington and the minister

  • February 1982: Margaret Hodge becomes leader of Islington council
  • April 1990: Council social workers Liz Davies and David Cofie warn Mrs Hodge about sex ring preying on children in homes
  • 1991: Roy Caterer, who worked at a school used by Islington, is jailed for seven and a half years for sexually abusing children
  • February 1992: Ms Davies resigns and takes her information to Scotland Yard
  • 14 October 1992: London’s Evening Standard reports abuse in Islington care homes. Mrs Hodge calls it “gutter journalism”
  • 23 October 1992: Mrs Hodge resigns from council to work at accountancy firm Price Waterhouse
  • February 1994: Mrs Hodge admits there was abuse in the children’s homes
  • 1994: Mrs Hodge becomes MP for Barking. Abuse victim Demetrious Panton writes to her about his ordeal, she replies with a four-line letter referring him to the council
  • 1995: An independent report by Ian White, Oxfordshire’s director of social services, lambasts the council
  • June 2003: Mrs Hodge becomes minister for Children, her record is attacked in the media
  • November 2003: Mrs Hodge describes Mr Panton as “extremely disturbed”, in a letter of complaint to the BBC. He threatens to sue her

ANNEX B1

Hodge named ‘worst public servant’

By David Batty Society Guardian, Thursday July 29 2004 http://www.guardian.co.uk/society/2004/jul/29/socialcare.childprotectionThe

The children’s minister, Margaret Hodge, was yesterday named as Britain’s “worst public servant” for backing the creation of a child database which civil liberties campaigners claim will grossly invade family privacy.

Right: Children’s minister Margaret Hodge says she has learnt from her time at Islington.

Ms Hodge won the award at the sixth annual Big Brother awards – which aim to expose threats to personal privacy from government and businesses – for her support of legislation to create a database covering every child in England.

The children bill would give the government powers to make local authorities create an electronic file on all of the country’s 11 million children and allow them to include in it data hitherto regarded as confidential under common law.

Professionals would be encouraged to use the system to monitor children’s behaviour including the likely risk of teenage pregnancy and potential for criminal activity.

Mrs Hodge has controversially said that the behaviour – including alcohol or drug use – of parents, other relatives and neighbours may be recorded on the files.

The government says the database will help the authorities to identify children in need of support and protection before they reach crisis point.

But opponents of the scheme, including the family rights group Action on Rights for Children (Arch), claim that the government is using concerns about child protection as a cover to introduce ID cards and invade family privacy.

. . ..  ..  .NHS national programme for information technology won the ‘most appalling project’ award for plans to computerise patient records, which were described by Privacy International as “insecure and dangerous to patient privacy”.

Simon Davies, the director of Privacy International, said: “The winning nominations reflect a broad and intensified assault on the right to privacy in the UK. There is a clear hostility within government to privacy and a general antagonism to it from within business.”

“The default has clearly shifted from privacy to surveillance. Almost all large government projects attempt to compromise the right to privacy. The proclaimed need for protection of children and the fight against terrorism has often been shamelessly used as the pretext for privacy invasion”.

. . .. . .The education secretary, Charles Clarke, was runner-up in the ‘lifetime menace’ category for his support of the child database. He was previously nominated in 2000 when, as a Home Office minister, he oversaw the passage through parliament of the Regulation of Investigatory Powers Act, which allows the police and a wide range of other agencies to undertake covert surveillance of the public.

A spokeswoman for the Department for Education and Skills said it had no comment to make on the awards.

Terri Dowty, policy director of Arch, said: “We are not surprised that Margaret Hodge has been given such negative recognition. The idea that children’s private lives can be discussed without their knowledge harks back to the days when adults knew best and children had no rights.

“Had the children bill been properly grounded in the UN Convention on the Rights of the Child, the government might have noticed that children, like adults, have a specific right to respect for their privacy.”

Annex C

Hodge ‘ignored’ warning on family-wrecking scandal

 by Jon Ungoed-Thomas, The Sunday Times – Britain, January 25, 2004

http://www.timesonline.co.uk/article/0,,2087-976769,00.html

MARGARET HODGE, the children’s minister, and Harriet Harman, the solicitor general, were warned more than three years ago about a growing scandal in the family courts of children being wrongfully removed from their families.

Jan Loxley, a former government adviser on childcare, wrote to both Hodge and Harman. She told them that families were being destroyed because of false accusations of child abuse based on theories expounded by Professor Sir Roy Meadow.

Last week Hodge announced reviews of an estimated 5,000 cases in family courts where children have been taken from parents. Another 258 [and quite separate – RW] criminal cases involving Meadow’s theories will be re-examined. Meadow, a distinguished paediatrician who retired in 1997, now faces a General Medical Council investigation into allegations of misconduct.

Loxley is angry that action was not taken sooner. In her letters dated May 17, 2000, she wrote that many mothers were being falsely accused of Munchausen’s syndrome by proxy, a diagnosis created by Meadow based on the theory that carers may deliberately harm children to attract attention.

She wrote: “I do hope that you will take this issue seriously, the statistics are frightening concerning the numbers of families wrongly accused and the harm done to them.”

Hodge has previously been accused of failing to heed warnings of childcare scandals. As the leader of Islington council in north London, she dismissed an investigation into the borough’s childcare homes as “gutter journalism” — although many of the abuse allegations were subsequently proved.

Loxley’s letter highlighted a psychologist’s report which denounced “horrifyingly inappropriate” instances of misdiagnosis of Munchausen’s by proxy. The psychologist, Lisa Blakemore-Brown, said the syndrome had no “robust scientific and statistical base”.

Loxley herself had been accused of deliberately harming her young son, despite no evidence of abuse. Her son and daughter were put on the at-risk register, but were removed after local politicians and supporters campaigned for her.

She said this weekend: “I find it incredible that Hodge and Harman are suddenly announcing action as if they were previously unaware of the scale of the problem. The government knew for years and was either wilfully negligent or completely inept.”

Harman said last week that she had known Loxley for many years but could not specifically recall the letter. “Concern has been growing over this issue over the years and Jan is one of many who has been saying this,” she said.

“A court judgment has now set out the kind of approach other judges should take when dealing with medical experts. We are acting as quickly as possible.”

A spokesman for Hodge at the Department for Education and Skills said it had not traced the letter.

Annex D

Listed below are some of Brenda Neale’s papers

written with co-workers (1991 to 2004).

Every one of these papers will have been funded by the tax-payer; the amounts will have varied from a modest £45,000  to well in excess of £177,000 (see A/ and B/ below).

Left: Brenda Neal with dark hair.

The funding agent, the ESRC, approves scores if  not hundreds of these papers / studies and all of them, co-incidentally, are pro the status quo and against more involvement by fathers.In fact the planned expenditure for 2009/10 is £204 million.

This is planned to funds over 2,500 researchers in academic and policy research  institutions. Large grants can be in teh ergionof £4 million pounds, e.g. Grant Number: RES-060-25-0010. The subject covered for  large and small grants can be fond at http://www.esrcsocietytoday.ac.uk/ESRCInfoCentre/research/

Some of Brenda Neale’s funded papers:

  1. Shared Residence: Not a magic solution, Flowerdew, J. Neale, B. and Smart, C. (2004)  Solicitors Family Law Association Review (bi-monthly) issue 104: Jan 16-17
  2. Drifting towards Shared Residence?’, Neale, B., Flowerdew, J. and Smart, C. (2003) Family Law, December 33, pp. 904-908
  3. ‘Trying to stay apace: Children with multiple challenges in their post divorce family lives’, Flowerdew, J. and Neale, B. (2003) Childhood, 10 (2), pp. 147-161
  4. Dialogues with Children: Children, Divorce and Citizenship’, Neale, B. (2002) Childhood, 9 (4), pp. 455-475.
  5. ‘Family Values: Children’s reflections on Post Divorce Family Life’, Neale, B. (2001) Childrenz Issues (NZ) 5 (1): 6-9
  6. Separate Lives, Neale, B. and Smart, C. (2000) Community Practitioner 73 (6) June. pp 635-6
  7. It’s my life too’: Children’s perspectives on Post Divorce Parenting’, Smart, C and Neale, B. (2000) Family Law, May 163-169
  8. Post Divorce Childhoods: Perspectives from Children’, Seen and Heard Neale, B. and Smart, C. (2000) 10 (2): 31-36 (Journal of the National Association of Guardians Ad Litem & Reporting Officers)
  9. Experiments with Parenthood?’ Neale, B. & Smart, C (1997) Sociology 31 (2): 201-9
  10. Smart, C. and Neale, B. (1997) Good enough morality? Divorce and Postmodernity’, Critical Social Policy 17 (4): 3-27
  11. Arguments against virtue: must contact be enforced?, ’ Smart, C. and Neale, B. (1997)  Family Law May 332-336
  12. ‘Changing Commitments: A Study of Close Kin after Divorce in England’, Smart, C. & Neale, B. (2004) Working Paper 33
  13. ‘Re-Tying the Knot? Relationality and Re-partnering after Divorce’, Neale, B (2005 forthcoming ) Sociology
  14. Time, Texture and Childhood: The Contours of Longitudinal Qualitative Research’, Neale, B. and Flowerdew, J. (2003) International Journal of Social Research Methodology: Theory and Practice, 6, (3) July-Sept, pp. 189-199
  15. Good’ and ‘Bad’ lawyers: Struggling in the Shadow of the New Law’,  Neale, B. and Smart, C (1997) Journal of Social Welfare and Family Law 19 (4): 377-402      (Munchausen Syndrome by Proxy)’, Archives of Disease in Childhood, 67: 77-79
  16. Problems in the Assessment and Management of Munchausen by Proxy Abuse’, Neale, B., Bools, C. & Meadow, R. (1991) Children and Society, 5 (4): 324-333
  17. Munchausen Syndrome by proxy: Bools, C., Neale, B. & Meadow, R. (1994), a study of psychopathology’, Child Abuse and Neglect 18: 773-788, 1994
  18. Co-morbidity associated with fabricated illness ‘, Bools, C., Neale, B. & Meadow, R. (1992)

 

 

Annex E

 Source: Hansard, 24th May 2004 : Column 1318W 

Parliamentary Answers: Education and Skills

Joint Custody

Mr. Amess: To ask the Secretary of State for Education and Skills how many separated parents have joint custody of their children; and if he will make a statement. [173556]

Margaret Hodge: Since the Children Act 1989 was implemented in 1991, “custody” of a child has ceased to be a concept in the law of England and Wales [italics added. ]Under Section 8 of the Children Act 1989 a court has the power to make a residence order, being;

 “an order settling the arrangements to be made as to the person with whom a child is to live”.

Section 1(5) of the Children Act provides that a court cannot make an order unless it considers that doing so would be better for the child than making no order at all (“the no order principle”). It follows that, if parents are agreed on the arrangements for their child, then it may be that the matter never comes before a court, or that, if it is before a court, the court considers that it is better for the child that no order be made. In other cases, such as those where there is no agreement between the parents, it is open to the court to make a residence order, if it considers that it is in the best interests of the child to do so. Such an order might be a “shared residence” [emphasis added] order (so that the child lives with both parents, at different times, usually spending around half his time with each). The following table shows the latest available judicial statistics (2002). During 2002 a total of 103,191 Section 8 orders were made in private law.

[See Table 2 ‘Contact and Residence’ in  Annex F below]

Annex F

An on-going disagreement between all the fathers’ organisation and Whitehall has been the extent to which children are “orphaned” by the state following divorce.

In a nutshell, fathers’ organisations believe the number is large and Whitehall believe it is minimal. In an attempt to resolve the issue and silence critics the Lord Chancellor’s Department (LCD) asked for a survey to be made of the likely number (“The Omnibus Survey”).

The process and mythology used (935 adults) has to be questioned as it resulted, not unsurprisingly, in a relatively tiny number. The LCD maintains that disquiet about custody after divorce is restricted to about 10% of fathers. The inference is that 90% are happy with the outcome of contact arrangements.

Fathers’ organisations point, in riposte, to the number divorcing annually (circa 140,000) and the numbers annually applying for ‘contact orders’, ‘residence’ and/or ‘parental responsibility’ orders (when unmarried).

Respectively, they are 61,356, 30,006 and 8,240 totalling 100,202. Even if one were to assume half aree repeat applications, with repeat awards granted, thereby cutting the total to only approx. 50,000 pa, it is still much larger than the 10% of divorcing couples that the LCD argues.

When one considers that half of the orders may not be for sole children but for access/contact for 2 or more children, the figures rises back to the 100,000 region (which coincide with ONS data that between to thirds and three quarter of all separating couples have dependent children i.e. aged under 16 years of age).

If the minister Margaret Hodge states, in 2004, that there were “a total of 103,191 Section 8 orders were made in private law” this rather makes the case argued by fathers’ organisations. Incidentally, this figure can also be cross-referenced and reinforced by the Annual CAFCASS Reports stating how many reports its officers made out and for how many children.

For the ease of readers, Table 2 ‘Contact and Residence applications’ has been repeated and is shown below.

CHILD CONTACT SURVEY (“The Omnibus Survey”) 

DfES publish Office for National Statistics (ONS) Survey: Non-Residential Parental Contact with Children.

On Friday 19th March 2004 the DfES is making available the results of a survey commissioned by the then Lord Chancellor’s Department from the Office of National Statistics (ONS) to assess the levels of contact between children and non-resident parents. The survey provides baseline data for future comparisons and was carried out as part of the ONS Omnibus Survey.

The Omnibus Survey is a multi-purpose survey based on a representative sample of adults aged 16 or over. The report is based on 935 adults. 649 were resident parents 312 were non-resident parents and 26 respondents were both (so are counted in both categories).

Table 2   Contact and Residence applications made under Sect 8 of the Children Act 1989. (Hansard 24th May 2004 : Column 1318W).
 Disposal of selected applicants in private law in all tiers of court, 2002Nature of application  Applications withdrawn  Orders refused  Numberof  ‘NoOrder’ orders  Orders
made
 Parental responsibility 773 290 132 8,240
         
               Section 8        
 Residence 1,536 158 431 30,006
 Contact 2,373 518 945 61,356
 Prohibited steps 300 40 77 8,889
 Specific issue 207 33 67 2,940
                               Total     1,652  

 

 

 

 

 

 

 

 

 Annex G

Family Law

“Family Resolutions v Early Interventions” 

By Caroline Will Bourne, Barrister, News line Extra, November 2004

Source: http://www.cyriax.co.uk/hijack.htm

Mavis Maclean’s exposition of the family resolutions pilot project ( [2004] Fam Law 687) provides the answer to the question – whatever happened to the early interventions project (EI project) ?

 ‘The need was not so much for an open-ended inquiry into what to do but the more proactive task of ensuring that an early interventions trial … actually occurred.’ ([2003] Fam Law 455).

A close study of the EI project, as submitted, and the family resolutions project (FR project) described a year later, does not disclose any significant similarities between the two.

This is not what was meant to happen. ‘Family Resolutions’ was billed as ‘Early Intervention’ under a different name. In the words of DCA Minister, Lord Filkin, in a letter to the Coalition for Equal Parenting, dated 29 April 2004: ‘The early interventions project, developed by the [organisation] New Approaches to Contact (NATC) and others, is being developed and taken forward’. This letter, which first introduced a sentiment repeated in Mavis Maclean’s article, explained the technical reason why the project was ‘renamed the Family Resolution Project’, namely that ‘whilst the intended intervention is early in the current court process, it is not early in the process of relationship breakdown’.

So what are the differences between the two projects? And do they matter?

The core of the EI initiative hinged upon giving parents guidance, before the case, on how much contact there should be. This development, which finds no counterpart in the FR project, entailed a new partnership between the courts and child development experts. Together they would devise parenting plans which would set out norms of contact as a framework for negotiation. Judicial support for the concept of parenting plans always lay at the heart of the EI project. Without backing from the court, any guidelines would be written in water. As Bracewell J observed, summarising the NATC’s 2003 conference in its publication Early Interventions – Towards a Pilot Project: ‘This is the way forward … It would be incomprehensible if the pilot project did not receive official sanction from the DfES’ (Dept for Education and Skills).

But the incomprehensible did happen. On examination, it transpires that the FR project is based upon a well-rehearsed mantra –‘every case is different’ – which is the antithesis of EI.

Bringing the two projects into alignment would not be a simple matter of changing horses midstream. This is not just because the Children and Family Court Advisory Support Services (CAFCASS), which will apply conciliation under the FR pilot, has confirmed its stance that ‘every case is different’. Its view that there are no categories of case (see Contact: Principles Practice Guidance and Procedures (CAFCASS, 16 August 2004)) means that there can be no parenting plans outlining what should happen in the various case categories. Equally important, every component and every protocol of the two divergent projects are designed for a different function. The EI parenting plans would not be agreed by the court and its experts, nor be backed by the court, nor be issued by the court, nor be applied by the court, nor be disseminated by the court. Nor could they take root throughout ancillary support services such as mediation, legal professionals and potential litigants.

This does not mean that the FR project is not a useful undertaking in its own right. The pre-court group sessions – one ‘to refocus on the child’s needs’ and the other, on ‘conflict management’ – could pay dividends. FR is also bound to yield valuable data on how much can be achieved by a careful repackaging of the existing regime. But by the same token it is not the same as the EI project.

Perhaps the least useful outcome would have been a half-way house where a sound concept was marred by poor construction or indifferent management; or where a slipshod version of the new thinking was adopted. The FR project eliminates this risk. There is no overlap between the two projects.

This means that the way remains clear to pilot the EI project as originally designed and agreed. The two pilots (EI and FR) could run side by side as distinct comparative exercises at different courts. This could not come too soon, not least because the support for EI, which was sufficient to secure its submission, acceptance, ministerial assent and funding, has not abated. Written statements of support are on the record from the President of the Family Division (Re S (Contact: Promoting Relationship with Absent Parent) [2004] EWCA Civ 18, [2004] 1 FLR 1279, at para [12]), the High court judiciary (Munby J (Re D (Intractable Contact Dispute: Publicity) [2004] EWCH 727 (Fam), [2004] 1 FLR 1226, at paras [37]–[38]), Bracewell J (Early Interventions: Towards a Pilot Project (NATC, July 2003)), the Family Law Bar Association (by letter to the DfES Project Chair (9 March 2004)), Solicitors Family Law Association Chair ((2004) 104 SFLA Review 12), the Coalition for Equal Parenting (by letter to the DfES Project Chair (29 March 2004)), and Dr Hamish Cameron (Early Interventions: Towards a Pilot Project (NATC, July 2003)).

The Green Paper, Parental Separation; Children’s Needs and Parents’ Responsibilities, Cm 6273 (2004), adopts, at paras 4 and 55, the EI concept of time-linked parenting plans as the key to resolving contact disputes. In line with the ministerial view on the continuity between the FR and EI projects, parenting plans are proffered as the backbone of the government’s Sect 8 reform project. Hence the conundrum of the present situation: the FR pilot – produced by civil servants – does not have the prime characteristic supported by the Cabinet – but the civil servants have not produced the EI pilot, which does have the prime characteristic supported by the Cabinet.

The inference – that EI lost its way in Whitehall’s bureaucracy – is borne out by the project’s history. Put forward as a fully articulated concept ready for installation, it has not been seen since.

Should the FR project have been produced in-house by civil servants? After, as the author is aware, the DCA forwarded the EI project to the DfES for implementation – intact, approved and with a plan for external local management – the DfES then set up its own in-house design team. This curious step (for a project where the design had already been finished) had a marked consequence. By the time the DfES design team first met in March 2004, knowledge of what the project was about had been lost. Core EI documents did not reach the DfES project manager until May 2004 when the project was nearing completion.

How did this happen? One answer is that ‘Family Resolutions’ is the name of an old CAFCASS project which was undefined and unfunded. From the moment the EI project first went to the DCA in the autumn of 2003 it became evident that EI would attract funding. CAFCASS was well placed to claim EI as ‘its’ project.

It is the author’s understanding that the customary procedure would have been to commission the project out to an independent management agency which would have retained the project originators. Had this happened, the EI pilot could and would have been up and running by September 2004.

Independent management adds commitment and expertise and removes the project from the political (in its broadest sense) arena. Under independent control, turf wars, demarcation disputes and extraneous considerations of institutional prestige should abate. Perhaps such a solution will have been adopted, or be in the offing, by the time these words find their way into print.

Caroline Willbourne, Barrister. One Garden Court, Temple, London

Annex H

Soviet Commissariats

To understand the dynamics of a given situation it is often useful to compare and contrast a totally different scenario.

Throughout this paper reference has been made to the Law Commission and its role in shaping society.  In an earlier chapter “Authors and Bit Part Actors” (above), the focus was narrowed to specific individuals within the context of a political commissariat and an intellectual commissariat and the power consequently wielded.

The merging of the political with the academic makes for an awesome weapon of social control for any government. Western countries labour under a cloud of secrecy in many areas of social policy while at the same time their government proclaim the virtues and necessity of ‘transparency’.

When ethical leadership is absent grave injustice occurs and the power of the bureaucracy becomes misused. In the first of the examples given below (Annex H) we can see how only 2 people working within a Commissariat can predestine an entire nation’s policy.

The last paragraph referring to ‘skill’ and ‘organising their work properly’ re: trained teachers, has the implication that the enlistment by the state is organised only by those known to be sympathetic to the cause (in this case Marxism).

References and comparison to the Soviet commissariat system have to be put therefore into the context that all bureaucracies are creatures of habit, – eyeless monster – regardless of country and are, in themselves, unable to exercise moral restraint. Morality and ethical conduct stems from the leadership exercised over a bureaucracy, not from the processes or the systems (Annex H2).

To understand the dynamics of a given situation it is often useful to compare and contrast a totally different scenario.

Throughout this paper reference has been made to the Law Commission and its role in shaping society.  In an earlier chapter “Authors and Bit Part Actors” (above), the focus was narrowed to specific individuals within the context of a political commissariat and an intellectual commissariat and the power consequently wielded.

The merging of the political with the academic makes for an awesome weapon of social control for any government. Western countries labour under a cloud of secrecy in many areas of social policy while at the same time their government proclaim the virtues and necessity of ‘transparency’.

When ethical leadership is absent grave injustice occurs and the power of the bureaucracy becomes misused. In the first of the examples given below (Annex H) we can see how only 2 people working within a Commissariat can predestine an entire nation’s policy.

The last paragraph referring to ‘skill’ and ‘organising their work properly’ re: trained teachers, has the implication that the enlistment by the state is organised only by those known to be sympathetic to the cause (in this case Marxism).

References and comparison to the Soviet commissariat system have to be put therefore into the context that all bureaucracies are creatures of habit, – eyeless monster – regardless of country and are, in themselves, unable to exercise moral restraint. Morality and ethical conduct stems from the leadership exercised over a bureaucracy, not from the processes or the systems (Annex H2).

Annex H1

From the papers of V. I. Lenin

The Work of the People’s Commissariat for Education

Delivered: 7 February, 1921

First Published: Pravda No. 28, February 9th , 1921;

Signed: N. Lenin Published According to the Pravda text

“ . . . . . . Pravda No. 25 of February 5 carried “Instructions of the Central Committee of the R.C.P. to Communists Working in the People’s Commissariat for Education (in connection with the reorganisation of the Commissariat)”

“   . . .  . . . In the Commissariat for Education there are two – just two -comrades who have special assignments. These are the People’s Commissar, Comrade Lunacharsky, who exercises general direction, and Deputy Commissar, Comrade Pokrovsky, who directs affairs, firstly, as Deputy People’s Commissar, and secondly, as official adviser (and director) on scientific matters and questions of Marxism in general.

The whole Party knows both Comrade Lunacharsky and Comrade Pokrovsky very well and has no doubt, of course, that in this respect both are, in their way, “specialists” in the People’s Commissariat for Education.

None of the other workers of the Commissariat can afford to “specialise” in this way: their “speciality’ must lie in skilfully organising the enlistment of expert teachers, in organising their work properly, and in systematically applying the lessons of practical experience. The Central Committee’s instructions refer to this in points 2, 3 and 5.  . . . .”

Annex H2

The Soviet People’s Commissariat for Internal Affairs (NKVD)

The NKVD was the soviet ministry dealing with all Russia’s security forces. It was responsible for political surveillance, internal security, border security, supervision of political trials, and the administration of Gulags and other prison camps.

The NKVD began life as the Cheka [*] a secret police organisation instituted without official status by Lenin in Dec 1917. Its sole aim was to protect and establish the Communist Revolution (‘death to all spies’). In 1922 Cheka became GPU and later the OGPU (Joint State Political Administration), under the supervision of the Ministry of the Interior. It finally evolved into the NKVD.

In that guise it was the main instrument of terror of the 1930s and 1940s and of Stalin’s infamous Great Purge 1936 – 8, as well as the “show trials” orchestrated by Beria (b. 1899 – d.1953).  These two individuals, Stalin and Beria, were responsible for the deaths of  millions of their fellow countrymen.

In 1946 it became part of the MVD (Ministry of Internal Affairs), and became linked to controlling all police forces in the Soviet republics. This link was the MGB (Ministry of State Security).

Bureaucracies often build up a strong self-justifying momentum so it was only a small step to then link to build-up the police and security forces in satellite countries and place them under the control of Moscow.

This admitedly extreme example typifies how a  few indivicuals with an agenda and inside a buraecravy can terrorise whole nations.

 NB. After Stalin’s sudden death, Beria was very quickly arrested and executed by the new regime. The NKVD was then reorganised and became the KGB.

[*] All-Russian Extraordinary Commission for the Suppression of Counter-Revolution and Sabotage.

Miscellaneous

Divorce’s Pedigree

As long ago as 1947, America’s  National  Association of Women Lawyers(NAWL), began promoting no-fault divorce to Bar Associations and state governments.

The Uniform Divorce Bill
“The greatest project NAWL has ever undertaken” is the description given by committee chairwoman, Matilda Fenberg, to NAWL’s pioneering work to create a Uniform Divorce Bill. At the 1947 NAWL convention in Cleveland, it voted to draft and promote a Bill that would embody the ideal of no-fault divorce.

A draft prepared by Fenberg, working with NAWL past presidents Helen M. Cirese and J. Helen Slough, was approved at the 1952 convention in Berkeley, California.http://www.abanet.org/nawl/about/history.html


Footnotes :

[1]  Hockenjos v Secretary of State for Social Security,  May 2nd  2001, The Times, Law report.

[2] ”Government study calls for changes to Divorce Act changes Shared parenting: But Justice Minister refuses immediate action” by Chris Cobb National Post Ottawa , July 17, 2000 http://www.nationalpost.com/news/story.html?f=/stories/20000717/345689.html

[3] Defined in English law as “a time before legal history, and beyond legal memory.” In 1276 this time was fixed by statute as the 3rd September 1189, the date of the coronation of King Richard I (Richard the Lion Heart).

[4] “Roads to Divorce”, Prof L. Stone.   See also, “State Sponsored Cohabitation” Robert Whiston http://robertwhiston.wordpress.com/2007/12/12/hallo-wereld/  and http://robertwhiston.wordpress.com/2008/03/18/7/

[5] It was not unknown for a husband to serve his wife’s jail sentence for her crime(s).

[6] Senator Anne Cools, “Calgary Workshop on Family Conflict (Peter Lougheed Centre) Sept 26th 1998. his also gave rise to the subsequent doctrine, “In the best interest of the child.” (Report by Walter Scheider)

[7]   Law Commission. Paper, Guardianship  1985, Report No 91 Para 2.7

[8] See also the American “Tender Years” custody doctrine.

[9] See also ‘Criminal Conversations’ a tort in the UK, preceded divorce.  In the 20th century was still law in some US states.

[10] Analysis found within “The Emperor’s New Clothes”, .the Cheltenham Group, pub’d  1996.

[11]  “Sword and Wig”, by Lord Justice Dunn. page X

[12]  Noblesse oblige can be defined as a moral economy wherein privilege must be balanced by duty towards those who lack such privilege  or who cannot perform such duty.

[13] Obituary http://www.jsasoc.com/Family_archive/Archive/Roger%20Ormrod/roger%20ormrod%20obit%201.pdf 

[14 Mavis Maclean; “has known Dame Brenda Hale (aka Hoggett) for over 30 years”. The Guardian profile: Jan 9th 2004 http://www.guardian.co.uk/uk/2004/jan/09/lords.women Brenda Hale is the first non-practising academic lawyer to be appointed a High Court judge, and is not highly rated by her peers.

[15]   “Divorce Dissent; Dangers in Divorce Reform”, by Ruth Deech, Centre for Policy Studies, London, Jan 1994.

[16]  For instance, pro-reformer Polly Toynbee declared on the enactment of the Family Law Act 1996 that theirs had been a 30  year agenda and the passing of the FLA was the culmination of that campaign.

[17]  A review of conferences and symposiums held around the world show a commonality of delegates/guest speakers.

[18]  “The law was “re-interpreted” by construing the meaning re Land Charges Act 1972 in relation to matrimonial homes, the rights of 3rd parties were affected. “Divorce Matters”, J Reynolds, Roger Ormrod. p.62. 

[19] Denning, late in life, married a divorcee and it is unclear what type or how generous her settlement was.

[20] According to Lord Justice Robin Dunn’s autobiography “Sword and Wig”, Denning LJ and Ormrod LJ conspired to manipulate those two laws and thwart parliament’s intent.

[21]  Eulogy for Ormrod  http://www.jsasoc.com/Family_archive/Archive/Roger%20Ormrod/edward%20cazalet%20appreciation.pdf

[22] See http://www.ukmm.org.uk/publics/flj.htm ‘Adjustments’ is a euphemism for confiscation or altering the permission to use the property by the owner. “Property interests” is a euphemism for bestowing value to a party who has not paid for or contributed towards a matrimonial asset.

[23]  By Steve Bloomfield, The Independent,  5 February 2006 http://news.independent.co.uk/uk/legal/article343294.ece

[24]  Heather Martin-Dye, 54, ordered to pay another £650,000 on top of the £3 million she has already paid to her former (2nd) husband Philip, 55.”Wife forced to sell her home to settle with ex-husband” By Catriona Davies, 26/05/2006. http://www.telegraph.co.uk/news/main.jhtml?xml=/news/2006/05/26/ndiv26.xml

[25] See also “Family Matters”, Work in child protection and family law at the Nuffield Foundation – 1995–2001 http://www.nuffieldfoundation.org.uk/fileLibrary/pdf/cpflj.pdf

[26] Exodus, Chapter 20 verse 12. (King James Version).

[27]  ‘Family Matters: Family Breakdown and its Consequences’, Patricia Morgan, pub’d 2004 (NZ). A review can be found at http://www.cis.org.au/policy/autumn05/polaut05-11.htm

[28]  What is not in doubt, from the research work of Morgan P, is that no-fault divorce is devastating family life and forcing children both white and Maori to be raised in ‘non-family units’

[29]It Takes a Village”,  by Jane Cowen-Fletcher, pub’d 1994

[30] Hillary Clinton countered by Bob Dole  http://en.wikipedia.org/wiki/It_Takes_a_Village. In the European context every village could be said to have one – a village idiot.

[31] Research from Fathers Direct, a UK fatherhood charity, headed by Adrienne Burgess.

[32] “Surprise New Twist in Fatherhood Survey” By PA Reporter, http://news.scotsman.com/latest.cfm?id=4682010

[33] ‘The Guardian’,  Jan 15 2008 http://www.guardian.co.uk/society/2008/jan/15/children.familyandrelationships

[34]Adoption 1900: A Twist In The Tale ?’,  by Audrey Cieslakowska-Evans, University of Derby student aged 77. For 6  years she traced 100 people adopted before the Act of Adoption 1926. Jan  22nd 2007 http://www.derby.ac.uk/press-office/news-archive/adoption-1900-a-twist-in-the-tale

[35] David Lloyd George at a political speech at Wolverhampton, Nov. 23rd 1918 (Ref. The Times, Nov. 25, 1918).

[36] http://www.sussex.ac.uk/history/documents/3._keating_struggle_for_identity.pdf

[37] For reasons of true and abiding love for one man, or for reasons of an insufficiency of males able to marry.

[38]  “Adoption and the Care of Children”, by Patricia Morgan. Pub’d IEA and homosexuals given the right to adopt children.

[39]The Secret of Bryn Estyn: The Making of a Modern Witch Hunt”, Richard Webster, Orwell Press. Allegations of child abuse persisted and in 1996 the government set up a Tribunal of Inquiry. The Waterhouse Inquiry reported it damning findings of extensive child abuse in North Wales in Feb 2000. http://www.spiked-online.com/articles/0000000CA96B.htm Also in the 1990s the leader of Islington Council Margaret Hodge – later to become a Labour MP and government minister “turned a blind eye, paedophiles in positions of responsibility” and allowed them to leave Islington Council. Child welfare experts believe many found jobs with other local authorities – working with children.

[40]Hodge bows to demands of abuse victims”, by Philip Webster, Political Editor (c) The Times.

[41]  The asset worth of women at the point of divorce and gifted to them by the courts is significantly higher than the asset value they brought into the marriage. – “Empowers New Clothes” – The Cheltenham Group.

[42]  Green Paper HMSO “Children First: new approach to child support”. Nov. 1998.

[43]  FNF (Families Need Fathers) periodic magazine ‘Access’ and ‘McKenzie’.

[44] The level of violence from children of both sexes towards their single mothers is larger than imagined but it is not itemised separately but is grossed-up in the overall national DV figures.

[45]Population Trends”, OPCS No. 76. Summer 1994.

[46] High Court judge Sir John Gorell Barnes (1848 –  1913), created Lord Gorell in 1909. He was President of the Probate, Divorce and Admiralty Division from 1905 to 1909 (disparagingly referred to as Wills, Wives and Wrecks).

[47]Report of the Royal Commission on Divorce and Matrimonial Causes” (Short title: Divorce and matrimonial causes). http://www.bopcris.ac.uk/cgi-bin/displayrec.pl?searchtext=divorce+reform+act&record=/bopall/ref7661.html

[48] Records show that for the years 1700 – 1857 there were 338 Parliamentary Petitions for divorce and 322 Acts passed granting divorce (“Roads to Divorce”, by Stone L). By definition, only the wealthy could afford to petition parliament.

[49]  After the experience of suppressing English church courts in the 16th century (Wolsey, the Dissolution of the Monasteries and Cromwell) most divorce cases were settled out of court.

[50]  See “Roads to Divorce” by Laurence Stone (trilogy).

[51] Paraphrasing Melanie Philips comments found in her book “The Ascent of Woman”.  Phillips also suggests that at the time the suffragettes were led by Feminists who today would be described as hysterical women and who were in the main had either sexually dysfunctional or had other personal problems. http://www.melaniephillips.com/books/  See also http://www.independent.co.uk/arts-entertainment/books/reviews/the-ascent-of-woman-by-melanie-phillips-591881.html

[52]Roads to Divorce” by Prof Lawrence Stone.

[53] Lambeth Palace records – “Roads to Divorce” by Prof Lawrence Stone.

[54] This confusion is to be expected when dealing with old or incomplete records. Even as later as 1945 to 1952 the number of divorces were not listed in the governments “Annual Abstract of Statistics” HMSO.

[55]  As late as 2003 this was still occurring. The ‘Outcomes & Evaluations’ committee of the PSA-8 (a Gov’t commitment to reform custody) comprised only academics  – 1 man and 10 women , 4 from the University of Leeds, (5 known to be very radical) [Joan Hunt, Harriet Bretherton, Ann Buchanan, Liz Tinder, June Thoburn, Claire Furniss, Carol Smart, Dr Amanda Wade, Brenda Neale, Sharon Witherspoon].

[56] The procession (erosion) from guardianship to merely a parental interest i.e. parental responsibility is found in other countries at this time, e.g. France (see below). Vichy France’s motto “Travail, famille, patrie”

[57]  “The Adventures of Paternal Function”, by Maria Dramilaraki-Tzimou (Children Psychiatrist), Verroia, 18/06/2006.

[58]Secrecy culture of social services”,  By David Harrison, Sunday Telegraph, Sept  2nd  2007, Social workers have been accused of trying to pressurise a psychiatrist into dropping his support for a pregnant woman who faces having her baby taken into care at birth. http://www.telegraph.co.uk/news/main.jhtml?xml=/news/2007/09/02/nsecrecy102.xml 

[59] “Cash prize for council that hit adoption targets”, By Ben Leapman, Home Affairs Correspondent, Daily Telegraph, 13/04/2008 http://www.telegraph.co.uk/news/main.jhtml?xml=/news/2008/04/13/nadopt113.xml

[60]  Example: “CAFCASSan end of term report”, Executive Summary of submission made to Parliamentary Sub-Committee Inquiry into CAFCASS (March 2003). The judiciary always declare they do not decide a child’s fate but always depend on  the recommendations received from CAFCASS officers. They maintain that their judgments solely reflect those recommendations. On the hand, CAFCASS staff always maintain they only give ‘an opinion’ and it is the judge who ‘decides’, i.e. makes the custody award.(see also “Promoting Inter-Agency Working in the Family Justice System”, Consultation Paper,  2002.

[61] Law Commission Report, Supplement to Working Papers  No 96.

[62] The Family Law Act 1996 was effectively neutralised at 2nd reading stage using parliamentary changes and draftsmanship led by Baroness Young. She was advised throughout by an ad hoc group meeting at the  Reform Club composed of Morgan P, Bogle J, Kelly I, Silver R, Whiston R. Oddie W,  Campion J, Hart C,  and nicknamed  by their opposite number “her Italian Stallions” in part because of their strong religious persuasion.

[63]  ‘Contact’ is the child’s right’ http://www.advicenow.org.uk/go/feature/feature_127.html 

[64] “Daughter secretly reunites her parents 40 years after they were forced apart for having child out of wedlock” Daily Mail, 17th Sept 2008

[65] The search for my father, a 40 year void,  Kuam .com

[66]Divorce Matters”, J Reynolds, R. Ormrod, et al. Pelican. 1984 (p15).

[67] BMA May 5th 1979, Home Office, ‘Marriage Matters. A Consultative Document by the Working Party on Marriage Guidance’. London, HMSO, 1979.http://www.pubmedcentral.nih.gov/picrender.fcgi?artid=1599332&blobtype=pdf

[68]The Sex Change Society”, by Melanie Phillips, 1999.

[69] “Proceedings of Social Policy Forum 2001, Child and Family: Children in Families as Reflected in Statistics, Research and Policy” – Stuart Birks et al.  http://econ.massey.ac.nz/cppe/papers/cppeip11/cppeip11.pdf

[70] The ‘visiting man’ is a West Indies tradition. See ‘Family Patterns in the English Speaking Caribbean “and ‘Barbadians Marriage and Family’   http://www.jstor.org/pss/350235  and http://www.everyculture.com/Middle-America- Caribbean/ Barbadians-Marriage-and-Family.html.

[71]The Closing of the American Mind”, 1987, by Allan Bloom, academic and philosopher. An essay into the failure of universities to serve the needs of students, the devaluation of the Great Books and Western Thought, the emergence of relativism in American thought would all lead to an impeding social crisis.

[72]The Sex Change Society” SMF 1999, by Melanie Philipps.

[73] Ironically, it is the dictum of Dr A. Holt that holds the profound and logical truth, namely that, ‘Without barriers to  communication there can be no communication’, that instructs us and in adopting it to these circumstances it would read ‘Without barriers to tolerance there can be no tolerance,’ i.e. the gift of tolerance is in the individual – not the states.

[74]A Moral Tale”, CAVA, Workshop Paper 2, Prepared for Workshop One: Frameworks for Understanding Policy Change and Culture, Friday 29 October 1999.

[75] The ESRC (Economic and Social Research Council Research) is wholly financed by the taxpayer with a spend budget of over £93 million.

[76] Stanko appears too anxious to ensure her totals comply with results obtained in earlier years by  Mooney, Painter,  McGibbon, Dominy & Radford.

[77]Critical thinking about the uses of research”, By Tim Hope and Reece Walters, Centre for Crime and Justice Studies, King’s College London, March 2008 http://www.crimeandjustice.org.uk/evidencebasedpolicy.html  and http://www.crimeandjustice.org.uk/opus557/Evidencebasedpolicyfinal.pdf

[78] Letter to Ms. K. Birch, c/o Lord Chancellor’s Dept, Family Policy Division, London. (20/06/02). Ref “Equal Parenting – some questions answered” by R. Whiston. 

[79] Cook says ‘divorcing couples are increasingly more inclined to bury the hatchet to develop a parenting plan.’ http://www.geocities.com/CapitolHill/Lobby/2302/news_files/Shared_custody_called_best_approach.htm

[80] US ‘Parade’ magazine, “Are Divorce Courts Anti-Dad ?”  quoting Jennifer Rosato of Philadelphia’s Drexel University School of Law. http://www.parade.com/articles/editions/2008/edition_07-06-2008/Intelligence_Report 

[81]Shared residence is not a magic solution” Bren Neale, Jennifer Flowerdew and Carol Smart of the centre for research on family, kinship and childhood re-interviewed 60 children. http://reporter.leeds.ac.uk/493/s3.htm

[82] Critics like to obfuscate and oscillate between shared parenting and shared residence rather then restrict answers to the former.

[83]  B Neale, http://www.esrc.ac.uk/ESRCInfoCentre/Images/Bren%20Neale’s%20Presentation_tcm6-15266.ppt 

[84]  The Changing Experience of Childhood; Families and Divorce, Polity Press, 2001. In 1997-8, 117 children aged 5-20 years were interviewed . 30% of the children in this sample had shared residence.

[85] “Making contact happen or making contact work?  The process and outcomes of in-court conciliation”,  By Liz Trinder,   Jo Connolly, Joanne Kellett, Caitlin Notley and Louise Swift – of University of East Anglia.  Baseline sample of 125 mothers and 125 fathers assessed as “hard” cases. http://www.dca.gov.uk/research/2006/03_2006excsum.pdf

[86]  Hunt J (Courtesy of the SPIG website) http://www.spig.clara.net/reports/hunt.pdf

[87] The Lancet, http://www.thelancet.com. Or see Oxford University’s tracking of 17,000 children born in 1958

[88] “Children at risk in rise of shared care”, 4 March 2008 Court sample was small – 77 cases involving 111 children. http://www.smh.com.au/news/national/children-at-risk-in-rise-of-shared-care/2008/03/03/1204402365352.html

[89]With a little care, parents can share”, Patrick Parkinson, The Sydney Morning Herald, 6 March 2008. PatrickParkinson is a professor of law at the University of Sydney chaired the Family Law Council from 2004 to 2007. http://www.smh.com.au/news/opinion/with-a-little-care-parents-can-share/2008/03/05/1204402553663.html 

[90] “Norwegian Gov. Minister Attacks Shared Parenting”,  Family Law Policy, January 3rd, 2008 http://www.glennsacks.com/

 [91] A technique of synthesising research results from previous separate but related studies  using various statistical methods to retrieve, select, and combine results.

[92] Bauserman, R. (2002): ‘Child Adjustment in Joint-Custody versus Sole Custody Arrangements: A Meta-Analytic Review’, Journal of Family Psychology, 16(1), 91- 102.

[93]Child contact with non-resident parents”, 2004, Joan Hunt http://www.spig.clara.net/reports/hunt.pdf

[94]  An in-built bias exists in much of the data collected by the ONS in its surveys, for example, GHP, British Household Panel Survey (BHPS), Labour Force Survey (LFS), Family Resources Survey (FRS), NES, FSS etc. are easily reached audience of women shopping or at home.

[95] “Sources: ONS Population Trends 87; Hill & Tisdall, 1997; Bradshaw et al, 1999; ONS, forthcoming; Judicial Statistics, 2002; Smart et al, 2003; Buchanan et al, 2001. http://www.spig.clara.net/reports/hunt.pdf

[96]  DCA Research Series 4/05 June 2005.  (Volume 1-4). For the first volume of the report on the study see Smart et al, 2003, University of Leeds. 2 http://www.dca.gov.uk/research/2005/4_2005_summary.pdf

[97] A phenomenon first spotted by Bradshaw, Skinner, Stimson and Williams in their Uni of York research into Non-Resident Fathers (see also ‘Absent Fathers’).

[98]  That money talks in academia is not beyond debate. However, the imperative for funding and for becoming well known among one’s peers invites subtle blackmail. The ethical contortions that follow are the double whammy of funding corrupting data and corrupt methodology, distorts any study and subsequent studies using that data.

[99]Residence and Contact Disputes in Court”, Vol 2. Summary http://www.dca.gov.uk/research/2005/4_2005_summary.pdf  Full version Vol 2 http://www.dca.gov.uk/research/2005/4_2005_sm1.pdf  June 2005.

[100]  “Child contact with non-resident parents”, by Joan Hunt with Ceridwen Roberts, University of Oxford, Department of Social Policy and Social Work. Jan 2004. http://www.spig.clara.net/hunt.htm  Email joan.hunt@socres.ox.ac.uk, and http://www.apsoc.ox.ac.uk/Docs/Childcontact.pdf  and http://www.apsoc.ox.ac.uk/parenting/Hunt.htm .

[101]Joint birth registration: promoting parental responsibility”,  DWP 2007, Para 25. http://www.official-documents.gov.uk/document/cm71/7160/7160.asp  

[102]Non-Resident Fathers in Britain” (interim report), By Jonathan Bradshaw, Carol Stimson , Julie Williams and Christine Skinner University of York. Social Policy Research Unit (pub’d 13 March 1997) Part of an ESRC Programme.

[103] Family Policy Briefing, Oxford Uni. Jan 2004  http://www.family-justice-council.org.uk/docs/child_contact.pdf

[104]  A list of Helen Rhoades articles and her collaboration with Mavis MacLean is available at the URL below 1/. The changing face of contact in Australia’ in M. MacLean (ed), Parenting after partnering: Containing conflict after separation  (2007). 2/. Yearning for Law: Fathers’ Groups and Family Law Reform in Australia’ in R. Collier, S. Sheldon (ed), Fathers’ Rights Activism and Law Reform in Comparative Perspective (2006). 3/. The Rise and Rise of Shared Parenting Laws – A Critical Reflection`’ (2002) http://undergraduate.law.unimelb.edu.au/index.cfm?objectid=8CAADA5E-B0D0-AB80-E24496EEBD81C093&username=Helen%20Rhoades&Pub=1  

[105] ‘The “No-Contact Mother”: Reconstructions of Motherhood in the Era of the “New Father“‘ (2002) 16 International Journal  of Law Policy and the Family, 71-94. http://lawfam.oxfordjournals.org/cgi/content/abstract/16/1/71 H. Rhoades is linked to Carol Smart, Bren Neale, Vanessa May, Rebecca Shipman, Jennifer Mason. Becky Tipper. Amanda Wade (UK) and Leeds Uni. and influencing the Australian Attorney-General’s Department: Family Pathways Branch see http://www.griffith.edu.au/centre/slrc/flru/network/content04.html.

[106] The EI project was submitted to Lord Filkin, the DfES and the Dept for Constitutional Affairs (DCA) on 8 October 2003. The EI was the result of 8 years’ development, by Oliver Cyriax, it was fully specified, properly designed and costed. It had across-the-board professional support inc. judiciary and fathers.

[107]  Cleveland pediatricians Dr Marietta Higgs and Dr Goeffrey Wyatt diagnosed child sexual abuse. After a number of court cases, 26 children were found to have been wrongly diagnosed, and cases involving 96  children were dismissed by the courts. In the other cases children were removed from their parent’s care permanently (some were reunited in 2007). In the following years other Satanic ritual scares and hoaxes were alleged (see also feminist Bea Campbell’s role).

[108]Should Child Custody Rules be Fair”, S Altman. Journal of Family Law, p348

[109]  Scott Altman, “Should Child Custody Rules be Fair”, 1996.

[110] NSPCC, Dept of Health and Police figures show greater child abuse, neglect and homicide perpetrated by mothers.

[111]Residence and Contact Disputes in Court” Volume 2, Carol Smart, Amanda Wade, et al.  Leeds Uni. http://www.dca.gov.uk/research/2005/4_2005_summary.pdf 

[112]  “The rule of law that a father is the natural guardian of his legitimate child is abolished”. Children Act 1989, Sect. 2 (4).

[113]  Carol Smart, Liz Trinder, Amanda Wade, Mavis Maclean, Brenda Neale, Joan Hunt, Jennifer Flowerdew, etc Brenda Hoggett and Ruth Deech should also be mentioned as former products/lecturers at universities.

[114]Why I am a progressive’, New Statesman, Jan 2000. http://www.melaniephillips.com/articles/archives/000041.html

[115] The epitome of this was the Gay Rights lobby threat to “out” any closet homosexuals who opposed lowering the age of consent to 16, or brand as a homophobes anyone who voted to retain Clause 28.

[116]  Haut de la Garenne, Jersey,  Police find a skeleton in the garden and allegedly uncover underground “punishment rooms” at a former children’s residential care home where some former residents say they suffered physical and sexual brutality (March 2008). See also Victoria Climbie, 8 years old, died from hypothermia and torture with 128 injuries (2000).

[117]  Keynote speech delivered by Mr Justice Coleridge, “ Family Life – Family Justice – Fairness”,  Resolution National Conference 5 April 2008. Also “Breakdown in families ‘as destructive as effects of global warming”, By Sarah Womack, Social Affairs Correspondent, The Telegraph, 07/04/2008 accuse Gordon Brown of prioritising the abolition of plastic bags over support for families, and say the Government is “fiddling while Rome burns”. http://www.telegraph.co.uk/news/main.jhtml?xml=/news/2008/04/05/nfamily105.xml.

[118] “Downfall of a decent clan: What the Shannon family tree reveals about the social breakdown of Britain”, By Richard Pendlebury, Daily Mail,  16th April 2008 http://www.dailymail.co.uk/pages/live/articles/news/news.html?in_article_id=559949&in_page_id=1770&in_a_source

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3 responses to “Killing Custody

  1. Pingback: Custody in Crisis « Motorist matters

  2. We’re not really sure, why so many continue to sweep this subject under the rug? We are tring to bring awarness, however, it seems to be very slow going. What we cannot figure out is, why? How much longer do the children have to suffer?

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