Custody in Crisis

by Robert Whiston  FRSA,  Aug 16th 2008.

 

Introduction:

A once silent judiciary appears to be finding its voice – if only sporadically. At last, judges are speaking out against the mismanagement of the law and the Family Division in particular.

But is it too little, too late ? Are we already heading towards a meltdown ?

A once confident commissariat of politically motivated opinion-shapers now see their beloved solutions slowly turning to dust. Institutions, once devised to meet what was thought to be needs of the public, now oppress the very people intended to benefit.

Having read Stephen Gilmore’s 2001 paper “A Critical Perspective on the Welfare Principle”, published in ‘Family Law’, I have no hesitation in recommending his paper to others with an interest in child custody. [1] 

The question today is whether ‘welfarism’ that gave rise to the concept of the child’s best interests (CBI) is over and dead. And if it is finished, as unworkable what system of merit, is there anything to replace it ?

It is a dilemma facing all Europeans nations in one form of another.

This paper discusses the problems of ‘indeterminacy’ caused by the CBI approach and the alternatives proposed by some academics.

1. Looking at the Science of Child Welfare

Stephen Gilmore begins his article by outlining the extensive powers of the Court of Appeal to intervene in circumstances where normally it is parents who decide matters. He points to the courts readiness to interfere in cases where normally parental is permission is sought and is either given or denied by them, and how the same court can choose to simply ignore those wishes.

An example that comes quickly to mind is the court’s decision to permit the lethal separation of conjoined twins.

This power he contrasts with a 1997 example of where the Court of Appeal instead of overriding parental wishes surrender to a mother’s opposition who does not want to allow a lifesaving medical operation to be performed on her child. [2]

As millions of fathers know to their cost, the law is central to their aspiration to care for their children. However, regardless of how pivotal the law is to such ambitions, it is also belligerent, not to say needlessly obstructive and impedes at seemingly every turn. It is the law and the same court system that is used by others to thwart, deflect and deter fathers.

The law regulates the practice of a plethora of professions and a veritable army of salaried staff can be found within each profession.

The law is at the heart of, for example, social work, child protection, the power of local authorities, and is supposed to secure accountability. Experience and regular headlines tell us this is a fiction. Child abuse and homicides go unabated whenever the public sector becomes involved.[3] Experience also tells us it is this group that thwart, deflect and deter.

The apparently seamless professional façade is also a fiction. Behind the static screens is a heated debate and an anxiety over the future usefulness of their work and if fathers been unfairly excluded.

Stephen Gilmore’s paper into the ‘welfare principle’ gives the reader an insight rarely seen by fathers of what is happening behind the scenes and the turmoil that a reappraisal of the principle is causing.

Questions are being posed from within as to what, where and how lies their future direction.

Social workers who in the past may have paid only lip service to the notion that social work itself is subject to ‘constant development and change’ are waking up to a the very real changes wrought by fathers groups.

The severity of change is no longer something that can be gilded over.

Wrestling with major changes has prompted a flurry of articles (‘major texts’) whose intention is described as aiming “to enrich thinking and debate about this crucial and challenging area, thereby encouraging reflective practice.” In plain English this hints that a revolution may be underway.

Stephen Gilmore’s paper draws attention to this shift. The authors he cites are mentioned in this article with a little more detail than is permitted on his truncated web-article.

He recognises that the “key areas [are] law and practice” and that to date the view of the practitioners have been at the expense of the user. This is a small but vital change of emphasis. Gilmore makes the distinction that “law guides decision-making in social work” and one can infer (in the fathers’ movement) that to effect change the law must either be forced to alter or to accept change.

Gilmore brings to our attention a variety of remarks and conclusions made by a range of social scientists and researchers, some known to us, for example, Mavis Maclean, John Eekelaar, Martha Fineman, and some more obscure, Anne Opie, Jon Elster, J.Herring, Helen Reece. And it is the last name, Helen Reece, lecturer at UCL (University College London) who gives us the key note theme that will be repeated in this article. In “Subverting the Stigmatization Argument” she states that: [4]

The paramountcy principle originates as a covert method of putting mothers on an equal footing with fathers in custody disputes, through the subordination of both fathers and mothers interests in the interests of the child. This was the more politically acceptable than giving mothers full parental authority directly which happened only in 1989.

This is certainly how it feels and explains much but is it simply an accident of fate ?  If her history of the concept is factual correct then it would mean that in a post-1989 era where it is politically acceptable to give mothers an ‘interests’ in the children’s future then there is no longer any valid reason to subordinate fathers rights and interests, in fact, to do so would be sex discrimination.[5]

In the past academics have deferred to the science of child welfare and what the law has to say about it and the child. Their reverence has been embarrassing – comparable to the awe of scared cows.

Fathers groups have been in the vanguard of challenging that deference; questioning whether it really can be called a science.

Gilmore’s paper concedes, and probably most fathers would concur that Child Welfare Science is “not universally admired.” Is the sacred cow status screening the real function which is that such a paradigm transforms fathers into milch cows, i.e. a source of easily gained income ? 

Martha Fineman and Anne Opie, writing in 1987, argue that social science conclusions are ‘thoroughly embedded in the culture and professional practices which produce them’. No father would disagree with the adjective ‘embedded’.

Right: an aging Martha Fineman, feminist author

Every symptom that militates against fathers and their right to custody equality all appear to be very systemic in nature, immutable and built into the fabric of the agencies with whom he has to deal.

Later, in 1989, Fineman writes of what could be described as the insipient ‘disconnect’ between on the one hand the judiciary and the caring professions and on the other those being given the help and assistance both offer, i.e. the public.

Right: Anne Opie (New Zealand)

What has been lost under the current practice of deferral to the helping professions are legal procedural values such as due process and public decision-making, in addition to the undervaluing of nurturing and caring. (Fineman, 1989). [6]

It has taken almost 20 years for politicians to wake up to the disconnect of the broken society fathers groups have been highlighting since the late 1990s. They have seen the importance of a nurturing and caring society which only now is finding a resonance in the societal junk yard left by the Tony Blair years. Conservative Party policy now has David Cameron setting himself the task of “mending a broken society'”.  [7] Labour has been forced to follow suit.

Trying to understand why men’s progress towards equality of treatment is so perennially rebuffed has always been difficult to explain but it is becoming increasingly mystifying given the societal changes and exhortations by government and ‘opinion shapers’, that seek to re-assure men that they are as equal in parenting matters as mothers. Gilmore’s paper gives us some of those answers.

As an industry, there is a realisation in ‘academia’ that the law and the present practice of the ‘professionals’, “does not, and cannot, provide an answer to the complex human questions that lie at the heart of the social work task.” [8]

2. Quantifying the Resistance

Every ‘policy for change’ announced by government is systematically cancelled out in private circles by the resistance to change (ROC) and opposition to any re-ordering of the status quo. This results in progress that is not just minimal but can slip into reverse.

No where is this more acutely apparent than in the quasi-methodical way custody awards continue to be decided.

The new dawn for the judiciary that the Children Act 1989 should have signalled served only to entrench old court patterns of behaviour. The judiciary instinctively oppose what they see as ‘radical’ change and prefer to muddle along in their comfort zone.

Our goal should be how to tackle and overcome these problems, not simply to bemoan the inadequacies of the regime.

Those in the Social Sciences are not best equipped to analyse themselves or where they and their profession now stand. However, those that have been in business are au fait with the need and the method to get a grip on transition. The Social Sciences and the academic scaffolding that surrounds them are unable to make a cold, detach analysis, and then take the necessary steps. They have reputations and future funding to protect.

If those in the social sciences are unable to perform this self-analysis to allow them to move with the times then this represents a vulnerability which fathers groups can exploit.

Fathers groups need to see what they need to achieve; where to achieve it; and how far they have succeeded. To that end the following table should prove useful.

Rick Bremner a management consultant, neatly sums up the situation when he writes;

‘Resistance isn’t actually resistance to change — its resistance to the loss of the old status quo’. [9]

Some of his insights and assessments are directly applicable to fathers to grapple with the imperfections of the judicial system.

Using the Table below, fathers face, for instance, what he defines as the ‘old status quo’. Into this comfort zone then comes father’s activists – the foreign element – which the old status quo must either annihilate or absorb.

            Table 1. It would not be too optimist to suggest that fathers rights groups are somewhere in the ‘Chaos’ and the ‘New status quo’ categories. Public leaders and institutions presently exhibit Chaos characteristics but there are hints that elements from both categories are emerging in that new patterns and relationships are transforming ideas.

A theme that is most noticeable throughout Gilmore’s paper – and it arises everywhere in the papers of other researchers he cites, e.g. see M. Fineman’s quote above – is a slavishly sycophantic deference to an abstract ideal of the law. Without any reason being given the law is held in obsequious awe when at other times the same commentators and especially the press would agree the law is an ass in reaching some of its decisions.

“Academia” for want of a handier or better title, is in flux. While the theme of loyalty to the law remains intact it is wearing thin. There is a recognition that change is afoot and has to be managed.

A principle obstacle to change and to shared parenting has been unfavourable papers and surveys of the consequences of such a model. The one factor these papers have in common is that they focus on ‘high risk’ families which by definition are aberrant – but this is not made clear enough to the casual reader or journalist.

A fascinating article appeared in the Journal of Child Psychology and Psychiatry which concluded that the associations between the quality of a child’s relationships with its non-resident father (NRF) needs to be considered particularly within the framework of the larger family system. The inference is that it is not duly considered presently. Rather than excluding fathers as many commentators opposed to shared parenting have advocated (on the basis that all men are inherently violent), the article found  child–father relationships are particularly important for children from ‘high risk’ families. [10]

Over a 2 year period these NRF-child associations were stronger and more stable for children from single-parent families than for those with stepfathers.

In other words, the most vulnerable children benefited significantly from pro-active biological father involvement.

It would be impolite and unseemly in such circles for the article to suggest that if the family is ‘high risk’ and yet fathers’ participation is beneficial what parent is causing the ‘high risk’?

The above 2004 article contrasts sharply with the fashion and prevailing culture of 10 years earlier when Valarie King wrote her University of Pennsylvania, dissertation, “Consequences of Outside Father Involvement for Children’s Well-Being”, 1993. It was almost mandatory in the 1990s to see fathers as ‘outside’ the family and his contribution to it as inconsequential.

3. Key Moments

After dealing with some of the basic historical aspects of custody and guardianship (many of which are already cited on this blog in the article entitled Killing Custody), he ventures to pinpoint the key moment when welfare of the child became a principle (see https://motoristmatters.wordpress.com/2010/07/02/12/).

He sees the Court of Chancery as introducing the interests of the child as a justification for interfering with the father’s rights as the child’s natural guardian and cites De Manneville v. De Manneville (1804) and Wellesley v. Duke of Beaufort (1827). [11]

This move is reinforced by the Guardianship of Infants Act 1886 where the child’s welfare was stated to be a consideration for the court in custody disputes. Shortly thereafter, in the early 1890s, Gilmore states that the welfare of the child had become the ‘dominant matter’. [12]

However, it was the Guardianship of Infants Act of 1925 that first categorically provided that the child’s welfare was to be the ‘first and paramount’ consideration.

A thin divide between two distinct eras, it is argued by some, emerged simply by subtle changes in wording. In its earlier incarnation the welfare principle was said to be narrower in its scope and adjudged by courts to be ‘a primary consideration’ – one among other primary contenders. This was later superseded with the adoption of the stronger phrase in the 1925 Act that a child’s welfare was ‘the paramount consideration’. [13] Other considerations which once vied for consideration were, after the 1989 Act, knocked out of the ring and the ‘child best interest’ (CBI) and paramountcy monopolised all future proceedings.

The prescient motto to adopt must be that “Legal changes won’t bring reforms”, that is to say, not of themselves.

In “Legal Change and Child Custody Awards” Jessica Pearson, University of Denver, 1982 examined that happened to the pattern of custody award in Colorado between 1966 and 1976. [14] This was a period of time prior to the adoption of a “sex neutral” statute that stressed the bestinterest of the child (CBI) in the judicial award of child custody. It also covers the time period after those legal changes.

Comparing the two eras Jessica Pearson found that the legislative changes had only a marginal affect on how judges awarded custody. Mothers continued to routinelyacquire the custody rights of the children following divorceunless shown to be unfit to parent.

But significantly in the final year, 1976, an increasein the proportion of shared, joint, and split custody arrangements was noticed. This was taken as evidence that the new legal standards were inspiringmen to play a more aggressive role in contested child custodycases.

It is significant because a similar trend was occurring in Britain – until the advent of the ‘train wreck’ known as the Children Act 1989.

There has been a recognition of late that the perceptions and not just the actual ‘welfare’ principle for children, changes over time. Gilmore gives an illustration in Re M (Child’s Upbringing) [1996] 2 FLR 441. The facts were very similar to those of J v. C when the House of Lords in 1970 held that the welfare principle was not confined to disputes between parents, but applied equally between parents and third parties. The court’s power to intervene meant that the court decreed that it was in a Spanish boy’s best interests to remain in England with his long-term English foster parents.

In Re M the question for the Court of Appeal was whether a Zulu boy should be returned to his parents in South Africa. Unlike the Spanish boy, the Zulu boy’s best interests were seen as most likely to be achieved if he did not remain in England. He was returned to Africa while the Spanish boy stayed in the UK.

The welfare principle, Gilmore believes, was strengthened in the Children Act 1989 when it removed the word ‘first’ – as in ‘first consideration’. Fathers groups would interpret this implied exclusivity as a distortion of intent. The longstanding criteria used by the court prior to 1989 was that in determining custody the ‘first consideration’ (implying one consideration among many) must be the best option for the child’s future. For example, a father’s larger home or his plan to send his child to a fee-paying school and later to university would be more attractive to the court than a mother’s intention to utilise the local comprehensive school. The other test phrase used by the court prior to 1989 was that the child’s interests should be ‘a primary’ consideration’ (again, implying one among others). The 1989 Act made all other considerations bar the mother’s, redundant.

4. Why Have a Welfare Tenet ?

This is increasingly the question posed in numerous journals and learned papers – and it is good news for divorced fathers everywhere – and for the interests of their immediate family, i.e. grandparents, uncles, aunts etc.

The ‘welfare principle’ has been allowed to become a totem; it is a scared cow that carries no warranty as to childhood outcomes it creates or appropriateness to a child needs – a development also now being acknowledged by those in the social science field.

Parallel to this development, Bowlby’s ‘attachment theory’ has attracted substantial support from academia, post 1950. [15] Bowlby argues for a bias in child-parent attachment that favours the mother.

Left: John Bowlby

Prof Rutter and others say there is a lack of hard supporting evidence for this view. [16]

The ‘welfare principle’ which developed in case law and was designed to protect the child’s interest, has emerged in statute as a by-product of a struggle to equalise the position of mothers and fathers in relation to the guardianship of their children (in law, fathers and unmarried women always had de facto guardianship rights). [17] Confusion only set in when married and divorced women sought the same rights as unwed mothers (see also ‘Anna Freud Parts 1 -3′  by R Whiston).

The scope and meaning of the ‘welfare principle’ was enlarged by judicial interpretation. Phillip Alston is among many who describe how universal the concept has become:

“. . . .despite its very limited jurisprudential origins, the principle has come to be known in one form or another to many national legal systems and has important analogues in diverse cultural, religious and other traditions.” (P. Alston, 1994). [18]

In defence of this haphazard approach it is said that 1). every child is different and 2). each child and case deserves individual consideration and 3). every case has to be judged on its own unique merits.

Those claims, however, are not only misleading and mischievous but disingenuous.  These are not reason but frail excuses to hide contradictory rulings. If each child and case deserves as much individual consideration as a criminal case then why don’t 95% of murder cases attract the same sentence ?  The phoney claim of uniqueness shields a decomposing and disintegrating regime rapidly falling into public disrepute.

We should re-examine afresh what we actually mean, or think we mean, by “every child is different”. If every child were different we would not be able legislate for children as a category because they would all be so different. The United Nations’ could not have a Charter for children’s rights because all the worlds’ children would all so very different.

This clearly cannot the case. For UNICEF to do its work it must assume all children are the same, require the same basic requirements of water, food, warmth and shelter to survive and an additional echelon of needs in order to thrive, e.g. clean drinking water, warm and regular food, effective shelter, personal security, family security, education and training etc. All children share these additional echelons.  Arguably, every child is not different but the same.

Therefore, in custody disputes either all children or no children want to see both parents and equally either all children or no children want sole mother custody thrust upon them.

This criticism of the welfare principle chimes with the view found in Gilmore’s paper that adults in their efforts to “listen to children” can all too readily turn the welfare principle into something that is ‘done’ to children rather than for them’.

It follows from the above argument that each child and each case, while deserving adequate and proper attention does not automatically require individual consideration. There is a commonality among the desires, wants and requisites of a child. These must be provided and chief among them is to know and be loved by both of its parents. This is made almost impossible with the current regime of sole mother custody that pervades 95% of post divorce child awards.

It is morally indefensible for one child – or even just 5% – to have a privileged or satisfactory outcome and every other child to have the very opposite.

The European Court of Human Rights has fuelled the level of academic inquiry, particularly since Britain’s Human Rights Act 1998 became active in 2000, and the obvious conflict that has arisen whenever the ECHR has struck down appeal court rulings of the various nation states.[19]  Many EU nations have been found guilty and fined over their conduct for not giving fathers reasonable custody or access. Unaccountably, in many instances this has not led to changes in legislation.

There is an inherent three way clash between 1). the established welfare principles versus 2). the new EU version of family law (which permits the right to family life and of access to one’s children etc), versus 3). parental rights when custody rules are being defined by a conglomerate power bloc, i.e. the EU (and not courts or parents) that nominally does not allow discrimination on grounds of one’s sex.

What is slowly being realised, but is not yet accepted by courts, is that in their attempts to enforce and ensure child protection at every turn, we are inadvertently using the immense power of the state to abuse children by compromising their ‘rights’. No where is this more keenly felt than at the point of interdiction by agencies such as Social Services, probation service, child protection services, local council welfare bodies and CAFCASS.

Local councils have attracted unfavourable headlines in the past 12 months by overstepping the mark, being pre-emptive and simply getting it wrong in case after case. [20]

It must surely be a calamity by any measure that hundreds of children have been taken “into care” on the basis of disputed medical evidence of abuse.  Parents so affected could, said Margaret Hodge MP, the Children’s Minister be reunited with their families. However, children that have been forcibly adopted by the state after being ‘taken into care’ will not benefit from the same government review of procedures ordered in Feb 2004. [21]

Right: Margaret Hodge MP

The Children Act 1989 directs that courts shall, in particular, pay due regard to “any harm which he has suffered or is at risk of suffering” (Part 1, clause 2, (3) [e]). Wrenching children from their parents and then separating the brothers and sister among various adopting families cannot be anything but harmful and suffering.

What an absurd situation for the courts to fall into !

Below are some of the  caveats and proviso’s a court must adopt before making a decision about adoption and Social Services demand for a care order:-.

(a) the ascertainable wishes and feelings of the child concerned (in the light of his age etc)

(b) his physical, emotional and educational needs

(c) the likely effect on him of any change in his circumstances

(e) any harm which he has suffered or is at risk of suffering

All the above can be negated and of no consequence by Social Services using sub-section ‘f’ to inform the court that the children’s parents may not, in their opinion, be “capable”

(f) how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;

The range and scope of the powers available to the family court under sub-section ‘g’ the 1989 Act are practically limitless which makes all the child protection clauses and aspirations appear a parody of justice, a travesty and  incongruous.

Only the state, it would appear, can kidnap with impunity.

The reason why adoption proceedings appear to be so fast with the minimum of disagreement between social services and the court could be further wording in the CA 1989, Part 1 clause 2 which states:

 “In any proceedings in which any question with respect to the upbringing of a child arises, the court shall have regard to the general principle that any delay in determining the question is likely to prejudice the welfare of the child.”

Hundreds of children taken into care on the basis of disputed medical evidence of abuse could be reunited with their families under a government review ordered yesterday. Margaret Hodge MP, the Children’s Minister, gave councils four weeks to review their current cases and 12 weeks to reassess all previous care orders that involved “serious disagreement” between medical experts.

Mrs Hodge said the Government was aware of the prospect of substantial compensation claims from parents whose children were later adopted after being taken away from them. Parents would be eligible for legal aid for such claims under normal rules.

But she gave little hope that such children would also be returned to their families, saying that to overthrow their cases could cause distress to “happily settled” adoptive families.

5. Future Reform

In our efforts to protect children we are using child protection legislation – which has grown out of the welfare principle – to abuse children by denying them their inalienable rights as specified above.

Gilmore sees the very real danger of the welfare principle actually impeding consideration of the issues from the child’s perspective.

There are signs that this view is becoming increasingly accepted in mainstream thinking as witnessed by the citations in Gilmore’s paper. He concludes, as many fathers did years ago, that the ‘child’s best interests’ is too subjective and too ‘value-laden’ with indeterminately elastic borders.

The ‘value-laden’ complication comes not from parents or society but from the (social) scientific and legal fraternity.

Using their skill base and predictive ability stemming from a college education and perhaps not yet being a parent they are not possessed of a clear real-time definition of “adequate parenting” and its ramifications, or the “best interests of the child” in real life terms.

Psychiatry and psychology are not exact sciences and yet their contributions to the debate are used in concrete terms by the courts who demand exactness in order to function.

The value-laden norms of the great and the good, while applicable to their own social grouping, are unstintingly inflicted on others social classes without a thought to their suitability. Britain’s intelligentsia should be fully engaged but is failing, by its silence, to test and question.

These are the threads to be found in articles by other commentators in other journals and are the ones that will be examined in this paper.

Though at first sight it may appear contradictory to envisage the welfare principle as impeding a consideration of children’s issues, the practicalities of defining what are the child’s best interests on any day, in any court, rests solely with the individual judge and how benign or bad-tempered he feels that day. This is something fathers groups have long tried to isolate and draw attention to.

In other words, for all the rhetoric about the ‘majesty of the law’, checklists etc, custody awards are totally subjective and devoid of any set of objective, repeatable criteria.

Fathers must continue to press for change – for the present metered scientific rationalization of all things natural is anything but scientific and doesn’t come close to being rational with a human face.

6. Sacrificing Parents

The welfare principle has taken on the mantle of a rhetorical and symbolic totem that is out of all proportion to its efficacy and probity. In the process one researcher, Altman (1997), believes it has prevented parents, judges and legislators from assessing custody sensibly.                                             

Left: Scott Altman , professor at USC Law  – Family Law, Property, Jurisprudence and Community Property.                      

The very strength of the welfare principle is also its fatal flaw. By focusing the court’s attention on the person who isn’t there to voice their sentiments, the court has to presume to know the child’s mind. In so doing the party with nominally the least control over courtroom events wields the greatest power and renders those who have to attend court with no control over their own futures. [22]

This could not happen when common law ruled custody and rarely happened when the child’s interests were one among several considerations. But today, parents have become hostages to fortune. Their fate is secondary. The happiness of adults is, in effect, sacrificed on the theoretical altar of CBI for some ethereal ideal that no one is sure exists.

The parallel considerations of parental and a child’s future welfare cannot be deftly detached and treated as two distinct entities, which is common practice today, for the future happiness of one hinges on the future happiness of the other.

Factors colouring the discussions are money, control, negotiation postures and a degree of sprightliness. Warren Farrell’s book “Women Can’t Hear What Men Don’t Say” admirably makes the case.

“There are definitely financial reasons why some men seek child custody,” says USC Law School professor Scott Altman, who studied divorce-negotiation tactics by polling the members of the family law section of the California Bar. Altman found that over a one-year period more than 60% of divorce attorneys reported receiving threats of custody litigation from their opponents to extract more favorable child-support arrangements. Altman further found that attorneys who represented women exclusively or predominantly received such threats three times as often as their counterparts. (Lurking in the Shadow , 68 USC L. Rev. 493 (1995).

A lengthier commentary on these complicating issues and allegations can be found at http://warrenfarrell.info/the-dad-vocates.html.  

The more comprehensive the check-list is made to ensure optimum outcomes, vis-à-vis the welfare principle, the more complex everything becomes. The more complicated the ground rules the greater the chances of creating life-long misery. While the welfare principle is theoretically a sound one, it is the interpretation as presently executed that is killing people.

The resulting convolutions have led some to seriously suggest that tossing a coin would probably result in just as many ‘right’ custody decisions (Mnookin, 1975 & Elster, 1987).

Professional propriety, self-preservation, a thirst for funding and career reputation is some of the factors limiting radical inquiry.

Left: Prof. Robert Mnookin

As far back as 1975 Prof. Robert Mnookin (Harvard Law School), believed there was a danger that in custody matters the “parties felt denied a part in the process / forum and were unable to communicate their anger, their aspirations and level of exasperation.” [23] Successive changes have only worsened matters.

Left: John Elster

In 1992 Robert Mnookin and Eleanor Maccoby co-authored “Dividing the Child: Social and Legal Dilemmas of Custody.” It traces 1,000 families after divorce over a three year period.

It is exceptional in that it delves into numerous joint custody and sole father custody scenarios and the outcomes are examines in some detail.

Broadly speaking the book conclude that there are 3 main types of post divorce patterns in parental relationship when co-parenting (shared parenting) is in operation; 1. co-operative, 2. conflict and, 3. disengaged.

7. Making Choices

A child’s wishes and feelings are undoubtedly of great importance and should be weighed when deciding just where the child’s future welfare lies but there is, without doubt, also an interplay between children’s rights and their welfare and the consideration of others, i.e. the parents. [24]

It is acknowledged as a consideration but does not fully come to the fore in Gilmore’s paper or in the citations he uses. The difficulty lies not in giving a voice but in giving proper weight to the views of children. Here Gilmore is at one with fathers groups. Another difficulty is that in giving their views children – and many parents – may not what ‘outcomes’ are, or even what choices will lead to the most likely results, say, in 10 years time, from a choice they are now being asked to make today.

At present the child’s voice is conveyed via CAFCASS staff – a method that does not meet with wholesale confidence especially among fathers groups.

Professor Warshak, in an article published in the ‘Family and Conciliation Courts Review’ (October 2000) challenges “the idea that children have a biological need to develop selective attachment to just one person” (known as ‘monotrophy’).

Right: Professor Richard Warshak

Ben Greenstein’s book “The Fragile Male: The decline of a redundant species”, (1993) put forward similar ideas and, as noted above, Prof Rutter has questioned the selective attachment theory. 

Warshak’s challenge is crucial because the ‘maternal attachment theory’ has dominated court and intellectual thought process for several decades. [25] It has created a prejudicial mindset and coloured conversations at policy making level.

Men looking after children are not seen as equally competent as mothers but as aberrations – even when they are widowers. Solicitors advising fathers are not conversant with research. This has prevented fathers from winning more favourable awards when they have applied. Mother-only attachment theory has deterred literally hundreds of thousands of fathers from applying for sensible ‘shared parenting’ time and frustrated countless other. It is a destructive factor in human relations.

ONS data shows that single fathers disproportionately look after more teenagers than single mothers.

From ONS data it could be inferred that fathers are perhaps better (?) able to deal with the ‘difficult’ adolescent years (see Table 2, below). Albeit numerically small, fathers look after significantly higher than expected proportions of 5 to 10 years olds and 10 to 15 year olds.

Are fathers doing a better job judged on how many children stay within the household after the age of 16 ?  In SMH (single mother households) children aged 18 have completely disappeared from the radar. [26] 

Note:  In the 5-10 and the 10-15 age groups the proportion of children (at 70%), looked after are seemingly comparable between the sexes. What is not comparable; however, are the numbers with mothers’ 30% and 40% spanning many tens of thousands of children and the single fathers’ 20% and 50% spanning only a few hundred.

There is symmetry in the opposite ages that each sex looks after. Lone Fathers are well represented in the 16-19 age group but not mothers and vice versa in the 0-4 year old category (see 10 *).

What is also not comparable is that this table relates to lone fathers and divorce ‘single’ mothers. ONS data on single fathers seems invariably dominated by widowers rather than divorced single fathers which in itself speaks volumes about the level of discrimination in custody awards.

Professor Warshak’s article criticises ‘child therapists’. Some have poor skill levels while others have been drafted in from another speciality.

For the record, Warshak states definitively that the opinions of these experts are, in facts, simply views and prejudices and the options they recommend are not backed up by credible research:-

“Therapists who propose restricting children’s night-time contact to a parent (referred to as overnights) disagree on the age at which such restrictions should be lifted. In some cases, therapists designated as experts in court have testified that infants would suffer irreparable damage if separated from their mother for even one night. 

Other therapists routinely testify that children are not ready for overnight contact with their fathers until the age of five. None of these guidelines are grounded in systematic, methodologically valid research about the direct impact on children of overnight contact with divorced parents because such research does not yet exist. However, overnight restrictions are endorsed by many evaluators and expert witnesses.

This is exactly the point fathers representatives have been making to ministers and Whitehall for almost a decade. Fathers groups are puzzled why resistance to overnight stays is both virulent and endemic. The structuring of benefit payments to mothers and CSA rules perhaps answer both the motivation and the intensity with which overnight contact is resisted.

If all the ‘non-expert’ child therapists appear content to acquiesce or advocate for all children to have a future devoid of a father, then that speaks volumes about the political agenda they have adopted.

The belief expressed by Prof. Robert Mnookin, that there is a danger that the “parties felt denied a part in the [custody] process and were unable to communicate their anger, their aspirations and level of exasperation” are echoed on this side of he Atlantic. Lord Justice Dunn, comparing the pre-1969 era with that of the 1970s and 1980s, remarked upon the same phenomenon regarding how parties meshed with the new divorce regimen. In other words the system constructed to embrace the general public’s needs actually alienates them. [27]

The only thing to be said for this system [the pre-1969 divorce regime] was that it enabled the parties to unburden themselves of their rage and hostility against one another, instead of having their grievances bottled up inside them, causing them frustration and a feeling that they had been denied justice, as frequently happened when the law was reformed. To that extent it may have been a kind of therapy and few complained about the loss of a case. – ‘Sword and Wig’,  p 141.

Gilmore quotes a 1987 Valarie King (Family Studies at Pennsylvania State University) remark that although the welfare principle represents an important social and moral set of values for child protection it, “at one and the same time may be used to justify almost anything” – and that is the danger. Furthermore, as King points out: 

“.. the paradox that must be confronted is that the more clearly the law defines what factors should be considered and what objectives should be achieved… the more there will be to argue about and the less effective the welfare     principle will be as a non-enominational, class-free, apolitical, race- and gender-neutral principle to which everyone may pay lip-service.” -Valarie King, 1987.

While those realisations are afoot, changes in how fathers are perceived are also underway. The importance of and the role played by fathers in good ‘outcomes’ is being increasingly recognised. For instance while it has the usual caveats of a reluctant convert the American ‘National LongitudinalSurvey of Youth’ (NLSY), used a series of modelsto determine whether father visitation or the paymentof child support benefited a child’s wellbeing.

Left: Valarie King (Professor of Sociology, Demography, and Human Development & Family Studies

Valarie King and most of academia could not avoid recognising that the current rates of divorce and out-of-wedlock childbearing, triggered in the 1970s, made non-resident paternal parenting increasingly common.

Their attitude was that although recent public sentiment called for an increase of fatherly involvement in their children’s lives this was under the misguided assumption that such involvement had a positive benefits for children. Their counter to this common sense approach was that there was little evidence for the assumption and that previous studies of the effects of father involvement for children offer contradictory findings. [28]  This should not surprise anyone given the politics of the moment and the high stakes being played for. In fact it is better than it at first seems for the political fashion of the early 1990s did not auger well for interpreting paternal input in a positive light. The several measures of ‘usefulness’, used by the survey confirms this’; overlooked were factors like better at maths, staying on longer at school, lower chance of unemployment, down by 1½ times.

The National LongitudinalSurvey of Youth, and King’s later papers (circa 1994), concluded that the strongest evidence of a father’s participation was in the effect of child support in the domain of academic achievement (this is a benefit consistently found to the present day). Yet 10 years later researchers are finding this same source much more positive and useful in demonstrating how important fathers are to all children.

It might be supposed that the target audience of the survey could have been state officials looking for evidence to support a ratcheting up of CSA enforcements programmes. It might also be supposed that regardless of audience one could expects that conclusion given it as written in 1994 and long before a surge of less biased surveys and, of course, the headline grabbing protests by men for equality. [29]

8. An Ocean of Discretion

Proof that the issue of child custody has always and remains controversial in modern times is borne out by 1975 research undertaken by Prof Mnookin, [30] who concluded among other things that the welfare principle affords too wide a discretion to the judge.

Mnookin usefully points to what has been obvious to many of us, namely that whereas most legal decision-making is premised on claims of past events (and then ‘the law’ is applied to those events), decision-making in children’s cases is ‘person oriented’, forever revolving around a subjective evaluation of a person as a social being. Courts assess not so much past events but are asked to conjecture over future events without ever having any grounding in the subject.

Something that Mnookin in 1975 and Elster (born in Norway), in 1987 commented upon is the discretion dimension.  Parents are rendered clueless on how they should conduct themselves in court and what the judge/ court, on that day, is looking for. Not being given advance guidance means they miss any opportunity to address issues that are seen as important in the judge’s mind when coming to their decision.

The letter of the law demands, and jurisprudence insists, that “certainty” is at the heart of any viable legal system. ‘Certainty’ is not achieved by having a ‘person oriented’ regime and such a regime can be fairly accused of being “value laden” and “indeterminate”. [31] (See also ref A.V. Dicey, below).

The debate surrounding the competing factors in custody was still rumbling along twenty years later when Australian Stephen Parker (in 1994) wrote that ‘value judgments’ are clearly visible at every stages of CBI assessment.[32] 

The essence of the “rule of law” and the fundamental ideological principle of modern Western democracies is that the state governs and restricts the exercise of power and regulates the affairs of citizens by determinate and pre-determined rules.

Right: Stephen Parker

Not having such a system gives rise to “indeterminacy” – a facet in custody model deliberations that may be new to some readers.

Books and papers focusing on the topic of custody frequently, become lost in the distinction between public and private law. It appears from the way the citations are used that Parker’s main contribution relates to adoption law and books dealing with the Adoption Act 1976 – a law that until very recently had remained unchanged.

This tendency to confuse two separate arenas is also found in Gilmore’s paper – a certain degree of distinction essential to understanding is missing.

We therefore have the recurring situation where research and evidence is more accurately applicable to public law cases but is applied to private instances. Anna Freud books hypothesising what is in “the child’s best interests” are said to have been based on experiences gained from World War II orphans. Freud and  Bowlby (and others) worked with dysfunctional, deeply disturbed children with abnormal attributes, should their results be projected onto normal children and families ?  If this is so that it is another example of misapplying data. Anna Freud’s three best know books are “Beyond the Best Interests of the Child” (1973); “Before the Best Interests of the Child” (1979); and “In the Best Interests of the Child (1986). [33]

Modern books and tracts, e.g. “Family Law: Issues, Debates, Policy” by Jonathan Herring (pub’d 2001) also ignores the differences public and private law cases pose.

Right:  Jonathan Herring

 It doesn’t deal exclusively with private law or the functioning family per se, but examines it alongside public law and dysfunctional families scrutinising as of necessity the Adoption Act 1976 (which was still current into 2001).

Arguably there is all the difference in the world between children who have parents and those that have none, and all the difference in the world between parents who want and care about their children and those who don’t.

Why would you want to confuse four different scenarios ?

The problems surrounding the principles and the child’s best interests (CBI) with its flaw of “indeterminacy” and the resulting paradox’s in law that many social commentators see was highlighted in 1992 by the well known commentator John Eekelaar who suggested that t policies towards children,  (including CBI) should be premised  on a child’s rights. This has been endorsed by among others Stephen Parker. [34]                               

The consensus emerging in the early 1990s was that the “welfarism” approach should be rejected and replaced by a “rights-based” approach and for this to be adopted by courts. The promoting of ‘welfarism’ was seen as divisive and, it was argued, required adults to act towards children solely in accordance with the adult’s perception of the child’s welfare, so negating any pretence that any actions are in the CBI.

Several reasons make the alternative to ‘welfarism’ attractive to the men’s and fathers’ movement, though once again it is premised on a hypothetical format of what adults think is best for a child.

The rights-based approach relies instead on children’s claims. It requires a hypothetical judgment by the adult decision-maker of what duties children would want to be exercised towards them if they are fully informed of the relevant factors and of mature judgement. One benefit of the rights-based approach is that it does not abstract the child from his or her context.

The phrase “relevant factors and of mature judgement” could signal the emergence of ‘outcomes’ as a deciding factor for the adult decision-maker in future custody allocations.

A possible situation can be envisaged where the child will want to know its father, or will not want to be prevented from accessing both of its parents. This immediately takes power away from any ‘gate-keeping’ mother. The duty to keep children fully informed and for them to exercise their reasonable rights could; yield enormous benefits for both parent and child.

“Those who make decisions about children are increasingly required by law to act in the child’s best interests. At the same time, best interests standards are regarded as indeterminate, or worse. This article begins to explores the indeterminacy argument and then turns to ways in which, in practice, a degree of predictable operation may still result. It focuses on the role played by localized conventions on values and understandings of the world.” [35]

Off stage, out of sight of the public, the debate has raged between those who see a comparative efficiency in the discretion method of assessment and those who see infinitely greater advantages in employing rule-based adjudications for custody (see Schneider, 1992). Conventional wisdom would hold that permitting the use of ‘discretion’ in such cases would bring the advantage of  flexibility – implying each case could be dealt with as a unique set of circumstances – but also implying an element of speed. However, the leading British matrimonial judge of the 1970s – who virtually wrote all the court procedures and Judges’ Notes, the late Mr Justice Ormrod (1898 – 1979), made it clear the courts are not interested in such fanciful notions. [36]

“ … In 1973 in a case called Wachtel, Roger [Ormrod]  boldly announced, as was the fact, that in almost all cases both parties were to blame, usually in approximately equal shares, so that in financial proceedings conduct should be disregarded unless it was `both obvious and gross’. This decision was upheld by the Court of Appeal and had a dramatic effect on subsequent financial proceedings. Matrimonial conduct could be ignored and the judges were able to concentrate on the practical problems facing the family after the divorce.”

As currently constructed, “flexibility” gives only assembly-line treatment to the victim parties. Yes, it is true every case is dealt with individually but they are all rubber stamped as if they were one amorphous mass. The result would be the same if 20 or 30 cases were bundled together and heard all at the same time.

9. Primary Caretaker Rule

Dogging any progress towards any change has been the circular but nonetheless very obstructive argument about who and what is the primary caretaker.

In the same way that the CBI concept can prevent balanced consideration of parental views so the parent-with-care criterion (PWC), under the Primary Caretaker rule, becomes a secondary but nonetheless impenetrable and destabilising factor frustrating re-evaluation of decision making.

Some writers have argued that, in custody disputes, a primary caretaker rule (or presumption thereof) would cut down decision costs and, looking backwards, would better serve the justice of such cases This is the view adopted, and has been for many years, by most researchers in this field, e.g. Fineman, 1989. However, the researchers are predominantly female and invariably write from a “feminists perspectives” (i.e. renouncing objectivity) and many are happy to be listed as such. [37]

Is this important ? In the context of custody there can be little doubt. When the issue is debated in the public domain, which is not often enough, the overwhelming body of evidence supplied for the debate is radicalised feminist in content.

Cathy Young, writing in The Boston Globe (23 January 2006) describes the shock she felt after seeing “‘Breaking the Silence”, a programme produced by Connecticut Public Television. [38]

“Last November, I wrote about the controversy about the Public Broadcasting Service documentary, ”Breaking the Silence: Children’s Stories,” which claimed that male batterers and child abusers frequently gain custody of their children in divorce cases after the mothers’ claims of abuse are disbelieved by the courts. The film caused an outcry from fathers’ rights groups. In response to these protests, PBS announced a 30-day review to determine whether the film met the editorial guidelines for fairness and accuracy.”

A month later in Dec. 2005, the PBS (Public Broadcasting Service) after intense pressure to justify their assertions  accepted that the film “’would have benefited from more in-depth treatment of the complex issues” but insisted that the program’s claims were supported by ”extensive” research.

“Connecticut Public Television, which co-produced ”Breaking the Silence,” has supplied me with two detailed reports — one from producer Dominique Lasseur, the other from Lasseur and George Washington University law professor Joan Meier, the film’s lead expert — on which PBS drew to support its conclusion. To call these reports shoddy and self-serving would be an understatement.”

Assertions found in learned journals that state, for example, that ‘abusive men are especially likely to seek custody of children’ and are ‘likely to prevail in court’ can be dismissed as simply slipshod, ineptly gathered evidence or meticulous adherence to a greater agenda.[39]

Looking back over time it is clear that prior to its politicisation, shared/joint custody worked satisfactorily in many parts of Britain (mainly in the Midlands and South).

If cutting down costs by avoiding delays in the decision making process is a criterion then the contemporary version, i.e. shared parenting, or a presumption thereof, as promoted by fathers groups should be adopted immediately.

In reviewing this subject the citations and sources are liberally sprinkled with inputs from feminist inclined authors. This is unavoidable the subjects has attracted more than its fair share of politicised commentators. However, they do contain some elements that are accurate and can be used to advance the cause of fathers, even if that was not their original intention.

As far back as 1988, Martha Fineman pointed out how essential it was, in the context of child custody policy for all parties to pretend to be interested in child issues and child rights (even though they may have had an entirely separate agenda and/or ulterior motives) if they were to stand any chance of winning a seat at the discussion table and being taken seriously. The pivotal role of this shallow sincerity cannot be over emphasised.

‘Asserting that a professional or political position conforms to, or is advanced in a manner designed to advance, the best interests of the child has become the rhetorical price of entry into the debate.’ – Fineman, 1988, p. 36.

For more than 30 years, i.e. since divorce was popularised among the masses, the court presumption of a primary caretaker has been that it would prevent delays and hence cut down on costs. The rationale invoked was that by looking backwards at how the children were raised the court and justice would better serve the family ‘needs’ in such cases.

But what is not linked at this point in the argument by any academic writer is the mindset of Ormrod in making the primary caretaker into a viable entity by confiscating all matrimonial assets.

The primary caretaker concept might have had some credibility in 1975 but as we have already noted a number of substantial societal changes have occurred. Those intimately engrossed in the topic describe how society has moved on, and with approx. 50% of the work force made up of women this is apparent to everyone.

The level of father commitment to a child’s upbringing and indeed the overt yearning of today’s father to be a proactive part and not merely to be content with ‘bringing home the bacon’, marks out the present generation and era as significantly different from any previous one.

Society does fathers and fatherhood a profound disservice by not moving with the times. Fathers are shackled by the outdated concepts contained within the 1989 Act which, 20 years ago, never envisaged and so was never designed for such a high level of pro-active fathers.

Who could have imagined in 1989 that by 2002 the term “house husbands” would be coined ?

However, even the elapse of time has not brought forth fresh judicial thinking. In the house husband case (chaired by Lord Justice Thorpe), custody should have been awarded, under the primary caregiver rule, to the ‘house husband’. Although he had looked after the children for 7 years Thorpe handed custody over to his careerist wife who had a salary of £300,000 pa.

The husbands secondary claim, namely of sexual discrimination by the courts, was not surprisingly dismissed by the Appeal Court as without foundation.[40]

Thorpe excused his behaviour by stating that despite the “unusual” role reversals in this case, the court could not ignore the “realities” of the “very different” traditional functions of men and women.

Left: Lord Justice Thorpe

He recognised that the wife had “sacrificed [her] opportunity to provide full-time care for their children in favour of a highly competitive profession” but had now thought again about her priorities.

Thorpe did not seem to realise that his argument works equally well for fathers who sacrifice their opportunity to be more involved with their children in order to earn a family wage.

Once again, Thorpe hobbled fathers’ chances for equality.

Perversely, when the father is unmarried and ths child illegitimate, Thorpe finds in favour of the father (see http://www.dailymail.co.uk/news/article-1017922/Council-attacked-disgraceful-adoption-girl-fathers-wishes.html May 2008).

In many ways the legal system applies attitudes better suited to 1925 than 2005. The legislation of 1989 provides no relief – that has more to do with child abuse cases (ref. Cleeveland Inquiry) and public law than finding happy outcomes for chidlren of divorcing parents. [41]

10. Ditching  Indeterminacy

A feature of person-orientated, predictive decision-making (if that is the only alternative to welfarism), is its indeterminacy. It is said that decisions are consequently predictive rather than simply concerned with the determination of past events (although prediction may of course involve a consideration of past events).  ‘Ideterminacy’, by comparison, is akin to asking “How long is a piece of stnring ?”

Taking a relatively uncomplicated example of a custody dispute between parents, Mnookin points out that, to reach a rational decision, one would need to ascertain the probability of those alternative outcomes; here one encounters the difficulty that there are ‘numerous competing theories of human behaviour’; and how can one assign values to those factors to inform the final choice ?

There is an argument to be made that says such a position is an overly elaborate method which obfuscated more than it clarifies and in any event is lacking in relevance to the situation.

“Keep it simple, stupid” (KISS) is a maxim often used in commerce to good effect. The KISS option in the custody determination situation would be one that rested on predictable ‘outcomes’. Outcomes, which because they have been tracked over many decades and are common to all classes and countries, would mean more involvement by fathers would be necessary and more paternal custody time. This would lead to better outcomes for children and thus the CBI fetish would be assuaged.

Stephen Parker has written that value judgments are evident at all assessment stages and it is not surprising, therefore, that welfare decisions have been criticised as being subjective or arbitrary.

One way of addressing the problem of indeterminacy, Mnookin wrote in 1975 (so this problem has been recognised for more than a generation), “is to draw on a consensus, particularly on what does not promote children’s welfare.”

That is an objective, rationale approach to which all fathers could subscribe. What does not promote a child’s welfare could, in the main, be deduced from what factors give rise to poor outcomes (to be avoid) and which factors give rise to good outcomes (to be espoused).

Encouraging though this attractive alternative may be it is not wholly embraced by Helen Reece who believes that it is wrong for a child’s welfare to assessed, for example, be judging how closely his or her upbringing accords with ‘the norm’. When Helen Reece made that observation in 1996 it related to a court case over whether a child raised in a homosexual home would be disadvantaged. Since then statutes have been passed to outlaw such a view or court ruling. [42]

She misguidedly sees such an approach as impeding the debate about appropriate lifestyles and may stigmatise children living in ‘unusual’ families. Firstly, the debate about appropriate lifestyle has nothing to do with the CBI of the child and is a red herring. Secondly, as the experts are so fond to remind us how parents feel is immaterial because it is the CBI that must take precedence and in this case precedence over one’s sexual orientation.

Left: Helen Reece, London Law School

Thirdly, it is unconscionable to hold to ransom the future happiness of 99% of children for 0.01% of children, or less, that might be adopted by gay and lesbian couples.

It is a pity for fathers generally that Society allows its attention to be monopolised by the homosexual lobby which accounts for no more than 5% of the population. If gays and lesbians can have equality of treatment why does no academic ask why this can’t be extended to the other 95% of the male population ?

Gilmore continues by saying that today it may be necessary to question the alleged neutrality of the welfare principle. By this he means the way in which it is promoted and how it is dependent upon a vast array of historical and political decisions relating to how we are governed.

He lists two of those factors as being the choice between an individualist or collectivist approach to child-rearing and whether as a precondition to the State’s intervention to protect children, Parliament’s preference as to the criterion to be used should be for ‘significant harm’ rather than the simple but broad sweeping ‘welfare of the child’.

How those choices are made depends on whether society considers family privacy and autonomy as something to be highly prized in which case the State must of necessity adopt a minimalist role.

The very opposite is a society that embraces a large and very public role for the State in child-rearing.[43]

13. Future Adults

Long before the phrase “the personal is the political” was coined some 40 years ago it has been obvious that the State’s influence is not confined to its explicit political or juridical roles. Olsen wrote in 1985 that the family is not politically neutral.

For better or worse the State governs to a greater or lesser extent, depending on the country, the structures and roles within the family.

To focus solely on the child as being unjust to parents is being criticised not by fathers groups but by those that have closely study the subject. We live in a society where even if the decision-making criterion gave a preferment to adult and/or parental interests that bias would still have to yield and accept that  in particular sets of circumstances those interests would be outweighed by a child’s interests. At which point it is worth noting that the reciprocal would most likely not be true.

From that we can assume that any new custody format decided upon would be unlikely to impair a child’s legal rights and cultural freedoms.

Inversely, if a generation of children grow up knowing that they have a legal right to a preference over parents and can overturn their wishes, how will they cope when they are adults, lose those rights and find their life governed by minors ?

The argument runs that if, today, society was constructing a principle for the first time, the starting point would be equality and we would then adopt some principles of distributive justice.  The drawback to distributive justice is that it means all things to all men – clearly not a satisfactory state of affairs. 

We would, due to our cultural values, recognise a child’s need for special protection but does that special status stretch as far as denying ourselves justice ? Elster (1987). Would small gains in the arena of a child’s welfare/rights be achieved at the expense of large losses in parental welfare/rights ?

Would we be right to make that choice, or selecting the very opposite ?

By asking these questions we are challenging the assertion frequently advanced by sociologists to justify the welfare principle. Helen Reece comes to the same conclusions. She identifies and questions a number of the commonly advanced assertions to justify the welfare principle by asking do children have a right to have their welfare ‘prioritised’ ?

Advocates of the welfare principle suggest that children are more vulnerable – something no one would argue with- but as Reece highlights, it is a fallacy to confuse a). child protection with b). the necessity for it to involve a prioritisation of child welfare over all other considerations.

Then there is the argument that because it is adults who have created children – implying both selfishness and helplessness – that those parents’ lives should be put on hold or sacrificed because self-sacrifice is part and parcel of parenting.

Reece concludes that the justifications are not self-evident, and the argument for the welfare principle fails ‘because it assumes what is to be justified, namely a special position for children’ to the exclusion of adult interests.

In the bigger scheme of things, children must be given the opportunity to become successful adults. This can only happen by learning to fail and succeed, to suffer knock downs and set backs, as well helping hands and lucky breaks.

In a beautifully succinct sentence Reece argues how self-defeating it is to promote the future at the expense of the present:

‘If decisions are made which sacrifice adults’ interests to children’s interests there is little point in becoming a successful adult’

If we consider we are currently in a mess with Charles Murray’s “Underclass” generation all around us, who has thought through the next small step ? What is the point of becoming an adult, and a successful one at that, if the age of majority the “Underclass” generation feels that life is forever being subordinated to children’s interests ?

Compared with the current generation and that born in the late 1940s, they have not been equipped to cope with deferring gratification. Instant results are the diet they have been fed through their school and teenage years and upon which they have thrived upon. Both at home and in their recreational hours they have been assured by the adult world they meet that their opinions are worth listening to, are always considered and carry as much worth as anyone else’s. They cannot tolerate reprimands and censure at a personal level. They have not been educated to accept it as part of the growing up process and very probably this will carry over into an intolerance of demands that society will make of them.

Problematically for that generation, even civility and respect for others present as obstacles to a smooth transition. How they will cope with menial or demeaning work is dubious bordering on e chaotic so we should anticipate a clash  of cultures in other areas where they feel they have an opinion and a ‘right’ to be heard. The recent increase in violence by patients to be found in A & E Wards and towards ambulance staff doing their job could be a portal of things to come.

14. The Missing Dynamics

There is a danger that men, like Jonathan Herring, will take the line of least resistance or simply capitulate to intimidation from his peers. When he proposes that it might be a good idea to “reconceptualise” the welfare principle so that a child can ‘learn mutual respect and social obligation’ what exactly does he have in mind ?  In return for easing the excessive sacrifice parents have to make, Herring appears to propose minor or major benefits for children. Initially, it is immaterial if they are minor or major; rather it must be explained why any quid pro quo is being sought when easing the sacrifice and burden should be our primary concern.

Gilmore appears as unconvinced as probably do many divorced fathers and he neatly sums up the situation when he writes:

It seems, however, that this simply alters the paradigm in which conflict will continue, that is, what constitutes an appropriate ‘benefit’ or ‘sacrifice’ or what is excessive.

I remain unconvinced by a formulation of the welfare principle that fails to take any account of adults’ interests and treats adults simply as a means to the promotion of children’s welfare.

For many years the fathers’ movement has majored on the point that the law (our courts, judges and parliamentary law makers) and the apparatus that surrounds it, have blatantly abdicated their ethical and legal responsibilities. The checks and balances just aren’t their when you need them. Citizens are being oppressed by a system that advertises itself as caring and benign; when fathers ask for change the systems becomes deaf.

It is 8 years since the courts and the apparatus that surrounds them, failed 8 years old Victoria Climbie. In that year alone (2000) there were a further 6 child homicides that hit the headlines – and many others we never heard about. Every year around 100 to 110 children are abused past the point of dying – many of them linked to single mother and divorcée households.

The scandal and chilling tales unfolding from Haut de la Garenne, the children’s residential care home in Jersey is living proof of that:

Children are taken into care never to be seen again. Schools Minister Kevin Brennan has told the Commons that checks are unnecessary because children from the UK cannot be placed in care in Jersey without a court order.

Left: Kevin Brennan MP

Yet the five Birmingham children were sent to Jersey without such orders. [44]

These are public law cases and we know about them because we are allowed more freedom to learn about them. But we know nothing of private law cases where arguably the excesses are just as gross but preformed in secret courts. Faced by an appallingly incompetent or dangerous mother the possibility of father care/custody (temporary or not) is never ruled in by the professionals.

If CBI includes child safety and protection and if any new custody mandate is to embrace these factors then the present preferment for mother custody has to be suspended while it is re-examined. Of the homicides that, for instance, Women’s Aid like to accuse fathers of committing there are countless hundred of homicides that their presence has prevented.

Right: Sandra Horley, this time with dark hair, has headed Women’s Aid for over a decade 

Women’s Aid in a campaign against contact (visitation rights) alleged that they had found about 29 homicides by fathers over a 10 year period from 1994 to 2004. The actual number of homicides fluctuated depending upon which year their website was visited. Given that the annual child death rate from unnatural cases is 100+ that should tell all but the mentally challenged that 1,000 children (100pa  x 10 years) are needlessly dead and where future investigations should lie.

This has not deterred Women’s Aid. In 2005 Lord Justice Nicholas Wall was obliged to look into the numbers. His report published in March 2006 demolished Women’s Aid case about violent fathers and contact.

Left: Lord Justice Nicholas Wall

Of the 29 alleged cases Wall found only 3 that could be said to be related to contact issues and court procedures. Of those 3 cases there was nothing that would have alerted the professionals or judiciary as to what was to  happen later. [45] (See Annex for fuller information).

At the foot of the report he suggests a future meeting of the inter-disciplinary “Family Justice Council” and structured retraining for family court for judges. Whether they have met or published recommendations is unclear.

The alternative, namely of liberalising custody and contact, appears never to be entertained as an option. It might be reasonable to suppose that a fathers denied or persistently ‘messed about’ by a capricious ex-wife regarding contact visits is more likely, not less, to snap or become aggressive.

As if to underline the generational changes in the propensity of younger people to engage in violence recent Home Office figures show that during 2006 – 07 the number of women detained for violent offences reached 87,000. The key word is ‘detained’. Women defendants feature in the special domestic violence courts extremely rarely. As a society we are loathe to put women on trial; judges are reluctant to sentence them, [46] and so the police are reluctant to arrest or charge them.

This dynamic is perennially left out of the academic equations when considering futures changes and alternatives.

A second but very silent dynamic hinges on the hackneyed mantra that ‘the personal is the political’.

Feminism, in keeping with its Marxist roots, has always majored on wealth redistribution and never wealth creation. It effectively embraces the retort of the 19th century French anarchist, Pierre-Joseph Proudhon, that “property is theft”.

Little wonder that divorce after 1969 has seen a shift in asset ownership and clearly this was one element of feminist ‘empowerments’ that was deliberately not well advertised. The IPPR, a left wing think tank [47] , is pleased to recall for us that;

 “Tony Atkinson argued way back in 1972 that narrowing the wide disparities in wealth should be a priority for progressives” (Atkinson has written extensively on the rich and the super-rich. [48]

Policy makers have for many years discussed the role that wealth or assets play in people’s well being and in that time made blatant attempts to rewrite the natural order.

Unfortunately since the 1970s the situation has, because of its unnatural foundation, not favoured its target audience. Government sees women still living in relative poverty unable to progress beyond state hand outs and in the last decade poverty among SMH children has soared (ref UNICEF report).

Discussions about the role that wealth has so far only coined the phrase “asset-based welfare” where the state usurps the role left by the ousted father-figure (the establishment, liberals and the intelligentsia have yet to fasten on to the need to first create it). In its latest incarnation, the Child Trust Fund or “baby bond” launched in 2003, the IPPR .notes it is but one ‘specific policy’ with broader implications of asset-based welfare to be rolled out across other public policy matters.

However, to make a society work one first has to make marriage work; from that then flows the self-sustaining family system becomes economically viable and thrives. The state only comes into existence after this and at the point when taxes are paid – in effective it is the hired help. The hired help exceed its remit when it then tries to unremittingly punish marriage and the family system. In doping so it jeopardises the future workforce and national wealth which depend on the birth rate.

This other dynamic perennially left out of the equation is violence – but this time female inflicted violence. Violence is its many forms presents no particular danger. It can and has been dealt with using a variety of techniques. However, that is only true of ‘public’ disorder or violence. How we deal with female violence and maternal violence in the privacy of a household is problematical.

Despite a procession of reports and warnings the media and politicians seem genuinely shocked Melanie Phillips wrote on October 24th 1999 (Sunday Times) how women were at least as violent as men, but that at every opportunity the evidence was everywhere being dismissed. The impact on A & E of increasing numbers of young women requiring medical attentions was noted in 2004.[49]                                                                                        

Above: Girls fighting has passed the verbal bitching, hair pulling and face slapping to clenched fist punching and kicking

By May 2008 headlines were appearing that asked, “Why are girls fighting like boys ?”  [50]

The theme first expressed by Melanie Phillips in 1999 was still making the headlines 10 years later (July 2008) with “Violence takes over from shop-lifting as the crime women most often commit.[51]

Left: Young women fighting violently in the street

In the same year (Tues Dec. 14th 2004) the Select Committee on Constitutional Affairs looked into the abuse of children by mothers.

The emphasis was on violence in general and younger women and young mothers. The questions and answer taken from the Minutes are pertinent enough to reproduce in part below.

Q.209 Mrs Cryer: “Can I put a question to the NSPCC. This Committee has received sub-missions which suggest that in cases which involve the neglect and physical or sexual abuse of children the children were more likely to be living with their natural mother alone. Have you any evidence to support this?”

Ans. Phillip Noyes (NSPCC): “It is very difficult that way round. In terms of who perpetrates abuse, the NSPCC’s prevalence study, which looked at a sample of about 3,000  18-24 year olds talking about what had happened to them when they were  younger, suggested that more women than men physically abused children and neglected them, and more men than women sexually abused them. Because  of the limitations of the data collection, that did not take into account the incidence of children living with their natural mothers on their own.

Previous research that we had done, which was on incidence that was based on child protection registers, suggested that when you controlled for the domestic arrangements of children then men were probably round about twice as likely to be afflicting physical abuse on children than women”. – Select Committee on Constitutional Affairs [52]

Today the current mainstream thinking vis-à-vis child abuse is epitomised by Lord Justice Wall when he wrote:

“It is, in my view, high time that the Family Justice System abandoned any reliance on the proposition that a man can have a history of violence to the mother of his children but, nonetheless, be a good father”  – Report by Wall LJ re: WAFE’s DV Allegations, Para  8.22 (2006).

Presumably, fathers who are professional soldiers and earn their living by killing have, by this logic, unsuitable credentials and have no chance at all of seeing their children after a divorce ?

This presumption is perhaps more a reaction to anecdotal evidence than to hard evidence. Wall is here seen succumbing to political fashion rather than relying on empirical knowledge and is forsaking the rulings of his predecessors who formulated their rule of thumb for good reason (see also Annex).

15. Looking Ahead

Men’s and fathers groups have, since the 1980s, been critical of the way ‘welfare matters’ are dealt with and the obvious lack of research based knowledge or education exhibited by CWO. Fathers long suspected the training given to CWO was inappropriate for separating married couples. This was confirmed later in the 1990s with the demise of the Probation Service and launch of CAFCASS.

One of the first books published on child and youth care was “Wayward Youth” by August Aichhorn in 1935. It contained the idea of adults acting ‘in the child’s interest’ who were in ‘residential’ care in North America and this is said to have become the touchstone for child and youth care practice

Therefore, with no comparable book for divorcing parents, i.e. private law cases, it is not too surprising that Aichhorn’s book for public law cases should become influential in the initial thinking behind how child custody in divorce cases should be administered. If social workers, their supervisors and managers were to be given structured training it would be reasonable to believe that they would start from a unified model or framework already to hand.

This is not to say that books about child care never existed prior to this date. One of the most influential was Dr Spock of the 1940s and 1950s. [53] However, he dealt with children in the normal two parent family situation and so too did earlier books printed in the Victorian era.

For its part, government has recently taken to emphasising how important fathers are to families. Unfortunately, the effort to re-assure men that they are as equal in parenting as mothers is, at best, pure hyperbole.

When the claim undergoes a reality check it is seen to amount to little more than gesture politics.

The British government’s White Paper “Recording Responsibility” (June 2008) is such a candidate. [54] Very quickly even journalists tumbled to the fact that government policy wasn’t really interested in fathers’ human rights or a father’s equality inside the family but was transfixed, as always, in finding more ways unloading the spiralling expense of subsidising single mother households by contributions from men (a policy originally created by government and inter-departmental meetings in the early 1970s to encourage divorce with state subsidies).

When we cut to the chase, all this devolves down to custody, inclusion and guardianship and this in with Helen Reece’s comments above, and Law Commission reports No 91 and No 96.

Fathers in 2008 have no custody rights and are not allowed to participate in their children’s lives after a divorce.

Gilmore brings to the debate not just legal cases and sources that we might not otherwise have discovered, but vitally, the perspective from his side of the fence. Fathers are no longer howling in the wilderness. There is something of a crisis in the academic world and a recognition that the fathers rights movement have to taken into any future reckoning.

16. Fathers Apart

Fathers, as a class, are seldom included (and seldom feel included), either in debates about them or about their children lives. Fathers (in Britain) now find their natural parental guardianship status has been abolished and given to the Family Court.

Take just one instance in time – May to July 2008. These months reinforced how far men and fathers have been marginalised in society. Those two months saw a further weakening of the role of fathers.

In May MPs voted to reject an amendment to retain the need for both a “father and a mother” to be a condition of fertility treatment. The amendment brought by Conservative MP Ian Duncan Smith was defeated by 292 votes to 217. [55]  Thus Parliament passed for the first time legislation deliberating omitting the role of the ‘father’ and enabling a woman to create an IVF child who would never have or know its ‘father’.

In July Prime Minister Gordon Brown bitterly clashed with Harriet Harman MP (deputy leader) over abortion laws to be extended for the first time to Ulster. [56]

Plans to radically alter how state benefits were to be paid to the long-term unemployed people and force them into work leaked out ahead of the Glasgow East by-election – an area of high unemployment.[57]  These plans bear disproportionately on men who are four time more to be unemployed than women but who receive no special measures or training incentives that are available to women claimants.

The prospect for the Labour Party of losing the impending by-election in a safe Scotland Labour seat, however, probed irresistible. Plans were dropped; the Catholics vote was listened to. [58]

The Fathers’ Movement has yet to become the force that the church currently represents in catholic Glasgow East. If  we are ever going to force government into suddenly abandoning its legislation we must use surrogates of the sort provided by the solicitor with the Sally Clark team  [59] and the campaign that The Times has launched against closed/secret courts:-

Sir,

As a solicitor with the Sally Clark team I can testify to the way in which the justice system can be perverted to convict the innocent and destroy their families. It can prove fatal. Sally Clark died in March 2007, aged 43. Criminal cases are conducted openly; the standard of proof is guilt beyond reasonable doubt. The public know the identity of those charged, the details of the crime, whether guilt or innocence is the result and the length of any prison term. Possible miscarriages of justice can be fully investigated and victims can voice their complaints to anybody. None of these protections of openness exist in the family courts. … / …..  “ – Family courts must open up”,

Left: Sally Clark leaving court

All this comes on top of the erosion not to say corrosion of society and men’s place in it by measures such as the abolition of anonymity for sperm donors. From 2004 children have been given the right to trace their biological father which may be of great emotional benefit to them but concerns itself not with the injustice of its retroactive nature or how lethal this is to men’s privacy and the sperm donor scheme itself. If women who provided the core eggs for IVF could be similarly tracked down by children they gave life to and for her current children to know they had secret half-brothers or sisters, then the issue would not be so sexist.[60]

There is, therefore, a growing realisation within the various professions that their world is under scrutiny and that gross errors have been made in the past. This realisation is coinciding with a re-evaluation in academic papers of past practice and assumptions.

Professionals in every social walk of life, from health visitors, social services, district nurses, to court welfare offices, to school teachers, to town councils, local initiatives, to doctors and hospitals, have traditionally erected a cordon sanitaire around fathers.

Instead of seeking to include fathers and enlist their support society has so altered that it has systematically excluded and discriminated them in a way that it has become the ‘norm’ but has brought about a parlous situation.

Fathers have become an embarrassment to the New Order.

There is a political wish that is desperate we should all see divorce as having evolved “beyond politics”; beyond feminism; questions of gender rights and beyond our own personal squeamishness.

In that manner what 20 yeas ago would be viewed as objectionable and abnormal can be absorbed over time and the paradigm shift to a new order achieved. The procedure has been successful in many walks of life including custody and male/father rights.

The political imperative is desperate not to let fathers groups, e.g. F4J, pull it back to the reality that divorce is politics and has been used in that guise shamelessly. Politically it would ruin many ambitions were the men’s movement able to conflate the rights of fathers with the rights of children.  Ruinous because the conflating or welding together of rights is what women’s groups have done so admirably and they would then see their ruse had not only been discovered and mimicked but would be unable to combat it without appearing fraudulent.

In the new epoch of socially engineered alternative family life styles, where “vibrant and upwardly mobile” single women are extolled, women generally are meant to lead meaningful and fulfilling lives by having both full-time careers and children. By accessing these two components – personal intimacy of the emotional kind is meant to be supplied by a ever ready supply of transient boyfriends (who one has to supposes are meant to be devoid of the reciprocal need for emotional intimacy, and have no need for meaningful and fulfilling lives).

It is a model that can never work.

A schism has developed between the intent of policy and the accompanying verbiage (sometimes referred to as “spin”) and the action on the ground to bring about real change in family life.

However, the only real change that has been brought about in family life is increased poverty both actual and spiritual.

17. Muddying the Waters

Fathers groups have argued for many years that the principle of child paramountcy in family law has been taken too far. It has, in the process, become distorted. Helen Reece, a lecturer at Birkbeck College London joins with fathers in the arguments against ‘paramountcy’ in family law disputes.

There has always been a sneaking suspicion that claims to place children’s needs  above all others is at best artificiality inflated and it is good to see Reece accepting this point.

She makes the philosophical point that the justification that children represent the future forever ranks the future of greater importance than the present (pp. 279-280).

In the American context, of promoting the general welfare the historian Linda Gordon believes that the strategic political choice always to place children first.

Left: Linda Gordon

This, at first sight, would appear to be the British experience. However, Linda Gordon adds the caveat that the strategic political choice extends also to women inasmuch as they are the ones that must care for children. For the late 20th century this appears somewhat sexist if not something of a contradiction (L. Gordon 1995).

In a critical review of Helen Reece’s  work, Susan Sterett (Dept of Political Science, University of Denver) says Reece provides an excuse to not only to question child custody laws in Britain but to re-think welfarism and the family in general. [61]

Perhaps subliminally influenced by her American culture and it penchant for fashionable value systems, Susan Sterett argues that the paramountcy principle has allowed judges to enact biases against gay and lesbian parents (pp.286-287).

Right: Susan Sterett

What this has to do with CBI is obscure but it illustrates how homosexual and lesbian rights swamp any debate in these contemporary times.

Sterett then complains that British courts have a bias against gay and lesbian parents believing that children in gay and lesbian households are more likely to be abused. This, she says, is without any evidence but in the UK the subtext of courts awards is that they must have regard to the potential for violence (see Annex, Wall LJ report, March 2006). It is an uncomfortable truth that the incidence and prevalence of domestic violence in homosexual and lesbian relationships is shown by surveys to be much higher than in heterosexual couples. It follows that courts cannot go against their own rules when they have been under so much intimidation by women’s groups opposed to alleged male violence.

Courts, Sterett argues feel they must support nuclear families (pp. 290-299). But isn’t this an oxymoron because the courts she has in mind are being asked to dissolve the nuclear family. Undeterred, Sterett sees all this as a manifestation of homophobia. In an attempt to promulgate Gay Rights, she appears to forget ‘first principles’, namely the children come first in our society, not any sexual deviancy or orientation.

Some would see Susan Sterett becoming hopelessly confused as she battles to embrace child custody laws, parents rights and discrimination against gays and lesbians who are the only sub- group that have had to create and then proclaim rights that come naturally to the other two groups.

Muddled thinking and mismanagement has begun to take its toll on the establishment.

Left: Mr Justice Coleridge, one of the good guys

Mr Justice Coleridge made national headlines in Britain when at the Resolution National Conference 5 April 2008, spoke of the ‘meltdown’ of family life: [62]

“. . . . . 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. Its very stock in trade.

For as long as history has recorded these things, stable family life has been co-extensive and co-terminous 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.”

The last phrase “Behind every contact dispute is mismanaged parental separation” has reverberations far beyond the obvious. Gay and lesbian are a distraction; academics dancing on a pinhead is of no relevance to real world problems.

If either Susan Sterett or Helen Reece believe that gay and lesbian households (0.005%) [63] have moral claims equal to those of straight households then one or both have no real life experience of how courts work for heterosexual couples, and fathers in particular. If Sterett’s view prevailed it would prove a Pyrrhic victory for homosexual and lesbian campaigners.

One thing that became crystal clear to fathers’ groups who were allowed to participate in the PSA-8 process was just how poorly trained were family court judges. Considering their onerous responsibility for deciding a child’s future and his / her ‘life chances’, judges were appallingly ignorant of even the most primary facts. PSA-8 (‘Public Service Agreements 8’) was designed to deliver more contact time for fathers and their children.

Public Service Agreements (PSA) were introduced by the Treasury in 1998 as a tool to control other Whitehall departments, providing them with a framework for performance management. They are supposed to not only ‘galvanise’ public services into action but into delivering them and driving forward major improvements in outcomes.

Prompted by the Children Act Sub-Committee (CASC) that had reported annually on the progress of the 1989 Act,

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